Mountgordon v. U.S. Coast Guard, No. 21-1319, 2023 WL 5607454 (D.D.C. Aug. 30, 2023) (Moss, J.)

Mountgordon v. U.S. Coast Guard, No. 21-1319, 2023 WL 5607454 (D.D.C. Aug. 30, 2023) (Moss, J.)

Re:  Requests for records concerning internal investigation and handling of plaintiff’s OIG complaint

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; granting in part and denying in part plaintiff’s cross-motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court finds that “the Coast Guard performed an adequate search for the records Plaintiff has requested.”  “[H]ere, the Coast Guard located the specific records that Plaintiff requested.”  “The Court, accordingly, concludes that the Coast Guard conducted a search that was not only ‘calculated to locate responsive records,’ . . . but that did, in fact, locate all responsive records.”

• Exemption 5, Deliberative Process Privilege & Foreseeable Harm and Other Considerations; Litigation Considerations, “Reasonably Segregable” Requirements:  “The Court will . . . deny both Plaintiff’s and the Coast Guard’s motion for summary judgment with respect to the [withheld] investigative report.”  “As an initial matter, Plaintiff does not dispute the pre-decisional nature of the investigative report, nor could she.”  “The investigative report was ‘prepared in order to assist an agency decisionmaker,’ . . . here, the . . . commanding officer – ‘in arriving at his decision,’ . . . – here, the Coast Guard’s final response to Plaintiff’s OIG complaint, which was memorialized in the Final Action Memorandum.”  “This investigative report preceded the Coast Guard’s Final Action Memorandum, the final document in the Coast Guard’s deliberative process representing the agency’s final position (i.e., the where).”  “Finally, the agency at least gestures at the way in which withholding the report will facilitate agency deliberations (i.e., the how), primarily by noting that the investigative report preceded the Final Action Memorandum and was understood by its drafter to be a pre-decisional document covered by the deliberative process privilege.”  “The agency notes (1) that the report included a legend asserting that it was a deliberative document exempt from public disclosure, which ‘may well have been one of the reasons that the investigating officer felt free to take the initiative and go beyond the scope of the convening order;’ that ‘[r]lease of the [r]eport might stifle such initiative in the future;’ and that release of the report ‘would also serve to confuse the public with regard to the Coast Guard’s position with regard to [Plaintiff's] complaint.’”  “But even there, without additional detail about the structure and contents of the report and the procedures that were followed, the Court cannot determine how the investigative report in its entirety was deliberative.”  “For these reasons, the Court is persuaded that much, if not all, of the investigative report falls within Exemption 5’s deliberative-process privilege.”  “One problem, however, precludes the Court from entering summary judgment in favor of the Coast Guard at this time.”  “The Coast Guard has failed to offer sufficient detail about the contents of the report to permit the Court to determine whether it contains any segregable, non-deliberative material.”  “[T]he Coast Guard bears the burden of proof on segregability, and, given the parties’ asymmetrical access to the underlying evidence, greater clarity is required to satisfy that burden.”  “In short, neither Plaintiff nor the Court should have to guess about how the agency conducted its segregability review.”
  
  “Finally, the Coast Guard does not expressly address the foreseeable harm requirement in either its briefs or the supporting declaration.”  “[I]n this context, the segregability and foreseeable harm inquiries intersect, and the Court cannot conclude on the present record that the agency considered, and decided, that the disclosure of any portion of the investigative report would cause foreseeable harm.” 
   
• Procedural Requirements, Searching for Responsive Records:  The court relates that “[w]ith respect to the UCMJ rights forms that were filled out and signed by four witnesses, the Coast Guard argues that the forms are not responsive to Plaintiff’s consolidated FOIA request because they are not ‘witness statements.’”  “The Court agrees that the completed UCMJ rights forms are not ‘witness statements’ and, thus, are not responsive to Plaintiff’s FOIA request.”  “In the present context, the phrase is best understood to mean a statement offered by a witness regarding facts relevant to the investigation.”  “It does not include any and all words uttered or assented to by someone who was a witness . . . .”  “The Court will, accordingly, grant summary judgment in the Coast Guard’s favor with respect to the UCMJ rights forms.”
   
• Exemption 5, Deliberative Process Privilege & Foreseeable Harm and Other Considerations; Exemption 6:  The court holds that “[t]he Coast Guard’s efforts to shield the remaining portions of [one exhibit] are . . . problematic.”  “Those materials consist of ‘summaries of interviews of witnesses’ and two ‘e-mails to the investigating officer from former officer candidates, now Coast Guard officers.’”  “The problem is that the supporting declaration conflates Exemptions 5 and 6 and offers too little detail to sustain the withholdings on the present record.”  “As an initial matter, the Court notes that the Coast Guard’s declarant fails to indicate whether Exemption 5 and 6 offer independent grounds to withhold all of the material at issue, or whether Exemption 5 applies to some of the material, and Exemption 6 applies to other portions of the material.”  “And, if it is the latter, the declarant fails to identify which portions are withheld under which of the exemptions.”  “Other ambiguities abound [concerning the distinction between the deliberative and the factual portions of the withheld material].”  “Finally, the Court notes that the Coast Guard’s declaration, once again, says nothing about foreseeable harm.”  “The Court will, accordingly, deny without prejudice the Coast Guard’s motion for summary judgment with respect to the witness statement summaries and two emails.”

