Mountgordon v. United States Coast Guard

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
HILARY MOUNTGORDON,
Plaintiff,
v. Civil Action No. 21-1319 (RDM)
UNITED STATES COAST GUARD,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Hilary Mountgordon brings this Freedom of Information Act (“FOIA”) action
against the United States Coast Guard. Before the Court are the parties’ cross motions for
summary judgment. Dkt. 14; Dkt. 22; Dkt. 23. The dispute centers on the Coast Guard’s
application of two exemptions to three sets of records.
For reasons that will become apparent below, this case brings to mind John Wooden’s
admonition: “If you don’t have time to do it right, when will you have time to do it over?” Here,
the Coast Guard’s motion for summary judgment is poorly supported and lacking essential detail.
Many of its withholdings are likely proper, but the Coast Guard has not taken the time to support
its position. That means more work for the Coast Guard, Plaintiff’s counsel, and the Court.
And, more importantly, it also means unnecessary delay, which is antithetical to FOIA.
Although the Court will provide the Coast Guard with an opportunity to fill in at least some of
the gaps left in its initial motion—largely because the withheld information implicates the
interests of third parties, who cannot be blamed for the Coast Guard’s failings—this is not a
process that can continue indefinitely. FOIA does not permit an agency to make a half-hearted
effort with the expectation that, if unconvincing, it can simply “do it over”—again and again,
until the Court is satisfied.
So, for the reasons set forth below, the Court will GRANT in part and DENY in part
Defendant’s motion for summary judgment, Dkt. 14, and will GRANT in part and DENY in part
Plaintiff’s cross-motion for summary judgment, Dkt. 22; Dkt. 23.
I. BACKGROUND
From July to November 2017, Plaintiff was an officer candidate enrolled in the Coast
Guard’s Officer Candidate School (“OCS”). Dkt. 1 at 3 (Compl. ¶ 12). During her training,
Plaintiff allegedly injured her leg. Id. Plaintiff further alleges that, after she sustained that
injury, “the officer in charge of her unit began bullying her” by issuing “a large[] number of
demerits,” culminating in a recommendation that she be removed from the OCS program. Id. at
3–4 (Compl. ¶¶ 12–14). Following proceedings before a review board, Plaintiff was removed
from OCS and given a choice “between service as an enlisted member” (as opposed to serving as
a commissioned officer) or “release[] from her remaining service obligation.” Id. at 4 (Compl.
¶¶ 14–15). Plaintiff chose to be released from service. Id.
A year and a half later, Plaintiff made a telephonic complaint to the Department of
Homeland Security’s Office of the Inspector General (“OIG”), alleging “injury through
negligence of herself and other officer candidates while in training and general allegations of
bullying” at OCS. Id. at 5 (Compl. ¶ 16). Plaintiff’s OIG complaint was referred to the Coast
Guard Investigative Service, which further referred the complaint to the Coast Guard Leadership
Development Center (“LDC”). Dkt. 14 at 3 (Def.’s SUMF). The LDC appointed an officer to
conduct an administrative investigation into Plaintiff’s complaint. Dkt. 14-1 at 2 (Judge Decl.
¶ 4). After receiving the investigating officer’s report, the Commanding Officer of the LDC,
2
Captain A.E. Waters, reviewed the report and produced a seven-page memorandum, which the
Coast Guard sent to the DHS OIG. Id. at 2–3 (Judge Decl. ¶¶ 4–5); Id. at 9 (Ex. 1). That
memorandum constituted the Coast Guard’s “Final Action on Ms. Mountgordon’s complaint.”
Id. at 2 (Judge Decl. ¶ 4).
The following year, Plaintiff submitted two later-consolidated FOIA requests to the Coast
Guard, seeking records related to the internal investigation and handling of her OIG complaint.
Dkt. 14 at 2 (Def.’s SUMF ¶ 2). More specifically, Plaintiff’s consolidated request sought five
categories of records: (1) the investigating officer’s initial report; (2) any witness statements that
accompanied the investigative report; (3) a list of the exhibits and enclosures appended to the
Report; (4) the 2017 Coast Guard Academy (“CGA”) Vital Signs Report; and (5) the Final
Action Memorandum produced by the LDC commanding officer. Id. at 2–3 (Def.’s SUMF ¶ 2).
In response, the agency provided Plaintiff with a link to access the 2017 CGA Vital Signs
Report, which is a publicly available document, see Dkt. 1-5 at 10 (Ex. D), and successfully
located the remaining records. With respect to the remaining four records, the Coast Guard
produced one record in full, one record in part, and withheld two records in their entirety. First,
the Coast Guard provided Plaintiff with the full list of exhibits and enclosures appended to the
Report. See Dkt. 14-1 at 5 (Judge Decl. ¶ 10). That list is not at issue in this litigation. Second,
the Coast Guard provided Plaintiff with the full Final Action Memorandum, redacting only the
names and ranks of “junior Coast Guard personnel” pursuant to FOIA Exemption 6. See id. at 3
(Judge Decl. ¶ 5). Third, the Coast Guard withheld in its entirety the investigative report
pursuant to FOIA Exemption 5’s deliberative-process privilege. Dkt. 14 at 24; Dkt. 24 at 7.
Finally, the Coast Guard withheld, also in their entirety, the witness statements that accompanied
3
the investigative report pursuant to FOIA Exemption 5’s deliberative-process privilege and
Exemption 6. Dkt. 24 at 7, 9–14.
A note about the witness statements: Throughout this litigation, the parties refer to the
witness statements as “Exhibit 15,” but, as the Coast Guard observes, “not all the material in . . .
[E]xhibit [15] [is] actually a witness statement.” Dkt. 14 at 12. Exhibit 15 consists of 38 pages:
14 pages of witness statement summaries; 8 pages of rights warning forms (essentially the Coast
Guard’s version of a Miranda waiver) signed by four witnesses; 15 pages of emails sent by then-
officer candidates to the officer conducting the administrative investigation, including a six-page
email (along with an 8 page performance evaluation) from one officer candidate, and a second
one-page email from another officer candidate; and a one-page email from a medical officer to
the investigating officer describing a policy contained in the Coast Guard’s medical manual.
