Walker v. Donovan, No. 19-3784, 2023 WL 2734216 (D.D.C. Mar. 31, 2023) (Chutkan, J.)
Walker v. Donovan, No. 19-3784, 2023 WL 2734216 (D.D.C. Mar. 31, 2023) (Chutkan, J.)
Re: Request for records concerning Letter of Admonishment and investigatory records regarding plaintiff
Disposition: Denying plaintiff’s motion for partial summary judgment; granting in part and denying in part defendant’s cross-motion for summary judgment
- Litigation Considerations, Adequacy of Search: “The court concludes that the Air Force’s declarations satisfy the requirement that an agency perform a reasonable search.” The court relates that “[t]he Air Force proffered the declaration of [its] . . . Director of the [Freedom of Information Act,] Privacy and Civil Liberties Office at the Department of Defense, Office of Inspector General (‘DoD OIG’), who states that his office received a referral of [plaintiff’s] request and concluded that responsive records in the DoD OIG likely would be held by the Office of the Deputy Inspector General for Administrative Investigations and the Defense Hotline.” “Both offices searched for records responsive to [plaintiff’s] request using specific search terms.” “This included, among other things, a search of the Defense Case Activity Tracking System database, which contains information on all incoming allegations.” The court finds that “[plaintiff’s] claim that the Air Force failed to explain why it would be burdensome to have searched other agency record systems, . . . shows a misunderstanding of an agency’s search obligations under the FOIA.” The court finds that “an agency is only required to perform a reasonable search, which consists of searching records and systems where responsive records are reasonably likely to be located.” “[Plaintiff] also argues that [defendant’s] search was deficient because [defendant] stated that ordinarily [defendant] would start a FOIA search with a case tracker and search for the subject of the request, but . . . did not do that in this case.” “[Defendant] explained, however, that [it] uses the case tracker when . . . trying to determine whether a case that is the subject of the FOIA request even exists on the shared drive.” “Here, [defendant] did not use the case tracker because [it] already knew that [plaintiff’s] case was located on the shared drive, where it was located on that drive, and [defendant] was able to locate it because [defendant] had previously worked on the case.” “[Plaintiff] points to no authority requiring an agency to use a particular search method when it is not needed.” “Here, a search using the case tracker only would have yielded information [defendant] already had – that a case involving [plaintiff] existed on the shared drive.” Finally, regarding plaintiff’s argument concerning missing documents, the court finds that “[t]he Air Force’s inability to locate certain documents does not undermine the adequacy of the search.”
- Exemption 7, Threshold: The court finds that the documents at issue concerned “[a] finding [which] was a result of an Air Force administrative investigation of fraud, waste, and abuse conducted by the Air Force’s Inspector General Office.” “An investigation into a potential violation of a statute easily satisfies Exemption 7’s requirement of a law enforcement purpose.”
- Exemption 7(C): The court holds that “disclosure of the information withheld under Exemption 7(C) would constitute an unwarranted invasion of privacy and was properly withheld.” The court finds that “because [defendant’s] Declaration states that the information withheld in the responsive documents consists of the names or other information that would identify third parties, further description of the privacy interest at stake is unnecessary, especially given that the investigation was one involving potential fraud, waste or abuse by a federal employee.” “In balancing the privacy interests at stake against the public interest in disclosure, the Air Force concluded that disclosure of the information withheld would reveal nothing about the operations and activities of the Air Force.” “[Plaintiff] argues that he seeks information regarding an investigation done by the Air Force, which would shed light on the Air Force’s investigatory processes and whether they involved any misconduct, especially given the number of Airmen who have committed suicide in recent years while being investigated.” “But [plaintiff] points to no evidence of misconduct during the investigation, nor does he claim that the investigation at issue relates to any suicide.” “Courts have traditionally protected information that reveals nothing about the operations and activities of the government and could subject these individuals to harassment in the conduct of the official duties and in their private lives.”
