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Downs L. Grp., P.A. v. U.S. Coast Guard, No. 21-2407, 2023 WL 4744044 (D.D.C. July 25, 2023) (Walton, J.)

Date

Downs L. Grp., P.A. v. U.S. Coast Guard, No. 21-2407, 2023 WL 4744044 (D.D.C. July 25, 2023) (Walton, J.)

Re:  Request for records concerning members of Coast Guard who responded to 2010 British Petroleum (“BP”) Deepwater Horizon oil spill

Disposition:  Denying plaintiff’s motion for summary judgment; denying defendant’s motion for summary judgment

  • Procedural Requirements, Searching for Responsive Records:  The court relates that “[o]n June 14, 2020, the plaintiff submitted its first FOIA request, primarily seeking ‘“all records in possession or control of the Coast Guard which show[ ] approval of, commendation for, medals for, approbation for, or letters of commendation for[’] active duty and auxiliarist Coast Guard personnel during the BP Deepwater Horizon Oil Spill.’”  “The plaintiff then submitted its second FOIA request on August 6, 2020, seeking the same records as its first request, with the addition of the information pertaining to reservists.”  “The parties dispute whether the plaintiff narrowed its requests for responsive documents.”  “The defendant contends that ‘[the p]laintiff communicated to [the d]efendant, verbally and in writing, that they “were simply looking for the names of the Coast Guard members that participated in the 2010 Deepwater Horizon BP oil spill clean-up operations[,]”’ . . . and that in response to what the defendant construed as a narrowing of the plaintiff’s requests, ‘[the d]efendant ceased searching for records other than those that contained lists of the names of the Coast Guard members that participated in the 2010 Deepwater Horizon BP oil spill clean-up operations’ . . . .”  “However, the plaintiff contends that the defendant misconstrued this communication as a narrowing of the plaintiff’s requests, stating that this communication merely ‘clarif[ied] the purpose of the request[,]’ . . . and moreover, that because this ‘clarification email . . . only pertained to the [plaintiff’s] first request,’ . . . and ‘the records sought by the second request encompass all those sought by the first request, the alleged “narrowing” of the first request is irrelevant’ . . . .”  “The Court cannot conclude based upon the text of this email alone that the plaintiff ‘formally narrowed [its] request[,]’ . . . such that the defendant would reasonably interpret this statement to supersede the plaintiff’s original requests.”  “Construing the plaintiff’s request liberally – as the defendant was required to do . . .  – this email appears to represent a clarification regarding the plaintiff’s original request, especially in light of the parties’ apparently ongoing discussions regarding the defendant’s assertion of Exemption 6 as to the disclosure of various forms of personal identification . . . .”  “[B]ecause the defendant represents that, as a result of the plaintiff’s email, it ‘ceased searching for records other than those that contained lists of the names of the Coast Guard members that participated in the 2010 Deepwater Horizon BP oil spill clean-up operations[,]’ . . . the Court will direct the defendant to conduct additional searches in order to fulfill the plaintiff’s FOIA requests as originally constructed.”
  • Litigation Considerations, Adequacy of Search:  The court holds that “although the defendant, through its declarant, has identified the units, offices, and personnel involved in the searches conducted in response to the plaintiff’s requests, . . . and has asserted that ‘all places likely to contain responsive records have been searched[,]’ . . . it has failed to explain its search methodology in this case with sufficient specificity to warrant summary judgment.”  “[W]ith the exception of [one district], . . . the defendant has failed to articulate the search terms used by the various offices, and therefore has not provided ‘a complete list of the search terms used in response to [the plaintiff’s] FOIA request’ . . . .”  “Moreover, as to all offices that conducted searches for records, the defendant has not ‘“explain[ed] how the search was conducted” in each component[,]’ . . . beyond the conclusory statements regarding the relevant personnel ‘search[ing] their files[,]’ . . . and ‘search[ing] electronic files’ . . . .”  “Accordingly, the Court concludes that it must deny without prejudice both the defendant’s motion and the plaintiff’s cross-motion as to the adequacy of the defendant’s search.”  “The Court therefore directs the defendant to conduct additional searches in order to fulfill the plaintiff’s FOIA requests as originally constructed, in light of the parties’ factual dispute regarding the alleged ‘narrowing’ of the plaintiff’s FOIA request.”
