Opinion
A02-306 CV (JWS), [Re: Motion at Docket 26].
September 30, 2004
ORDER FROM CHAMBERS
I. MOTION PRESENTED
At docket 26, plaintiff Marlene Windel moves for summary judgment pursuant to Federal Rule of Civil Procedure 56. The United States opposes the motion. Oral argument was not requested and would not assist the court.
II. BACKGROUND
This dispute involves a request for the production of documents made pursuant to the Freedom of Information Act ("FOIA" or "the Act"). On August 9, 2001, plaintiff, a member of the Alaska Air National Guard, submitted a FOIA request to the Office of Public Affairs, Fort Richardson, for certain documents concerning plaintiff's "7 level upgrade training" and subsequent reassignment. Plaintiff submitted a second FOIA request to the same agency on September 27, 2001. The United States failed to respond to the request within the 20-day time limit established by the Act. Plaintiff submitted three additional FOIA requests to the National Guard Bureau requesting certain documents on November 23, 2001. The United States again failed to produce the requested documents within the time limits imposed by the Act. Plaintiff submitted her sixth FOIA request to the National Guard on August 19, 2002. The United States acknowledged receipt of the FOIA request and informed plaintiff that a final response would be provided within 20 working days from September 10, 2002.
Docket 1 at ¶ 5; doc. 10 at ¶ 5.
Doc. 1 at ¶ 6; doc. 10 at ¶ 6.
Doc. 1 at ¶ 7; doc. 10 at ¶ 7.
Doc. 1 at ¶ 12; doc. 10 at ¶ 12.
Doc. 1 at ¶ 15; doc. 10 at ¶ 15.
Doc. 1 at ¶ 20; doc. 10 at ¶ 20.
Doc. 1 at ¶ 21; doc. 10 at ¶ 21.
Plaintiff filed suit on December 17, 2002, alleging in three separate counts that the United States violated the provisions of the FOIA by failing to provide final responses and/or produce the requested documents within the time limits imposed by the FOIA. An amended complaint alleges that subsequent to plaintiff's filing of her original complaint, the United States provided documents in response to plaintiff's requests, however, plaintiff contends that the production was deficient because (1) all records requested by plaintiff were not submitted; (2) the submitted documents were improperly redacted and/or withheld; and (3) the claims of exemptions to the FOIA were overly broad and have resulted in the improper withholding of the requested records. Plaintiff requests an order directing the United States to produce the requested documents, and further requests an award of costs and attorney's fees incurred in bringing this action.
Doc. 1.
Doc. 16 at ¶¶ 23-5.
Doc. 1 at ¶ 22.
Plaintiff is a resident of Alaska. This court has jurisdiction over this dispute pursuant to 5 U.S.C. § 552(a)(4)(B), which empowers the district courts to "enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld."
Doc. 1 at ¶ 1.
III. STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if there is no genuine dispute as to material facts and if the moving party is entitled to judgment as a matter of law. The moving party has the burden of showing that there is no genuine dispute as to material fact. The moving party need not present evidence; it need only point out the lack of any genuine dispute as to material fact. Once the moving party has met this burden, the nonmoving party must set forth evidence of specific facts showing the existence of a genuine issue for trial. All evidence presented by the non-movant must be believed for purposes of summary judgment, and all justifiable inferences must be drawn in favor of the non-movant. However, the nonmoving party may not rest upon mere allegations or denials, but must show that there is sufficient evidence supporting the claimed factual dispute to require a fact-finder to resolve the parties' differing versions of the truth at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Id. at 323-25.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
Id. at 255.
Id. at 248-49.
IV. DISCUSSION
The FOIA directs that government agencies, "upon any request for records which (A) reasonably describes such records and (B) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person." The Act requires the agency to "determine within 20 days . . . after the receipt of any such request whether to comply with such request and . . . immediately notify the person making such request of such determination and the reasons therefor." In responding to a request made pursuant to the Act, "an agency shall make reasonable efforts to search for the records." The reasonableness of a search depends upon the specific facts of the case, and the court construes all facts in the light most favorable to the requestor. "The issue to be resolved," however, "is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate."Plaintiff seeks summary judgment to the effect that (1) the United States failed to perform a reasonable search for the requested documents; (2) the United States failed to provide all records that were subject to her FOIA requests; (3) the United States improperly withheld and redacted information subject to disclosure under the FOIA; and (4) the United States's claims of disclosure exemptions are overly broad. The court addresses each contention in turn.