Dkt. 14-1 at 5–7 (Judge Decl. ¶¶ 11–12); Dkt. 24 at 9–14. The Coast Guard withheld all of
Exhibit 15, with the exception of the email to the medical officer, which the agency produced
with only the names of the officers redacted pursuant to Exemption 6. Dkt. 24 at 7. 1
Plaintiff filed this suit pro se on May 4, 2021, seeking an order compelling the Coast
Guard to disclose “any and all non-exempt records to Plaintiff’s FOIA request.” Dkt. 1 at 13
(Compl.). After the Coast Guard moved for summary judgment, Dkt. 14, counsel appeared on
behalf of Plaintiff and both responded the Coast Guard’s motion, Dkt. 22, and cross-moved for
summary judgment, Dkt. 23. Because the Coast Guard provided Plaintiff with the web address
for the 2017 Vital Signs Report and with a copy of the list of exhibits and enclosures appended to
1
The Coast Guard at times seems to refer to this medical officer’s email as part of Exhibit 15
and, at other times, as something separate. The Court has not reviewed Exhibit 15, but it appears
that the email statement is indeed part of the Exhibit 15—otherwise, the Coast Guard’s
description of Exhibit 15’s contents would account for just 37, and not 38, pages of material. See
Dkt. 24 at 9–13.
4
the investigative report, the parties’ dispute concerns only the investigative report itself, which
was withheld in full; the witness statements and related records, which were withheld in full; and
the Final Action Memorandum, which was withheld in part. Both motions are fully briefed and
ripe for the Court’s consideration.
II. LEGAL STANDARD
The Freedom of Information Act is premised on the notion that an informed citizenry is
“vital to the functioning of a democratic society, needed to check against corruption and to hold
the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,
242 (1978). It, thus, mandates that an agency disclose records on request, unless they fall within
one of nine exemptions. “These exemptions are explicitly made exclusive and must be narrowly
construed.” Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011) (internal citations and quotation
marks omitted).
FOIA cases are typically resolved on motions for summary judgment under Federal Rule
of Civil Procedure 56. See, e.g., Shapiro v. Dep’t of Just., 153 F. Supp. 3d 253, 268 (D.D.C.
2016). To prevail on a summary judgment motion, the moving party must demonstrate that there
are no genuine issues of material fact and that he or she is entitled to judgment as a matter of
law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In a FOIA
action, “the Court may award summary judgment to an agency solely on the basis of information
provided in affidavits or declarations that describe ‘. . . the justifications for nondisclosure [of
records] with reasonably specific detail . . . and are not controverted by either contrary evidence
in the record nor by evidence of agency bad faith.’” Thomas v. FCC, 534 F. Supp. 2d 144, 145
(D.D.C. 2008) (alterations in original) (quoting Military Audit Project v. Casey, 656 F.2d 724,
738 (D.C. Cir. 1981)). Accordingly, “[s]ummary judgment is warranted when the agency’s
5
affidavits ‘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 by evidence of agency bad faith.’”
Elec. Frontier Found. v. Dep’t of Just., 739 F.3d 1, 7 (D.C. Cir. 2014) (quoting Miller v. Casey,
730 F.2d 773, 776 (D.C. Cir. 1984)).
The Court reviews the agency’s decision to withhold records or portions thereof de novo,
and the agency bears the burden of sustaining its action. See 5 U.S.C. § 552(a)(4)(B).
III. ANALYSIS
Before turning to the disputed issues, the Court pauses to note that the Coast Guard
performed an adequate search for the records Plaintiff has requested. Although the adequacy of
a search is not generally determined based on “the fruits of the search,” Iturralde v. Comptroller
of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003), here, the Coast Guard located the specific
records that Plaintiff requested, Dkt. 14-1 at 2 (Judge Decl. ¶ 3). Moreover, there is no dispute
that—with the exception of the 2017 CGA Vital Signs Report, which is a public record that was
made available to Plaintiff—those are records maintained by the LDC. Id. Nor is there any
dispute that the LDC searched for and “located all of the documents requested by [Plaintiff],”
obviating the need for any further search for responsive records. Id.The Court, accordingly, concludes that the Coast Guard conducted a search that was not
only “calculated to locate responsive records,” Bernegger v. Exec. Off. for U.S. Att’ys, 334 F.
Supp. 3d 74, 86, but that did, in fact, locate all responsive records. The Court will therefore
grant the Coast Guard’s motion for summary judgment with respect to the adequacy of its search.
With that narrow holding established, the Court moves on to the various withholdings at issue in
this case.
6
A. FOIA Exemptions 5 and 6
The Coast Guard withheld all or portions of the records at issue here pursuant to FOIA
Exemptions 5 and 6. 2
1. Exemption 5
FOIA Exemption 5 permits the withholding of “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 exemption encompasses “the privileges
available to Government agencies in civil litigation,” U.S. Fish & Wildlife Serv. v. Sierra Club,
Inc., 141 S. Ct. 777, 783 (2021), including “materials which would be protected under the
attorney-client privilege, the attorney work-product privilege, or the executive deliberative
process privilege,” Tax’n With Representation Fund v. IRS, 646 F.2d 666, 676 (D.C. Cir. 1981)
(internal quotation marks and citations omitted).
Here, the Coast Guard invokes the deliberative-process privilege, which protects
“documents reflecting advisory opinions, recommendations[,] and deliberations comprising part
of a process by which governmental decisions and policies are formulated,” NLRB v. Sears,
Roebuck & Co., 421 U.S. 132, 150 (1975) (internal quotation marks omitted). The purpose of
the privilege is “[t]o encourage candor [and] improve[] agency decisionmaking” by “blunt[ing]
the chilling effect that accompanies the prospect of disclosure.” Sierra Club, 141 S. Ct. at 785.
2
Although the Coast Guard makes cursory mention of Exemptions 7(A) and 7(C) in its brief,
Dkt. 14 at 11, the Coast Guard did not invoke either exemption in its response to Plaintiff’s
FOIA request, Dkt. 14 at 2–3 (Def.’s SUMF ¶¶ 1–4), and does not support the application of
either exemption in the declaration it offers in support of its motion for summary judgment, Dkt.
