Carlborg v. Department of the Navy ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ROBERT S. CARLBORG,
Plaintiff,
v. No. 18-cv-1881 (DLF)
DEPARTMENT OF THE NAVY,
Defendant.
MEMORANDUM OPINION
Robert S. Carlborg brings this action against the Department of the Navy under the
Freedom of Information Act (FOIA), 5 U.S.C. § 552, et seq., and the Privacy Act, 5 U.S.C.
§ 552a, et seq., challenging the Navy’s response to requests Carlborg made under both acts.
Before the Court are Carlborg’s Motion for Partial Summary Judgment, Dkt. 23, and the Navy’s
Cross-Motion for Summary Judgment, Dkt. 28. For the reasons that follow, the Court will grant
the Navy’s motion and deny Carlborg’s motion.
I. BACKGROUND
In 2015, after an investigation into alleged misconduct, Robert Carlborg was
involuntarily discharged from the United States Marine Corps. Compl. ¶ 3, Dkt. 5. Following
his separation from the Marine Corps, Carlborg submitted various FOIA and Privacy Act
requests for records related to his time in the Marine Corps and the investigation that ultimately
led to his involuntary discharge. Id. Carlborg filed this lawsuit against the Navy over its
response to those requests on August 10, 2018. See Dkt. 1.
Carlborg’s complaint alleges five counts. The first pertains to a Privacy Act request
submitted on February 5, 2018 that sought “a copy of any and all documents maintained on
[Carlborg]” in the Marine Corps Manpower Management Information System Records, which
retains pay and personnel records for “active duty, reserve, and retired Marines.” Hughes Decl.
¶¶ 5–8, Dkt. 28-4. The Navy searched this system of records but found no responsive material
because the records of administratively separated service members are only retained in this
system for “6 months beyond the date the separation was processed.” Id. ¶ 8. The Navy then
searched a related system of records, the Optical Digital Imaging Records Management System,
and located Carlborg’s “Official Military Personnel File,” which totaled 281 pages. Id. ¶ 9. The
Navy processed this file under the Privacy Act, withheld “personal identifying information
pertaining to third parties,” and provided a redacted version of the file to Carlborg on March 28,
2019. Id.
Carlborg’s second count relates to a FOIA request submitted on August 9, 2017 that
sought emails to or from a Marine Corps officer that mentioned “Carlborg” between March 1,
2015, and October 31, 2015, along with any responses to those emails. See Compl. ¶ 10;
McMillan Decl. ¶ 6, Dkt. 28-5. The Navy collected the officer’s .pst file, McMillan Decl. ¶ 7,
which stores “copies of messages, calendar events, and other items within Microsoft software,
such as Microsoft Outlook,” Defs.’ Mem. in Supp. of Defs.’ Mot. for Summ. J. (“Defs.’ Mem.”)
at 7 n.1, Dkt. 28-2. The Navy searched the file as requested and found 244 pages of responsive
email records. McMillan Decl. ¶ 7. After reviewing these records, the Navy withheld some
information pursuant to FOIA Exemptions 5 and 6 and produced the remainder of the records to
Carlborg on October 5, 2017. Id. ¶ 8. After Carlborg had administratively appealed, the Navy
discovered “a series of email attachments that were not previously released or properly
exempted,” produced those attachments to Carlborg, and released some—but not all—of the
2
material previously withheld under the FOIA exemptions that the Navy had previously invoked.
Id. ¶ 8–11.
The third count concerns a Privacy Act request that Carlborg made on July 25, 2017,
which sought an advisory opinion from the Staff Judge Advocate, Military, Policy Personnel
Branch, about Carlborg’s separation. Compl. ¶ 28. The Navy initially processed the advisory
opinion under FOIA, “invoked exemptions [6] and [7(C)] to protect third parties’ identities and
information,” and produced a redacted version of the opinion to Carlborg on August 4, 2017.
