Scarlett v. OIG, No. 21-819, 2023 WL 2682259 (D.D.C. Mar. 29, 2023) (Moss, J.)

Scarlett v. OIG, No. 21-819, 2023 WL 2682259 (D.D.C. Mar. 29, 2023) (Moss, J.)

Re:  Request for records concerning complaint filed against plaintiff or plaintiff’s company

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

• Litigation Considerations, Adequacy of Search:  “The Court concludes that [defendant’s] declaration fails to provide the type of ‘relatively detailed and nonconclusory’ evidence necessary to establish the adequacy of the search.”  “The declaration ‘does not explain in reasonable detail the scope and method of the search,”’ and it runs afoul of the principle that ‘[s]imply naming databases and stating that they were “searched”’ does not suffice.”  “The declaration does not ‘identify the terms searched or explain how the search was conducted,’ and more importantly for present purposes, it does not show that searching the . . . database [searched] alone was ‘reasonably calculated to uncover all relevant documents’ or, conversely, ‘that no other record system was likely to produce responsive documents.’”  “This account of the search conducted, accordingly, ‘leaves substantial doubt as to [its] sufficiency.’”
  
  The court relates that “[defendant] justifies [its] decision ‘not [to] further address [the] OIG’s records search’ based on the fact that ‘Plaintiff ha[d] not challenged the adequacy of [the] OIG’s search for records responsive to her FOIA/Privacy Act request.’”  “But although Plaintiff’s complaint focuses on more generalized concerns about the OIG’s failure to ‘comply with the FOIA request,’ . . . Plaintiff does object to the adequacy of the OIG’s search in her summary judgment briefing . . . .”  “In assuming that Plaintiff must challenge the adequacy of the search before moving for summary judgment, [plaintiff] puts the cart before the horse:  As the D.C. Circuit has explained, ‘[a] reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials . . . were searched[ ] is necessary to afford a FOIA requester an opportunity to challenge the adequacy of the search.’”  “The fact that Plaintiff's challenges are ‘vague,’ . . . . moreover, does not relieve the agency of its initial burden on summary judgment to ‘show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.’”
   
• Exemption 7, Threshold:  “On the record presently before this Court, the OIG has yet to carry its burden of ‘establish[ing] as a threshold matter’ that the withheld email correspondence is a ‘law enforcement record[ ].’”  “Although neither party addresses the question, the Court gleans from a review of the relevant regulations that the [National Science Foundation’s] OIG is a mixed-function agency.”  “The OIG is tasked with at least some law-enforcement functions:  the Inspector General is responsible, for example, for ‘investigating allegations that a false claim or statement has been made’ in violation of the Program Fraud Civil Remedies Act.”  “OIG is also responsible for ‘oversee[ing] investigations of research misconduct,’ . . . which may sometimes – but not invariably – rise to the level of a civil or criminal law violation.”  The court relates that “[defendant] . . . attests that ‘the information protected pursuant to Exemption 7(A) relates to an ongoing law enforcement investigation being pursued by the OIG.’”  “‘But . . . the [agency] cannot rely on [the] bare assertion’ that the information was compiled for ‘law enforcement purposes’ to ‘justify invocation of an exemption from disclosure,’ . . . especially when, as here, the relevant regulations contemplate that the OIG might, for example, engage in investigations of research misconduct that does not rise to the level of a federal-law violation.”  “If the investigation at issue here were related to allegations of research misconduct unadorned by any prospect that a federal law has been violated – as opposed to misconduct that might implicate violations of the Program Fraud Civil Remedies Act or any other civil or criminal laws – then it seems unlikely that the records would fall within Exemption 7.”  “Even if such research-misconduct-related investigations might ‘conceivably result in civil or criminal sanctions,’ more than a remote prospect of such a development is required because, as with agency personnel investigations, ‘many [such investigations] would not [result in such sanctions], and would bear only on internal disciplinary matters.’”  “The OIG has, at this juncture, offered the Court no basis to determine whether the investigatory records at issue here were compiled in response to an allegation of criminal or civil law violation.”  “The declaration states, only, that the records were compiled ‘in response to allegations of wrongdoing.’”  “Nor does the scope of Plaintiff’s FOIA request – which sought ‘copies of the complaint(s) filed in or around April of 2018 against [plaintiff’s company or plaintiff]’ – mean that all responsive ‘complaint(s)’ would necessarily involve allegations of civil or criminal wrongdoing.”
   
• Exemption 6:  “[T]he Court next considers the OIG’s decision to withhold, under Exemption 6, the ‘[n]ames of and identifying information for’ (1) the ‘OIG complainant’ (‘including information in the complaint that would identify the complainant’); (2) ‘third-party individuals referenced as part of the complaint;’ and (3) ‘OIG law enforcement personnel,’ including those who ‘received the complaint and took initial administrative action.’”  Regarding whether “the withheld records are . . . ‘personnel, medical, or similar file[s]’ under Exemption 6,” the court finds that “[t]he information at issue need only be ‘similar’ to ‘personnel’ or ‘medical’ files to meet this threshold burden.”  “Exemption 6 therefore covers ‘not just files, but also bits of personal information, such as names and addresses, the releases of which would create[] a palpable threat to privacy.’”  The court finds that “this threshold burden is satisfied.”  The court notes that “Plaintiff no longer challenges the OIG’s decision to withhold ‘the names of specific individuals involved in the investigation:’  she clarified, in her opposition to the OIG’s motion for summary judgment, that she now ‘request[s] only information in the body of the complaint.’”  “The Court understands this concession to include any names, email addresses, signatures, and the like.”  “But that leaves ‘the content of the complaint,’ . . . and, at least on the present record, the Court cannot assess how Exemption 6 applies to any ‘identifying information’ that the OIG redacted pursuant to Exemption 6 from that portion of the records at issue.”  “To be sure, if the body of the complaint includes information that might identify the complainant, third-party witnesses, or OIG employees, that information would likely fall within the scope of Exemption 6.”  “The problem is that, at this stage, nothing in the OIG’s evidentiary showing allows the Court to assess what portion of the records were withheld pursuant to Exemption 6 and to determine whether the OIG had a sufficient basis to withhold those portions.”  “[Defendant’s] declaration notes that the OIG withheld ‘the names and identifying information of the OIG Special Agents and investigative support employees’ – as well as ‘of the OIG complainant . . . [and] of other third parties referenced in the law enforcement record’ – but does not provide any insight into the nature of the ‘identifying information’ withheld . . . or elucidate how much ‘e-mail content’ had been redacted . . . .”  “Nor does the OIG’s second declaration add the required specificity.”  “That declaration, submitted by the FOIA officer from the [National Science Foundation], . . . merely attests in conclusory terms that release of the redacted portions of the records, ‘would directly or indirectly disclose the identities of the OIG complainant and the identities of other third-party individuals who might have personal knowledge of, or other connection to or involvement in, the subject matter of the complaint.’”  “The Court will, accordingly, grant the OIG’s motion for summary judgment only insofar as it concerns the redaction of individual names in the complaint, email addresses, and signatures, given Plaintiff’s non-objection to those redactions.”  “The Court will, however, deny both parties’ motions for summary judgment as to any other ‘identifying information’ that may have been redacted from the body of the complaint, given the unresolved factual disputes about what portion of the records were withheld pursuant to Exemption 6 and whether the OIG had a sufficient basis to do so.”