Koltys v. Wolf, No. 22-00655, 2022 U.S. Dist. LEXIS 101979 (C.D. Cal. June 7, 2022) (Wilson, J.)

Koltys v. Wolf, No. 22-00655, 2022 U.S. Dist. LEXIS 101979 (C.D. Cal. June 7, 2022) (Wilson, J.)

Re:  Request for records concerning plaintiff

Disposition:  Granting defendant's motion for summary judgement; denying plaintiff's cross-motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "[A]n agency must conduct a search that is 'reasonably calculated to uncover all relevant documents.'"  "[Defendant] cites to one paragraph in one declaration that purportedly describes its search."  "Here, rather than describing any search procedure that took place, [Defendant's] declaration vaguely references 'subsequent discussions' with the [Office of Hearings Operations] (OHO) and the manager of the [Crisis Advisory Team] (CAT) that enabled her Office to determine that the only responsive record was the Hillard Heintze Report."  "[B]ecause the declaration fails to describe any 'search' for records and merely states that Zimmerman's office 'determined' that the Hillard Heintze report was the only responsive record, it cannot be said to include a 'relatively detailed' and 'nonconclusory' statement of the search procedure used."
  
  "[Defendant] contends that, if the 'agency demonstrates that it is unlikely that a search will yield any responsive documents, it is not required to conduct a search at all.'"  "Though [Defendant] does not cite any Ninth Circuit cases for this proposition, other courts hold that 'an agency need not conduct a search that it has reasonably determined would be futile.'"  "The Court finds these cases and their discussion of the question persuasive." 
   
• Procedural Requirements, Agency Records:  "The futility of any additional search presents a question intertwined with the next section of the Court's analysis—whether [Defendant] released all records responsive to Plaintiff's request."  "In other words, if [Defendant] determined at the outset that the Hillard Heintze Report was the only document responsive to Plaintiffs request, then (1) any further search would have been futile and (2) its release of the report means that [Defendant] disclosed all responsive documents."  "This would satisfy [Defendant's] burden under FOIA."  "Plaintiff puts two different categories of records at issue: records compiled by Hillard Heintze in preparation of its Report, and records in possession of [Defendant]." 
  
  "[Defendant] argues that documents it did not receive from Hillard Heintze are not 'agency records,' and therefore not subject to disclosure."  "[Defendant] is correct[.]"  "To constitute an 'agency record,' an agency must 'either create or obtain' the requested record, or 'the agency must be in control of the requested materials' at the time of the FOIA request."  "[B]ecause [Defendant] did not receive any of the records that Hillard Heintze compiled, these records are not 'agency records.'"  "As to the second category of records [—] those in possession of [Defendant] — the record is sparse as to what documents [Defendant] might have."  "Though Plaintiff refers to a laundry list of documents . . . there is no evidence to suggest that [Defendant] compiled any such records."  "Thus, the Court is persuaded that any additional search for records would have been 'futile and unnecessary.'" 
  
  "[E]ven assuming such documents existed, an agency 'is not obliged to look beyond the four corners of the request for leads to the location of responsive documents.'"  "Plaintiff's narrowed request only sought documents compiled by [Defendant] 'to resolve its investigation[.]'"  "[A]ny records [Defendant] received when it first learned of the allegations against [the Plaintiff] were used only to determine whether to request a contractor assessment."  "Under any reasonable construction of the word 'resolve,' the CAT's initial decision about whether to request an assessment by Hillard Heintze cannot be said to have 'resolve[d]' the investigation into Plaintiff."  "Accordingly, even if the CAT obtained any records when it conducted its initial assessment of whether the investigation into Plaintiff should be outsourced to Hillard Heintze, these records do not fall within the scope of any reasonable interpretation of Plaintiff's request: they are not documents 'compiled by [the CAT] to resolve the investigation into Judge Koltys.'"  "Plaintiff contends that nondisclosure 'strains the bounds of any reasonable interpretation of the narrowed request,' but does not explain why."  "These general contentions lack merit." 
  
