Eberg v. DOD, No. 14-01696, 2016 U.S. Dist. LEXIS 78428 (D. Conn. June 16, 2016) (Boden, J.)

Eberg v. DOD, No. 14-01696, 2016 U.S. Dist. LEXIS 78428 (D. Conn. June 16, 2016) (Boden, J.)

Re: Request for certain records concerning sexual assaults, third parties, and plaintiff

Disposition: Granting in part and denying in part plaintiff's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  First, the court holds that "summary judgment is granted as to the adequacy of the FOIA searches by [USACIDC Crime Record Center, OTJAG, Clerk of the Court for the ACCA, Army OGC, USARCENT, AEOPB, PACOM, 45th SB, and AHRC]."  The court finds that "these agencies submitted declarations that meet the standard of reasonable specificity as to the general scheme of the agencies' file systems, the files searched, and the parameters and execution of the searches, so as to support a likelihood that all files likely to contain responsive material were searched."
  
  "[H]owever, the Court cannot determine whether the searches conducted by the DAIG were reasonably calculated to return all responsive documents" because "[its] declarations do not contain a general description of how the agency's file systems are structured, or a sufficient explanation of the types of files contained in the particular databases that [it] specifies were searched" and "also do not explain the agency's failure to search other databases."  For similar reasons, the court finds that "summary judgment must be denied as to the adequacy of the search conducted by the DAIG Field Office for the Connecticut Army National Guard" as well as the Connecticut Army National Guard, the National Guard Bureau, Army Pacific, Headquarters Army Materiel Command, Army Office of the Deputy Chief of Staff G-1, and the DoD OIG.  Additionally, "the Court denies summary judgment as to the adequacy of the search conducted by the [DoD Freedom of Information Division]" because it "provided a 'no records' response to Plaintiff in response to her FOIA request, without having conducted a search" and only "state[d] that [it] knew a search would yield no responsive records."  The court finds that "[s]uch an assertion is insufficient because it is unsupported by any details."
   
• Exemption 6 & 7(C):  The court "denie[s] [summary judgment] as to Defendant's Glomar responses" because "[t]he public's interest in the disclosure of the records requested . . . outweighs [a third party's] interest in keeping the information private."  The court first notes that "[p]laintiff does not dispute that the records requested are law enforcement records for purposes of Exemption 7(C) or that they implicate a recognized privacy interest."  Regarding the public interest, the court finds that "[t]he public interest in the requested records is significant."  The court explains that "item 4 requests all records related to any complaints of sexual assault, EO, and sexual harassment made against [a third party], including any records of investigation of such complaints and communications about the complaint."  The court explains that "DoD received nearly 1,400 reports of sexual harassment in 2013, which experts believe is a small fraction of the total number of incidents."  "Most of those who reported sexual harassment were women, . . . which indicates gender-based obstacles to success in the military, and issues of gender discrimination have long been a matter of strong public concern[.]"  The court analyzes the five factors outlined by the Court of Appeals for the Second Circuit for applying the balancing test, i.e., "(1) the government employee's rank; (2) the degree of wrongdoing and strength of evidence against the employee; (3) whether there are other ways to obtain the information; (4) whether the information sought sheds light on a government activity; and (5) whether the information sought is related to job function or is of a personal nature."  After considering those factors the court concludes the public's interest in disclosure outweighs the privacy interest of the named individual and denies summary judgment as to the Glomar response. 
   
• Litigation Considerations, Discovery:  "Because this Court finds that Defendant has failed to establish the adequacy of the searches conducted by a number of its agencies, the Court shall allow limited discovery to proceed with respect to those agencies."