Budik v. Department of the Army ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
EDITH M. BUDIK, M.D.,
Plaintiff,
Civil Action No. 09-01518 (CKK)
v.
DEPARTMENT OF THE ARMY,
Defendant.
MEMORANDUM OPINION
(September 30, 2010)
In this action brought pro se under the Freedom of Information Act (“FOIA”), 5 U.S.C. §
552, Plaintiff Edith M. Budik, M.D. (“Plaintiff”) challenges the responses of Defendant
Department of the Army (“Defendant”) to her requests for information relating to her former
employment at Landstuhl Regional Medical Center (“LRMC”). Specifically, at issue in this
action are two separate FOIA requests lodged by Plaintiff with Defendant in August and
September 2008.1 Initially, Plaintiff sought a single document relating to her performance while
employed at LRMC. Defendant produced the document, in redacted form, and Plaintiff now
challenges only the propriety of Defendant’s redactions. Subsequently, Plaintiff made a broader
request for her personnel records. Defendant conducted a search for responsive materials,
ultimately producing a number of documents; a subset of these documents were redacted and
1
In the months that followed, Plaintiff would occasionally amend or clarify her requests
in certain respects. In each instance, Defendant incorporated Plaintiff’s amendments into the
scope of its search for responsive documents, and the effect of the amendments and clarifications
is not in dispute in this action. Accordingly, for purposes of clarity, the Court will simply refer to
Plaintiff’s “first FOIA request” and “second FOIA request,” mindful that a more fulsome
treatment may very well be appropriate in other contexts.
others were withheld in their entirety. Construing Plaintiff’s submissions liberally, Plaintiff here
challenges both the adequacy and good faith of Defendant’s search, as well as the propriety of
Defendant’s decision to redact and withhold various documents. Presently before the Court is
Defendant’s [9] Motion for Summary Judgment, which Plaintiff has opposed. After reviewing
the parties’ submissions, including the attachments thereto, the relevant authorities, and the
record as a whole, the Court shall GRANT-IN-PART and DENY-IN-PART Defendant’s Motion
for Summary Judgment, for the reasons set forth below.
I. BACKGROUND
A. Factual Background2
1. Plaintiff’s First Request: The Professional Practice Evaluation
On August 13, 2008, Plaintiff contacted LRMC – where she was employed for a period of
time in 2008 – requesting the production of a “document written on [her] behalf and faxed on 30
June 2008 for a position at Dartmouth Hitchcock Medical Center.” Def.’s Stmt. ¶ 3. Plaintiff’s
request was forwarded to Ralph G. England, a FOIA Officer responsible for handling certain
information requests filed with LRMC. Id. ¶ 4; England Decl. ¶ 1. Shortly thereafter, Mr.
England personally obtained a copy of the three-page document referenced in Plaintiff’s request
– a Professional Practice Evaluation (“PPE”) – from the office of Col. Steven Princiotta, the
2
The Court observes that Plaintiff was informed of the requirements of Fed. R. Civ. P.
56 in the Court’s Fox/Neal Order. See Oct. 19, 2009 Order, Docket No. [10]. Thus,
notwithstanding the principle that a pro se litigant’s submissions are to be liberally construed, the
Court may accept as true the unchallenged factual assertions in Defendant’s Statement of
Material Facts Not in Dispute (“Def.’s Stmt.”), Docket No. [9-2]. Nevertheless, in an exercise of
its discretion, the Court has independently reviewed the entire record to confirm that there is
adequate support for Defendant’s submissions. The Court will also refer to Plaintiff’s Rebuttal
to Defendant’s Motion for Summary Judgment (“Pl.’s Stmt.”), Docket No. [11], where
appropriate.
2
Deputy Commander for Clinical Services at LRMC. England Decl. ¶ 5. Mr. England sent
Plaintiff a copy of the requested PPE on September 3, 2008, albeit redacting the signature block
and the e-mail address from the final page of the document pursuant to FOIA Exemption (b)(6).
Def.’s Stmt. ¶ 6.
Dissatisfied, Plaintiff subsequently requested an unredacted version of the PPE. Id. ¶¶ 7-
8. Plaintiff’s follow-up request was forwarded to the FOIA Office for U.S. Army Medical
Command (“MEDCOM”) for further review.3 Id. ¶¶ 9-10. Upon reviewing the record,
MEDCOM determined that the signature block was “releasable,” but concurred that the e-mail
address appearing on the final page had been properly redacted pursuant to Exemption (b)(6). Id.
¶ 12. Accordingly, on October 30, 2008, Defendant released to Plaintiff the contents of the
signature block. Id. Although Plaintiff was informed that she could further appeal the
determination, no appeal has been received.4 Id.
2. Plaintiff’s Second Request: Personnel Records
On September 8, 2008, Plaintiff contacted Mr. England with a second FOIA request, this
time seeking “a copy of [her] complete personnel file, i.e. a copy of any and all records related to
[her] employment at [LRMC] to include documents, computer files, and [e]-mails.” Id. ¶ 13.
3
The Court notes that Defendant’s submissions, apart from specifying that Defendant is
a component of the Department of Defense, hardly illuminate the relationship between the
various units involved in responding to Plaintiff’s requests for information. While a complete
understanding of those relationships is ultimately unnecessary for purposes of deciding the
present motion, Defendant would do well to consider including such information in future
submissions, if any.
4
On more than one occasion, the record suggests that Plaintiff neglected to formally
appeal certain aspects of Defendant’s response to her requests. However, because Defendant has
not argued that summary judgment is appropriate based on Plaintiff’s failure to exhaust her
administrative remedies, the Court does not address the issue here.
3
Mr. England promptly reached out to Plaintiff, asking her to provide any additional information
that would assist in locating the requested documents and requesting clarification as to whether
Plaintiff sought e-mails maintained outside her personnel file. Id. ¶¶ 13-14; England Decl. ¶¶ 11-
12 and Ex. I. After further dialogue ensued between Plaintiff and Mr. England, Def.’s Stmt. ¶¶
14-16, Plaintiff’s second FOIA request, in its final form, sought “a copy of [her] complete
personnel records to include any and all documents and records related to [her] employment at
[LRMC], to include documents, computer files, [f]axes, and any [e]-mails in these records.”
England Decl. Ex. L. By its terms, the request extended to “records housed in the personnel
section, [her] duty section (radiology), and any and all documents from Dr. [Brian] Lein and Dr.
[Steven] Princiotta.”5 Id.a. Defendant’s Initial Search
Mr. England coordinated the search for documents responsive to Plaintiff’s second FOIA
request. Def.’s Stmt. ¶¶ 13-21. In so doing, he contacted the Commander of LRMC, the Deputy
Commander for Clinical Services, Pathology, the Radiology Department, the Personnel Division,
Operations, Credentials, and the former Chief of Radiology requesting information pursuant to
Plaintiff’s request. Id. ¶ 18; England Decl. ¶ 13.