Hughes Decl. ¶ 12. After Carlborg administratively appealed, the Navy reprocessed the advisory
opinion under the Privacy Act and produced the opinion to Carlborg on July 20, 2018,
withholding only a third party’s signature at the end of the opinion. Id. ¶¶ 14–15.
Carlborg’s fourth count is based on two Privacy Act requests for records “maintained on”
Carlborg. Compl. ¶¶ 40–42. The first request sought Carlborg’s records from the HQMC
Correspondence Control Files System, which maintains records relating to “Marines or former
Marines who have been the subject of correspondence from a member of Congress.” Id. ¶ 40.
The second request sought records from the Performance File, which contains the records of
those “who, while on active duty or in a reserve status, become the subject of investigation,
indictment, or criminal proceedings by military or civilian authorities.” Id. ¶ 42. In response to
Carlborg’s request, the Navy searched each system twice using the keyword “Carlborg.” Hughes
Decl. ¶¶ 31, 36. In addition, all individuals “who might reasonably have been expected to
handle” Carlborg’s case searched their own emails, .pst files, desktop, and shared drives for any
potentially responsive records. Id. ¶¶ 18, 31. On January 12, 2018, the Navy produced 161
pages of records in response to Carlborg’s requests. Compl. ¶ 65. After a series of
3
administrative appeals, on July 20, 2018 the Navy produced additional records that had been
created after the Navy’s previous search. Hughes Decl. ¶ 33.
Carlborg’s fifth count concerns two FOIA requests for email records regarding the
disciplinary action that led to his separation from the Marine Corps. Compl. ¶¶ 73–76. The first
request was made on February 21, 2016, and sought any email sent or received by nine named
Marines regarding Carlborg’s disciplinary action from June 30, 2014 to October 9, 2015. Pl’s
Ex. 20, Dkt. 23-2; McMillan Decl. ¶ 15. Carlborg’s other request was submitted on April 12,
2016 and sought all emails sent or received by three named Marine Corps officers regarding their
assignment to Carlborg’s Board of Inquiry or their handling of Carlborg’s case from February 5,
2015 to October 9, 2015. Pl’s Ex. 19, Dkt. 23-2. In response to the first request, the Navy
searched the emails of the requested individuals for the keyword “Carlborg” and provided the
responsive material onto a compact disc. McMillan Decl. ¶ 15 & Ex. C. In response to
Carlborg’s second request, the Navy searched the emails of the three specified individuals for the
keywords “Carlborg” and “Board of Inquiry.” McMillan Decl., Ex. D at 2. Carlborg received
the results from both requests on August 4 and August 5, 2016. McMillan Decl. ¶ 16.
On January 13, 2020, Carlborg filed a motion for partial summary judgment. Dkt. 23.
On May 15, 2020, the Navy filed a cross-motion for summary judgment on all counts. Dkt. 28.
II. LEGAL STANDARDS
Rule 56 of the Federal Rules of Civil Procedure mandates that “[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A dispute is
‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Paige v. Drug Enf’t Admin., 665 F.3d 1355, 1358 (D.C. Cir. 2012). A fact is material if
4
it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
The Privacy Act mandates that “[e]ach agency that maintains a system of records shall
. . . upon request by any individual to gain access to his record or to any information pertaining
to him which is contained in the system, permit him . . . to review the record and have a copy
made of all or any portion thereof in a form comprehensible to him.” 5 U.S.C. § 552a(d)(1).
The Privacy Act also allows individuals to request notice that an agency’s system of records
contains information about them. See 5 U.S.C. §§ 552a(e)(4)(G), (f)(1). FOIA provides that
“each agency, upon any request for records which (i) reasonably describes such records and (ii)
is made in accordance with published rules stating the time, place, fees (if any), and procedures
to be followed, shall make the records promptly available to any person.” 5 U.S.C.
§ 552(a)(3)(A).
