888 F. Supp. 2d 231
D. Conn.2012Background
- Plaintiffs SWAN, ACLU, and ACLU-CT sue DoD and VA under FOIA alleging failure to timely release records and to conduct reasonable searches.
- DoD offices and VA offices received FOIA requests in Oct 2010 seeking military sexual trauma, EO, SH, DV, and MST records and related statistics.
- Plaintiffs appealed certain denials; the Navy/DoD and VA responses were challenged for search adequacy and scope.
- Defendants moved for summary judgment; the court determines some requests were non-responsive as to DoD-wide responses and some searches were insufficient.
- The court holds that several DoD/VA declarations are inadequate, while others are adequate, and authorizes supplemental affidavits and further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DoD properly resisted responding to the first two DoD requests | Plaintiffs claim requests seek records, not policy questions. | First two requests are policy questions, not records, thus not FOIA-responses required. | Summary judgment for these two requests granted. |
| Whether the eleventh DoD request was unduly burdensome | Item 11 seeks all records, lengthy, multifarious; unduly burdensome. | Burden assessment contested; may be burdensome depending on scope. | Genuine issue of material fact; summary judgment denied for Item 11. |
| Whether agency searches and declarations are adequate to satisfy FOIA requirements | Many declarations lack personal search responsibility, fail to describe file systems, or omit search scope. | Declarations provide personal knowledge and describe searches; some issues are discretionary. | Some declarations insufficient; others sufficient; supplemental affidavits required. |
| Whether specific agency declarations (Navy, Air Force, Army, Marine Corps, DoD IG, VBA, BVA, etc.) sustain summary judgment | Countervailing evidence suggests bad faith or incomplete searches. | Many declarations are adequate; some need supplementation; others are sufficient. | Partial grant/denial of summary judgment; several declarations insufficient; supplemental declarations warranted. |
Key Cases Cited
- Carney v. U.S. Dep’t of Justice, 19 F.3d 807 (2d Cir. 1994) (agency bears burden to show search adequacy and exemptions)
- SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) (courts rely on non-conclusory affidavits; good-faith presumption)
- McCready v. Nicholson, 465 F.3d 1 (D.C. Cir. 2006) (affidavits must describe search terms and files searched)
- El Badrawi v. Dep’t of Homeland Sec., 583 F.Supp.2d 285 (D. Conn. 2008) (detail required on file system and search scope)
- N.Y. Times Co. v. U.S. Dep’t of Def., 499 F.Supp.2d 501 (S.D.N.Y. 2007) (describes breadth of search and limits of databases)
- Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473 (2d Cir. 1999) (some documents may be discovered in later searches; not necessarily inadequate)