After learning that no one then working at LRMC’s Radiology Department had any
knowledge of existing records relating to Plaintiff, Mr. England reached out to Plaintiff’s former
supervisor, Col. Ricanthony Ashley, inquiring whether the Radiology Department maintained a
file for Plaintiff. Def.’s Stmt. ¶ 17; England Decl. ¶¶ 18-19. Although Col. Ashley indicated that
5
In addition, while Defendant’s search for responsive documents was ongoing, Plaintiff
wrote Mr. England reaffirming that her request extended to records maintained by LRMC
Radiology and Drs. Lein and Princiotta. England Decl. Ex. O.
4
“a very small file” had once existed, after speaking directly with Col. Ashley, the Chief of
Radiology conducted a further search of the Radiology Department, but was unable to find any
documents relating to Plaintiff. Id.Ultimately, Mr. England was able to retrieve one hundred and thirty-two (132) pages of
documents responsive to Plaintiff’s requests. Def.’s Stmt. ¶ 17; England Decl. ¶ 20. These 132
pages comprised the only documents maintained by LRMC that were responsive to Plaintiff’s
request. Id.b. The LRMC Documents
Of the 132 pages located during the course of Defendant’s search, 108 “belonged” to
LRMC, in the sense that the documents did not originate from other units. England Decl. ¶ 20.
On November 20, 2008, Defendant released to Plaintiff all 108 pages, which included Officer
Evaluation Reports, Plaintiff’s orders, memoranda, a letter of reprimand, a rebuttal to the
reprimand, and various e-mails (the “LRMC Documents”). Def.’s Stmt. ¶ 18.
Approximately 57 of the 108 pages produced by Defendant were redacted.6 Pl.’s Stmt. ¶
1; England Decl. ¶ 21. Some documents were redacted to remove “third-party personal
information” pursuant to FOIA Exemption (b)(6). Buchholz Decl. ¶ 6; England Decl. ¶ 21;
6
While Defendant’s submissions do not specify the number of documents redacted,
Plaintiff avers that 57 of the 108 pages produced “had been redacted to the extent that they are
blank pages.” Pl.’s Stmt. ¶ 1. Defendant does not directly dispute Plaintiff’s figure, electing
instead to paint Plaintiff’s statement as “conclusory” to the extent it can be read to allege that all
57 pages were improperly redacted. Def.’s Reply Mem., Docket No. [12], ¶ 1. Because
Defendant has failed to put forth any evidence contradicting Plaintiff’s figure, and because this
Court must afford Plaintiff a certain solicitude as the non-moving party, the Court will accept as
true for purposes of this motion that otherwise responsive information was redacted from a total
of 57 pages. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (all underlying facts
and inferences are analyzed in the light most favorable to the non-moving party).
5
Vaughn-Burford Decl. ¶ 6. Specifically, Defendant withheld the names and e-mail addresses of
certain individuals, concluding that the disclosure of such information would threaten the
individuals’ privacy interests. Buchholz Decl. ¶ 18. Yet other redactions were made to e-mail
correspondence relating to an “incident” involving Plaintiff, correspondence which purportedly
discussed what the response to that incident would be from Plaintiff’s chain of command.
Buchholz Decl. ¶¶ 11-12; England Decl. ¶ 21; Vaughn-Burford Decl. ¶ 6. Defendant claims that
the e-mail correspondence concerning the incident was properly redacted under FOIA Exemption
(b)(5). Id.c. Plaintiff’s Appeal and Defendant’s Supplemental Search
Plaintiff was informed that she could appeal Defendant’s redaction decisions concerning
the LRMC Documents, a right which Plaintiff exercised on January 6, 2009. Def.’s Stmt. ¶¶ 18-
20. In a letter of appeal, Plaintiff argued, among other things, that the information she requested
was outside the scope of any of FOIA’s exemptions, and asserted “the right to know why any
exemption [was] being applied specifically in [her] case.” England Decl. Ex. V.
In addition, Plaintiff noted in her appeal that there appeared to be a lack of documentation
produced from the period extending from May 2008 through June 2008, and requested that
Defendant conduct an additional search for documents originating from Drs. Lein and Princiotta
within that time period. Id. Upon receiving Plaintiff’s appeal, Mr. England asked Drs. Lein and
Princiotta to conduct a further search of their computers for any e-mails pertaining to Plaintiff in
the designated time period. England Decl. ¶ 28. The supplemental search failed to yield any
6
additional documents.7 Def.’s Stmt. ¶ 21; England Decl. ¶ 28.
In the meantime, Plaintiff’s appeal was forwarded to Human Resource Command and,
thereafter, to the Office of the General Counsel at the Pentagon. Def.’s Stmt. ¶¶ 23-24. Both
offices reviewed Plaintiff’s file and the documents at issue, and concurred that the LRMC
Documents had been properly redacted. Id. ¶¶ 25, 27-28.
d. The MEDCOM Documents
As described above, only 108 of the 132 pages located during the course of Defendant’s
search “belonged” to LRMC. The remaining documents were referred out to four separate units
– MEDCOM, the 21st Theater Sustainment Command (“21st TSC”), the Walter Reed Army
Medical Center (“WRAMC”), and United States Army Europe (“USAREUR”) – as the e-mails
were to or from personnel assigned to those units and not LRMC. Of the twenty four (24) pages
within this group, six (6) were sent to MEDCOM for review (the “MEDCOM Documents”). Id.
¶ 29.
On December 23, 2008, following MEDCOM’s review, Defendant released to Plaintiff
additional documents responsive to Plaintiff’s second FOIA request.8 Id. ¶ 30. Defendant
7
This outcome was unsurprising since, as Plaintiff points out, she completed her
voluntary mobilization at LRMC on March 4, 2008. Pl.’s Stmt. ¶ 6.
8
Plaintiff contends that there is “conflicting information” as to the total number of
documents produced by Defendant in response to Plaintiff’s second FOIA request. Pl.’s Stmt. ¶
1. The Court agrees. For instance, the record does not indicate how many of the six pages
referred to MEDCOM and the eight pages referred to WRAMC were ultimately disclosed to
Plaintiff, though it appears that at least some pages were disclosed from both sets of documents.
Peterson Decl. ¶¶ 8-9, 14-15. Although Plaintiff concedes that she received the 108 pages of
documents produced by Defendant in November 2008 (i.e., the LRMC Documents), she avers
that she only received six additional pages thereafter. Pl.’s Stmt. ¶ 1. Based on the record before
it, the Court simply has no way of knowing how many pages were ultimately disclosed or from
which unit they originated.
