Schmidt v. Fore

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOSEPH JAMES SCHMIDT,
Plaintiff,
v. Civil Action No. 08–2185 (CKK)
RAJIV SHAH, Administrator, United States
Agency for International Development,
Defendant.
MEMORANDUM OPINION1
(March 18, 2010)
This is a Freedom of Information Act (“FOIA”) case brought by Plaintiff Joseph James
Schmidt against his former employer, the United States Agency for International Development
(“USAID”). Schmidt claims that USAID has violated the Freedom of Information Act, 5 U.S.C.
§ 552, by failing to timely respond to three requests he submitted to USAID on May 14,
September 9, and September 16, 2008. Schmidt seeks a complete response to his requests, with
no exceptions, and a waiver of any applicable charges based on the agency’s failure to provide a
timely response. USAID contends that it has now produced all responsive documents and
properly redacted or withheld certain documents pursuant to FOIA Exemption 5, see 5 U.S.C. §
552(b)(5), and FOIA Exemption 6, see id. § 552(b)(6). Defendant2 has filed a [16] Motion for
1
Pursuant to Rule 25(d), Rajiv Shah has been substituted for Henrietta Fore as the
defendant in this action.
2
Schmidt has brought this action against Rajiv Shah in his official capacity as USAID
Administrator. However, FOIA actions may be brought only against an agency. See 5 U.S.C.
§ 552(a)(4)(B). Defendant does not seek dismissal on this basis. Therefore, the Court shall
substitute USAID as the real party in interest.
Summary Judgment on this basis, which Schmidt opposes. Schmidt has also filed a [19] Motion
Regarding Defendant’s Lack of Responsiveness to Freedom of Information Requests
(hereinafter, “Pl.’s Mot.”), which the Court construes as a cross-motion for summary judgment.
Schmidt has filed numerous briefs in support of his position and in opposition to Defendant’s
motion, and the motions are now ripe for decision.3 After a thorough review of the parties’
submissions and attachments thereto and applicable case law and statutory authority, the Court
shall GRANT-IN-PART and DENY-IN-PART WITHOUT PREJUDICE Defendant’s motion for
summary judgment, granting the motion as to all issues except the adequacy of the search
regarding electronic back-up tapes and records in the Office of the Inspector General, the Office
of Financial Management, or the Office of the General Counsel, with respect to which the motion
shall be denied without prejudice. The Court shall also DENY Schmidt’s construed motion for
summary judgment, denying without prejudice with respect to the adequacy of the search as
described above.
3
Apart from his construed motion for summary judgment, which includes exhibits filed
in support, Schmidt has filed three memoranda with supporting materials. See [18] Plaintiff’s
Opposition to Defendant’s Withholding, Concealment and Redaction of Requested Documents
and Information Related to Freedom of Information Act (FOIA) Requests; [21] Plaintiff’s
Response in “Opposition” of Defendant’s Motion for Summary Judgement [sic] and Request for
a Trial; and [24] Plaintiff’s Response in Opposition to Defendant’s Faulty Argument for
Summary Judgment and in Favor of Plaintiff’s Request for a Trial or Court Sponsored
Mediation. Because some of these filings exceeded the page limits in the Local Rules, Schmidt
has filed a [26] Motion Requesting the Court’s Permission and Acceptance of Filings that
Deviate from Local Rule 7(h) and 7(e), which he subsequently resubmitted. See Dkt. Nos. 26,
27. Because Schmidt is proceeding pro se and it appears that he has attempted in good faith to
comply with the Local Rules, the Court shall GRANT his motion to accept these filings and
consider them in the context of adjudicating the parties’ cross-motions for summary judgment.