14-1 at 1–7 (Judge Decl. ¶¶ 1–13).
7
To carry its burden on summary judgment, an agency invoking the privilege must demonstrate
that the withheld record is both pre-decisional and deliberative. See id. at 785–86.
A record is pre-decisional if it was “generated before the adoption of an agency policy,”
Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980), and “if it was
prepared in order to assist an agency decisionmaker in arriving at his decision, rather than to
support a decision already made,” Petroleum Info. Corp. v. Dep’t of Interior, 976 F.2d 1429,
1434 (D.C. Cir. 1992) (internal quotation marks and citations omitted). A record is deliberative
if it “reflects the give-and-take of the consultative process.” Coastal States Gas Corp., 617 F.2d
at 866; see also Tax Analysts v. IRS, 117 F.3d 607, 616 (D.C. Cir. 1997); Jud. Watch, Inc. v.
Dep’t of Energy, 412 F.3d 125, 129 (D.C. Cir. 2005). When invoking the privilege, the agency
must explain “the nature of the decisionmaking authority vested in the office or person issuing
the disputed document(s), and the positions in the chain of command of the parties to the
documents.” Arthur Andersen & Co. v. IRS, 679 F.2d 254, 258 (D.C. Cir. 1982) (internal
quotation marks and citation omitted). In cases involving the deliberative-process privilege, the
D.C. Circuit, accordingly, asks whether the agency has offered evidence sufficient to establish
“the ‘who,’ i.e., the roles of the document drafters and recipients and their places in the chain of
command; the ‘what,’ i.e., the nature of the withheld content; the ‘where,’ i.e., the stage within
the broader deliberative process in which the withheld material operates; and the ‘how,’ i.e., the
way in which the withheld material facilitated agency deliberation.” Jud. Watch, Inc. v. Dep’t of
Just., 20 F.4th 49, 56 (D.C. Cir. 2021); see also Watkins Law & Advocacy, PLLC v. Dep’t of
Just., 2023 WL 5313522, at *10–12 (D.C. Cir. Aug. 18, 2023).
8
2. Exemption 6
Exemption 6 “protects information about individuals in ‘personnel and medical files and
similar files’ when its disclosure ‘would constitute a clearly unwarranted invasion of personal
privacy.’” Shapiro v. Dep’t of Justice, 153 F. Supp. 3d 253, 257 (D.D.C. 2016) (quoting 5
U.S.C. § 552(b)(6)). The exemption can sweep in “bits of personal information, such as names,”
Jud. Watch, Inc. v. FDA, 449 F.3d 141, 152 (D.C. Cir. 2006), but the mere fact that an agency
file or record contains personal, identifying information is not enough to invoke Exemption 6—
the information must also be “of such a nature that its disclosure would constitute a clearly
unwarranted privacy invasion,” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C.
Cir. 2002).
To make that determination, “the Court [must] employ[] a balancing test, weighing ‘the
private interest involved (namely the individual’s right of privacy) against the public interest
(namely, the basic purpose of [FOIA], which is to open agency action to the light of public
scrutiny).’” People for the Am. Way Found. v. Nat’l Park Serv., 503 F. Supp. 2d 284, 304
(D.D.C. 2007) (quoting Jud. Watch, 449 F.3d at 153). “In undertaking this analysis, the [C]ourt
is guided by the instruction that, under Exemption 6, the presumption in favor of disclosure is as
strong as can be found anywhere in [FOIA].” Nat’l Ass’n of Home Builders, 309 F.3d at 32(internal quotation marks omitted).
3. Foreseeable Harm
Finally, an agency may “withhold information” pursuant to these FOIA exemptions “only
if . . . the agency reasonably foresees that disclosure would harm an interest protected by [the]
exemption . . . or . . . the disclosure is prohibited by law.” 5 U.S.C. 552(a)(8)(A)(i). In adopting
this requirement in 2016, “Congress was especially concerned about agencies’” overuse of
9
“Exemption 5 and the deliberative process privilege,” Ctr. for Investigative Reporting v. U.S.
Customs & Border Prot., 436 F. Supp. 3d 90, 104 (D.D.C. 2019), although the requirement
applies to other exemptions as well. The requirement “impose[s] an independent and meaningful
burden on agencies.” NRDC v. EPA, 2019 WL 3338266, at *1 (S.D.N.Y. July 25, 2019).
Notably, “[i]n the context of withholdings under the deliberative process privilege, the
foreseeability requirement means that agencies must concretely explain how disclosure
‘would’—not ‘could’—adversely impair internal deliberations.” Reps. Comm. for Freedom of
the Press v. FBI, 3 F.4th 350, 369–70 (D.C. Cir. 2021).
B. The Coast Guard’s Withholdings
1. The Investigating Officer’s Report
The Coast Guard defends its decision to withhold the 21-page investigative report (with
one minor exception) based on Exemption 5’s deliberative-process privilege. Dkt. 14-1 at 4–5
(Judge Decl. ¶¶ 7–10). The agency does not invoke Exemption 6 with respect to the
investigative report. Id. The Court must, accordingly, decide whether the agency has carried its
burden of demonstrating that the investigative report is pre-decisional and deliberative.
As an initial matter, Plaintiff does not dispute the pre-decisional nature of the
investigative report, nor could she. The investigative report was “prepared in order to assist an
agency decisionmaker,” Petroleum Info. Corp., 976 F.2d at 1434 (quoting Renegotiation Bd. v.
Grumman Aircraft, 421 U.S. 168, 184 (1975))—here, the LCD commanding officer— “in
arriving at his decision,” id.—here, the Coast Guard’s final response to Plaintiff’s OIG
complaint, which was memorialized in the Final Action Memorandum. See Dkt. 14-1 at 9 (Final
Action Memo.) (“My findings of fact, opinions, and directed actions are based upon an
10
administrative investigation convened by this unit prior to my arrival.”). Plaintiff does, however,
dispute whether the investigative report is—in whole or in part—deliberative.