- Exemption 5, Attorney-Client Privilege: The court relates that “[t]he Air Force has moved for summary judgment with respect to Exemption 5 on the grounds that one document . . . was withheld in full based on attorney-client privilege.” “The Air Force explains that Document No. 24 consists of a legal review and advice prepared by the Air Force Judge Advocate with respect to the investigation of [plaintiff] and another individual and offers a recommendation to the commander as to whether to approve the investigation’s findings.” “Notably, however, neither [defendant’s] Declaration nor the accompanying Vaughn Index expressly invoke the attorney-client privilege for that document.” “[Plaintiff] did not respond to the Air Force’s invocation of the attorney-client privilege for [that document].” “Consequently, the court will treat the Air Force’s claim as conceded.”
- Exemption 5, Deliberative Process Privilege: The court relates that “[plaintiff] points to [another document] on the Vaughn Index, which was partially withheld under Exemptions 5, 6 and [7(C)].” “Although the Vaughn Index cites the deliberative process privilege for Exemption 5 for that document, it does not indicate whether the information withheld is the same information that is withheld under Exemptions 6 & 7.” “Moreover, as [plaintiff] correctly observes, the Vaughn Index provides a woefully inadequate justification for the invocation of the deliberative process privilege.” The court finds that “[plaintiff] correctly argues that the Vaughn Index fails to adequately explain the application of the deliberative process privilege to [the document at issue].” “The Air Force attempted to rectify this deficiency in its reply brief by filing the Dorgan Declaration and, for the first time in briefing, asserted the deliberative process privilege with respect to Document No. 66.” “There is no discussion of how this information is deliberative in nature, such as whether it consists of opinions and/or recommendations of a subordinate to a superior.” “Additionally, the brief reference to the factual information fails to adequately explain how it is ‘inextricably intertwined with deliberative information.’” “Nonetheless, the issue of this document cannot be resolved on the current record because neither party moved for summary judgment with respect to this document.” “[Plaintiff] only moved for partial summary judgment and did not challenge the invocation of Exemption 5.” “The Air Force only moved for summary judgment with respect to Exemption 5’s application to [the document withheld under the attorney-client privilege,] which no longer seems to be at issue.”
- Litigation Considerations, “Reasonably Segregable” Requirements: “[B]ecause the Air Force carefully reviewed the material withheld and determined that no additional non-exempt information could be released, the court concludes that the segregability requirement has been met.” The court relates that “[defendant’s] Declaration states that the Air Force conducted a page-by-page review of the withheld information to ensure all reasonably segregable information was released, and that no additional reasonably segregable information can be disclosed.” “[Defendant] states that all segregable information was released to [plaintiff] and that any nonexempt information that was not released is ‘either inextricably intertwined with exempt information or it would constitute an essentially meaningless set of words and phrases.’”
- Litigation Considerations, Vaughn Index/Declaration; Procedural Requirements, Time Limits; Exemption 7(A): The court relates that “[plaintiff] argues that the Air Force’s delay in responding to his FOIA request shows bad faith, which rebuts the presumption of good faith to be accorded agency declarations.” The court finds that, “[o]n the contrary, a delay in responding to a FOIA request, without more, does not give rise to a finding of bad faith.” “Moreover, here the Air Force has corrected errors and provided [plaintiff] with additional releases of information.” “[Plaintiff] points to no evidence suggesting that the release of additional information undermines the agency’s withholding of other information.” “As noted above, it evinces good faith on the agency’s part.” The court relates that “[plaintiff] also argues that the Air Force’s invocation of Exemption 7(A) at the outset of the investigation was without basis.” “The court disagrees.” “Not only is [plaintiff’s] claim that the records were not compiled for law enforcement purposes without basis, . . . but [defendant’s] Declaration states that when [plaintiff’s] FOIA request was received, his case ‘was still in the “command action process,” meaning [plaintiff], the subject of [the] . . . investigation, was waiting for disciplinary action to be taken based on the investigation, and it is Department of the Air Force Inspector General . . . policy not to release any documents until command action is complete.’” “Indeed, Exemption 7(A) applies only while an investigation is open, and the Air Force appropriately dropped its assertion of Exemption 7(A) once the investigation had been concluded.” “This does not show bad faith.”
- Attorney Fees: The court holds that “[plaintiff’s] request for attorney’s fees is premature and improperly raised.” “Parties seek relief from the court by way of a motion, not in an opposition brief.” “Moreover, the fee analysis requires a party to first demonstrate prevailing party status, which [plaintiff] at this stage cannot do.”