2
I. BACKGROUND
A. Schmidt’s FOIA Requests
On May 14, 2008, Schmidt submitted a FOIA request via email to USAID. The request
sought the following information: “All email correspondence (emails, memos and letter)
produced by the following individuals related specifically to me (but addressed to persons other
than me) as of August 1, 2006, including any deleted emails on backup tape: [list of nine
individuals].” See Def.’s Stmt.4 ¶ 2. Schmidt followed up on his request with email inquiries on
June 24, June 30, and July 9, 2008. Answer at 2. On July 10, 2008, USAID FOIA Team Leader
Sylvia Lankford responded to Schmidt and apologized for an apparent mix-up caused by an
earlier FOIA request submitted by Schmidt that is not relevant to this litigation. See Pl.’s Mot.,
Ex. 3 (7/10/2008 email from Lankford to Schmidt). Schmidt’s FOIA request was given a
tracking number (F-00237-08) and assigned to Ms. Gwen Marcus for processing. Id. On July
15, 2008, Ms. Marcus responded to Schmidt and assured him that the agency was working
towards completing his request. Id. (7/15/2008 email from Marcus to Schmidt). On September
29, 2008, Schmidt sent a complaint by email about the delay in processing his May 14 request.
See id. (9/29/2008 email from Schmidt to Lankford).
4
As a preliminary matter, the Court notes that it strictly adheres to the text of Local Civil
Rule 7(h) (formerly Rule 56.1 when resolving motions for summary judgment). See Burke v.
Gould, 286 F.3d 513, 519 (D.C. Cir. 2002) (finding district courts must invoke the local rule
before applying it to the case). The Court has advised the parties that it strictly adheres to Rule
7(h) and has stated that it “assumes facts identified by the moving party in its statement of
material facts are admitted, unless such a fact is controverted in the statement of genuine issues
filed in opposition to the motion.” [13] Scheduling Order at 2 (May 4, 2009). Thus, in most
instances the Court shall cite only to one party’s Statement of Material Facts (“Stmt.”) unless a
statement is contradicted by the opposing party. The Court shall use “Def.’s Stmt.” to refer to the
revised Statement of Material Facts filed by Defendant in its opposition to Schmidt’s dispositive
motion. The Court shall also cite directly to evidence in the record, where appropriate.
3
On September 9, 2008, Schmidt submitted a second FOIA request seeking “[a]ll
information, including email correspondence, memos and letters” regarding fifteen separate
matters identified by Schmidt. Def.’s Stmt. ¶ 3. Many of these matters pertain to issues that
were raised by Schmidt in a related case that was dismissed by this Court. See Schmidt v. Shah,
Civil Action No. 08-1831 (D.D.C. Mar. 17, 2010). The fifteen items requested can be
summarized as follows:5
1. information regarding the alleged use of Iraq-related appropriations for non-Iraq-
related services and an alleged cover-up thereof;
2. information provided by a particular named USAID official to other agency
officials regarding Schmidt’s protected EEO information, which Schmidt believed
to be an unlawful disclosure;
3. “Information relating to the Office of Acquisition and Assistance’s handling of
[Schmidt’s] confidential medical leave information”;
4. “Information regarding the sharing of [Schmidt’s] confidential employee and
medical information” by three particular named agency officials and other
unnamed agency officials in violation of the Privacy Act;
5. information regarding the sharing of Schmidt’s confidential EEO information on
the part of two named individuals in the USAID’s Office of Equal Opportunity
Programs (EOP);
6. information regarding USAID’s evaluation of Schmidt’s application for
employment under job announcement number AID-08-0019A-DC13;
7. information related to the agency’s review of Schmidt’s Leave without Pay
(LWOP), including its determination regarding over $10,000 allegedly owed to
Schmidt and the rationale for not reimbursing him for funds erroneously taken
from his paychecks;
8. information regarding the agency’s decision to deactivate Schmidt’s USAID
identification badge;
9. information pertaining to one named agency official’s refusal to provide Schmidt
with a written job recommendation;
10. information generated by a named USAID attorney for review and comment by
other agency officials regarding Schmidt’s employment with the agency;
11. meeting notes relating to a teleconference between Schmidt and his former
supervisor when she purportedly denied Schmidt a “reasonable accommodation”
for his disability;
5
The Court has paraphrased many of Schmidt’s requests and omitted the names of
specific agency officials identified by Schmidt.