Doc. 26 at 1.
In response to plaintiff's allegation that it failed to perform a reasonable search, the United States asserts that it has already produced "two substantial releases of documents responsive to [plaintiff's] FOIA requests, and one small release." Specifically, the United States asserts that it produced 147 documents pursuant to plaintiff's FOIA request in March 2003, and produced 87 additional documents in August 2003. Plaintiff's counsel characterized the United States's search as unreasonable in a letter to the U.S. Attorney on July 24, 2003. In that letter, plaintiff's counsel asserted that "a number of [additional] individuals should have been contacted for documents," and identifies ten individuals who, according to the plaintiff, might be in possession of such material. Apparently in response to this letter, Lieutenant Colonel Susan Bailar, Staff Judge Advocate in the Office of the Adjutant General, Alaska National Guard, coordinated an effort to locate the additional documents sought by plaintiff. In a five-page declaration, Bailar avers that in addition to searching plaintiff's official training folder at the Kulis Air National Guard base and within the Military Personnel Flight personnel records, she made telephone and email requests "to practically every individual that I could locate that had or might have had records of any kind related to the [FOIA] requests." Bailar avers that she personally contacted at least thirteen different National Guard members in pursuit of additional records, including five of the ten names suggested by plaintiff's counsel: TSgt Paul Spychalski; CMSgt Andrew Pierce; SMSgt Jim Bolin; Major Patty Wilbanks; and SMSgt Rich Zellner. Bailar's declaration details the attempts made by these individuals to locate additional records. Bailar states, for example, that SMSgt Bolin searched both his computer and office area for responsive documents, and reports that Bolin's search uncovered "duplicate materials, previously provided [to plaintiff], as well as some not previously identified and provided."
Plaintiff's pleadings assert that the initial release was made in May 2003.
Attached as ex. 19 to doc. 26.
Attached as ex. A to doc. 31.
Id. at 2-4.
Bailar states that her attempts at contacting SMSgt Harold Wood and MSgt Charles Brenton were unsuccessful because both individuals had been deployed to Germany, but avers that their computers and offices were searched by CMSgt Bolin, who was unable to locate additional responsive documents. Bailar declares that in addition to contacting the parties identified by the plaintiff, she also contacted CMSgt Steven Sammons at the National Guard Bureau, who successfully located copies of several emails authored by the plaintiff and forwarded them for review and release.
An agency may rely upon reasonably detailed, non-conclusory affidavits submitted in good faith to demonstrate the adequacy of a search for documents pursuant to the FOIA. A requestor may raise a substantial and material factual issue with regard to the reasonableness of the search by either contradicting the agency's account of the search procedure, or by raising evidence of the agency's bad faith in performing the search. In the present case, plaintiff attempts to cast doubt on the reasonableness of the United States's search for documents by noting that Bailar's declaration indicates that at least four individuals who might personally possess relevant documents, or who might have knowledge as to the whereabouts of additional documents, were not contacted. Indeed, Bailar's declaration does state that she was unable to contact SMSgt Wood, MSgt Brenton, CMSgt Hogan, and CMSgt Lee. Even so, the central inquiry here is not whether every individual who might have information was actually contacted, but rather whether the search undertaken by the United States was reasonable. As discussed above, the reasonableness of a search may be called into question by either contradicting the agency's account of the search, or by raising evidence of the agency's bad faith in conducting the search. The mere recitation that several individuals were not contacted, despite attempts to do so by Bailar, fails to meet either criteria. For this reason, plaintiff's motion for summary judgment to the effect that the United States failed to perform a reasonable search will be denied.
Zemansky, 767 F.2d at 571, citing Weisberg v. United States Dept. of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984).
Miller v. United States Dept. of State, 779 F.2d 1378, 1384 (8th Cir 1985).
Doc. 34 at 4.