7
withheld and/or redacted information pursuant to Exemptions (b)(5) and (b)(6), though it is by no
means clear from the record how much information was withheld and/or redacted. Id.; Buchholz
Decl. ¶ 9; Peterson Decl. ¶¶ 8-9. As with the LRMC Documents, the names and e-mail addresses
of certain individuals were withheld and/or redacted to remove “third-party personal
information” pursuant to Exemption (b)(6). Buchholz Decl. ¶¶ 16, 18. Other information was
withheld and/or redacted from e-mail correspondence relating to an “incident” involving
Plaintiff, correspondence which purportedly discussed what the response to that incident would
be from Plaintiff’s chain of command. Id. ¶¶ 11-12.9
Plaintiff was notified that she could appeal Defendant’s determination relating to the
MEDCOM Documents, and Plaintiff exercised that right. Def.’s Stmt. ¶¶ 30-31. On July 22,
2009, after reviewing Plaintiff’s entire file and the six pages of documents, the Office of the
General Counsel concurred in the initial determination.10 Id. ¶ 34.
e. The 21st TSC Documents
Of the 132 pages located during Defendant’s search, seven (7) were sent to the 21st TSC
for review and response (the “21st TSC Documents”). Def.’s Stmt. ¶ 35. The seven pages
9
In a memorandum to the Office of General Counsel, the MEDCOM FOIA Officer
wrote that at least some of the information withheld from the MEDCOM Documents included
“pre-decisional discussion pertaining to” Plaintiff among a non-exhaustive list of individuals,
including members of the Staff Judge Advocate. See Peterson Decl. Ex. F at ¶¶ 2-3. This
explanation is not incorporated into any of the sworn declarations submitted by Plaintiff, and the
Court shall disregard it for purposes of this motion. In any event, the memorandum does not
attempt to correlate the proffered explanation for the claimed exemption with any specific
document or segments of documents. Instead, the statement relates generally to an undefined
category of documents, for which Defendant has attempted to justify its actions with reference to
multiple exemptions.
10
Indeed, the Office of General Counsel found that one additional e-mail address should
have been redacted on the released documents. Vaughn-Burford Decl. Ex. C.
8
consisted of e-mails from the 21st TSC military counsel to the Commander of LRMC, as well as
certain draft documents. Craig Decl. ¶ 3; Swope Decl. ¶¶ 4-5. Defendant determined that none
of the information was releasable, and withheld all seven pages citing the attorney-client
privilege and the “deliberative process” privilege under Exemption (b)(5). Def.’s Stmt. ¶ 38.
Plaintiff was informed of her right to appeal, but no appeal has been received to date. Id.
f. The USAREUR Documents
Of the 132 pages located during Defendant’s search, three (3) were initially sent to
USAREUR for its review (the “USAREUR Documents”). Def.’s Stmt. ¶ 39. However, the
documents were soon forwarded to the 21st TSC after it was confirmed that they belonged with
that unit. Def.’s Stmt. ¶ 40. The Court cannot discern from the record the fate of those three
pages.11
g. The WRAMC Documents
Finally, of the 132 pages uncovered during Defendant’s search, eight (8) were referred to
WRAMC for its review. Def.’s Stmt. ¶ 42. Nearly a year later, when it was discovered that
WRAMC had no record of the referral, Mr. England promptly re-sent the documents to WRAMC
and forwarded them to MEDCOM for action. Def.’s Stmt. ¶¶ 43-44. On September 28, 2009,
additional documents from this group responsive to Plaintiff’s second FOIA request were
11
One of Defendant’s declarants avers that the USAREUR Documents were forwarded
for review in conjunction with the 21st TSC Documents. Laczynski Decl. ¶ 5. If that were the
case, one would expect that the declaration from the decisionmaker responsible for reviewing the
21st TSC Documents would reference a total of ten pages – seven forwarded directly from
LRMC to the 21st TSC and three routed to the 21st TSC through USAREUR. Instead, that
declaration references only the seven pages originally received from LRMC, Swope Decl. ¶ 4,
and the Court cannot glean what happened to the three pages of USAREUR Documents from the
thicket that is Defendant’s motion. To the extent they were withheld, the record does not
articulate the basis therefore with the requisite specificity.
9
produced to Plaintiff.12 Def.’s Stmt. ¶ 45. Some information was withheld and/or redacted
pursuant to Exemptions (b)(5) and (b)(6), though how much is not entirely clear. Peterson Decl.
¶¶ 14-15. Although Plaintiff was informed of her right of appeal, Defendant has not received
one. Def.’s Stmt. ¶ 45.13
B. Procedural History
Plaintiff commenced this action on August 12, 2009 by filing a Complaint with the Court,
see Compl., Docket No. [1], a copy of which was served upon Defendant, see Return of
Serv./Aff., Docket No. [5]. On October 16, 2009, Defendant filed its [9] Motion for Summary
Judgment. See Not. of Def.’s Mot. for Summ. J., Docket No. [9]; Def.’s Mem. of Law in Supp.
of Def.’s Mot. for Summ. J., Docket No. [9-1]. Plaintiff, who is appearing pro se, was notified
of her obligation to respond via a Fox/Neal Order. See Oct. 19, 2009 Order, Docket No. [10].
On November 5, 2009, Plaintiff served and filed a self-styled “rebuttal” in opposition to
Defendant’s motion, along with supporting documentation. See Pl.’s Rebuttal to Def.’s Mot. for
Summ. J., Docket No. [11]. On November 12, 2009, Defendant served and filed a Reply to Pl.’s
Resp. to Defendant’s Mot. for Summ. J., Docket No. [12], rendering the present motion fully
briefed and ripe for adjudication. The Court has considered each of the aforementioned
submissions, and the arguments and authorities set forth therein, in rendering its decision.
12
Again, Defendant’s submissions do not indicate how many and what portions of the
eight pages referred to WRAMC were ultimately disclosed to Plaintiff. Peterson Decl. ¶¶ 14-15.
13
Apart from these eight pages, Plaintiff apparently made a separate FOIA request to
WRAMC. Pl.’s Stmt. ¶ 4. The propriety of that request is not before the Court. Nor does the
Court read Plaintiff’s opposition papers to raise such an issue, as Plaintiff notes that “the search
for records at WRAMC is just now getting underway.” Id.
10
II. LEGAL STANDARD
In reviewing motions for summary judgment under FOIA, the Court must conduct a de
novo review of the record. See 5 U.S.C. § 552(a)(4)(B). In the FOIA context, “de novo review
requires [a] court to ‘ascertain whether the agency has sustained its burden of demonstrating that
the documents requested . . . are exempt from disclosure.’” Assassination Archives & Research
Ctr. v. Cent. Intelligence Agency, 334 F.3d 55, 57 (D.C. Cir. 2003) (quoting Summers v. Dep’t of
Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998)). Summary judgment is proper when “the
pleadings, the discovery [if any] and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c)(2). All underlying facts and inferences are analyzed in the
light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247 (1986); see also Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (“the
agency must show, viewing the facts in the light most favorable to the requester, that there is no
genuine issue of material fact.”) (citing Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1485
(D.C. Cir. 1984)). Moreover, where, as here, a party is proceeding pro se, the court must afford
that party’s pleadings and submissions a “liberal construction.” Robinson v. Attorney Gen. of
U.S., 534 F. Supp. 2d 72, 76 n.2 (D.D.C. 2008).