In considering whether the investigative report is deliberative, the Court returns to
Judicial Watch, Inc. v. U.S. Department of Justice, 20 F.4th 49, 57 (D.C. Cir. 2021), and
concludes that, here, the Coast Guard has largely answered the “‘who,’ ‘what,’ ‘where,’ and
‘how’ of the deliberative process and the role played by the withheld material.” Investigating
Officer Royce James was tasked with providing a commanding officer (i.e., the who) a report
summarizing the administrative investigation he conducted regarding Plaintiff’s OIG complaint
(i.e., the what). Dkt. 14-1 at 2 (Judge Decl. ¶ 4). This investigative report preceded the Coast
Guard’s Final Action Memorandum, the final document in the Coast Guard’s deliberative
process representing the agency’s final position (i.e., the where). Id. Finally, the agency at least
gestures at the way in which withholding the report will facilitate agency deliberations (i.e., the
how), primarily by noting that the investigative report preceded the Final Action Memorandum
and was understood by its drafter to be a pre-decisional document covered by the deliberative
process privilege. Id. at 4 (Judge Decl. ¶ 7). The agency notes (1) that the report included a
legend asserting that it was a deliberative document exempt from public disclosure, which “may
well have been one of the reasons that the investigating officer felt free to take the initiative and
go beyond the scope of the convening order;” that “[r]lease of the [r]eport might stifle such
initiative in the future;” and that release of the report “would also serve to confuse the public
with regard to the Coast Guard’s position with regard to [Plaintiff’s] complaint.” Id. at 4–5
(Judge Decl. ¶¶ 7–9). But even there, without additional detail about the structure and contents
of the report and the procedures that were followed, the Court cannot determine how the
investigative report in its entirety was deliberative. See Jud. Watch, Inc., 20 F.4th at 56 (noting
11
that the agency had told the court “nothing about what deliberative process is involved, that is,
what procedure DOJ followed to finalize Acting Attorney General Yates’s statement” (internal
quotation marks and citation omitted)).
For these reasons, the Court is persuaded that much, if not all, of the investigative report
falls within Exemption 5’s deliberative-process privilege. One problem, however, precludes the
Court from entering summary judgment in favor of the Coast Guard at this time.
The Coast Guard has failed to offer sufficient detail about the contents of the report to
permit the Court to determine whether it contains any segregable, non-deliberative material. See
Armstrong v. Exec. Off. of the President, 97 F.3d 575, 578 (D.C. Cir. 1996). FOIA requires that
agencies disclose “[a]ny reasonably segregable portion of a record . . . after deletion of the
portions which are exempt.” 5 U.S.C. § 552(b). Under controlling precedent, this Court “must
make specific findings of segregability regarding the documents to be withheld” before
“approving the application of a FOIA exemption.” Sussman v. U.S. Marshals Serv., 494 F.3d
1106, 1116 (D.C. Cir. 2007). Although the precise standard the Court is required to apply “is not
clear,” id. at 1117, here, the Court cannot discharge its obligation without additional information
regarding the contents of the investigative report and the agency’s efforts to segregate non-
exempt material.
According to the declaration the Coast Guard offers in support of its motion for summary
judgment:
[T]wo senior Coast Guard officers (the LDC Commanding Officer and the
Commanding Officer of the Legal Services Command) each considered whether
the pages that were withheld in their entirety—the Investigating Officer’s Report
and Exhibit 15—contained information that could be segregated from the
material that was exempt under the applicable FOIA exemptions. After
reviewing the withheld pages, both commanding officers determined that after
applying the deliberative process privilege and redact[ing] the clearly
identifiable privacy interest, so little non-exempt material remained that it was
12
either non-responsive or essentially meaningless. They therefore determined
that all reasonably segregated material was being provided.
Dkt. 14-1 at 7 (Judge Decl. ¶ 13). “Whatever standard applies, that is too little information to
allow the Court to conduct even a cursory review,” Pejouhesh v. U.S. Postal Serv., 2019 WL
1359292, at *8 (D.D.C. Mar. 26, 2019), for at least three reasons.
To start, the agency’s explanation invites confusion because the Coast Guard never
claimed Exemption 6 with respect to the investigative report, see Dkt. 24 at 7, but the agency’s
declaration states that the two officers conducted a segregability analysis with respect to
withholdings under both Exemption 5 and Exemption 6, Dkt. 14-1 at 7 (Judge Decl. ¶ 13). It is,
of course, possible that the declaration is simply imprecise and that the reviewing officers
applied only Exemption 5 to the investigative report, while they applied Exemptions 5 and 6 to at
least portions of Exhibit 15. But that reading of the declaration is undercut by the Coast Guard’s
own reply brief, which asserts that it is not “surprising” that the Coast Guard withheld the
investigative report in full given the “highly personal nature of the medical conditions and
performances of the officer candidates that are at issue in” it. Dkt. 24 at 13. In any event, the
Coast Guard bears the burden of proof on segregability, and, given the parties’ asymmetrical
access to the underlying evidence, greater clarity is required to satisfy that burden. In short,
neither Plaintiff nor the Court should have to guess about how the agency conducted its
segregability review.
In addition, as Plaintiff argues, purely factual material is generally not covered by
Exemption 5’s deliberative-process privilege, and, to the extent that the investigative report
contains factual background—e.g., when Plaintiff attended OCS, when she filed her OIG
complaint, or when her complaint was referred to Captain James for investigation—the agency
has yet to explain why those facts cannot be disclosed. Savage v. Dep’t of Navy, 2021 WL
134078669, at *2 (D.D.C. Sept. 8, 2021), is instructive on this point. In that case, as in this one, the
plaintiff sought both an investigating officer’s initial report and a commanding officer’s final
report. Id. at *1–2. The Navy produced the initial report with redactions, primarily made to the
“Executive Summary” and “opinions” sections. Id. at *5 n.5. The Savage court rejected the
plaintiff’s argument that purely factual material could have been segregated from the report at
issue there, reasoning that an executive summary “is a blend of facts and analysis, and it presents
the writer’s assessment and conclusions in addition to proposed factual findings.” Id. Here, in
contrast, the agency has not only withheld the investigative report in full, but it has also failed to
offer any description of the structure or contents of the report, which might permit the Court to
make the type of assessment that the Savage court made. See Mead Data Central, Inc. v. U.S.
