Eakin v. DOD, No. 16-972, 2019 WL 6877475 (W.D. Tex. Dec. 17, 2019) (Lamberth, J.)

Eakin v. DOD, No. 16-972, 2019 WL 6877475 (W.D. Tex. Dec. 17, 2019) (Lamberth, J.)

Re:  Request for records concerning individuals who served in World War II but whose remains were never properly identified and returned to their families

Disposition:  Denying plaintiff's motion for partial summary judgment

• Procedural Requirements:  "The Court . . . finds [plaintiff's] arguments regarding responsiveness to be uncompelling, and the Defense Department may label individual files as non-responsive."  "Quite simply, [plaintiff's] view of [Am. Immigration Lawyers Ass’n (AILA) v. Exec. Office for Immigration Review's] applicability is flawed, as the facts of that case are in stark contrast to the facts of this case."  "To say that thousands of [Individual Deceased Personnel files ('IDPFs')] are analogous to one email chain stretches the bounds of rationality."  "Unlike in AILA where the agency 'went down to the level of an individual sentence within a paragraph within an e-mail message' and redacted that individual sentence as non-responsive, the Defense Department is not attempting to conduct a sentence-by-sentence review of each IDPF's responsiveness."
   
• Litigation Considerations:  Responding to plaintiff's "requests that the Defense Department be required to complete its review of the remaining digitized files within thirty days[,]" the court finds that "[t]his request is simply not feasible."  "Although the files are searchable, the digital system is not perfect, and the Defense Department is entitled to manually review the documents for responsiveness and any applicable FOIA exemptions."  The court finds that "absent evidence that the Defense Department is intentionally stalling or moving at an unreasonable pace, the Court will not interfere with its review."
   
• Litigation Considerations, Jurisdiction:  The court finds that "an agency need not produce requested materials that were not in the agency's control 'at the time the FOIA request [was] made.'"  The court notes that "the M-Z IDPFs had yet to be scanned into any digital or electronic [format]," and therefore finds that "the digitized M-Z files could not have been in the Defense Department's 'control' . . . at the time of [plaintiff's] request, as these digitized files did not yet exist."  'Although the underlying documents clearly existed [at the time of the request], [plaintiff] did not request the underlying documents – he specifically requested the digital or electronic scans."  "Therefore, [plaintiff] will need to make a new FOIA request for the digitized M-Z IDPFs."  "Absent a new FOIA request, this Court is without power to order the Defense Department to produce the digitized M-Z files."