The Privacy Act and FOIA are structurally similar. Londrigan v. FBI, 670 F.2d 1164,
1169 (D.C. Cir. 1981). Both provide a requester with access to federal agency records about the
requester and create a private cause of action when an agency fails to comply with a valid
request. See 5 U.S.C. §§ 552a(d)(1), (g)(1) (Privacy Act); 5 U.S.C. §§ 552(a)(3)(A), (a)(4)(B)
(FOIA). Unlike FOIA, however, the Privacy Act “does not have disclosure as its primary goal.
Rather, the main purpose of the Privacy Act’s disclosure requirement is to allow individuals on
whom information is being compiled and retrieved the opportunity to review the information and
request that the agency correct any inaccuracies.” Henke v. U.S. Dep’t of Commerce, 83 F.3d
1453, 1456–57 (D.C. Cir. 1996).
Under both the Privacy Act and FOIA, an agency must conduct an adequate and
reasonable search for relevant records. See Chambers v. U.S. Dep’t of Interior, 568 F.3d 998,
5
1003 (D.C. Cir. 2009) (stating that “the Privacy Act, like FOIA, requires” that a search “be
reasonably calculated to uncover all relevant documents” (internal quotation marks omitted)). In
this Circuit, courts apply the same standard under both statutes to determine the adequacy of a
search. See id.; Hill v. U.S. Air Force, 795 F.2d 1067, 1069 (D.C. Cir. 1986) (per curiam)
(affirming search’s adequacy under Privacy Act for the same reasons the search was affirmed
under FOIA). Thus, “[i]n a suit seeking agency documents—whether under the Privacy Act or
the FOIA—at the summary judgment stage, where the agency has the burden to show that it
acted in accordance with the statute, the court may rely on a reasonably detailed affidavit, setting
forth the search terms and the type of search performed, and averring that all files likely to
contain responsive materials (if such records exist) were searched.” Chambers, 568 F.3d at 1003(internal alteration and quotation marks omitted). The agency’s affidavit is “accorded a
presumption of good faith, which cannot be rebutted by purely speculative claims about the
existence and discoverability of other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197,
1200 (D.C. Cir. 1991) (internal quotation marks omitted).
If agency searches reveal records responsive to a Privacy Act or FOIA request, an agency
may withhold access to the records if the statutes exempt them from disclosure. See 5 U.S.C.
§§ 552a(j)(2), (k)(2), 552(b). Although the Privacy Act and FOIA “substantially overlap,” the
statutes “are not completely coextensive; each provides or limits access to material not opened or
closed by the other.” Greentree v. U.S. Customs Serv., 674 F.2d 74, 78 (D.C. Cir. 1982). The
Privacy Act and FOIA “seek[] in different ways to respond to the potential excesses of
government,” and “[e]ach, therefore, has its own functions and limitations.” Id. at 76.
Accordingly, “[t]he two acts explicitly state that access to records under each is available without
regard to exemptions under the other.” Id. This means that, when both statutes are at play, an
6
agency seeking to withhold records must “demonstrate that the documents fall within some
exemption under each Act.” Martin v. Office of Special Counsel, Merit Sys. Prot. Bd., 819 F.2d
1181, 1184 (D.C. Cir. 1987) (emphasis in original). “If a FOIA exemption covers the
documents, but a Privacy Act exemption does not, the documents must be released under the
Privacy Act; if a Privacy Act exemption but not a FOIA exemption applies, the documents must
be released under FOIA.” Id.III. ANALYSIS
A. Adequacy of the Searches
To secure summary judgment, the Navy “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.” Reporters Comm. for Freedom of Press v. FBI, 877 F.3d
399, 402 (D.C. Cir. 2017) (internal quotation marks omitted). “[T]he issue to be resolved is not
whether there might exist any other documents possibly responsive to the request, but rather
whether the search for those documents was adequate.” Weisberg v. U.S. Dep’t of Justice, 745
F.2d 1476, 1485 (D.C. Cir. 1984) (emphasis in original). “The adequacy of the search, in turn, is
judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each
case.” Id. The central question is whether the Navy’s search was “reasonably calculated to
discover the requested documents, not whether it actually uncovered every document extant.”
SafeCard, 926 F.2d at 1201.
