Mikhashov v. DOD, No. 22-3485, 2024 WL 4332601 (D.D.C. Sept. 26, 2024) (Howell, J.)

Mikhashov v. DOD, No. 22-3485, 2024 WL 4332601 (D.D.C. Sept. 26, 2024) (Howell, J.)

Re:  Requests for records concerning investigation into possible security violation by plaintiff, as well as possible revocation of plaintiff’s security clearance

Disposition:  Granting defendant’s motion for summary judgment; denying plaintiff’s cross-motion for partial summary judgment

• Litigation Considerations, Exhaustion of Administrative Remedies:  First, the court finds that “[t]he record makes plain that defendants’ response to [one] FOIA request was made ‘only after Plaintiff filed suit’ and thus plaintiff is correct that this timing ‘resulted in constructive exhaustion of administrative remedies,’ under the FOIA.”
  
  “[P]laintiff’s claim, in Count II, as to the adequacy of [Army Intelligence and Security Command’s (“INSCOM”)] response to his [other] FOIA Request is dismissed, under Federal Rule of Civil Procedure 12(b)(6), for failure to exhaust his administrative remedies.”  “‘[F]or each release’ made . . . before [plaintiff’s] complaint was filed . . . , ‘[p]laintiff was provided the requisite appeal rights’ but ‘ha[d] not submitted an appeal to any of the INSCOM releases’ prior to initiating this suit . . . .”  “This chronology triggered the administrative exhaustion requirement.”  “To avoid the administrative exhaustion bar, plaintiff contends ‘there was never [ ] an adverse determination’ on his first requested category of records, . . . which sought ‘emails . . . referencing’ search terms relating to plaintiff or plaintiff’s command, . . . since defendants failed to adhere to plaintiff’s ‘unequivocally stated’ scope of the search . . . .”  “According to plaintiff, ‘without limiting the scope to just the security-related concerns,’ defendants ‘more than implied there would be a voluminous amount of emails, which would alone require “rolling releases,”’ and that plaintiff accordingly ‘reasonably believed’ that defendants’ November 2, 2022 response ‘could not possibly be Defendants’ response to Plaintiff’s initial request.’” “Plaintiff’s asserted lack of awareness that defendants’ November 2, 2022, response was an ‘adverse determination’ regarding his first requested category for email records, . . . is belied, however, by the fact that, with the November 2, 2022, release, ‘plaintiff was informed of his right to appeal [INSCOM’s] decision and/or to seek mediation through the Office of Government Information Services,’ and that, as to each INSCOM release, plaintiff ‘was provided the requisite appeal rights’ and ‘[t]o date . . . has not submitted an appeal to any of the INSCOM releases,’ . . . .”  “This record indicates that, despite notice of his opportunity to seek administrative redress of any misconstruction of his FOIA request, plaintiff opted to bypass that administrative process with the filing of this lawsuit.”  “Indeed, accepting plaintiff’s argument to the contrary would mean any FOIA requester could sidestep the statute’s exhaustion mandate simply by challenging the adequacy of the search with the result of hollowing out FOIA’s exhaustion provision and incentivizing plaintiffs to argue for overbroad interpretations of their record requests.” “Plaintiff’s effort to sidestep FOIA’s exhaustion mandate is unsupportable.”  “Nevertheless, failure to exhaust is by no means an automatic bar to judicial review, for as noted, ‘courts usually look at the purposes of exhaustion and the particular administrative scheme in deciding whether they will hear a case or return it to the agency for further processing[]’ . . . .” “Neither party addresses these factors, but both are clearly met in this case.”
   
• Exemption 6:  The court relates that plaintiff “challenges [defendant’s] withholding of ‘handwritten statements . . . DoD civilian personnel and statements from witnesses and topics of dismissal not pertaining to [him],’ and a ‘handwritten DA Form 2823 which was withheld in its entirety[]’ . . . .”  “No dispute is presented that the first prong for application of Exemption 6 is met here since the information withheld from [defendant’s] May 31 and June[] 27, 2023 releases falls within the scope of Exemption 6 as ‘personnel,’ ‘medical,’ or ‘similar files’ under 5 U.S.C. § 552(b)(6) . . . .” The court then notes “the context here of plaintiff apparently trying to discover the names of persons who may have provided information, on a confidential basis, in connection with an internal investigation of whether his own conduct may not have complied with classified information protocols.”  “‘[I]dentifying information’ that, if disclosed, ‘would compromise a substantial . . . privacy interest[]’ . . . ‘is not limited to names, social security numbers, and other discrete pieces of information[]’ . . . .”  “While crediting some level of public interest in understanding how defendants conduct investigations regarding a servicemember’s security clearance, plaintiff ‘offers nothing but speculation to suggest that’ defendants have acted impermissibly in its investigation.”  “To be sure, plaintiff believes that disclosure is ‘absolutely paramount’ to ‘his current military career and future government-related career prospects.’”  “This, however, reflects his own private interest in disclosure of the records at issue and is an insufficient basis to override the significant privacy and public interests in withholding.”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing:  The court holds that “[defendant’s] declaration attests, based on a ‘page-by-page and line-by-line’ review of ‘all the documents recommended for release or that [defendant] had authority to release,’ that ‘all non-exempted portions of the records and information in question were released to the Plaintiff’ and that ‘[n]o other meaningful information in the documents could be discerned without disclosing information warranting protection under the law.’”  “‘Those sworn statements sufficiently establish that no portions of the withheld documents may be segregated and released.’”