Dep’t of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977) (an agency should “describe what
proportion of the information in a document is non-exempt and how that material is dispersed
throughout the document”); see also id. n.54 (“If a document itself contains many pages of
information, and there are logically divisible sections for which the proportion and distribution
description would differ significantly, it should be described by section rather than as a whole.”
(emphasis added)).
Finally, the Coast Guard does not expressly address the foreseeable harm requirement in
either its briefs or the supporting declaration. To be sure, the Coast Guard’s declaration includes
at least two assertions, mentioned above, that might arguably support a finding of foreseeable
harm: it asserts that (1) Captain James “may well have . . . felt free” to “go beyond the scope of
the convening order” because he believed the report would remain confidential and that
“[r]elease of the [r]eport might stifle such initiative in the future,” and (2) release of the report
could engender public confusion. Dkt. 14-1 at 4–5 (Judge Decl. ¶¶ 8–9). Although far from
14
clear, those assertions might ordinarily suffice (albeit barely) to establish that the agency, in fact,
made the required foreseeable harm determination. But, in this context, the segregability and
foreseeable harm inquiries intersect, and the Court cannot conclude on the present record that the
agency considered, and decided, that the disclosure of any portion of the investigative report
would cause foreseeable harm. The Coast Guard’s “initiative” argument, for example, might
justify redacting those portions of the investigative report that went beyond the “convening
order,” and the agency’s “public confusion” argument might justify redactions that differ in
material respects from the findings included in the Final Action Memorandum. But, on the
present record, the Court cannot conclude that these concerns are sufficient to withhold the
report in its entirety.
The Court, accordingly, concludes that the Coast Guard has yet to carry its burden of
justifying its decision to withhold the investigative report in its entirety. But because the Coast
Guard may still be able to offer an explanation sufficient to sustain that withholding, the Court is
also unpersuaded that Plaintiff is entitled to prevail with respect to this document—and, indeed,
the Court lacks sufficient information to decide which portions, if any, of the investigative report
should be disclosed. The Court will, accordingly, deny both Plaintiff’s and the Coast Guard’s
motion for summary judgment with respect to the investigative report.
2. Exhibit 15
Plaintiff’s consolidated FOIA request also sought the witness statements that
accompanied the investigative report. Because both parties focus on “Exhibit 15,” which
includes more than just these witness statements, the Court will follow their lead.
Exhibit 15 “consists of thirty-eight pages which were withheld in their entirety.” Dkt. 14-
1 at 5 (Judge Decl. ¶ 11). According to the Coast Guard, Exhibit 15 contains: (1) eight pages of
15
Uniform Code of Military Justice (“UCMJ”) rights forms, containing descriptions of alleged
misconduct, filled out and signed by four witnesses, id. at 6 (Judge Decl. ¶ 12); (2) six pages of
an email from a former officer candidate to the investigating officer with an attached eight-page
performance evaluation from that same former officer candidate, Dkt. 24 at 10 & n.3; (3) a one-
page email from a different officer candidate to the investigating officer, id. at 11; and (4)
fourteen pages of “simpl[e] summaries of interviews of witnesses,” Dkt. 14-1 at 5 (Judge Decl.
¶ 11). As noted above, Exhibit 15 also includes (or seems to include) a one-page email from a
medical officer that the Coast Guard produced with names of two officers redacted. Id. at 7
(Judge Decl. ¶ 12). The Coast Guard defends its withholding under both Exemption 5 and
Exemption 6, id. at 6–7 (Judge Decl. ¶¶ 11–12), and the Court will address each component of
Exhibit 15 in turn.
a. The UCMJ Rights Forms
With respect to the UCMJ rights forms that were filled out and signed by four witnesses,
the Coast Guard argues that the forms are not responsive to Plaintiff’s consolidated FOIA request
because they are not “witness statements.” Dkt. 14 at 8. As explained in the the Coast Guard’s
declaration:
Ms. Mountgordon requested the witness statements enclosed with the
[investigative] [r]eport. Exhibit 15 to the [r]eport was labeled as witness
statements, although not all the material in this exhibit was actually a witness
statement.
* * *
. . . Exhibit 15 includes eight pages of Uniform Code of Military Justice and
Miranda/Tempia warning rights forms that were filled out and signed by four
witnesses. These forms document the alleged misconduct the investigating
officer believed the witnesses may have been involved in, but we know from the
Final Action Memorandum that no one was charged with misconduct as a result
of this investigation. The forms do not contain any actual statements by the
witnesses other than checking acknowledgments of rights and an agreement to
16
make a statement or answer questions without consulting a lawyer. As a result,
these pages are not responsive to the request and furthermore could mislead the
public into believing the witnesses engaged in misconduct.
Dkt. 14-1 at 5–6 (Judge Decl. ¶¶ 11–12). The Court agrees that the completed UCMJ rights
forms are not “witness statements” and, thus, are not responsive to Plaintiff’s FOIA request.
FOIA “requires every federal agency, upon request, to make ‘promptly available to any
person’ any ‘records’ so long as the request ‘reasonably describes such records.’” Assassination
Archives & Rsch. Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003) (quoting 5 U.S.C. § 552(a)(3)).
Construed in light of FOIA’s “general philosophy of full agency disclosure,” U.S. Dep’t of
Just. v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 754 (1989) (quoting U.S. Dep’t of
Air Force v. Rose, 425 U.S. 352, 360 (1976)), this means that agencies have “a duty to construe a
FOIA request liberally,” Nation Mag., Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890
(D.C. Cir. 1995), but, at the same time, they must construe a request “as drafted” and not as the
FOIA requester (or the agency) “might wish it was drafted,” Miller, 730 F.2d at 777.
As relevant here, there is no dispute that the request sought only “[w]itness statements
enclosed with the Investigator’s Report.” Dkt. 1-5 at 9. The question, then, is whether the
phrase “witness statements,” even if liberally construed, includes the UCMJ rights forms. It does
not. Consistent with common usage, Black’s Law Dictionary defines (1) a “formal witness
statement” to mean “[a] recorded account, made under oath or in preparation for a court
proceeding, of a person’s knowledge of fact about something” and (2) an “informal witness
statement” to mean “[a]n oral assertion made without intent or expectation that it will be used in
a legal proceeding, such as a comment or exclamation made at the time of an event.” Witness
Statement, Black’s Law Dictionary (11th ed. 2019). In the present context, the phrase is best
understood to mean a statement offered by a witness regarding facts relevant to the investigation.