Carlborg challenges the adequacy of the Navy’s search with respect to Counts IV and V. 1
1
When Carlborg filed his complaint, the Navy had not yet responded to his request in Count I,
Defs.’ Mem. at 1; see also Compl. ¶¶ 5–9, but did so on March 18, 2019 when it produced a
redacted version of Carlborg’s “Official Military Personnel File,” see Hughes Decl. ¶¶ 8–9.
Carlborg did not move for summary judgment with respect to this claim, see Pl.’s Mem. at 22,
7
1. Count IV
Carlborg’s Privacy Act requests in Count IV sought records “maintained on” Carlborg in
two specified systems of records: the HQMC Correspondence Control Files and the Performance
File. Compl. ¶¶ 40–42. In responding to these requests, the Navy twice searched each specified
system for records that included the term “Carlborg.” Hughes Decl. ¶¶ 31, 36. The Navy also
searched the “email accounts, .pst folders, desktops and shared drive” of individual staff
members who “might reasonably” have been expected to have been involved in Carlborg’s
administrative separation. Id. ¶ 18.
The Navy conducted an adequate search for the records specified in these requests.
Judged by a “standard of reasonableness,” Mobley v. C.I.A., 924 F. Supp. 2d 24, 36 (D.D.C.
2013) (quoting Weisberg, 745 F.2d at 1485), the Navy’s search for Carlborg’s name in the
systems Carlborg specified—and in other locations likely to yield responsive material—
constituted “a good faith effort to conduct a search for the requested records, using methods
which can be reasonably expected to produce the information requested.” Reporters Comm. for
Freedom of Press, 877 F.3d at 402. Carlborg points to “an unexplained 9-page gap in page
numbering of emails that were produced” in response to one of the requests as a basis for finding
the Navy’s search inadequate. 2 Pl.’s Reply Mem. in Supp. of Pl.’s Partial Mot. for Summ. J.
nor does he appear to dispute the Navy’s argument that it conducted an adequate search in
response to Count I, see Defs.’ Reply Mem. in Supp. of Defs.’ Mot. for Summ. J. (“Defs.’
Reply”) at 1, Dkt. 32. Regardless, however, the record shows that the Navy satisfied its burden
to show it conducted a search “reasonably calculated to uncover all relevant documents”
responsive to Carlborg’s request in Count I. SafeCard, 926 F.2d at 1201. Not only did the Navy
search the system Carlborg specified using his social security number, see Hughes Decl. ¶ 6, 8, it
also “searched[ed] the Optical Digital Imaging Records Management System,” id. ¶ 9.
2
Carlborg suggests that the Navy’s response was not clearly separated by each request. Pl.’s
Mem. in Supp. of Pl.’s Partial Mot. for Summ. J. (“Pl.’s Mem.”) at 18, Dkt. 23-1. To the extent
8
(“Pl.’s Reply”) at 5, Dkt. 31. The Navy speculated that the gap was caused by an officer
removing duplicate emails before sending the Navy’s response to Carlborg, see Hughes Decl. ¶
35, but the Navy’s inability to definitively explain the origin of this gap does not render the
methods it used unreasonable. This is especially true given that the Navy conducted another
search after this gap was identified and found “no records that ha[d] not already been released
to” Carlborg. Hughes Decl. ¶ 36.
Finally, the reasonableness of the Navy’s search is buttressed by the fact that Carlborg
has offered “no suggestion as to where else” the Navy “might have looked for his records or
what other search criteria should have been used.” Peavey v. Holder, 657 F. Supp. 2d 180, 190
(D.D.C. 2009). Carlborg does point to representations made by the Navy during the processing
of his requests indicating there were 1,750 pages of responsive records and argues that the Navy
has failed to adequately explain how only 161 pages of material were ultimately produced. Pl.’s
Mem. at 19. But, as detailed in the Navy’s affidavits, although there were 1,750 pages of hard
copy files identified as responsive to Carlborg’s requests, most of those records were duplicative
or had already been produced to Carlborg in response to earlier FOIA requests. See Hughes
Decl. ¶¶ 22–27. Carlborg also suggests the Navy’s search cannot be adequate because it “has
never identified any files or personnel produced from [the Office of Legislative Affairs].” Pl.’s
Reply at 5–6. But “speculation that as yet uncovered documents may exist” is insufficient to
rebut the “presumption of good faith” afforded to the Navy after searching for Carlborg’s records
in the systems he specified. SafeCard, 926 F.2d at 1200–01 (internal quotation marks omitted).
