Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________
)
LINDA P. WALSTON, )
)
Plaintiff, )
)
v. ) Civil Action No. 15-2202 (EGS) )
UNITED STATES DEPARTMENT OF )
DEFENSE, )
)
Defendant. )
________________________________)
MEMORANDUM OPINION
Thе plaintiff, Linda P. Walston, filed this civil case against the defendant, the United States Department of Defense (“DOD”), alleging violations of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. See Compl., ECF No. 1 ¶¶ 1-2, 19-20. Currently pending before the Court is DOD’s motion for summary judgment. Upon consideration of the motion, the response and reply thereto, the applicable law, and the entire record, DOD’s motion for summary judgment is GRANTED IN PART and DENIED IN PART .
I. Background
Ms. Walston discovered that someone hacked her personal computer on various occasions between 2010 and 2014 and, in the course of that hacking activity, altered, deleted, or destroyed certain of her computer files and operating systems. Def.’s Statement of Material Facts (“Def.’s SMF”), ECF No. 12-1 ¶ 2; *2 Pl.’s Opp. to Def.’s Mot. for Summ. J. (“Pl.’s Opp.”), ECF No. 13 at 3; Pl.’s Statement of Material Facts (“Pl.’s SMF”), ECF No. 13-1 ¶ 7. One of the computer forensics specialists that Ms. Walston hired to identify the hacker suggested tо her that the hacker might have been an employee of the Defense Information Systems Agency (“DISA”). Def.’s SMF ¶ 2; Pl.’s Opp. at 3; Pl.’s SMF ¶ 7. DISA is a component of DOD. Compl. ¶ 3. Accordingly, Ms. Walston filed a complaint with DOD’s Office of Inspector General (“DOD OIG”) on September 2, 2014. Pl.’s SMF ¶ 7; Def.’s Resp. to Pl.’s SMF, ECF No. 14-1 ¶ 7. The complaint alleged that a DISA employee had hacked her computer, altered or deleted files, and reported Ms. Walston’s activities to a third рarty. Def.’s SMF ¶ 2. The complaint was delegated to DISA’s Office of the Inspector General (“DISA OIG”) and assigned the case number 2014-0193. Pl.’s SMF ¶ 7; Def.’s Resp. to Pl.’s SMF ¶ 7.
On April 21, 2015, Ms. Walston filed a FOIA request with DISA for “all documents, reports, records, statements, and files that refer or relate to the DISA OIG complaint #2014-0193.” Def.’s SMF ¶ 1. Eventually, on November 3, 2015, DISA responded to Ms. Walston’s request by providing her with two redacted documents: (1) a December 24, 2014 memorandum from DISA OIG to DOD OIG concluding that Ms. Walston’s allegations that a DISA employee had hacked her computer were unfounded and (2) the report that provided the analysis undergirding the determination *3 that the allegations were unfounded. Def.’s SMF ¶ 3; Pl.’s SMF ¶ 11. Finding DISA’s records production inadequate, on November 13, 2015 Ms. Walston filed an administrative FOIA appeal, Def.’s SMF ¶ 4; Pl.’s SMF ¶ 12, and ultimately filed this action against DOD on December 18, 2015. Def.’s SMF ¶ 4; Pl.’s SMF ¶ 13.
On March 7, 2016, DISA provided Ms. Walston with 13 pages of emails among DISA analysts discussing their anаlyses of her complaint that a DISA employee had hacked her computer. Def.’s SMF ¶ 5; Pl.’s SMF ¶ 17. Ms. Walston, in turn, sent an email through counsel asserting that DISA still had not provided all of the documents and records that she had requested. Def.’s SMF ¶ 6; Pl.’s SMF ¶ 18. On March 23, 2016, DISA produced an additional 32 pages of internal administrative documents and documents that Ms. Walston had submitted to DISA. Def.’s SMF ¶ 7; Pl.’s SMF ¶ 19.