  "Ultimately . . . 'The Hillard Heintze Report was the only deliverable that Hillard Heintze sent to [Defendant], the only report compiled by the CAT to resolve the open matter on Plaintiff, and the only CAT record that management received and considered in making a decision on Plaintiff's return to the workplace.'"  "Because agency affidavits are accorded 'a presumption of good faith, which cannot be rebutted by purely speculative claims,' Plaintiff's conclusory assertions are insufficient to establish some dispute as to the SSA's possession and wrongful nondisclosure of responsive documents."  "[T]he Court finds that Defendant released all responsive documents to Plaintiff and 'reasonably determined' that the search for any additional documents 'would be futile.'" 
   
• Exemptions 6 & 7(C):  "[T]he Hillard Heintze report references individuals who have a cognizable interest in protecting their information from clearly unwarranted disclosure:  those individuals who made reports to Defendant about Plaintiff bringing a firearm to the workplace."  "Having reviewed the [unredacted Hillard Heintze report,] the Court finds that disclosure would subject individuals to a risk of 'embarrassment, harassment, or . . . mistreatment.'"  "[A] large number of the redactions refer to . . . employees who made certain statements in an interview that could presumably allow Plaintiff to identify the employee."  "This risk is only compounded by the Report's assessment of Plaintiff as having moderate risk potential for workplace violence." 
  
  "Turning to the public interest portion of the analysis, 'the only relevant public interest in the FOIA balancing analysis is the extent to which disclosure of the information sought would shed light on an agency's performance of its statutory duties or otherwise let citizens know what their government is up to.'"  "Here, Plaintiff requested the report for personal use:  he stated the purpose of his request was 'to properly assess and respond to [Defendant's] treatment of him in his employment relationship with that Agency.'"  "Plaintiff does not explain how this would contribute to any public interest in [Defendant]."  "Therefore, Plaintiff's subjective purpose for requesting this report is not a cognizable public interest for purposes of FOIA." 
  
  "[T]he Court finds that the privacy interest protected by Defendant's redactions substantially outweighs the non-existent public interest in disclosure."  "Where, as here, there is no public interest in disclosure, '[w]e need not linger over the balance;  something, even a modest privacy interest, outweighs nothing every time.'"
   
• Exemption 7(D):  "[T]he individuals referenced in the Hillard Heintze Report provided information in an ongoing investigation about potentially criminal matters—bringing a firearm to the workplace."  "In this case, release of individuals' identifying characteristics 'plainly implicates a risk of reprisal.'"  "Thus, the Court agrees with [Defendant's] argument that an 'implied assurance confidentiality can be reasonably inferred' in light of the 'nature of the allegation involving Plaintiff and workplace violence, and the close working relationship between the individuals who provided information and Plaintiff[.]'"  "[T]he redactions made under Exemption 7(D) were proper."
   
• Exemption 7(F):  "[Exemption 7(F)] permits redaction of 'records or information compiled for law enforcement purposes' that 'could reasonably be expected to endanger the life or physical safety of any individual.'"  "Here, [Defendant's] assessment of potential danger to an individual was reasonable."  "[Defendant] relied on 'the nature of the allegation (bringing a firearm to the workplace), the relationship between those involved, and the contractor report assessment of [Plaintiff] as a 'Moderate Risk Potential for targeted workplace violence.'"  "[T]he Court concludes that Defendant has satisfied its burden of setting forth non-conclusory reasons why disclosure of the redacted information could reasonably be expected to endanger the life or physical safety of the individuals mentioned in the report."  "The Exemption 7(F) redactions were proper." 
   
• ​​​​​​​Litigation Considerations, Mootness and Other Grounds for Dismissal:  "Finally, Plaintiff contends that [Defendant's] untimely disclosure of the Hillard Heintze report violates FOIA's statutory timeframe and that [Defendant] demanded unjustified fees for Plaintiff's narrowed request."  "Plaintiff's argument is unavailing:  'however fitful or delayed the release of information under the FOIA may be, once all requested records are surrendered, federal courts have no further statutory function to perform.'"  "Though the court in [prior court decision] held that a plaintiff could maintain an independent cause of action based on an agency's 'pattern or practice of delay in processing FOIA requests,' Plaintiff does not pursue any such claim here."  "Moreover, Defendant released the Hillard Heintze Report to Plaintiff free of cost, undermining any claim based on [Defendant's] demand of fees for producing the records."  "For these reasons, the Court [finds] that [Defendant's] disclosure of the Hillard Heintze report has rendered any claim of untimely disclosure or excessive fees MOOT."