he also argues that the Navy’s response was not reasonably segregated, see Defs.’ Mem. at 18–
19, the Navy satisfied its segregability obligations by describing the efforts it made to segregate
non-exempt portions of the responsive records. See McMillan Decl. ¶ 12–14; see also Nat’l Sec.
Counselors v. CIA, 960 F. Supp. 2d 101, 207 (D.D.C. 2013).
9
Consequently, the Court finds the Navy has established its search was “reasonably calculated to
uncover all relevant documents” responsive to Carlborg’s requests in Count IV. See id. at 1201.
2. Count V
Carlborg’s two FOIA requests in Count V sought emails relating to his administrative
separation from the Navy. The first request sought all emails “sent or received” from June 30,
2014 to October 9, 2015 by nine named Marine Corps officers regarding Carlborg’s disciplinary
case. Pl.’s Ex. 20. Carlborg’s second request sought all emails sent or received by three named
Marine Corps officers from February 5, 2015 to October 9, 2015 regarding their assignment to
Carlborg’s Board of Inquiry or their handling of Carlborg’s case. Pl’s Ex. 19. In response, the
Navy searched the emails of all individuals named in either request for the keyword “Carlborg.”
The Navy also searched the emails of the three individuals named in Carlborg’s second request
for the keyword “Board of Inquiry.” McMillan Decl. ¶ 15 & Ex. D at 2. By searching the emails
Carlborg specified by his name, the Navy satisfied its burden to show it conducted a search that
was reasonably calculated to produce the emails Carlborg sought about the handling of his
disciplinary case.
Carlborg attempts to satisfy his burden to “provide countervailing evidence as to the
adequacy of the [Navy]’s search,” Iturralde v. Comptroller of Currency, 315 F.3d 311, 314 (D.C.
Cir. 2003) (internal quotation marks omitted), by pointing to certain emails he expected the Navy
to produce, including three emails in Carlborg’s possession that he claims were responsive to his
request. See Pl.’s Mem. at 20–21. But after Carlborg brought these emails to the Navy’s
attention, the Navy conducted a review of the relevant .pst files and found nine pages of
responsive records that had not previously been produced, including one of the emails Carlborg
referenced. See Pl.’s Mem. at 11; McMillan Decl. ¶ 19. The Navy then conducted another
10
search as part of a “completely renewed” response to his request, but ultimately found “no
additional responsive emails.” Id. ¶¶ 20–21. In assessing the adequacy of a search, “[t]he issue
is not whether any further documents might conceivably exist but rather whether the [Navy]’s
search for responsive documents was adequate[,]” Defs. of Wildlife v. U.S. Dep’t of Interior, 314
F. Supp. 2d 1, 8 (D.D.C. 2004), and “the adequacy of a search is determined not by the fruits of
the search, but by the appropriateness of its methods,” Hodge v. F.B.I., 703 F.3d 575, 579 (D.C.
Cir. 2013) (alterations and internal quotation marks omitted); see also Wilbur v. C.I.A., 355 F.3d
675, 678 (D.C. Cir. 2004) (“[T]he agency’s failure to turn up a particular document, or mere
speculation that as yet uncovered documents might exist, does not undermine the determination
that the agency conducted an adequate search for the requested records.”). The Navy’s failure to
produce particular emails does not suggest the inadequacy of its search. See Barouch v. U.S.
Dep’t of Justice, 87 F. Supp. 3d 10, 24 (D.D.C. 2015) (“Defendants’ failure to find and release
these particular records to plaintiff is not, therefore, evidence of agency bad faith.”).