4
12. information regarding the agency’s alleged gross negligence in not promptly
removing Schmidt from its payroll system following his resignation and
producing a Standard Form 50 in a reasonable period of time
13. information generated by the EOP, the Office of Acquisition and Assistance, the
Office of Security, and other officers involving USAID’s allegedly unlawful
actions against Schmidt regarding his employment;
14. “Information regarding [Schmidt’s] forced/pressured resignation generated by
members of GC, OAA, EOP et al [sic]”; and
15. information regarding sensitivity training of USAID personnel since October 2006
relating to race, gender, sexual harassment, and hostile working environment.
Def.’s Stmt. ¶ 3.
On September 16, 2008, Schmidt submitted a third FOIA request. This request sought:
(1) “copies of any settlement agreements reached by [USAID] from 1995 to present regarding
possible violations of FAR [Federal Acquisition Regulation] 16.505 fair opportunity”; (2) “[a]ny
information or lists produced by USAID since 1995 regarding possible violations of FAR
16.505”; and (3) “written ‘Justifications’ for task orders awarded both in Washington and in
overseas missions (under Indefinite Quantity Contracts (IQCs)) from 1995 to present, where FAR
16.505 and/or fair opportunity provisions within the contract were not properly followed.” Def.’s
Stmt. ¶ 4. Schmidt also asked that his identity be kept confidential during the agency’s searches
for records. Id.
USAID processed the two September requests as a single FOIA inquiry and designated it
as File No. F-00026-09. Def.’s Stmt. ¶ 5.
B. USAID’s Search for Responsive Records
USAID processes FOIA requests through its Information and Records Division in the
Bureau of Management (“FOIA Office”). See Def.’s Mot., Ex. 1 (Decl. of Sylvia Putman
Lankford) (hereinafter, “Lankford Decl.”) ¶ 1. When the FOIA Office receives a request, a
Public Affairs Specialist contacts any office that might have the information requested, collects
5
and organizes all responsive documents, and consults with the USAID Office of the General
Counsel to ensure that no protected, non-public information is inadvertently disclosed. Id. ¶ 2.
Upon receiving Schmidt’s requests, the FOIA Office determined that five different USAID
offices should be searched for responsive records: the Office of Equal Opportunity Programs,
Office of the Chief Information Officer, Office of Acquisition and Assistance, Office of Human
Resources, and Office of the Chief Financial Officer. Id. ¶ 14. Each of these offices was asked
to search for the relevant documents within a certain timeframe, 2006-2008. Id. ¶ 15. The
subject matter of the searches varied by each office, but some of the search terms were “misuse
of Iraq funding,” “violation of EEO regulations,” “leave without pay,” and “forced/pressured
resignation.” Id. ¶ 16. Each of the offices provided all responsive documents to the FOIA Office
or to the Office of General Counsel to be produced to Schmidt. Id. ¶ 18.
In response to Schmidt’s May 14, 2008, request, a forensic search was conducted by the
Office of the Chief Information Officer on all emails sent or received by the USAID work email
addresses of all individuals targeted in Schmidt’s requests. Lankford Decl. ¶ 17. Four email
accounts were inaccessible because those employees had left the agency. Id. Emails from the
other individuals’ accounts were extracted if they included iterations of Schmidt’s name, and
they were then reviewed by the Office of General Counsel. Id. Amitabh Khardori, an attorney in
the Office of General Counsel, reviewed the extracted emails and identified those that were
responsive to Schmidt’s specific requests. See Def.’s Opp’n, Ex. 2 (Decl. of Amitabh Khardori)
(hereinafter, “Khardori Decl.”) ¶ 8. Because Schmidt’s May 2008 request did not specify any
particular substance, Mr. Khardori organized the responsive documents according to the
categories listed in his September 2008 requests. Id. ¶ 10.