17
It does not include any and all words uttered or assented to by someone who was a witness; no
one, for example, would plausibly understand the phrase to include an email from a witness
asking about parking at the site of an interview, or a request to reschedule an interview due to
poor health.
Understood in this manner, a potential witness’ initials on a form indicating that the
witness (or “suspect”) understands his or her rights, and a checkmark next to a box indicating an
agreement to answer questions without a lawyer does not constitute a “witness statement.” See
Dep’t of Homeland Security, U.S. Coast Guard UCMJ and Miranda/Tempia Rights,
https://www.dcms.uscg.mil/Portals/10/CG-1/PSC/PSD/docs/CG_5810E.PDF?ver=2017-03-23-
135524-690 (last visited Aug. 29, 2023). To the contrary, like a criminal defendant who waives
his or her Miranda rights, these indica of assent precede the interview and any statement which
the witness might agree to provide. Plaintiff is, of course, free to file a new FOIA request asking
for any UCMJ rights forms that were executed in the course of Captain James’ investigation.
For present purposes, the Court merely concludes that those waiver forms are not “witness
statements.”
The Court will, accordingly, grant summary judgment in the Coast Guard’s favor with
respect to the UCMJ rights forms.
b. The Emails and Witness Statement Summaries
The Coast Guard’s efforts to shield the remaining portions of Exhibit 15 are more
problematic. Those materials consist of “summaries of interviews of witnesses” and two “e-
mails to the investigating officer from former officer candidates, now Coast Guard officers.”
Dkt. 14-1 at 5 (Judge Decl. ¶ 11). One of those emails, in turn, includes an attachment
containing “the candidate’s performance evaluations while at OCS and other documentation
18
from her personnel file.” Id. at 6 (Judge Decl. ¶ 11). According to the Coast Guard’s declarant,
these records were withheld pursuant to Exemption 5’s deliberative-process privilege and
Exemption 6. Id. The Court does not doubt that some of this information, such as the identities
of those accused of wrongdoing and the identities of those who were allegedly victimized, was
properly withheld. The problem is that the supporting declaration conflates Exemptions 5 and 6
and offers too little detail to sustain the withholdings on the present record.
As an initial matter, the Court notes that the Coast Guard’s declarant fails to indicate
whether Exemption 5 and 6 offer independent grounds to withhold all of the material at issue, or
whether Exemption 5 applies to some of the material, and Exemption 6 applies to other portions
of the material. And, if it is the latter, the declarant fails to identify which portions are withheld
under which of the exemptions. That matters, of course, because the standards for the two
exemptions are different. Exemption 6, for example, requires the agency to demonstrate “that a
substantial invasion of privacy will occur if the documents are released,” and, to carry that
burden, the agency must offer “affidavits” that “‘contain reasonable specificity.’” Prison Legal
News v. Samuels, 787 F.3d 1142, 1147 (D.C. Cir. 2015) (quoting Judicial Watch, Inc. v. U.S.
Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013)). The Court must then weigh the cost of that
invasion of privacy against the public interest in disclosure. Id. Under Exemption 5, in contrast,
the agency must demonstrate that the material at issue is pre-decisional and deliberative.
Conflating these standards, the Coast Guard’s declarant treats Exemptions 5 and 6 together, in a
single paragraph, and asserts: “Releasing this information would discourage frank and open
discussion [Exemption 5?] of the type of highly personal and private information [Exemption 6?]
necessary to arrive at informed decision making [Exemption 5?] regarding allegations of
supervisors mistreating junior personnel [Exemption 6?] . . . .” Dkt. 14-1 at 6 (Judge Decl. ¶ 11).
19
In short, the declaration fails to provide detail sufficient to permit the Court to determine what
material was withheld pursuant to which exemption and the specific basis for each withholding.
Other ambiguities abound. The declarant avers, for example, that “[m]any of these
statements were simply summaries of interviews of witnesses by the investigating officer”
without stating, definitively, that all of the witness statements—as opposed to the two emails—
were summaries of interviews prepared by Captain James, rather than summaries prepared by
someone else of interviews conducted by Captain James. Id. at 5 (Judge Decl. ¶ 11). And, more
significantly, the declaration does not even attempt to distinguish between Captain James’
mental impressions or analyses and pure unadorned facts, the release of which would reveal
nothing about Captain James’ assessment of the allegations. To be sure, factual summaries fall
under Exemption 5’s deliberative-process privilege to the extent they “also contain [or reflect]
the mental impression of [agency officials]” such as “recommendations and thoughts
concerning . . . investigation[s],” Williams & Connolly LLP v. SEC, 729 F. Supp. 2d 202, 213
(D.D.C. 2010), but not every summary is deliberative, see, e.g., Gold Anti-Trust Action Comm. v.
Bd. of Governors of the Fed. Rsrv. Sys., 762 F. Supp. 2d 123, 137 (D.D.C. 2011)
(“[S]traightforward factual recounting of a meeting . . . detailing what each of the participants
said . . . [wa]s not properly . . . withheld under Exemption 5.” (emphasis in original)). In its
reply brief, the agency attempts to bolster its position, arguing that the summaries “represent the
Investigating Officer’s impressions of what the witnesses said, including a determination of what
the witnesses said that was important to his investigation.” Dkt. 24 at 12. Counsel’s argument,
however, is not evidence and, in any event, even this late-asserted (and unsworn)
characterization of the summaries lacks sufficient specificity.
20
Similarly, the declaration asserts that one of the emails in Exhibit 15 included an
attachment, containing a “candidate’s performance evaluations . . . and other documentation
from her personnel file.” Dkt. 14-1 at 6 (Judge Decl. ¶ 11). Although the Court is prepared to
presume that most information contained in a personnel file falls within the scope of Exemption
6, a reference to “other documentation” tells the Court nothing and, even if presumptively
subject to Exemption 6, such a vague reference precludes the Court from engaging in the
required balancing.
