Wadelton v. Dep't of State, No. 13-412, 2016 WL 5326402 (D.D.C. Sept. 22, 2016) (Chutkan, J.)

Wadelton v. Dep't of State, No. 13-412, 2016 WL 5326402 (D.D.C. Sept. 22, 2016) (Chutkan, J.)

Re: Request for records concerning plaintiff

Disposition: Granting defendant's motion for summary judgment

• Procedural Requirements, Searching for Responsive Records: "The court is satisfied that Defendant has met its burden of showing that it conducted an adequate search of HR files." Specifically, the court finds that "State has demonstrated that under its regular email retention policy, the electronic versions of 'record emails' and all versions of non-record emails by former HR staff were already destroyed prior to receiving the FOIA request." Also, the court finds that "[p]laintiffs' speculation as to the existence of other records does not warrant the denial of summary judgment." Last, "[t]he court cannot find that State has failed its FOIA obligations by being unable to locate [certain back-up disks] disks, because State's only obligation is to conduct a reasonable search, and the court has no reason not to credit [defendant's] assertion that the search for the DVDs was 'extensive.'"
  
  For similar reasons, the court finds that defendant conducted an adequate search of management files. Specifically, the court finds that "[d]efendant carries the burden of demonstrating that the temporal scope it used was reasonable." "And while the Defendant's explanations for its temporal limitations could be clearer, it has met its burden by pointing out that the . . . cutoff [date] is 'well after the date of State's receipt of the FOIA requests.'" Also, responding to plaintiff's argument, the court finds that "[it] need not reach the question of whether and how an agency must locate agency records stored on private email servers, because the Plaintiffs' argument [that there may be information maintained on private servers] is highly speculative." "The Defendant is not required to express absolute certainty regarding the location of its records; it is required to conduct a reasonable search."
   
• Exemption 5, Attorney Work-Product: First, the court relates that "State now explains that the heading on [one] document . . . states that it is for internal use only and that it is privileged attorney work product." "In light of this additional information, the court will grant summary judgment as to the withholding of [the] document[.]" Second, the court finds that "[b]ecause . . . two email exchanges at issue here involved requests for information regarding the reconstituted boards [at issue in "[plaintiff's] case regarding certain board procedures"], made at the direction of attorneys, the court finds that they were properly withheld pursuant to Exemption 5." Third, "[t]he court finds State's withholding [of a "hand-written and 'neither addressed nor signed'" note] was proper given that the document was, to the best of State's knowledge, likely created by a Legal attorney." "Defendant's procedure is that communications between the Office of Special Counsel and other offices and divisions are handled by Legal attorneys . . . and the document is a note describing such a communication." Finally, "[t]he court . . . finds that, since the Office of the Inspector General and Legal were in an attorney-client relationship during 2011, at the time [certain] emails were exchanged, the documents were properly withheld as attorney work product."
  
  Litigation Considerations, "Reasonably Segregable" Requirements: The court finds "State has explained that there is no non-exempt information contained in [certain] handwritten notes, and segregability analysis is therefore unnecessary." "Plaintiffs do not object, and the court finds that summary judgment is proper as to the handwritten notes." Responding to plaintiff's argument, the court finds that "[d]efendant's invocation of the Privacy Act as well as the work-product exemption does not make a segregability analysis necessary." "Even if Plaintiffs were correct that Privacy Act exemption (k)(2) requires an agency to segregate non-exempt portions of a document from exempt portions, or explain why all parts are exempt, the four documents described here would nonetheless be fully protected by Exemption 5." "Defendants are not required to demonstrate that the material was not segregable."