Congress enacted FOIA for the purpose of introducing transparency into government
activities. See Stern v. Fed. Bureau of Investigation, 737 F.2d 84, 88 (D.C. Cir. 1984). Congress
remained sensitive, however, to the need to achieve balance between this objective and the
vulnerability of “legitimate governmental and private interests [that] could be harmed by release
of certain types of information.” Critical Mass Energy Project v. Nuclear Regulatory Comm’n,
11
975 F.2d 871, 872 (D.C. Cir. 1992), cert. denied, 507 U.S. 984 (1993); accord Summers, 140
F.3d at 1079. For this reason, FOIA provides nine exemptions pursuant to which an agency may
withhold requested information. See 5 U.S.C. § 552(b)(1)-(9). “Consistent with the purpose of
the Act, the burden is on the agency to justify withholding requested documents,” Beck v. Dep’t
of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993), and only after an agency has proven that it has
fully discharged its obligations is summary judgment appropriate, Moore v. Aspin, 916 F. Supp.
32, 35 (D.D.C. 1996) (citing Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1350 (D.C. Cir.
1983)). With these principles in mind, the Court turns to the merits of Defendant’s motion.
III. DISCUSSION
A. The Adequacy of Defendant’s Search
An inadequate search for records constitutes an improper withholding under FOIA, see
Maydak v. U.S. Dep’t of Justice, 254 F. Supp. 2d 23, 44 (D.D.C. 2003), and thus the threshold
question raised by Plaintiff’s submissions is the adequacy of Defendant’s search for documents
responsive to her second FOIA request – i.e., documents and records relating to Plaintiff’s
employment at LRMC.14 Where the adequacy of an agency’s search is challenged, the agency
“must show beyond material doubt . . . that it has conducted a search reasonably calculated to
uncover all relevant documents.” Weisberg, 705 F.2d at 1351.
1. The Reasonableness of Defendant’s Search
In determining the adequacy of a search, the Court is guided by principles of
reasonableness. Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 27-28 (D.C. Cir. 1998); see also
14
Because Defendant located and produced the only document sought by Plaintiff with
respect to her first FOIA request, the adequacy of that search is not at issue.
12
Weisberg, 705 F.2d at 1351 (“The adequacy of an agency’s search is measured by a standard of
reasonableness, and is dependent upon the circumstances of the case.”) (internal citations and
quotation marks omitted). Because “the adequacy of a FOIA search is generally determined not
by the fruits of the search, but the appropriateness of the methods used to carry out the search,”
Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003), “the [mere] fact that a
particular document was not found does not demonstrate the inadequacy of a search,” Boyd v.
Criminal Div. of U.S. Dep’t of Justice, 475 F.3d 381, 391 (D.C. Cir.) (citations omitted), cert.
denied, 552 U.S. 1007 (2007). Nor must an agency search every record system to render its
search reasonable. Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990); but see
Campbell, 164 F.3d at 28 (agency cannot limit its search to one record system where others are
likely to reveal responsive information). In sum, perfection is not the standard. Instead, “the
agency must show that it made a good faith effort to conduct a search for the requested records,
using methods which can be reasonably expected to produce the information requested.”
Oglesby, 920 F.2d at 68.
On a motion for summary judgment, an agency may discharge its burden of establishing
the reasonableness of its search by submitting a “reasonably detailed affidavit” describing the
search performed and averring that all files likely to contain responsive documents were
searched. Id. The D.C. Circuit Court of Appeals has described the agency’s evidentiary burden
more fully as follows:
The affidavits of the responding agency [need not] set forth with meticulous
documentation the details of an epic search for the requested records. Rather, in the
absence of countervailing evidence or apparent inconsistency of proof, affidavits that
explain in reasonable detail the scope and method of the search conducted by the
agency will suffice to demonstrate compliance with the obligations imposed by the
FOIA.
13
Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). To be sufficiently detailed, the agency’s
affidavits must at a minimum describe “what records were searched, by whom, and through what
process.” Steinberg, 23 F.3d at 552.
Here, Defendant appropriately relies upon the declaration of Mr. England, who was
responsible for coordinating the search for documents responsive to Plaintiff’s FOIA requests.
See SafeCard Servs., Inc. v. Sec. & Exch. Comm’n, 926 F.2d 1197, 1201 (D.C. Cir. 1991) (noting
that the individual coordinating the search “is the most appropriate person to provide a
comprehensive affidavit”). For at least three reasons, the content of that declaration suffices to
discharge Defendant’s burden.
First, Mr. England avers that, in conducting his search, he contacted the Commander of
LRMC, the Deputy Commander for Clinical Services, Pathology, the Radiology Department, the
Personnel Division, Operations, Credentials, and the former Chief of Radiology requesting
information pursuant to Plaintiff’s request. Def.’s Stmt. ¶ 18; England Decl. ¶ 13. These sources
are precisely those that could be “reasonably expected” to produce information responsive to
Plaintiff’s requests for “personnel records” and “documents and records related to [her]
employment.” England Decl. Ex. L.
Second, Mr. England describes in considerable detail the issues that arose during the
course of Defendant’s search, and the remedial steps that he took to ensure that no responsive
documents were overlooked. Specifically, after learning that no one working at LRMC’s
Radiology Department had any knowledge of records relating to Plaintiff, Mr. England may have
simply concluded that no such documents existed. Instead, he reached out to Plaintiff’s former
supervisor to inquire where such documents might be kept. Def.’s Stmt. ¶ 17; England Decl. ¶¶
14
18-19. See Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 328 (D.C. Cir. 1999) (“When
all other sources fail to provide leads to [a] missing record, agency personnel should be contacted
if there is a close nexus . . . between the person and the particular record.”). Using the
information obtained from Plaintiff’s former supervisor, staff in the Radiology Department
conducted a second search in an attempt to locate responsive documents. England Decl. ¶¶ 18-
19. Similarly, when Plaintiff expressed a concern that Defendant’s initial production lacked
documents in the period extending from May 2008 through June 2008, Mr. England requested
that two individuals identified by Plaintiff conduct a further search of their computers for
responsive documents. Id. ¶ 28. Although that search yielded no additional documents, it is
axiomatic that the reasonableness of an agency’s search does not hinge upon the resulting
harvest. See Ford v. U.S. Dep’t of Justice, Civ. A. No. 07-1305 (CKK), 2008 WL 2248267, at *4
(D.D.C. May 29, 2008) (“An agency’s lack of success in locating responsive records does not
render the search inadequate when the agency’s supporting declarations establish its compliance
with FOIA.”).
Finally, Mr. England’s declaration, going beyond simply averring that all files likely to
include responsive documents were searched, provides that the 132 pages of documents he
located comprised the only documents maintained by Defendant that were responsive to
Plaintiff’s request. Def.’s Stmt. ¶ 17; England Decl. ¶ 20.
