292 F. Supp. 3d 255
D.C. Cir.2018Background
- Pulliam filed FOIA requests to DOD, EPA (OIG), and DOJ OIG seeking records related to a 2003 complaint by Heather White about Fort McClellan contamination; suit followed after agency responses were incomplete or none.
- Court previously remanded (Feb. 16, 2017) directing agencies to conduct further searches and justify adequacy.
- DOD initially searched only emails; plaintiff later narrowed DOD request to correspondence to/from/cc Elizabeth King and Mary McVeigh; DOD produced 57 pages but the Court had found its searches inadequate.
- EPA (OIG) located and produced some records (with Exemption 6 redactions) and conducted expanded searches of investigative databases, CMS/NCTIMS, file cabinets, and certain Lotus Notes accounts; EPA asserted it released all reasonably segregable material.
- DOJ OIG searched IDMS and correspondence files but used limited name-based terms and relied on uncertain mail-log retention; DOJ produced supplemental declarations but the Court found the searches still inadequate.
- Court granted limited Rule 56(d) discovery (90-minute telephonic deposition) for DOD to resolve factual disputes about what searches were performed; remanded case to agencies for fuller searches and explanations; granted summary judgment to EPA only as to its redactions and segregability for produced records.
Issues
| Issue | Pulliam's Argument | Defendants' Argument | Held |
|---|---|---|---|
| Adequacy of DOD electronic search | DOD limited searches to email; declarations insufficient to show searches covered other electronic records | DOD now says EITSD searched all electronic files, not just email; paper-file destruction explained | Court: DOD's declarations conflict and lack detail; factual dispute exists; granted limited discovery and remand — summary judgment denied as to DOD |
| Adequacy of DOD paper-file search / alleged destruction | DOD may have destroyed paper files; Pulliam requests proof and challenges adequacy | DOD says offices searched and reported no responsive paper records, some files incinerated | Court: descriptions too cursory; failed to explain search locations/methods; remand and limited discovery required |
| Adequacy of EPA OIG searches (investigations, Immediate Office, CMS/NCTIMS) | Plaintiff contends initial searches too narrow; seeks follow-up and broader terms | EPA expanded database and hard-copy searches, used broader keywords, located CMS record and produced responsive items | Court: EPA's searches of Office of Investigations and Immediate Office are adequate except for insufficient description of the OCPL search; remand for that limited issue only |
| EPA redactions & segregability | Plaintiff did not challenge redactions | EPA redacted three names under Exemption 6 and asserts line-by-line segregability review | Court: Redactions justified under Exemption 6; EPA met segregability obligations; summary judgment granted for EPA as to produced records |
| Adequacy of DOJ OIG searches | Pulliam: DOJ used too few search terms and missed leads from complaint text; mail-log retention uncertain | DOJ: Searched IDMS, correspondence files, queried Investigations Division; supplemental declarations clarify name-variants searched | Court: DOJ still used only name-based searches and did not pursue other terms from complaint; mail-log destruction claim is conclusory; search inadequate — remand required |
Key Cases Cited
- Nation Magazine v. U.S. Customs Serv., 71 F.3d 885 (D.C. Cir.) (agency must show search reasonably calculated to uncover relevant documents)
- Perry v. Block, 684 F.2d 121 (D.C. Cir.) (agency declarations generally suffice absent countervailing evidence)
- Steinberg v. DOJ, 23 F.3d 548 (D.C. Cir.) (declaration must describe how search was conducted)
- Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321 (D.C. Cir.) (search description must be comprehensive; conclusory destruction claims insufficient)
- Wilbur v. CIA, 355 F.3d 675 (D.C. Cir.) (failure to locate a document does not alone show inadequacy)
- Iturralde v. Comptroller of Currency, 315 F.3d 311 (D.C. Cir.) (adequacy judged by methods, not fruits, of search)
- Mobley v. CIA, 806 F.3d 568 (D.C. Cir.) (agency explanation of why systems not searched can support adequacy)
- Lepelletier v. Fed. Deposit Ins. Corp., 164 F.3d 37 (D.C. Cir.) (balancing privacy interest under Exemption 6)
- Sussman v. U.S. Marshals Serv., 494 F.3d 1106 (D.C. Cir.) (presumption that agency complied with segregability obligation)