6
C. USAID’s Production of Records
USAID’s Information and Records Division sent Schmidt all responsive records in two
batches. The first set of records was sent with a letter on April 17, 2009, advising that 255 pages
of responsive documents were provided and that no responsive documents were found for items
numbered 5, 10, 11, and 15 from Schmidt’s September 9, 2008, request. Lankford Decl. ¶ 9.
The letter also advised that, with respect to Schmidt’s September 16, 2008, request, there were
no responsive documents regarding request item 1 and that requests 2 and 3 were vague and
overbroad. Id. This first set consisted of documents that contained no FOIA redactions or
withholdings apart than personal contact information of government employees under FOIA
Exemption 6.6 Id. ¶ 8. The FOIA Office sent Schmidt the second set of responsive documents
with a letter on April 23, 2009. Id. ¶ 10. The letter advised that the second set of documents
consisted of 112 pages and that no additional documents regarding the September 9, 2008, FOIA
request items 4, 5, 6, 10, and 15 were included. Id. The second set consisted of documents that
contained some redactions or withholdings based on FOIA Exemption 5.7 Id. The second set of
documents also contained some redactions based on FOIA Exemption 6. Id. ¶ 11. These latter
redactions were identified on the documents themselves. Id.8
6
FOIA Exemption 6 covers “personnel and medical files and similar files the disclosure
of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. §
552(b)(6).
7
FOIA Exemption 5 covers “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)
8
Schmidt contends that Defendant has failed to produce any documents in response to his
May 2008 request. However, Mr. Khardori’s declaration explains that responses to the May
2008 request were included with and categorized according to the responses to the September
7
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. § 522(a)(4)(B). In the FOIA context, “de novo review
requires the court to ‘ascertain whether the agency has sustained its burden of demonstrating that
the documents requested . . . are exempt from disclosure under the FOIA.’” 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).
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). Only after an agency
seeking summary judgment proves that it has fully discharged its FOIA obligations is summary
judgment appropriate. Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citing Weisberg v.
Dep’t of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983). In opposing a motion for summary
judgment, a party must offer more than conclusory statements. See Broaddrick v. Exec. Office of
the President, 139 F. Supp. 2d 55, 65 (D.D.C. 2001) (citing Laningham v. U.S. Navy, 813 F.2d
1236, 1241 (D.C. Cir. 1987)). Indeed, a plaintiff pursuing an action under FOIA must establish
that the agency has improperly claimed an exemption as a matter of law or that the agency failed
to segregate and disclose all non-exempt information in the requested documents. See Perry-
Torres v. Dep’t of State, 404 F. Supp. 2d 140, 142 (D.D.C. 2005).
2008 requests. See Khardori Decl. ¶ 10.
8
Congress enacted FOIA for the purpose of introducing transparency to 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,
975 F.2d 871, 872 (D.C. Cir. 1992); see also Summers v. Dep’t of Justice, 140 F.3d 1077, 1079
(D.C. Cir. 1998). Accordingly, FOIA provides nine exemptions pursuant to which an agency
may withhold requested information. See 5 U.S.C. §§ 552(a)(4)(B), (b)(1)-(9). The agency must
demonstrate the validity of any exemption that it asserts. See id.; Beck v. Dep’t of Justice, 997
F.2d 1489, 1491 (D.C. Cir. 1993) (“Consistent with the purpose of the Act, the burden is on the
agency to justify withholding requested documents.”) In addition, summary judgment may be
granted on the basis of the agency’s accompanying affidavits or declarations if they describe “the
justifications for nondisclosure with reasonably specific detail, demonstrate that the information
withheld logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor evidence of agency bad faith.” Military Audit Project v. Casey, 656
F.2d 724, 738 (D.C. Cir. 1981). These affidavits may be submitted by an official who
coordinated the search, and need not be from each individual who participated in the search. See
SafeCard Servs. v. Sec. & Exch. Comm’n, 926 F.2d 1197, 1200 (D.C. Cir. 1991). Where the
adequacy of the search is in doubt, 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. But “[t]here is no requirement that an agency search every record system.”
Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990).
9
An agency also has the burden of detailing what proportion of the information in a
document is non-exempt and how that material is dispersed throughout the document. Mead
Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977). Any non-
exempt information that is reasonably segregable from the requested records must be disclosed.
Oglesby v. U.S. Dep’t of the Army, 79 F.3d 1172, 1178 (D.C. Cir. 1996). In addition, district
courts are obligated to consider segregability issues sua sponte even when the parties have not
specifically raised such claims. Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d
1022, 1028 (D.C. Cir. 1999).
III. DISCUSSION
In considering Defendant’s motion for summary judgment, the Court shall address the
adequacy of the agency’s searches for records and the exemptions invoked, as well as any
segregability issues that arise.
A. Adequacy of Search for Records
USAID argues that it has adequately searched for records responsive to Schmidt’s three
FOIA requests. “To win summary judgment on the adequacy of a search, the agency must
demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all
relevant documents.’” Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir.
1995) (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). To meet its burden,
the agency may submit affidavits or declarations that explain in reasonable detail and in a non-
conclusory fashion the scope and method of the agency’s search. Perry v. Block, 684 F.2d 121,
126 (D.C. Cir. 1982). 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
10
information requested.” Oglesby, 920 F.2d at 68; see also Campbell v. U.S. Dep’t of Justice, 164
F.3d 20, 27 (D.C. Cir. 1998). In the absence of contrary evidence, such affidavits or declarations
are sufficient to demonstrate an agency’s compliance with FOIA. Perry, 684 F.2d at 127. A
search need not be exhaustive, Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1383 (8th Cir. 1995),
and the adequacy of the search is not determined by its results, but by the method of the search
itself, Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). An agency’s
failure to find a particular document does not necessarily indicate that its search was inadequate.
Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004); Nation Magazine, 71 F.3d at 892 n.7.
To prove the adequacy of its search, USAID has produced a declaration from Sylvia
Lankford, a Public Affairs Specialist in the agency’s Information and Records Division who is
responsible for maintaining the FOIA files for requests processed in her office and coordinating
responses to FOIA requests. See Lankford Decl. ¶¶ 1-2. USAID has also produced a declaration
from Amitabh Khardori, an attorney in the USAID Office of the General Counsel who reviewed
emails obtained through a forensic search for any records responsive to Schmidt’s requests. See
Khardori Decl. ¶¶ 2, 8. Their declarations indicate that the agency searched five different
USAID offices for records responsive to Schmidt’s three FOIA requests, including a forensic
search for emails that may be responsive. The searches were targeted by key phrases that
correlated to the substance of Schmidt’s requests. The declarations are relatively detailed and not
conclusory in nature.
Schmidt argues that the agency’s search was not adequate because it did not turn up every
record that Schmidt believes to exist and was conducted in bad faith. See Pl.’s Mot. ¶¶ 3, 8.
However; “the focus of the adequacy inquiry is not on the results.” Hornbostel v. U.S. Dep’t of
11
Interior, 305 F. Supp. 2d 21, 28 (D.D.C. 2003). The fact that other responsive records may exist
does not render a search inadequate. Perry v. Block, 684 F.2d at 128 (“The issue is not whether
any further documents might conceivably exist but rather whether the government’s search for
responsive documents was adequate.”) As for bad faith, Schmidt’s allegations are conclusory
and unsupported by evidence in the record. “Agency affidavits are accorded a presumption of
good faith, which cannot be rebutted by ‘purely speculative claims about the existence and
discoverability of other documents.’” SafeCard Servs., 926 F.2d at 1200 (quoting Ground Saucer
Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
Schmidt also argues that the agency should not have rejected his last two requests in
September 2008 as vague or overbroad. When an agency is faced with a vague request, it “may
construe the request as it reasonably sees fit, as long as it informs the requester of the defined
scope of the request.” Hamilton Sec. Group Inc. v. Dep’t of Hous. & Urban Dev., 106 F. Supp.
