Nat’l Ass’n of Minority Veterans v. VA, No. 21-1298, 2022 WL 17082841 (D.D.C. Nov. 18, 2022) (Contreras, J.)

Nat’l Ass’n of Minority Veterans v. VA, No. 21-1298, 2022 WL 17082841 (D.D.C. Nov. 18, 2022) (Contreras, J.)

Re:  Request for records concerning policies and practices of VA Police Force (“VPD”) at Veterans Health Administration (“VHA”) facilities

Disposition:  Denying defendant’s motion for summary judgment; granting in part and denying in part plaintiff’s cross-motion for summary judgment; overruling plaintiff’s evidentiary objections as moot

• Litigation Considerations, Mootness and Other Grounds for Dismissal:  “[T]he Court disagrees with the VA’s new position that the August 23 Email, which the VA itself invited, represents a new FOIA request that ‘is not properly before this Court,’ and agrees with its former position, shared at the time and still by the Association, that it represents a negotiated version of the Original Request.”  The court finds that “[t]he record makes unmistakably clear that the August 23 Email was part of an ongoing negotiation about the scope of [the] Original Request, not a new request.”  “The VA’s conclusory assertion that the August 23 Email represented a new FOIA request is overwhelmingly contradicted by the evidence that both parties understood, and twice submitted to the Court, that the August 23 Email was solicited by the VA as part of an ongoing negotiation to narrow the scope of the Original Request.”  The court finds that “the August 23 Email did not conform to the requirements for new requests under FOIA or the VA’s implementing regulations” and “stands in marked contrast to the Original Request, which, among other formalities, was addressed to the FOIA Office for the Department of Veterans Affairs and contained the subject line, ‘Request Under Freedom of Information Act.’”  “The only sliver of evidence to suggest that the August 23 Email represented a new FOIA request is the fact that the VA assigned it a separate tracking number,” but the court finds that “it bears emphasis that the VA itself represented to the Court that the August 23 Email was a negotiated version of the Original Request both before and after the VA issued the new tracking number.”
  
  The court further finds that “[t]he Negotiated Request clearly narrowed the universe of requested material by confining it to subcategories of information related to three particular OIG reports.”  “Moreover, the parties repeatedly expressed an understanding that the whole point of the negotiation leading to the August 23 Email was to narrow the scope of the Original Request.”  “Because the Court finds that the Negotiated Request controls, it denies the VA’s motion for summary judgment based on alleged infirmities with the Original Request, and proceeds to consider [plaintiff’s] challenge to the propriety of the VA’s redactions and withholdings applied to its production in response to the Negotiated Request.”
   
• Litigation Considerations, Summary Judgment:  The court holds that “[t]he VA had the burden to justify its redactions and withholdings, and it failed to carry it.”  “In its futile but single-minded effort to convince the Court that the August 23 Email was a new FOIA request, the VA has declined to present any argument in the alternative as to why the redactions and withholdings applied to the October 6, 2021 production were proper.”  “Indeed, this decision appears to be the product of some deliberation:  with its opposition, the VA initially did file a draft Vaughn index containing explanations for its redactions and withholdings – but then retracted it.”  “The VA argues that it ‘is not required to raise the exemptions at this time,’ citing Fed. R. Civ. P. 56(a) for the proposition that a ‘party may move for summary judgment on a “defense” or “part of a defense” without seeking summary judgment as to all defenses.’”  “The Court need not evaluate the dubious claim that agencies have no obligation to defend exemptions in initial summary judgment motions because, here, the VA clearly did have an obligation to do so in response to [plaintiff’s] cross-motion challenging those exemptions.”  “This misunderstanding is likely a product of the VA’s failure to recognize the applicable standard of review.”  “The VA argues that [plaintiff’s] cross-motion should be denied because it ‘does not identify any facts showing – or even attempt to construct an argument [sic] – the absence of a genuine issue of material fact as to whether VA properly invoked the exemptions.”  “But under FOIA, the Court must determine de novo whether nondisclosure was justified, and the burden is ‘on the agency to sustain its action.’”
  
  “The Court’s ability to perform its duty thus depends on the VA providing some basis for its review.”  “Out of respect for FOIA’s ‘carefully balanced scheme,’ and mindful of the important third-party privacy interests protected by FOIA exemptions, . . . the Court will deny [plaintiff’s] request to order the redacted and withheld records produced and instead will afford the VA another opportunity to justify its nondisclosures.”  “However, lest this decision be interpreted as anything approaching approval of the VA’s disingenuous strategy to single-mindedly focus on the Original Request and refuse to engage substantively with [plaintiff’s] cross-motion, the Court hastens to add that, while it will scrupulously adhere to its duty to accord agency affidavits or declarations submitted to support claims to exemption ‘a presumption of good faith,’ . . . it will evaluate any evidence to overcome that presumption in light of the full record.”