That Defendant’s submissions could have hypothetically been more detailed – for
example, in describing the geographic location of certain files – does not prevent the Court from
concluding that Defendant has satisfactorily demonstrated the adequacy of its search, nor
preclude a finding that summary judgment is appropriate. See Perry, 684 F.2d at 127 (“To be
15
sure, the descriptions of the searches could have been more detailed . . . . The arguable
inadequacy of the search descriptions here is, however, no more than marginal and does not
render the grant of summary judgment inappropriate.”). Because the record evidences that
Defendant conducted an informed, detailed, and good faith search of sources likely to reveal
documents responsive to Plaintiff’s second FOIA request, the Court finds that there is no genuine
issue as to the reasonableness of Defendant’s search. .
2. Plaintiff’s Allegations of Bad Faith
Once an agency has made a prima facie showing of adequacy, the burden shifts to the
plaintiff to provide “‘countervailing evidence’ as to the adequacy of the agency’s search.”
Iturralde, 315 F.3d at 314; see also Weisberg, 705 F.2d at 1351-52 (once the agency has
discharged the burden of demonstrating the adequacy of its search, its position may be rebutted
only by a showing that the search was not made in good faith). Indeed, the plaintiff must provide
evidence sufficient to raise “substantial doubt” concerning the adequacy of the agency’s search.
Iturralde, 315 F.3d at 314 (citing Valencia-Lucena, 180 F.3d at 326)). In opposing the present
motion, Plaintiff raises a number of allegations purportedly going to Defendant’s good faith in
responding to her FOIA requests, none of which are of any avail here.
a. Defendant’s Underlying Conduct
As an initial matter, the vast majority of Plaintiff’s allegations are simply immaterial to
the question of whether Defendant acted in good faith in conducting its search for responsive
documents. Specifically, Plaintiff contends that Defendant acted in bad faith by: (a) improperly
submitting a second Officer Evaluation Report for Plaintiff (a so-called “referred OER”); (b)
stating in the referred OER that Plaintiff was reprimanded for unprofessional conduct; (c)
16
refusing to allow Plaintiff to provide input regarding the incident underlying the aforementioned
reprimand; (d) permitting a junior officer to author Plaintiff’s letter of reprimand; (e) making
false statements with respect to Plaintiff’s PPE; (f) altering Plaintiff’s PPE after it had already
been made part of Defendant’s official record; and (g) failing to “restore [her] reputation” after
she was reprimanded in the presence of junior officers.15 Pl.’s Stmt. ¶¶ 7-8, 10-14. Each of the
foregoing allegations goes to the propriety of Defendant’s underlying conduct vis-a-vis Plaintiff
during the course of her employment, or shortly thereafter, and have no bearing upon the only
question now before the Court: i.e., whether Defendant has adequately discharged its obligations
under FOIA. Simply put, a plaintiff cannot challenge the adequacy of a search based on the
underlying actions that are the subject of the request; rather, he or she must “challenge the
adequacy of a search by arguing that the search itself . . . was conducted in bad faith.” Accuracy
in Media, Inc. v. Nat’l Transp. Safety Bd., Civ. A. No. 03-24 (CKK), 2006 WL 826070, at *9-10
(D.D.C. Mar. 29, 2006) (emphasis added); see also Weisberg, 705 F.2d at 1360 (allegations
regarding the propriety of the investigation subject to plaintiff’s FOIA request “too attenuated
and unsubstantiated to raise a genuine issue of material fact concerning the [agency’s]
compliance with its FOIA obligations”); Western Ctr. for Journalism v. Internal Revenue Serv.,
116 F. Supp. 2d 1, 10 (D.D.C. 2000) (plaintiff’s allegations that underlying audit was “politically
inspired” immaterial to adequacy of agency’s search), aff’d, 22 Fed. Appx. 14 (D.C. Cir. 2001).16
15
Additionally, Plaintiff has appended to her opposition papers a number of documents
apparently going to the propriety of certain employment actions undertaken by Defendant with
respect to Plaintiff. Pl.’s Stmt. Exs. 3, 5-12.
16
One can imagine the case where the agency’s underlying actions may be relevant to the
question of whether the search was adequate and undertaken in good faith – e.g., when a plaintiff
presents credible evidence of a concerted “cover-up” on the agency’s part – but this is not such a
17
As such, each of Plaintiff’s allegations, even if hypothetically coupled with adequate record
support, would be insufficient to rebut Defendant’s showing that its search was reasonable and
undertaken in good faith.
b. Delays in Defendant’s Response
Plaintiff next intimates that a finding of bad faith may rest upon the contention that
certain documents – the WRAMC Documents – “were not forthcoming” from Defendant, and
were sought out only after Plaintiff had filed the Complaint in this action. Pl.’s Stmt. ¶ 3.
Plaintiff’s argument fails for two independent reasons. First, courts routinely find that delays in
responding to FOIA requests are not, in and of themselves, indicative of agency bad faith. See,
e.g., Iturralde, 315 F.3d at 315 (“initial delays in responding to a FOIA request are rarely, if ever,
grounds for discrediting later affidavits by the agency”); Fischer v. U.S. Dep’t of Justice, Civ. A.
No. 07-2037 (ESH), 2010 WL 2745811, at *3 (D.D.C. July 13, 2010) (rejecting argument that
agency’s failure to produce documents until after litigation commenced evidenced agency’s bad
faith). Second, Plaintiff’s characterization of Defendant’s conduct is belied by the record:
case. Elsewhere, Plaintiff states that she corresponded with Defendant in the time period during
which Mr. England was conducting Defendant’s search, expressing her intent to appeal
Defendant’s decision to place a letter of reprimand in her personnel file. Pl.’s Stmt. ¶ 2 and Exs.
1-3. The import of Plaintiff’s allegation is not entirely clear. To the extent Plaintiff intends to
suggest that Defendant was motivated by bad faith as a result of Plaintiff’s use of internal dispute
resolution procedures, Plaintiff offers no evidentiary support that would suggest that Mr. England
(or anyone else involved in the search) was motivated by bad faith as a result, and Plaintiff
cannot rely on conclusory and speculative assertions to raise “substantial doubt” as to the
propriety of Defendant’s search. Meanwhile, to the extent Plaintiff intends to suggest that such
correspondence should have been, but was not, produced in response to her requests, Defendant
is correct that it is not duty-bound to account for documents which a requester has in some way
identified, provided it has made a diligent search for documents in those places where they might
be expected to be found. See Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir.
2003) (“After all, particular documents may have been accidentally lost or destroyed, or a
reasonable and thorough search may have missed them.”).
18
Defendant’s submissions stand uncontradicted in explaining that the delay in securing review of
the WRAMC Documents was the result of a simple administrative error.17
c. Discrepancies in Page Counts
Plaintiff further argues that summary judgment is inappropriate here because “[t]here is
conflicting information with respect to the number of documents that have been produced.” Pl.’s
Stmt. ¶ 1. In one respect, Plaintiff is correct. On the record before it, the Court simply has no
way of knowing how many pages were ultimately disclosed or from which unit they originated.