• Exemption 6:  The court relates that, “[i]n contrast to the other material included in Exhibit 15, the Coast Guard released the one-page email from ‘a medical officer to the investigating officer describing a policy contained in [a] Medical Manual,’ redacting ‘only the names of the two officers.’”  “Although, as discussed below, it is at times appropriate for an agency to redact the names of individuals associated with an investigation – such as when the disclosure would cause reputational harm or would invite harassment or reprisals, while doing relatively little to serve the public interest – the Coast Guard offers no explanation for why the disclosure of the names of these officers ‘would constitute a clearly unwarranted invasion of personal privacy.’”  “The evidentiary gap left by that omission, moreover, is highlighted by the declaration attached to Plaintiff’s opposition and cross-motion for summary judgment, in which the investigating officer reveals his own rank and identity.”  “Given the Coast Guard’s failure even to attempt to identify any privacy interest that might justify withholding the names of these two officers – neither of who was accused of wrongdoing, was a victim, or was a witness – and both of whom had attained officer rank – the Court will grant Plaintiff’s cross-motion and order the Coast Guard to release an unredacted version of this email.”
  
  “Finally, the Court turns to the limited redactions the Coast Guard made to the Final Action Memorandum.”  “The agency produced the seven-page document nearly in its entirety, redacting only the names (and apparently the ranks) of individuals pursuant to Exemption 6.”  “The Court is persuaded that Exemption 6 applies in part – but still needs convincing with respect to a few of the redactions.”  “Plaintiff argues that Exemption 6 does not justify the redactions of the names and ranks of alleged perpetrators and victims of bullying, because any privacy interests are ‘outweighed by the public interest in ensuring that the [Coast Guard] is’ not ‘promoting and rewarding officers or instructors who have actively engaged in bullying of the students in their charge.’”  “With respect to the officer candidates, there is no serious dispute that they have a substantial privacy interest in their anonymity.”  “The substantial privacy interests of the OCS instructors identified in the Final Report is equally evident.”  “The subjects of government investigations have a strong privacy interest in maintaining their confidentiality, particularly when, as here, the investigation failed to disclose evidence sufficient to substantiate the allegation of wrongdoing or misconduct.”  “Here, the Court can discern no significant public interest in the disclosure of the names of those who were allegedly bullied while at OCS.”  “The public interest is in the bullying and not in the identity of the victims.”  “[Plaintiff] does argue, however, that release of the names of the instructors who allegedly engaged in that bullying would serve an important public interest:  it would ‘ensur[e] that the’ Coast Guard is not ‘promoting and rewarding officers or instructors who have actively engaged in bullying.’”  “But Plaintiff, once again, ignores the fact that the Final Report failed to substantiate the allegations of wrongdoing, and an allegation of misconduct is not the same as confirmed bullying.”  “This, then, leaves the question of foreseeable harm.”  “Although the Coast Guard does not use this nomenclature in its declaration or briefs, the Court is satisfied that the agency has carried its burden of demonstrating that it is ‘reasonably foresee[able]’ that disclosure of the names of the officer candidates (the alleged victims) and the OCS instructors (the alleged abusers) ‘would harm an interest protected by’ Exemption 6.”  “As the Coast Guard’s declaration explains, disclosure of the names of those who were allegedly bullied ‘would invade their privacy and could cause these individuals reputational harm in their personal and professional lives,’ and disclosure of the names of the alleged bullies ‘would certainly be damaging to [their] careers and likely personal reputation[s].’”  “The Court will, accordingly, grant summary judgment in favor of the Coast Guard with respect to its redactions of the names of the OCS candidates and instructors from the Final Report.”  “Plaintiff’s challenge to the redaction of ‘military ranks or positions of any of the individuals involved [in the Final Action Memorandum]’ stands on somewhat firmer ground.”  “True, ranks – like names – can fall within the ambit of Exemption 6’s protections if ‘disclosure . . . would constitute a clearly unwarranted invasion of personal privacy.’”  “But, here, the Coast Guard not only fails to offer any evidence that disclosure of the ranks of those mentioned in the Final Report might indirectly identify who they are, it fails even to acknowledge that it has redacted this information in the first place.”  “Although the Court might ordinarily treat the Coast Guard’s omission as dispositive and enter judgment against it on this narrow issue, the redactions potentially implicate the interests of third parties, who cannot be blamed for the Coast Guard’s omission.”  “The Court will, accordingly, deny both the Coast Guard’s motion and Plaintiff’s cross-motion with respect to the omitted ranks, without prejudice.”
  
  “Finally, the Coast Guard redacted ‘the name of the Coast Guard Investigative Service special agent [whom] the Final Action Memorandum was routed through’ from the report.”  “The Coast Guard offers no support for this redaction and never explains whether or how revealing that individual’s name would invade any non-de-minimis privacy interest.”  “As just explained, that would ordinarily provide ample basis to grant summary judgment in favor of Plaintiff.”  “But because this issue also involves the potential privacy interest of a third party, the Court will provide the Coast Guard with a final opportunity to support its assertion of Exemption 6 and will, accordingly, deny both the Coast Guard’s motion for summary judgment and Plaintiff’s cross-motion without prejudice.”