Nor does the declaration offer adequate explanation for withholding the witness
statement summaries in their entirety. Again, the Court does not doubt that much—and perhaps
all—of the material is properly withheld. But more detail is necessary to permit the Court to
assess whether the answer is in fact much—or all. Why not include the ranks of the witnesses
with whom Captain James spoke, for example? It might be the case that there are so few
potential holders of a given rank that a knowledgeable member of the public could infer who the
witness was from her or his rank. But, if so, the declarant needs to offer some explanation.
Similarly, it is easy to imagine how releasing purely factual material from the witness interviews
might reveal the identity of certain witnesses. Cf. Horvath v. U.S. Secret Serv., 419 F. Supp. 3d
40, 48 (D.D.C. 2019) (referencing an agency declaration that explained that the redacted
information “concern[ed] a small group of individuals who are known to each other and to the
Plaintiff and who are easily identifiable from the details contained in the withheld information”).
The Court’s speculation, however, is no substitute for a factual proffer from a knowledgeable
agency witness.
21
Finally, the Court notes that the Coast Guard’s declaration, once again, says nothing
about foreseeable harm. That omission, alone, provides sufficient basis to deny the Coast
Guard’s motion.
The Court will, accordingly, deny without prejudice the Coast Guard’s motion for
summary judgment with respect to the witness statement summaries and two emails. But
because the Coast Guard may still be able to offer an explanation sufficient to sustain all its
withholdings—and will almost certainly be able to support some of those withholdings—the
Court will also deny Plaintiff’s cross-motion.
c. Email from Medical Officer
In contrast to the other material included in Exhibit 15, the Coast Guard released the one-
page email from “a medical officer to the investigating officer describing a policy contained in
[a] Medical Manual,” redacting “only the names of the two officers.” Dkt 14-1 at 7 (Judge Decl.
¶ 12). Although, as discussed below, it is at times appropriate for an agency to redact the names
of individuals associated with an investigation—such as when the disclosure would cause
reputational harm or would invite harassment or reprisals, while doing relatively little to serve
the public interest—the Coast Guard offers no explanation for why the disclosure of the names
of these officers “would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(6). The evidentiary gap left by that omission, moreover, is highlighted by the
declaration attached to Plaintiff’s opposition and cross-motion for summary judgment, in which
the investigating officer reveals his own rank and identity. See Dkt. 22-1 at 1.
Given the Coast Guard’s failure even to attempt to identify any privacy interest that
might justify withholding the names of these two officers—neither of who was accused of
wrongdoing, was a victim, or was a witness—and both of whom had attained officer rank—the
22
Court will grant Plaintiff’s cross-motion and order the Coast Guard to release an unredacted
version of this email.
3. Final Action Memorandum
Finally, the Court turns to the limited redactions the Coast Guard made to the Final
Action Memorandum. The agency produced the seven-page document nearly in its entirety,
redacting only the names (and apparently the ranks) of individuals pursuant to Exemption 6. See
Dkt. 14-1 at 9–15. The Court is persuaded that Exemption 6 applies in part—but still needs
convincing with respect to a few of the redactions.
Plaintiff argues that Exemption 6 does not justify the redactions of the names and ranks
of alleged perpetrators and victims of bullying, because any privacy interests are “outweighed by
the public interest in ensuring that the [Coast Guard] is” not “promoting and rewarding officers
or instructors who have actively engaged in bullying of the students in their charge.” Dkt. 23-1
at 16. To determine whether the Coast Guard lawfully redacted the names and ranks of persons
identified in the Final Action Memorandum, the Court must balance the privacy interest of those
individuals against the public interest in disclosure. To do so, the Court “must first determine
whether . . . disclosure would compromise a substantial, as opposed to a de minimis, privacy
interest.” Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989)
(emphasis in original). If so, the Court must then “weigh that privacy interest in non-disclosure
against the public interest in the release of the records in order to determine whether, on balance,
disclosure would [constitute] a clearly unwarranted invasion of personal privacy.” Id. As
explained in the Coast Guard’s declaration, the redacted names include (1) former officer
candidates, “most of whom are now Coast Guard officers,” (2) OCS instructors, and (3) “the
23
Coast Guard Investigative Service special agent [whom] the Final Action Memorandum was
routed through,” Dkt. 14-1 at 3 (Judge Decl. ¶ 5). The Court will address each in turn.
a. Names
With respect to the officer candidates, there is no serious dispute that they have a
substantial privacy interest in their anonymity. Grudgingly, Plaintiff acknowledges that “there
may arguably be some justification for withholding the names” of the alleged victims of
bullying. Dkt. 23-1 at 15. And, more affirmatively, the Coast Guard posits that disclosing their
names would “cause these individuals reputational harm in their personal and professional lives.”
Dkt. 14-1 at 3 (Judge Decl. ¶ 5). The Court is persuaded that these former officer candidates
“have a substantial privacy interest,” Horvath., 419 F. Supp. 3d at 47, in avoiding any
disclosures that “would associate [them] with internal [Coast Guard] investigations and threatens
to identify them as [victims of] . . . alleged workplace misconduct,” id. (quoting Kearns v. Fed.
Aviation Admin., 312 F. Supp. 3d 97, 111 (D.D.C. 2018)). 3
The substantial privacy interests of the OCS instructors identified in the Final Report is
equally evident. Plaintiff’s argument treats allegations of bullying as confirmed misconduct,
asserting that the privacy interest of alleged perpetrators is de minimis. Dkt. 23-1 at 15–16. The
Court disagrees. “[I]ndividuals named as witnesses or as subjects of an investigation . . . have a
discernable privacy interest . . . in avoiding the embarrassment and potential harassment that may
result from public disclosure of their association with [an]. . . Inspector General’s inquiry.”
3
Although the Coast Guard’s declarant does not specify that all of the officer candidates
identified in the Final Report were alleged victims of abuse, as opposed to witnesses to the abuse
of others, the Court can discern from context that they are all alleged victims. But in any event,
the Court’s conclusions would not differ if they were, instead, witnesses to the abuse of others.
This is, however, yet another example of the lack of diligence that went into preparing the Coast
Guard’s motion for summary judgment.