  • Exemption 6:  “[T]he Court will deny without prejudice both the defendant’s motion and the plaintiff’s motion as to the defendant’s assertion of Exemption 6 and direct the defendant to provide additional information regarding its assertion of Exemption 6 as a basis for withholding the names of Coast Guard personnel who received awards related to their service in connection with the Deepwater Horizon oil spill response.”  The court relates that “the defendant has redacted all three awards tracking sheets,” specifically, “defendant applied Exemption 6 to the redaction of these records in order to withhold ‘[t]he personally identifying information of junior Coast Guard personnel (Commander/GS-15 and below)[,]’ namely, ‘[i]ndividuals’ names, ranks, rates, e-mail addresses, and phone numbers[.]’”  First, “the Court concludes that the records redacted by the defendant constitute ‘similar files’ for purposes of Exemption 6.”  “The records at issue in this case contain ‘bits of personal information, such as names[,]’ . . . each piece of which ‘applies to a particular individual . . . .’”  Second, “[w]hile the Court agrees with the plaintiff’s declarant . . . that Coast Guard awards like the ones referenced in this case appear to be ‘made very publicly[,]’ . . . [the court finds that] the plaintiff has not provided the type of evidence necessary to show that the specific information it seeks ‘has been “officially acknowledged” or is in the “public domain”’ . . . . ”  “Thus, there is insufficient evidence in this case to conclude that there is ‘specific information in the public domain that appears to duplicate [the requested records] being withheld’ . . . .”  Third, the court holds that “although the plaintiff has not met its burden of showing that the information at issue is in the public domain, the Court agrees with the plaintiff that ‘[t]he plaintiff is not requesting records that would constitute an unwarranted invasion of privacy[,]’ . . . and the Court finds that the defendant’s description of the asserted substantial privacy interest in this case is insufficient.”  “The plaintiff has made clear that, with respect to the records of individual award recipients, it is ‘asking for name and award, not rate, rank, address, email, phone, date of birth, employee identification number, [ ]or . . . any additional personal information beyond the award and name.’”  The court relates that “defendant hinges its withholding of award recipients’ names on the Department of Homeland Security’s ‘sensitive law enforcement and intelligence gathering missions’ and the resulting vulnerability of Coast Guard personnel and family members to ‘harassment or violence[.]’”  “The defendant also states that ‘[t]he Deepwater Horizon incident and response are well-known and highly publicized events; therefore, these individuals are at heightened risk of unwanted contact.’”  “Here, [the court finds that] the defendant has not sufficiently articulated how revealing only the names of Coast Guard personnel in the context of their receiving awards for their service would create a ‘palpable[,]’ . . . risk of harassment or violence.”  “To the extent that the defendant relies generally on the ‘sensitive law enforcement and intelligence gathering missions’ involved in work performed by those individuals, . . . this statement of justification falls short of satisfying the defendant’s ‘burden of showing that a substantial invasion of privacy will occur if the documents are released . . . by affidavits . . . contain[ing] “reasonable specificity of detail rather than merely conclusory statements”’ . . . .”  “Therefore, the Court is unable to discern a ‘justified and articulable[,]’ . . . risk of harassment or violence based on this generalized allegation of potential harm.”  The court explains that “it is unclear based upon the defendant’s explanation how the disclosure of their names in the context of award ceremonies in which they have been lauded for their service in the clean-up effort would subject them to a risk of harassment and violence.”  “[W]here no significant privacy interest is implicated, the Court need not engage in the balancing inquiry normally required under Exemption 6.”
  • Litigation Considerations, “Reasonably Segregable” Requirements:  “[T]he Court concludes that, to the extent the defendant has properly withheld some records pursuant to Exemption 6, the defendant has also adequately demonstrated that it ‘disclose[d all] reasonably segregable material.’”  “The defendant has ‘provided [the Court] with a relatively detailed description of the withheld material[,]’ . . . .”  “The defendant also represents that it ‘conducted [a] detailed, line-by-line review to ensure all segregable information was released and only withheld information that would foreseeably harm the privacy interests protected by [E]xemption 6’ and ‘[a]ll other segregable information contained in the records, including information about the number of personnel, the length and location of their service, and what actions they participated in, was released.’”  “Furthermore, the defendant states that ‘[n]o records were withheld in their entirety.’”
Court Decision Topic(s)
District Court opinions
Exemption 6
Litigation Considerations, Adequacy of Search
Litigation Considerations, “Reasonably Segregable” Requirements
Procedural Requirements, Searching for Responsive Records
Updated August 18, 2023