Carlborg also speculates that, because the compact disc of files the Navy used to process
Carlborg’s request was a copy of the potentially responsive material the Navy initially identified,
someone could have “manipulated, redacted and eliminate[d] files or documents unfavorable” to
the Navy before the material was processed under FOIA. Pl.’s Reply at 7–8; see also Pl.’s Mem.
at 10–11. But the record contains no evidence to support these claims, and the Navy is afforded
“a presumption of good faith, which cannot be rebutted by purely speculative claims.” SafeCard,
926 F.2d at 1200 (internal quotation marks omitted); see also Pl.’s Ex. 20; McMillan Decl. ¶ 22
(attesting the file was not modified or manipulated).
For these same reasons, Carlborg’s request for an in camera review of the original
compact disc, see Pl.’s Reply at 10, is denied. See Am. Civil Liberties Union v. U.S. Dep’t of
11
Defense, 628 F.3d 612, 627 (D.C. Cir. 2011) (finding in camera review was “not necessary”
where the agency’s affidavit was “sufficiently detailed” and there was “no evidence of bad
faith”); Larson v. Dep’t of State, 565 F.3d 857, 870 (D.C. Cir. 2009) (“If the agency’s affidavits
provide specific information sufficient to place the documents within the exemption category, if
this information is not contradicted in the record, and if there is no evidence in the record of
agency bad faith, then summary judgment is appropriate without in camera review of the
documents.”) (internal quotation marks omitted). In sum, the Navy’s search was “reasonably
calculated to uncover all relevant documents” responsive to Carlborg’s requests in Count V.
SafeCard, 926 F.2d at 1201.
B. Privacy Act
1. Applicability of Privacy Act to Count IV
As part of the Navy’s response to Carlborg’s Privacy Act requests in Count IV, the Navy
searched individual staff members’.pst files. See McMillan Decl. ¶ 7; Defs.’ Reply at 5. It then
processed responsive emails produced from this search under FOIA and withheld material under
FOIA Exemptions 5, 6, and 7(C). Hughes Decl. ¶¶ 18, 31, 34; Defs.’ Mem. at 16 n.3. Carlborg
challenges these withholdings on the ground that the responsive emails were actually retrieved
from a system of records, and consequently, should have been processed under the Privacy Act
rather than FOIA, but he does not otherwise contest the Navy’s reliance on Exemptions 5, 6, and
7(C). See Pl.’s Reply 15–16.
“Determining that a system of records exists from which the record at issue was retrieved
is a prerequisite to a substantive Privacy Act claim.” Mulhern v. Gates, 525 F. Supp. 2d 174,
181 n.10 (D.D.C. 2007). A “system of records” is defined by the Privacy Act as “a group of any
records under the control of any agency from which information is retrieved by the name of the
12
individual or by some identifying number, symbol, or other identifying particular assigned to the
individual.” 5 U.S.C. § 552a(a)(5). For information to fall within that definition: “(1) the
“information must be ‘about’ an individual, and (2) it must actually be retrieved by the name or
identifier of an individual.” Kearns v. Fed. Aviation Admin., 312 F. Supp. 3d 97, 108 (D.D.C.
2018) (internal citations and quotation marks omitted). “The Circuit has held . . . that records
containing an individual’s name are not necessarily about that individual, and that the capability
to retrieve records based on individual identifiers is not tantamount to actually retrieving them
based on such markers.” Id. (internal citations omitted) (emphasis in original). Instead, “in
determining whether an agency maintains a system of records keyed to individuals, the court
should view the entirety of the situation, including the agency’s function, the purpose for which
the information was gathered, and the agency’s actual retrieval practice and policies.” Henke, 83
F.3d at 1461. Importantly, the Privacy Act does “not apply to every document created by an
agency employee but only to those records considered sufficiently important to the agency’s
operations or mission to become part of the agency’s system of records.” York v. McHugh, 850