On June 6, 2016, DOD filed its motion for summary judgment. See Def.’s Mot. for Summ. J., ECF No. 12. DOD asserts that summary judgment is warranted because it conducted an adequate search for records in response to Ms. Walston’s FOIA request; properly redacted its productions pursuant to the applicable FOIA exemptions; and complied with FOIA’s segregability requirement. See generally Def.’s Mem. in Supp. of Mot. for Summ. J. (“Def.’s Mem. Supp.”), ECF No. 12. In her opposition, *4 filed on July 11, 2016, Ms. Walston does not challenge the propriety of DOD’s assertion of FOIA exemptions or its compliance with FOIA’s segregability requirement. See Pl.’s Opp. at 6. Instead, her only argument is that genuine issues of material fact concerning the adequacy of DISA OIG’s document search foreclose a grant of summary judgment as to that issue. See id. at 7-11. On August 11, 2016, DOD filed its reply brief, maintaining that an adequate search was conducted. See generally Def.’s Reply, ECF No. 14. DOD’s motion is ripe for adjudication.
II. Standard of Review
Summary judgment is granted when there is no genuine issue
of material fact and the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56;
Waterhouse v. District of
Columbia
,
Whеn considering a motion for summary judgment under FOIA,
the court must conduct a de novo review of the record.
See
5
U.S.C. § 552(a)(4)(B). The court may award summary judgment on
the basis of information provided by the agency in affidavits or
declarations.
See Military Audit Project v. Casey
,
III. Analysis
A. The Search for Records
In response to a challenge to the adequacy of its search
for requested records, an agency “must show beyond material
doubt . . . that it has conducted a search reasonably calculated
to uncover all relevant documents.”
Weisberg
,
Here, DOD initially offered a declaration of Mark H. Herrington, an Associate Deputy General Counsel in the Office of General Counsel of DOD responsible for overseeing DOD’s FOIA litigation, that averred that “searches were completed using the case number ‘2014-0193’”; that records pertaining to DISA OIG investigations——including reports, letters, and emails——are *7 stored in an electronic database and in a shared drive and are organized exclusively by case number; and that DISA OIG does not keep paper files for its investigations. First Decl. of Mark H. Herrington, ECF No. 12-2 ¶¶ 1, 8.
Ms. Walston challenges the sufficiency of this declaration.
She first argues that even though Mr. Herrington asserts that
the search was completed using the search term “2014-0193,” she
has emails between herself and DISA OIG that bear the subject
line “Case #2014-0193” and yet those emails were not part of the
records DISA OIG provided to her pursuant to her FOIA request.
Pl.’s Opp. at 8. Ms. Walston reasons that the fact that these
emails are missing from DISA OIG’s production indicates that its
search was inadequate.
See id.
at 8-9. She also argues thаt Mr.
Herrington’s declaration does not reveal who conducted the
search, what process those persons used, whether Mr. Herrington
was directly involved in the search, and whether the DISA OIG
electronic database where investigative materials are stored was
actually searched.
Id.
at 10. Further, because of these
shortcomings, she contends that there is a dispute of fact as to
whether all of the searches сonducted actually used the search
term “2014-0193.” Pl.’s SMF ¶ 3. Additionally, she contends that
DISA OIG investigative records are retrievable by searching for
an individual’s name,
id.
¶ 4 (citing Privacy Act of 1974;
System of Records, 79 Fed. Reg. 64,581, 64,582 (Oct. 30, 2014)),
*8
but Mr. Herrington’s declaration asserts that the records “are
stored exclusively by case number.” First Decl. of Mark H.
Herrington ¶ 8. She also contends that DISA OIG investigative
records are stored in electronic and paper form, Pl.’s SMF ¶ 5
(citing
Thаt certain emails between Ms. Walston and DISA OIG
bearing the subject line “Case #2014-0193” did not turn up in
DISA OIG’s search and, consequently, were not part of its
production to Ms. Walston does not support the conclusion that
DISA OIG’s search was inadequate because “the adequacy of a FOIA
search is generally determined not by the fruits of the search,
but by the appropriateness of the methods used to carry out the
search.”