2d 23, 33 (D.D.C. 2000) (citing Dettman v. U.S. Dep’t of Justice, 802 F.2d 1472, 1476 (D.C. Cir.
1986)). Schmidt admits that USAID informed him of his need to provide more discrete search
parameters. See [24] Pl.’s Opp’n ¶ 7. Schmidt claims that USAID did not allow him the
opportunity to refine his request, but he cites no evidence that he ever attempted to do so. See
id.; [24] Pl.’s Stmt. ¶ 44. Schmidt does not claim, and the record does not suggest, that the
agency ever rejected a narrowed request. “An agency need not honor a request that requires ‘an
unreasonably burdensome search.’” Am. Fed’n of Gov’t Employees, Local 2782 v. U.S. Dep’t of
Commerce, 907 F.2d 203, 209 (D.C. Cir. 1990) (quoting Goland v. CIA, 607 F.2d 339, 353
(D.C. Cir. 1978)). It is clear that Schmidt’s final two requests—seeking “[a]ny information”
produced by USAID since 1995 regarding “possible violations of FAR 16.505”—would require
12
the agency to “locate, review, redact, and arrange for inspection of a vast quantity of material.”
See id. In addition, the agency would need to make a complicated judgment call in order to
determine what records might indicate a “possible violation” of fair opportunity provisions.
Therefore, the Court finds that the agency was justified in designating Schmidt’s last two
requests as vague and overbroad.9
Schmidt also argues that the agency’s search was inadequate because it did not include a
review of electronic back-up tapes that may contain responsive emails. See Pl.’s Mot., ¶ 13; Pl.’s
[24] Opp’n ¶ 10. Although there is no requirement that an agency search every record system, an
agency must search every record system that is likely to turn up the information requested.
Oglesby, 920 F.2d at 68. The agency’s declarations do not indicate whether back-up tapes were
included as part of the “forensic” search for emails. Because Schmidt specifically requested that
back-up tapes be searched as part of his May 2008 request, USAID must, at the very least,
explain whether or not such back-up tapes exist, were searched, or were likely to contain
responsive records. See id. (“At the very least, [the agency] was required to explain in its
affidavit that no other record system was likely to produce responsive documents.”) The
agency’s declarations do not contain averments that all record systems likely to contain
responsive documents were searched. In addition, Schmidt contends that the agency should have
searched the Office of the Inspector General, the Office of Financial Management, and the Office
of the General Counsel for responsive records. See [24] Pl.’s Stmt. ¶ 59. The agency’s
9
Schmidt has attached numerous exhibits to his briefing purportedly showing how the
agency could have searched for documents relating to his last two FOIA requests. However, an
agency is not required to “look beyond the four corners of the request for leads to the location of
responsive documents.” Kowalczyk v. Dep’t of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996).
13
declarations do not aver that the five offices searched were the only offices likely to contain
responsive information. Accordingly, the Court cannot determine, based on the present record,
whether or not USAID’s search was adequate, and the agency is not entitled to summary
judgment on this issue.
Schmidt argues that he is entitled to summary judgment because USAID has admitted
that it failed to search for emails from all the employees whose records were requested. See [24]
Pl.’s Stmt. ¶ 5. The Lankford Declaration explains that the Office of the Chief Information
Officer was not able to access email accounts for certain employees who had left the agency. See
Lankford Decl. ¶ 17. If back-up tapes containing these employees’ emails exist and are within
the control of USAID, then Schmidt may be entitled to summary judgment on this issue.
However, if the agency does not have access to these tapes, then it will be entitled to summary
judgment. See SafeCard Servs., 926 F.2d at 1201 (“[T]he [agency] is not required to recreate or
to reacquire a document that it no longer has.”) On the current record, however, Schmidt is not
entitled to summary judgment because he has not shown based on undisputed facts that USAID’s
search was inadequate as a matter of law. Therefore, the Court shall deny both parties’ motions
for summary judgment without prejudice as to the adequacy of the search.