See supra. Part I.A.2.d. However, while Defendant’s failing in this regard prevents the Court
from determining whether Defendant has properly withheld or redacted information pursuant to
the claimed exemptions, see infra. Part III.B.1, it does not call into question the good faith of
Defendant’s search. See Fischer, 2010 WL 2745811, at *3 (“inconsistent reports” of the number
of responsive documents located insufficient to warrant finding of bad faith”).
d. Notice of Appeal
Plaintiff also contends that she never received notice from the 21st TSC informing her of
her right to administrative appeal, a fact disputed by Defendant. Pl.’s Stmt. ¶ 5; Def.’s Stmt. ¶
38. This contention also fails to raise a genuine issue as to the good faith of Defendant’s search.
As an initial matter, Plaintiff’s allegation does not address the merits of the search itself, but
17
In November 2008, Mr. England forwarded Plaintiff’s request and eight pages of
documents to WRAMC’s FOIA Office. England Decl. ¶ 25. As it turned out, Mr. England sent
his initial referral to an individual no longer employed at WRAMC. Id. ¶ 31. On or about
September 15, 2009, upon learning that WRAMC had no record of the referral, Mr. England
sought to remedy the situation and expedited the process by sending the documents and referral
to MEDCOM and WRAMC that same day. Id.; Peterson Decl. ¶ 13. True, by that point,
Defendant had already responded to some or all of Plaintiff’s appeals, but the submissions by
Defendant’s declarants and contemporaneous correspondence evidence that the delay was the
result of administrative error, and Plaintiff has put forward no evidence suggesting otherwise.
19
rather subsequent administrative action. Regardless, because Defendant has not pressed failure
to exhaust administrative remedies as a ground for dismissal, the question of what notice Plaintiff
received, and when, is immaterial to the disposition of the present motion. See Oglesby, 920
F.2d at 65 (only where agency’s initial response complies with statutory requirements, including
notifying the requester of the right to appeal adverse decisions to the head of the agency, may the
requester’s foregoing of an administrative appeal preclude future suit) (citing 5 U.S.C. §
552(a)(6)(A)(i)). Regardless of whatever administrative rights Plaintiff may have had, she has
not been denied a right to be heard before the courts.
e. Redaction of the PPE
Finally, Plaintiff argues that Defendant wrongfully redacted the signature block from the
PPE. Pl.’s Stmt. ¶ 9. Again, Plaintiff’s allegation does not impugn the search itself. In any
event, it is undisputed that Defendant voluntarily released the contents of the signature block
upon further review, Def.’s Stmt. ¶ 12, a fact that, if anything, speaks to Defendant’s good faith
in responding to Plaintiff’s requests.
B. Defendant’s Claimed Exemptions
“If an agency invokes an exemption, it bears the burden of establishing the applicability
of the claimed exemption,” Assassination Archives, 334 F.3d at 57, and the agency’s justification
must be “logical” or “plausible,” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009).
Thus, having determined that Defendant has carried its burden of showing that it conducted a
search reasonably calculated to uncover responsive documents, and having found that Plaintiff
has failed to adduce sufficient evidence in rebuttal to raise a substantial doubt as to Defendant’s
good faith, the Court now turns to the question of the propriety of Defendant’s decision to
20
withhold or redact certain information.
1. Adequacy of Defendant’s Vaughn Index
Before addressing the substance of Defendant’s claimed exemptions, however, the Court
again pauses to assess the sufficiency of Defendant’s evidentiary showing. Generally, the Court
may award summary judgment to an agency solely on information provided in affidavits or
declarations, provided, however, that the agency’s submissions: (a) set forth a “relatively
detailed” justification; (b) specifically identify the reasons why a particular exemption is
relevant; and (c) correlate those claims with the particular part of a withheld document to which
they apply. Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006)
(internal quotation marks and notations omitted) (citing Mead Data Cent., Inc. v. U.S. Dep’t of
Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)). The import of such submissions, often loosely
referred to as “Vaughn indices”18 is clear: “[t]he agency would . . . have a nearly impregnable
defensive position save for the fact that the statute places the burden ‘on the agency to sustain its
action.’” Judicial Watch, 449 F.3d at 146 (quoting 5 U.S.C. § 552(a)(4)(B)).
The precise form of the Vaughn index is immaterial. Judicial Watch, 449 F.3d at 145;
see also Accuracy in Media, 2006 WL 826070, at *4 (“There is no set formula for a Vaughn
index”). Instead, the adequacy of the agency’s Vaughn index is assessed in accordance with the
three interrelated functions it is designed to serve: (a) to force the agency to carefully analyze any
information withheld; (b) to enable the district court to fulfill its duty of evaluating the
18
In Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974),
the D.C. Circuit Court of Appeals provided that agencies should generally prepare an itemized
index correlating each withheld document (or portion thereof) with a specific FOIA exemption
and the agency’s justification for non-disclosure.
21
applicability of claimed exemptions; and (c) to empower the plaintiff to present his case to the
district court. Keys v. U.S. Dep’t of Justice, 830 F.2d 337, 349 (D.C. Cir. 1987). Ultimately,
however, “[s]pecificity is the defining requirement of the Vaughn index and affidavit.” King v.
U.S. Dep’t of Justice, 830 F.2d 210, 219 (D.C. Cir. 1987).
Though the question of how particularized the agency’s showing must be in a given
context has at times beguiled litigants and courts alike, it is clear that, with respect to four
categories of documents – i.e., the LRMC Documents, the MEDCOM Documents, the
USAREUR Documents, and the WRAMC Documents – the Defendant’s Vaughn index (if it may
even be characterized as such) falls short of fulfilling the functional ends set forth in decades of
jurisprudence.19
Plaintiff’s most detailed (though still deficient) description concerns the 108 pages of the
LRMC Documents. In describing the exemptions claimed, Mr. England’s declaration provides,
in relevant part:
Enclosed with the request were one hundred and eight (108) pages of documents
responsive to the request. The documents included emails, Officer Evaluation
Reports, [Plaintiff’s] orders, Memoranda for Record, a letter of Reprimand and a
Rebuttal to the Reprimand. The documents were redacted in accordance with FOIA
Exemptions (b)(5) and (b)(6). These redactions were third-party personal
information, exempt under Exemption (b)(6). [Plaintiff’s] file contained e-mail
correspondence relating to an incident involving [Plaintiff] and what the proper
response to her chain of command to this incident would be; Plaintiff eventually
received the above-listed Letter of Reprimand. I redacted these pre-decisional email
discussions under Exemption (b)(6).
England Decl. ¶ 21. Similarly, a second declarant for Defendant, after conflating the LRMC
19
On the other hand, because the Court concludes that it has sufficient information to
evaluate the Defendant’s claims of exemptions with respect to the PPE and the 21st TSC
Documents, those categories are addressed below. See infra. Part III.B.2.
