Walston v. DOD, No. 15-2202, 2017 WL 782878 (D.D.C. Feb. 28, 2017) (Sullivan, J.)

Walston v. DOD, No. 15-2202, 2017 WL 782878 (D.D.C. Feb. 28, 2017) (Sullivan, J.)

Re: Request for records concerning Defense Information Systems Agency ("DISA") OIG complaint filed by plaintiff

Disposition: Granting in part and denying in part defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search: The court holds that "DOD's motion for summary judgment as to the adequacy of the search is denied without prejudice." The court finds "[t]hat certain emails between [plaintiff] and DISA OIG bearing [a] subject [responsive to the request] did not turn up in DISA OIG's search and, consequently, were not part of its production to [plaintiff] does not support the conclusion that DISA OIG's search was inadequate because 'the adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search.'" However, the court finds that even though in a "supplemental declaration, DOD has adequately responded to most of [plaintiff's] valid concerns about the adequacy of DISA OIG's search[,]" "[defendant's] supplemental declaration still does not permit DOD to carry its burden of demonstrating that DISA OIG's search was adequate." "Here, [defendant's] supplemental declaration makes clear that searches were conducted in DISA OIG's electronic database, in its shared drive, and in its investigators' email files, and his supplemental declaration makes clear that there is no reason to think that there are paper files connected to the investigation of [plaintiff's] complaint." "But nowhere does [defendant] state that the electronic database, the shared drive, and the investigators' email files constitute the entire universe of files likely to contain responsive materials."
   

• Exemption 5, Attorney-Client Privilege: The court holds that "DOD's motion for summary judgment on this issue is granted." The court relates that defendant withheld an "email exchange . . . [in which] the analyst asks the attorney a legal question and the attorney responds, in turn, with his legal opinion." The court finds that, "[b]ecause this email exchange involved a 'request[ ] for and the provision of legal advice in the context of an attorney-client relationship,' the partial exemption pursuant to the attorney-client privilege was proper."
   

• Exemption 6: The court holds that "DOD's motion for summary judgment on this issue is granted." The court relates that defendant "withheld the names, email addresses, phone numbers, signature blocks, and office locations of the low-level DISA employees who conducted the investigation related to [plaintiff's] complaint." The court finds that "[t]his information is the sort that satisfies Exemption 6's first requirement, as the DISA OIG investigators, working in a component of DOD, are employed in a 'sensitive agenc[y]' and have 'sensitive occupations.'" Additionally, the court finds that "[t]he privacy interest that exists here is not outweighed by the public interest in the release of the redacted information[]" because "[plaintiff] has not attempted to demonstrate a legitimate public interest supporting . . . disclosure[.]"
   

• Litigation Considerations, "Reasonable Segregable" Requirements: The court finds that "[b]ased on [defendant's] averment that no further segregation is possible and his explanation of the basis for the redactions that were made, it appears that DISA OIG has redacted only what was necessary to protect the exempt information." "Thus, DOD's 'affidavit[ ] provided here show[s] with "reasonable specificity" why the documents cannot be further segregated.'"