Because “FOIA cases are typically and appropriately decided on motions for summary
judgment,” Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009), the Court shall permit the
parties to file renewed motions for summary judgment after the agency has had an opportunity to
supplement the record with new declarations. See North v. U.S. Dep’t of Justice, 658 F. Supp. 2d
163, 176 (D.D.C. 2009) (allowing parties to refile motions for summary judgment where record
was unclear as to the adequacy of the agency’s search).
14
B. Applicability of FOIA Exemptions 5 and 6
Defendant argues that it has properly withheld or redacted information pursuant to FOIA
Exemptions 5 and 6. Exemption 5 protects “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. § 522(b)(5). Exemption 5 applies to materials that would be privileged in the
civil discovery context, such as materials protected by the deliberative process privilege, the
attorney-client privilege, and the attorney work-product privilege. See NLRB v. Sears, Roebuck
& Co., 421 U.S. 132, 149 (1975). In order to “justify nondisclosure under Exemption 5, an
agency must show that the type of material it seeks to withhold is generally protected in civil
discovery for reasons similar to those asserted by the agency in the FOIA context.” Burka v. U.S.
Dep’t of Health & Human Servs., 87 F.3d 508, 517 (D.C. Cir. 1996). Exemption 6 protects
information about individuals in “personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C.
§ 522(b)(6). The term “similar files” is construed broadly and is “intended to cover detailed
Government records on an individual which can be identified as applying to that individual.”
U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602 (1982) (citation omitted). “The
threshold is fairly minimal, such that all information which applies to a particular individual is
covered by Exemption 6, regardless of the type of file in which it is contained.” Conception v.
FBI, 606 F. Supp. 2d 14, 35 (D.D.C. 2009) (citations and internal quotation marks omitted).
“Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears
logical or plausible.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citation
omitted).
15
In support of its argument that it has properly invoked Exemption 5, Defendant relies on
the Lankford Declaration and a Vaughn index10 that it has attached to its reply brief. See
Lankford Decl. ¶ 12; Def.’s Reply, Ex. 1 (Vaughn index). Together, these documents describe
each of the documents that were withheld or redacted based on Exemption 5 and specify the
basis for the legal privilege that justifies their exemption. The index demonstrates that 36
documents contained redactions or were withheld entirely on the basis of either the attorney-
client or attorney work-product privilege. The index identifies the date of each document, its
author, its recipient, and subject matter; each document is a communication with someone in the
USAID Office of the General Counsel. Only four documents—all draft settlement
agreements—were withheld in their entirety. See Def.’s Reply, Ex. 1 at 5-6. This evidence
clearly shows that the documents withheld or redacted constitute legal advice or communications
with agency counsel regarding either Schmidt’s legal proceedings or the agency’s use of Iraq
funds. Thus, the agency had a reasonable basis for withholding or redacting information based
on the attorney-client and attorney work-product privileges pursuant to Exemption 5.
With respect to Exemption 6, the Lankford Declaration explains that two types of
information were redacted from records: home telephone numbers of USAID employees and the
identities of USAID employees unrelated to Schmidt’s requests. See Lankford Decl. ¶ 11. In
considering whether an agency has properly invoked Exemption 6, courts must balance the
privacy interest in nondisclosure against the public interest in the release of the information.
Lepelletier v. FDIC, 164 F.3d 37, 46 (D.C. Cir. 1999). This Court agrees with the agency that
10
In Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), the D.C. Circuit held that agencies
should prepare an itemized index correlating each withheld document (or portion thereof) with a
specific FOIA exemption and the agency’s justification for nondisclosure. See 484 F.2d at 827.
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the redaction of employees’ home telephone numbers serves the privacy interests that Exemption
6 is designed to serve. See Kidd v. Dep’t of Justice, 362 F. Supp. 2d 291, 296-97 (D.D.C. 2005)
(holding that agency properly withheld employee’s home telephone number pursuant to
Exemption 6). The Court also agrees that redacting the names of employees who were not
involved in the matters raised by Schmidt is protected under Exemption 6, as the public has little
interest in the disclosure of such individuals’ identities. See Judicial Watch, Inc. v. Food & Drug
Admin., 449 F.3d 141, 153 (D.C. Cir. 2006) (approving redaction of employee names under
Exemption 6 where public interest in disclosure is uncertain). Accordingly, the Court finds that
the agency has properly invoked Exemption 6.