Plaintiff next asserts that the United States failed to produce documents subject to her FOIA requests. In support of this assertion, plaintiff contends that numerous documents referenced internally by the documents produced by the United States were not submitted. For example, plaintiff asserts that references to a "signed letter" and "plaintiff's 2096" contained in a fax cover letter produced by the United States suggest the existence of additional responsive documents, and asserts that the United States's failure to produce such documents renders their search inadequate. Plaintiff's assertion lacks merit. In determining the reasonableness of a FOIA records search, "the issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate." Plaintiff having failed to contradict the United States's account of the search or raise evidence of the United States's bad faith, plaintiff's motion for summary judgment on this issue will be denied.
Attached as Exhibit 17 to docket 26, at 63.
Zemansky, 767 F.2d at 571 (internal quotations and citations omitted).
Plaintiff next asserts that the United States improperly withheld and redacted information sought by plaintiff's FOIA request. In support of her assertion, plaintiff contends that the United States's failure to present a Vaughn index or affidavit detailing the reasons for withholding or redacting documents entitles plaintiff to summary judgment on this issue.
A government agency desiring to withhold documents sought pursuant to a FOIA request must provide the requestor with an index or affidavit "identifying each document withheld, the statutory exemption claimed, and a particularized explanation of how disclosure of the particular document would damage the interest protected by the claimed exemption." The index, known as a "Vaughn index," is meant "to afford the FOIA requester a meaningful opportunity to contest, and the district court an adequate foundation to review, the soundness of the withholding." In the present case, the United States provided a letter to the plaintiff in which the United States describes, in general terms, the exemptions claimed by the United States This letter, however, fails to meet the criteria of a proper "Vaughn index" because it lacks sufficient detail regarding the bases for exemption. "Because the court and the plaintiff do not have the opportunity to view the documents themselves, the submission [of a Vaughn index] must be `detailed enough for the district court to make a de novo assessment of the government's claim of exemption.'" The letter from the United States Attorney falls short of this requirement. The letter claims, for example, that Inspector General and Military Equal Opportunity records are exempt pursuant to 5 U.S.C. § 552a(k)(2), on the basis that investigatory material compiled for law enforcement purposes are exempt from FOIA requests. This may be true, but absent more detail as to how disclosure of these specific documents would damage the interest protected by the exemption, the court is unable to assess the government's claim of exemption. "Specificity is the defining requirement of the Vaughn index." "Unless the agency discloses as much information as possible without thwarting the [claimed] exemption's purpose, the adversarial process is unnecessarily compromised."
Weiner v. F.B.I., 943 F.2d 972, 977 (9th Cir. 1991).
See Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C. Cir. 1973).
Id.
Attached as ex. 16 to doc. 26.
Lion Raisins, Inc. v. United States Dept. Of Agriculture, 354 F.3d 1072, 1082 (9th Cir. 2004), quoting Maricopa Audubon Soc'y v. United States Forest Serv., 108 F.3d 1089, 1092 (9th Cir. 1997).
King v. Dep't of Justice, 830 F.2d 210, 218 (D.C. Cir. 1987).
Weiner, 943 F.2d at 979 ( internal citations and quotations omitted).
Because the above-referenced letter fails to comport with the requirements of a Vaughn index, the court is unable to assess the government's claimed exemptions. For this reason, the United States is ordered to submit, within 20 days from the date of this order, affidavits or indices identifying each document withheld, the statutory exemption claimed, and a particularized explanation of how disclosure of that particular document would damage the interest protected by the claimed exemption. The United States is reminded that the purpose of the index is "not merely to inform the requestor of the agency's conclusion that a particular document is exempt from disclosure under one or more of the statutory exemptions, but to afford the requestor an opportunity to intelligently advocate release of the withheld documents and to afford the court an opportunity to intelligently judge the contest."
Id.
V. CONCLUSION
For the reasons stated above, plaintiff's motion for summary judgment is DENIED in part. Summary judgment is DENIED as to plaintiff's allegations that the United States failed to perform a reasonable search, and that the United States failed to produce the documents subject to plaintiff's FOIA requests. Plaintiff's motion for summary judgment on her claim that the United States improperly exempted and redacted documents is GRANTED in part to the extent that the United States shall provide a Vaughn index within 20 days from the date of this order. After reviewing the Vaughn index, plaintiff may seek additional relief if she deems it appropriate to do so.