F. Supp. 2d 305, 314 (D.D.C. 2012).
The emails the Navy collected in response to Carlborg’s requests were not retrieved from
a system of records as defined by the Privacy Act because the email messages and calendar
entries stored on the .pst files that the Navy searched are not “sufficiently important to the
agency’s operations or mission to become part of the agency’s system of records.” Id. Although
Carlborg stresses that the Navy was able to search these files for Carlborg’s name, Pl.’s Reply at
15–16, “capability to retrieve records based on individual identifiers is not tantamount to
actually retrieving them based on such markers.” Kearns, 312 F. Supp. 3d at 108 (emphasis in
original). And Carlborg has not shown that the Navy regularly retrieves information from .pst
13
files using names or personal identifiers, or that it created these files in order to do so. See York,
850 F. Supp. 2d at 311–15 (“The fact that some documents were labeled with [plaintiff’s] name
does not convert the shared J drive into a system of records, particularly where there is no
evidence that the agency used the shared drive to retrieve information by personal identifiers and
the drive was not created for employees to do so.”). The Privacy Act therefore does not apply to
the requests referenced by Carlborg in Count IV and the searches that the Navy conducted in
response to those requests.
2. Privacy Act Withholdings
When the Navy processed Carlborg’s records under the Privacy Act, it withheld
“personal identifying information pertaining to third parties” such as “names, signatures and
social security numbers.” Hughes Decl. ¶¶ 9, 15. Carlborg claims there is no basis for
withholding that information under the Privacy Act. Pl.’s Reply at 11.
Although the Privacy Act requires the Navy to provide Carlborg with “his record”, 5
U.S.C. § 552a(d)(1), it also provides that, unless authorized by the Act, “no agency shall disclose
any record which is contained in a system of records by any means of communication to any
person, or to another agency, except pursuant to a written request by, or with the prior consent
of, the individual to whom the record pertains.” 5 U.S.C. § 552a(b). Carlborg argues that
because these records are “about” him, they cannot “pertain” to someone else, and thus the
Privacy Act’s prohibition on disclosure without written consent does not apply. Pl.’s Reply at
11–13. In support of this argument, Carlborg cites to one case, Topuridze v. U.S. Info. Agency,
772 F. Supp. 662 (D.D.C. 1991), which held that individuals are entitled to records under the
Privacy Act that are “about” them, even if information in that record also pertains to another
individual. But Topuridze is no longer good law. In this Circuit, “when materials pertain to both
14
a Privacy Act requester and other individuals from whom the agency has received no written
consent permitting disclosure, the Privacy Act’s prohibition on disclosing information without
written consent ‘must take precedence,’ and the portions of the record pertaining to those third
parties must be withheld.” Mobley, 924 F. Supp. 2d at 57 (quoting Sussman v. U.S. Marshals
Serv., 494 F.3d 1106, 1121 n.9 (D.C. Cir. 2007)). The Court thus concludes that the Navy
properly withheld personal identifying information pertaining to third parties who had not
provided their consent to disclose that information pursuant to 5 U.S.C. § 552a(b).
As a final argument, Carlborg invokes a separate statute, 10 U.S.C. § 1556(a), to support
his claim that he was entitled to an unredacted copy of the advisory opinion that the Navy
produced in response to the Privacy Act request in Count III. Pl.’s Reply at 3–4. This too fails
because § 1556(a) applies to the release of information in connection with proceedings involving
the correction of military records. See 10 U.S.C. § 1556(a). And Carlborg has provided no
authority that suggests that this provision may be enforced as part of an action brought under
FOIA or the Privacy Act, or that this Court has jurisdiction to consider a claim seeking to enforce
10 U.S.C. § 1556(a).
C. FOIA Withholdings
Finally, the Navy argues it properly invoked FOIA Exemptions 5 and 6 to withhold
certain material in its response to Carlborg’s FOIA requests in Count II. Defs.’ Mem. at 11–14.