Therefore, the Court shall grant Defendant’s motion for summary judgment with respect
to its application of FOIA Exemptions 5 and 6.
C. Segregability
FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to
any person requesting such record after deletion of the portions which are exempt.” 5 U.S.C.
§ 552(b). The Court is required to make a finding as to the segregability of withheld documents.
Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007). The Lankford Declaration and the Vaughn
index filed by Defendant demonstrate that only information pertaining to a valid exemption was
redacted, and only four documents consisting entirely of privileged information were withheld in
their entirety. Thus, Defendant has shown with “reasonable specificity” that the documents
cannot be further segregated. See Armstrong v. Exec. Office of the President, 97 F.3d 575, 578
(D.C. Cir. 1996). The Court therefore finds that the agency has satisfied its obligation under
FOIA to provide reasonably segregable portions of the records to Schmidt.
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D. Timeliness
Schmidt argues that he should be entitled to relief because USAID was not timely in its
production of documents in response to his requests. However, “a lack of timeliness or
compliance with FOIA deadlines does not preclude summary judgment for an agency, nor
mandate summary judgment for the requester.” Landmark Legal Found. v. EPA, 272 F. Supp. 2d
59, 68 (D.D.C. 2003). “[O]nce the Court determines that the agency has, ‘however belatedly,
released all nonexempt material, [it has] no further judicial function to perform under the FOIA.”
Muhammad v. U.S. Customs & Border Prot., 559 F. Supp. 2d 5, 7 (quoting Perry v. Block, 684
F.2d 121, 125 (D.C. Cir. 1982)). Moreover, to the extent that Schmidt seeks as a sanction
monetary relief such as a fee waiver, his claim is not authorized by FOIA. See 5 U.S.C.
§ 552(a)(4)(B) (stating that federal courts have jurisdiction only to “enjoin the agency from
withholding agency records and to order the production of any agency records improperly
withheld . . . .”). Therefore, Schmidt is not entitled to sanctions as a remedy for the untimeliness
of USAID’s responses.
E. Allegations of Possible Misconduct
On July 1, 2009, Schmidt filed a [28] Notice Regarding Allegations of Possible
Defendant Misconduct. In this Notice, Schmidt alleges that Defendant’s counsel has violated
rules of professional conduct and otherwise acted improperly by admonishing Schmidt for
violating the Local Rules of this Court. However, pro se litigants are expected to comply with
the Local Rules of this Court, see Slovinec v. Am. Univ., 520 F. Supp. 2d 107, 110-11 (D.D.C.
2007), and it is not improper for Defendant’s counsel to oppose filings that are not in
compliance. Therefore, the Court finds that Schmidt’s allegations have no merit.
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IV. CONCLUSION
For the reasons explained above, the Court shall GRANT Plaintiff’s [26]/[27] Motion
Requesting the Court’s Permission and Acceptance of Filings that Deviate from Local Rule 7(h)
and 7(e). The Court shall GRANT-IN-PART and DENY-IN-PART WITHOUT PREJUDICE
Defendant’s [16] Motion for Summary Judgment, granting the motion as to all issues except the
adequacy of the search regarding electronic back-up tapes and records in the Office of the
Inspector General, the Office of Financial Management, or the Office of the General Counsel,
with respect to which the motion shall be denied without prejudice. The Court shall also DENY
Plaintiff’s [19] Construed Motion for Summary Judgment, denying without prejudice with
respect to the adequacy of the search as described above. The Court shall permit the parties to
file renewed motions for summary judgment on this limited issue based on a supplemented
record. An appropriate Order accompanies this Memorandum Opinion.
Date: March 18, 2010
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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