22
Documents and the MEDCOM Documents, avers that (a) some unknown portion of those
documents included pre-decisional e-mail correspondence regarding “the agency decision-
making process in regard to aspects of Plaintiff’s employment,” and (b) some unknown portion
included “names and email addresses of certain individuals.” Buchholz Decl. ¶¶ 11-12, 18.
Defendant described the MEDCOM Documents and the WRAMC Documents with a
similarly cavalier approach. In both instances, although the record suggests that some number of
documents were produced, and portions thereof were withheld and/or redacted pursuant to
Exemptions (b)(5) and (b)(6), see Peterson Decl. ¶¶ 8-9, 14-15; Buchholz Decl. ¶¶ 11-12, 16-18,
Defendant’s submissions are utterly lacking in specificity. Meanwhile, with respect to the
USAREUR Documents, the Court has already described how, based on the record created by the
parties, it is simply incapable of discerning the ultimate fate of the three pages within that
category. See supra. Part. I.A.2.f. What portion of those documents (if any) were withheld, and
the basis for the withholding, has not been made clear to this Court.
Simply put, Defendant’s descriptions are so sweeping as to prevent the Court (and
Plaintiff) from fully evaluating its claims to privilege with respect to the LRMC Documents, the
MEDCOM Documents, the USAREUR Documents, and the WRAMC Documents. See Maydak,
254 F. Supp. 2d at 35 (agency’s submissions “too conclusory, vague and sweeping to support
summary judgment” where agency relied on multiple exceptions to justify withholding
information, but failed to match the withheld information with the claimed exemption and
explain how the exemption applied). Moreover, Defendant invariably failed to correlate the
claimed exemptions with specific documents (or portions thereof) and, in most instances,
neglected to describe in reasonable detail the contents of the withheld documents.
23
At their core, Defendant’s submissions reduce to a blanket assertion that it properly
redacted some unknown portion of responsive documents that included personal information and
some unknown portion of e-mail correspondence relating to Plaintiff’s employment. The Court,
however, is not free to accept an agency’s ipse dixit regarding the propriety of its decisions. Cf.
Vaughn v. Rosen, 484 F.2d 820, 825-26 (D.C. Cir. 1973) (rejecting the government’s claim that
“all it need[s] to do to fulfill its burden is to aver that the factual nature of the information is such
that it falls under one of the exemptions.”), cert. denied, 415 U.S. 977 (1974). Defendant must
present this Court with sufficient detail and context to assess those decisions. See King, 830 F.2d
at 221. Moreover, at the very least, Defendant’s descriptions are too vague and non-specific to
evidence that it carefully analyzed all information withheld. Id. Indeed, it appears from
Defendant’s submissions that broad categories of disparate information were potentially lumped
together without thoughtful analysis. That may very well not be the case, but Defendant has
failed to provide this Court with sufficient information to conclude otherwise at this stage of the
proceedings.
Perhaps most importantly, Defendant’s submissions do not give this Court enough
information to conduct an adequate segregability analysis, as it must. An agency has the burden
of detailing what proportion of a document is non-exempt, and how that material is dispersed
through the document, Mead Data, 566 F.2d at 261, and where an agency’s submission does not
specify which portions of the documents withheld are disclosable and which are allegedly
exempt, it does not even qualify as a Vaughn index, Kimberlin v. Dep’t of Justice, 139 F.3d 944,
950 (D.C. Cir.), cert. denied, 525 U.S. 891 (1998); see also Schiller v. Nat’l Labor Relations Bd.,
964 F.2d 1205, 1210 (D.C. Cir. 1992) (agency’s submissions, rather than proceeding document
24
by document, should have correlated claimed theories with the particular textual segments
withheld). Here, Defendant has not even offered an unequivocal averment that it conducted a
thorough segregability analysis and that, after each individual document was reviewed, all
reasonably segregable information was released to Plaintiff.
The Court pauses to observe that, notwithstanding the foregoing, an agency is not
precluded from grouping categories of documents that merit similar treatment when preparing its
Vaughn index. Used properly, abstraction may actually assist a court in reviewing the agency’s
actions. Judicial Watch, 449 F.3d at 147. However, the essential point is that the agency must,
at the very least, “explain[] itself through commonalities, not generalities,” and explain why the
exemption applies to the document (or type of document) withheld while affording due attention
to the contents of the withheld information. Id. (emphasis in original); compare Keys, 830 F.2d
at 349-50 (agency situated each document into its historical context and adequately explained
exemptions through use of “functional categories”), and Judicial Watch, 449 F.3d at 146-47(agency specifically identified individual documents, with detailed data regarding their source
and nature, and supplemented its index with a declaration focusing on categories of information
and how they related to claimed exemptions), with King, 830 F.2d at 220-21 (agency’s annotated
catalogue of documents, failing to correlate the claimed exemption to redacted documents, was
“unhelpfully categorical”).20 While the difficulty of assessing the sufficiency of an agency’s
20
In Morley v. Cent. Intelligence Agency, 508 F.3d 1108, 1123 (D.C. Cir. 2007), the
agency’s itemized Vaughn index failed to match each redaction with a specific exemption, but
did “identify the exemptions claimed for each individual document.” Although criticizing the
agency’s approach as less than fulsome in tying together the documents at issue with the claimed
justification, the court concluded that the agency conveyed enough information “to identify the
records referenced and [to] understand the basic reasoning behind the claimed exemptions.” Id.Here, in contrast, Defendant’s failure to provide anything remotely approaching an itemized
25
submissions will no doubt increase the farther one departs from the extremes, what is clear is that
an agency cannot couple a sweeping categorical description of the withheld information with a
categorical explanation of the justification for non-disclosure and hope to prevail on summary
judgment. King, 830 F.2d at 224. Because that is all Defendant has offered as of this stage in the
proceedings, the Court is compelled to deny Defendant’s Motion for Summary Judgment as it
relates to (a) the LRMC Documents, (b) the MEDCOM Documents, (c) the USAREUR
Documents, and (d) the WRAMC Documents.
The Court, however, expresses no view on the validity of the underlying withholding
decisions concerning these documents. To permit the Court to assess those decisions, Defendant
must first identify with reasonable specificity the information withheld from each document (e.g.,
the e-mail addresses of recipients, draft language for Plaintiff’s letter of reprimand, etc.), set forth
a reasonably detailed justification for invoking the exemption, and correlate the claimed
justification with the specific information withheld (i.e., explain why the exemption applies in
the given context). Until Defendant has done so, this Court is in no position to opine on the
merits of Defendant’s claims.
index prevents such a conclusion. Nor is this an instance where the Court can excuse the failure
to provide an itemized index, as Defendant has claimed multiple exemptions to an unknown
number of potentially overlapping documents. See Tax Analysts v. Internal Revenue Serv., 414
F. Supp. 2d 1, 3-4 (D.D.C. 2006) (finding an itemized Vaughn index unnecessary where all the
records at issue fell under a single exemption, and agency had outlined the categories of the
documents withheld and the circumstances of their creation); Mead Data Cent., Inc. v. U.S. Dep’t
of Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977) (“The source, subject matter, and nature of each
document were described separately, and although not individually stated for each document, it is
clear from the nature of the documents and the single exemption asserted which justifications
apply to which documents.”).