Iturralde
,
Walston’s other challenges to the adequacy of the search, DOD has provided a second declaration of Mr. Herrington. Second Decl. of Mark H. Herrington, ECF No. 14-2 ¶ 2 (“The purpose of *9 th[is] declaration is to address issues raised by [Ms. Walston] in her opposition to D[O]D’s motion for summary judgment.”). Therein Mr. Herrington specifies that DISA OIG searched for responsive records in its electronic database, its shared drive, and its investigators’ individual emails files. Id. ¶ 5. He also provides that investigators working for DISA OIG conducted the search, and the search terms they used “included” the case number “2014-0193” and the name “Walston.” Id. Mr. Herrington also indicates that paper files are kept for DISA OIG investigations in “rare cases,” like those involving original wet signatures or documents having historical significance, but Ms. Walston’s case was not one that would involve paper files. Id. ¶ 6. Mr. Herrington concludes by averring that DISA OIG “conducted а thorough and reasonable search.” Id. ¶ 7.
The Court can “rel[y] on supplemental declarations submitted with an agency’s reply memorandum to cure deficiencies in previously submitted declarations where, as here, the [p]laintiff filed no motion for leave to file a surreply challenging [the] defendant’s supplemental declarations.” DeSilva v. U.S. Dep’t of Housing and Urban Dev. , 36 F. Supp. 3d 65, 72 (D.D.C. 2014) (internal quotation marks omitted). Accordingly, the Court can consider Mr. Herrington’s seсond declaration when assessing the adequacy of DISA OIG’s search. That supplemental declaration does go a long way toward *10 resolving concerns about the adequacy of the search.
Specifically, it makes clear that DISA OIG’s electronic database for investigative materials——along with its shared drive and its individual investigators’ email accounts——was actually searched; that the search terms used “included” not just the case number “2014-0193” but also the name “Walston”; that the search was conducted by DISA OIG investigators; and that Ms. Walston’s complaint was not the sort that would spawn paper records. Second Decl. of Mark H. Herrington ¶¶ 5-6; see also Def.’s Resp. to Pl.’s SMF ¶¶ 3-5. In short, through this supplemental declaration, DOD has adequately responded to most of Ms. Walston’s valid concerns about the adequacy of DISA OIG’s search.
Even so, Mr. Herrington’s supplemental declaration still
does not permit DOD to carry its burden of demonstrating that
DISA OIG’s search was adequate. It is “
necessary
” that the
declaration that DOD relies upon aver that “all files likely to
contain responsive materials . . . were searched.”
Oglesby
, 920
F.2d at 68 (emphasis added). Here, Mr. Herrington’s supplemental
declaration makes clear that searches were conducted in DISA
OIG’s electronic database, in its shared drive, and in its
investigators’ email files, and his supplemental declaration
makes clear that there is no reason to think that there are
paper files connected to the investigation of Ms. Walston’s
*11
complaint.
See
Second Decl. of Mark H. Herrington ¶¶ 5-6. But
nowhere does Mr. Herrington state that the electronic database,
the shared drive, and the investigators’ email files constitute
the entire universe of files likely to contain responsive
materials. The omission of this necessary statement is all the
more troubling because it appears that investigative materials
in the DISA OIG database might be located in the “primary
location” in Maryland or in the “decentralized location” in
Illinois.
See
Pl.’s Opp. at 11 (citing
Additionally, for DOD to carry its burden of demonstrating
the adequacy of DISA OIG’s search, the declaration it relies
upon must set forth “
the
search terms” used in the search, not
some
of the search terms used.
Oglesby
,
For these reasons, DOD’s motion for summary judgment as to the adequacy of the search is DENIED WITHOUT PREJUDICE . DOD must either (1) conduct a new search for the requested records to ensure that the search is adequate, consistent with governing case law; or (2) provide the Court with an additional declaration from which the Court can find that DISA OIG searched all files likely to contain responsive materials and from which the Court can assess all of the search terms used in DISA OIG’s search. In either event, DOD will be required to file a renewed motion for summary judgment with a sufficiently detailed declaration.
B. Claimed Exemptions
FOIA requires that agencies release all documents requested
unlеss the information contained within such documents falls
within one of nine exemptions. 5 U.S.C. § 552(a), (b). These
statutory exemptions must be narrowly construed in favor of
disclosure.