24
Cotton v. Adams, 798 F. Supp. 22, 26 (D.D.C. 1992) (emphasis added). Here, the Final Report
represents that “[t]he investigation did not provide sufficient facts to make appropriate
determinations and disposition[s]” and that, as to one of the alleged wrongdoers, “the
investigation contained a bare allegation.” Dkt. 14-1 at 14. The subjects of government
investigations have a strong privacy interest in maintaining their confidentiality, particularly
when, as here, the investigation failed to disclose evidence sufficient to substantiate the
allegation of wrongdoing or misconduct. See ACLU v. U.S. Dep’t of Justice, 750 F.3d 927, 932
(D.C. Cir. 2014); Am. Immigr. Laws. Ass’n. v. Exec. Off. for Immigr. Rev., 830 F.3d 667, 675–76
(D.C. Cir. 2016).
The existence of a substantial—or even strong—privacy interest, however, does not end
the Court’s inquiry; the Court must also consider the strength of the public interest in disclosure
and must determine whether that interest outweighs the relevant privacy interest. Prison Legal
News, 787 F.3d at 1147. Here, the Court can discern no significant public interest in the
disclosure of the names of those who were allegedly bullied while at OCS. The public interest is
in the bullying and not in the identity of the victims. Plaintiff offers no meaningful response
with respect to the identity of the alleged victims. She does argue, however, that release of the
names of the instructors who allegedly engaged in that bullying would serve an important public
interest: it would “ensur[e] that the” Coast Guard is not “promoting and rewarding officers or
instructors who have actively engaged in bullying.” Dkt. 23-1 at 16. But Plaintiff, once again,
ignores the fact that the Final Report failed to substantiate the allegations of wrongdoing, and an
allegation of misconduct is not the same as confirmed bullying. To be sure, there is a
compelling public interest in knowing how the government handles allegations of misconduct.
But, here, “the information already released largely satisfies this public interest [by] provid[ing]
25
a picture of the allegation[s] made and the steps taken” by the Coast Guard “to investigate the
allegation[s].” Horvath, 419 F. Supp. 3d at 48 (internal quotation marks omitted). Knowing
who was accused of misconduct would undoubtedly add context. The Court is persuaded,
however, that the privacy interests of those accused of misconduct outweigh the public interest in
knowing their identity, because the allegations are unsubstantiated, yet disclosure could cause
substantial reputational and professional harm to the alleged wrongdoer. See Holy Spirit Ass’n
for Unification of World Christianity, Inc. v. U.S. Dep’t of State, 526 F. Supp. 1022, 1033
(S.D.N.Y. 1981).
This, then, leaves the question of foreseeable harm. Although the Coast Guard does not
use this nomenclature in its declaration or briefs, the Court is satisfied that the agency has carried
its burden of demonstrating that it is “reasonably foresee[able]” that disclosure of the names of
the officer candidates (the alleged victims) and the OCS instructors (the alleged abusers) “would
harm an interest protected by” Exemption 6. 5 U.S.C. § 552(a)(8)(A)(i)(I). As the Coast
Guard’s declaration explains, disclosure of the names of those who were allegedly bullied
“would invade their privacy and could cause these individuals reputational harm in their personal
and professional lives,” and disclosure of the names of the alleged bullies “would certainly be
damaging to [their] careers and likely personal reputation[s].” Dkt. 14-1 at 3 (Judge Decl. ¶ 5).
The Court will, accordingly, grant summary judgment in favor of the Coast Guard with
respect to its redactions of the names of the OCS candidates and instructors from the Final
Report.
b. Ranks
Plaintiff’s challenge to the redaction of “military ranks or positions of any of the
individuals involved [in the Final Action Memorandum]” stands on somewhat firmer ground.
26
Dkt. 23-1 at 15. True, ranks—like names—can fall within the ambit of Exemption 6’s
protections if “disclosure . . . would constitute a clearly unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(6); Hudson v. Dep’t of Army, 1987 WL 46755, at *3–11 (D.D.C.
Jan. 29, 1987) (applying Exemption 6 to the rank of military personnel). But, here, the Coast
Guard not only fails to offer any evidence that disclosure of the ranks of those mentioned in the
Final Report might indirectly identify who they are, it fails even to acknowledge that it has
redacted this information in the first place. There is good reason, however, to believe that
Plaintiff is correct—in the Final Action Memorandum, many redactions appear as follows:
“Then-[redacted text].” See, e.g., Dkt. 14-1 at 12. The prefix “then-” does not typically precede
a name unaccompanied by rank (for example, “then-Jane Doe” makes little sense, but then-
Lieutenant Jane Doe” does).
Although the Court might ordinarily treat the Coast Guard’s omission as dispositive and
enter judgment against it on this narrow issue, the redactions potentially implicate the interests of
third parties, who cannot be blamed for the Coast Guard’s omission. Cf. Brennan Ctr. for Just.
at N.Y.U. Sch. of L. v. U.S. Dep’t of Just., 2021 WL 2711765, at * 8 (D.D.C. July 1, 2021). The
Court will, accordingly, deny both the Coast Guard’s motion and Plaintiff’s cross-motion with
respect to the omitted ranks, without prejudice.
c. Coast Guard Investigative Service Special Agent
Finally, the Coast Guard redacted “the name of the Coast Guard Investigative Service
special agent [whom] the Final Action Memorandum was routed through” from the report. Dkt.
14-1 at 3 (Judge Decl. ¶ 5). The Coast Guard offers no support for this redaction and never
explains whether or how revealing that individual’s name would invade any non-de-minimis
privacy interest. As just explained, that would ordinarily provide ample basis to grant summary
27
judgment in favor of Plaintiff. But because this issue also involves the potential privacy interest
of a third party, the Court will provide the Coast Guard with a final opportunity to support its
assertion of Exemption 6 and will, accordingly, deny both the Coast Guard’s motion for
summary judgment and Plaintiff’s cross-motion without prejudice.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Defendant’s motion for summary
judgement, Dkt. 14, is GRANTED in part and DENIED in part, and that Plaintiff’s cross-
motion for summary judgment, Dkt. 22; Dkt. 23, is GRANTED in part and DENIED in part.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: August 30, 2023
28