Carlborg failed to respond to this argument. As a result, the Court may treat it as conceded. See
Sykes v. Dudas, 573 F. Supp. 2d 191, 202 (D.D.C. 2008) (“In this district, when a party responds
to some but not all arguments raised on a Motion for Summary Judgment, a court may fairly
view the unacknowledged arguments as conceded.”). Nevertheless, the Court finds the Navy’s
withholdings in response to Carlborg’s FOIA requests in Count II were justified under FOIA.
15
The Navy invoked the deliberative process privilege under FOIA Exemption 5 to
withhold emails from a Special Agent to legal counsel “concerning the status of an ongoing
investigation of an alleged sexual assault not involving the Plaintiff that identified both the
alleged victim and the alleged suspect.” Dowling Decl. ¶ 5, Dkt. 28-6. Exemption 5 protects
“inter-agency or intra-agency memorandums or letters that 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). This includes all
documents that would normally be privileged in the civil discovery context. See NLRB v. Sears,
Roebuck & Co., 421 U.S. 132, 149 (1975). The deliberative process privilege allows agencies to
withhold “documents reflecting advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies are formulated.”
Petroleum Info. Corp. v. Dep’t of Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (internal
quotation and citation omitted). To invoke the deliberative process privilege, an agency must
show that the information withheld is both “predecisional” and “deliberative.” Id. at 1434.
Predecisional material is “prepared in order to assist an agency decisionmaker in arriving at his
decision, rather than to support a decision already made.” Id. (internal quotation marks omitted).
Deliberative material “reflects the give-and-take of the consultative process.” Id. (internal
quotation marks omitted).
Here, the emails withheld under Exemption 5 were predecisional because they relayed
“the opinions, recommendations, and assessments of the special agent about the investigation in
anticipation of a court-martial or additional administrative action.” Dowling Decl. ¶ 5. And they
are deliberative because they “reflect the internal give and take among Navy personnel about that
investigation.” Defs.’ Mem. at 14; see also Citizens for Responsibility & Ethics in Washington v.
DOJ, 746 F.3d 1082, 1098 (D.C. Cir. 2014) (noting that courts “give deference to an agency’s
16
predictive judgment of the harm that will result from disclosure of information”). Because these
emails were both “predecisional” and “deliberative,” the Navy properly invoked FOIA
Exemption 5 to withhold them. See Petroleum Info. Corp., 976 F.2d at 1434.
FOIA Exemption 6 employs a balancing test and allows agencies to withhold certain
information when disclosing it would result in a “clearly unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(6). If disclosure would implicate only a de minimis privacy
interest, the information must be disclosed; if the privacy interest at stake is greater than de
minimis, the court must balance that privacy interest against the public interest in disclosure. See
Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 153 (D.C. Cir. 2006).
The Navy properly invoked FOIA Exemption 6 to redact the “personal and identifying
information” of “DoD and non-DoD personnel” who were not general officers or in director-
level positions. Dowling Decl. ¶ 4; McMillan Decl. ¶ 7. These individuals have more than a de
minimis privacy interest in keeping their names and personal identifying information from being
disclosed. And the general public’s interest in disclosing the personal and identifying
information of these individuals is minimal. See, e.g., Davidson v. Dep’t of State, 206 F. Supp.
3d 178, 200 (D.D.C. 2016) (finding there was “no public interest” in knowing “the names and
contact information” of State Department employees because it would reveal “little or nothing
more about the Department’s conduct”); Kearns, 312 F. Supp. 3d at 112 (finding the public
interest in disclosing “the names, other identifying information, and personal data” of third
parties “involved in the FAA’s internal investigations” was “nil” because the information would
not “shed light on the FAA’s performance of its statutory duties”). Accordingly, the Navy
properly invoked FOIA Exemption 6 to withhold this information.
17
CONCLUSION
For the foregoing reasons, the Court grants the Navy’s cross-motion for summary
judgment and denies Carlborg’s partial motion for summary judgment. A separate order
consistent with this decision accompanies this memorandum opinion.
________________________
DABNEY L. FRIEDRICH
United States District Judge
August 10, 2020
18