588 F.Supp.3d 23
D.D.C.2022Background
- Sarah Naumes, a PhD student, submitted a FOIA request (Feb 28, 2019) to the Army seeking: all versions of the Global Assessment Tool (GAT) surveys (soldier/spouse/civilian), informed-consent forms, and a list of ArmyFit recommendations.
- The Army substantially delayed responsiveness for years; Naumes filed suit on June 22, 2021; partial productions followed in Aug. and Oct. 2021.
- The Army produced consent forms and released 773 GAT questions but withheld 534 questions as copyrighted material under FOIA Exemption 4; produced screenshots labeled as sample ArmyFit recommendations.
- Plaintiff challenged the delay, the adequacy of the Army’s search/production (including that some recommendations were only produced as "samples"), and the applicability of Exemption 4 to the withheld questions.
- The Court denied and granted parts of both parties’ summary-judgment motions: it rejected equitable relief for delay, found the Army’s search largely adequate but ordered production of linked recommendation webpages, required the Army to release withheld questions that derive from publicly available sources, and ordered the Army to consult copyright holders and submit supplemental briefing about how copyrighted materials were incorporated into the GAT.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Delay in response | Army violated FOIA timing and should face relief for multi-year delay | Delay does not affect merits; only consequence is loss of administrative-exhaustion defense; no systemic practice shown | Court refused equitable relief (no agency policy of delay) but noted delay irrelevant to summary judgment and barred Army from invoking exhaustion (which it did not) |
| Adequacy of search (GAT and Basic Training survey) | Army failed to search for a Basic Training GAT and provided only "sample" ArmyFit recommendations | Search of ArmyFit/SR2 office was reasonable; no separate Basic Training GAT exists; a complete list would require creation of new records | Search was adequate; Army must produce webpages linked in screenshots (accessible pages) but need not create an aggregate list of recommendations |
| Exemption 4 — "obtained from a person" (copyright source origin) | Withheld questions originate from third-party copyrighted materials; Army must show whether questions were copied verbatim or substantially reformulated | Army claimed questions derive from purchased/third-party copyrighted sources but its declarations were unclear about how materials were incorporated | Court required supplemental briefing explaining how copyrighted sources were incorporated (verbatim vs. reformulation); if reformulated into agency material, Exemption 4 may not apply |
| Exemption 4 — confidentiality/public availability and foreseeable harm | Materials are publicly available or not shown to be treated as confidential; fair-use for academic research further undercuts asserted harm | Copyright holders have commercial interests; withholding prevents market harm and litigation exposure; foreseeable harm articulated | Court ordered release of any withheld questions that come from publicly available, free sources; for non-public sources, Army must contact copyright holders and show confidentiality and foreseeable harm; Court found Army’s foreseeable-harm showing adequate for remaining withheld items pending further information |
Key Cases Cited
- Talavera v. Shah, 638 F.3d 303 (D.C. Cir. 2011) (summary-judgment fact-construction standard in FOIA suits)
- Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (U.S. 1989) (burden on agency to sustain withholding; de novo review)
- Reporters Committee for Freedom of the Press v. FBI, 3 F.4th 350 (D.C. Cir. 2021) (foreseeable-harm requirement and need for specific link between disclosure and harm)
- Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356 (U.S. 2019) (standard for confidentiality under Exemption 4)
- Gulf Western Industries, Inc. v. United States, 615 F.2d 527 (D.C. Cir. 1979) (when government document still counts as information "obtained from a person")
- Forsham v. Harris, 445 U.S. 169 (U.S. 1980) (agency not required to create new records in response to FOIA)
- DiBacco v. Department of the Army, 795 F.3d 178 (D.C. Cir. 2015) (search adequacy measured by searching locations most likely to contain responsive records)