Dep’t of Air Force v. Rose
,
1. Exemption 5
FOIA Exemption 5 exempts from disclosure “inter-agency or
intra-agency memorandums or letters that would not be available
by law to a party . . . in litigation with the agency.” 5 U.S.C.
§ 552(b)(5). Thus, “Exemption 5 permits an agency to withhold
materials normally privileged from discovery in civil litigation
against the agency.”
Tax Analysts v. IRS
,
DOD relies on the attorney-client privilege prong of
Exemption 5 to partially withhold one record. That record is an
email exchange between a DISA investigative analyst and an
attorney in DISA’s Office of Genеral Counsel. First Decl. of
Mark H. Herrington ¶ 10. In the email exchange, the analyst asks
the attorney a legal question and the attorney responds, in
turn, with his legal opinion.
Id.
The analyst and the attorney
intended to communicate in confidence.
Id.
Because this email
exchange involved a “request[ ] for and the provision of legal
advice in the context of an attorney-client relationship,” the
partial exemption pursuant to the attorney-client privilege was
proper.
See Reliant Energy Power Generation, Inc. v. FERC
, 520
F. Supp. 2d 194, 207 (D.D.C. 2007);
see also Elec. Privacy Info.
Ctr. v. U.S. Dep’t of Homeland Sec.
,
2. Exemption 6
FOIA Exemption 6 exempts from disclosure “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). Exemption 6 permits withholding of
information when two requirements have been met.
See U.S. Dep’t
of State v. Washington Post Co.
,
Here, pursuant to Exemption 6, in 13 documents produced to
Ms. Walston DOD withheld the names, email addresses, phone
numbers, signature blocks, and office locations of the low-level
DISA employees who conducted the investigation related to her
complaint. Def.’s Mem. Supp. at 16; First Decl. of Mark H.
Herrington ¶¶ 11-13. This information is the sort that satisfies
Exemption 6’s first requirement, as the DISA OIG investigators,
working in a component of DOD, are employed in a “sensitive
agenc[y]” and have “sensitive occupations.”
See Long v. Office
of Pers. Mgmt.
,
The privacy interest that exists here is not outweighed by
the public interest in the release of the redacted information.
“In this balancing analysis, [Ms. Walston] bears the burden of
establishing a legitimate public interest supporting disclosure
which is in line with the core purpose of FOIA, to contribute to
greater general understanding of agency practice and procedure.”
Clemmons v. U.S. Army Crime Records Ctr.
, No. 05-2353, 2007 WL
1020827, at *5 (D.D.C. Mar. 30, 2007) (citing
U.S. Dep’t of
Defense v. Fed. Labor Relations Auth.
,
C. Segregability
If a record contains some information that is exempt from
disclosure, any reasonable segregable information not exempt
from disclosure must be released after deleting the exempt
portions, unless the non-exempt portions are inextricably
intertwined with exempt portions. 5 U.S.C. § 552(b);
see Trans-
Pac. Policing Agreement v. U.S. Customs Serv.
,
Here, Mr. Herrington avers that “[a]ll of the documents
addressed herein have been carefully reviewed for reasonable
segregation of non-exempt information, and it has been
determined that no further segregation of meaningful information
in the withheld doсuments can be made without disclosing
*19
information warranting protection under the law,” First Decl. of
Mark H. Herrington ¶ 15, and he describes in some detail the
portions of the documents that have been withheld pursuant to
Exemptions 5 and 6.
Id.
¶¶ 10, 13. Based on Mr. Herrington’s
averment that no further segregation is possible and his
explanation of the basis for the redactions that were made, it
appears that DISA OIG has redacted only what was necessary tо
protect the exempt information. Thus, DOD’s “affidavit[ ]
provided here show[s] with ‘reasonable specificity’ why the
documents cannot be further segregated.”
Armstrong v. Exec.
Office of the President
,
IV. Conclusion
For the reasons stated above, DOD’s motion for summary judgment is GRANTED IN PART and DENIED IN PART WITHOUT PREJUDICE . As to its claimed exemptions and the segregability of the records it has produced, DOD’s motion is granted. As to its search for records, DOD’s motion is denied without prejudice. An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
February 28, 2017