26
2. Exemptions Claimed for the Remaining Documents
Despite the issues outlined above with respect to Defendant’s Vaughn index, the Court
concludes that Defendant has adduced sufficient evidence on the present motion to allow the
Court to assess the exemptions claimed by Defendant with respect to two sets of documents: (a)
the PPE; and (b) the 21st TSC Documents. Before proceeding, the Court reiterates that the
agency bears the burden of establishing the applicability of any claimed exemption,
Assassination Archives, 334 F.3d at 57, and notes that, given the statutory design, “exemptions
from disclosure must be narrowly construed, and conclusory and generalized allegations of
exemptions are unacceptable,” Morley v. Cent. Intelligence Agency, 508 F.3d 1108, 1114-15
(D.C. Cir. 2007) (internal citations and quotation marks omitted).
a. The PPE and Exemption (b)(6)
Exemption (b)(6) applies to “personnel and medical files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). It has
repeatedly been held that “information such as names, addresses, and other personal identifying
information [may] properly [be] withheld because it creates a palpable threat to privacy.” Yelder
v. U.S. Dep’t of Defense, 577 F. Supp. 2d 342, 346 (D.D.C. 2008) (internal quotation marks
omitted) (citing Carter v. U.S. Dep’t of Commerce, 830 F.2d 388, 391 (D.C. Cir. 1987)). Here,
Defendant initially redacted the signature block and the e-mail address from the final page of the
three-page PPE, citing FOIA Exemption (b)(6). Def.’s Stmt. ¶ 6. Upon further consideration,
Defendant released the contents of the signature block, but continued to withhold the e-mail
address. Id. ¶ 12. Plaintiff has pointed to no public interest in disclosing the e-mail address, and
the Court concludes there is no such interest sufficient to outweigh the privacy interest involved.
27
Cf. Yelder, 577 F. Supp. 2d at 346 (invasion of privacy unwarranted where public interest is
“sufficiently weaker”). Moreover, the Court concludes, and Plaintiff does not actually dispute,
that Defendant has detailed which portions of the PPE are disclosable, and has produced all
reasonably segregable portions.21 As such, the Court shall grant Defendant’s Motion for
Summary Judgment with respect to the PPE.
b. The 21st TSC Documents and Exemption (b)(5)
Exemption (b)(5) governs “inter-agency or intra-agency memorandums or letters which
would not be available by law to a party other than an agency in litigation with the agency.” 5
U.S.C. § 552(b)(5). The exemption incorporates both the traditional privilege attaching to
confidential communications between an attorney and client relating to a legal matter for which
the client has sought professional advice, Mead Data, 566 F.2d at 252-53, as well as what is
often referred to as the “deliberative process” privilege, which exempts from disclosure elements
of the agency’s decisionmaking process, SafeCard, 926 F.2d at 1204.
Here, of the 132 pages located during Defendant’s search, seven – i.e., the 21st TSC
Documents – consisted of e-mail correspondence between the 21st TSC military counsel and the
Commander of LRMC, and certain draft documents. Craig Decl. ¶ 3; Swope Decl. ¶¶ 4-5.
Defendant determined that none of the information contained in the seven pages was releasable,
citing the attorney-client privilege and the deliberative process privileges. Def.’s Stmt. ¶ 38.
Although Defendant avers that one party to the communications at issue was military counsel,
21
Even where they are not specifically raised by the parties, district courts are obligated
to consider segregability issues sua sponte. Trans-Pac. Policing Agreement v. U.S. Customs
Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999). FOIA requires that an agency produce “any
reasonably segregable portion” of a record that is not exempt from disclosure.
28
Craig Decl. ¶ 3; Swope Decl. ¶¶ 4-5, Defendant has failed to present any evidence demonstrating
the confidential nature of the communications, or showing that they were made for purposes of
seeking or rendering legal advice. See Mead Data, 566 F.2d at 254 (agency’s description, stating
only the subject, source, and recipient of the communications, provided no indication as to the
confidentiality of the information on which they were based). Similarly, while the “drafts”
referenced by Defendant may very well fall within the ambit of the “deliberative process”
privilege, Defendant fails to describe the contents of those drafts or how they relate to a specific
agency decision.22 See SafeCard, 926 F.2d at 1204 (to invoke the deliberative process privilege,
“the agency must describe not only the contents of the document but also enough about its
context, viz. the agency’s decisionmaking process,” including whether the document explains,
directly or by reference, the reason for the agency’s decision); Maydak, 254 F. Supp. 2d at 37(faulting agency for failing to identify the decision or policy to which the withheld information
purportedly contributed and explain how it fit into the deliberative process). Without such
context, the Court is unable to assess the validity of Defendant’s claims, see Morley, 508 F.3d at
1127 (summary judgment inappropriate where “minimal information” provided as to whether
agency properly applied Exemption (b)(5)), and the Court shall therefore deny Defendant’s
Motion for Summary Judgment with respect to the 21st TSC Documents.
As before, the Court expresses no view on the validity of the underlying withholding
decisions concerning these documents. Defendant must first identify with reasonable specificity
the information withheld from each document, set forth a reasonably detailed justification for
22
Although mindful of the possibility that both sets of documents were created in the
context of fashioning an appropriate response to an employment-related issue involving Plaintiff,
Defendant does not establish that connection in its submissions.
29
invoking the exemption, and correlate the claimed justification with the specific information
withheld.
C. Plaintiff’s Request for Discovery and In Camera Review
Finally, the Court construes Plaintiff’s submissions as requesting an order that discovery
be had or, in the alternative, that the Court review the documents at issue in camera. In the FOIA
context, a district court has broad discretion in denying both discovery and in camera review.
See SafeCard, 926 F.2d at 1205 (discovery); Boyd, 475 F.3d at 382 (in camera review). In an
exercise of its discretion, the Court shall deny Plaintiff’s requests at this time, with leave to
renew after Defendant has had an opportunity to supplement its Motion for Summary Judgment
with appropriate supporting materials.
IV. CONCLUSION
For the foregoing reasons, the Court shall therefore GRANT-IN-PART Defendant’s [9]
Motion for Summary Judgment with respect to the PPE, and DENY-IN-PART Defendant’s
motion with respect to the LRMC Documents, the MEDCOM Documents, the 21st TSC
Documents, the USAREUR Documents, and the WRAMC Documents. An appropriate Order
accompanies this Memorandum Opinion.
Date: September 30, 2010
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
30