War Horse News, Inc. v. U.S. Dep’t of the Navy, No. 22-03303, 2024 WL 4346345 (D.D.C. Sept. 30, 2024) (Chutkan, J.)
War Horse News, Inc. v. U.S. Dep’t of the Navy, No. 22-03303, 2024 WL 4346345 (D.D.C. Sept. 30, 2024) (Chutkan, J.)
Re: Request for information contained in Marine Corps database for reporting and tracking officer misconduct and substandard performance cases
Disposition: Denying defendants’ motion for summary judgment; granting in part plaintiffs’ cross-motion for summary judgment
- Procedural Requirements, Proper FOIA Requests: The court finds that “[t]he Marine Corps knew what Plaintiffs’ FOIA request sought when it issued its denial.” “The request is self-explanatory – it sought ‘a full copy of the Officer Disciplinary Notebook Management (ODNMS) database’ and pointed [Headquarters, U.S. Marine Corps (“HMC”)] to ‘[t]he location, use, and description of the ODNMS’ via a link to the Marines Corps’ own website.” “More tellingly, agency employees not only could identify the requested records, but in fact did identify the records sought.” “Both the Marine Corps’ and Navy’s denial letters not only acknowledged that Plaintiffs sought the ODNMS but also identified it correctly as ‘a database used to track officer misconduct and substandard performance in the Marine Corps,’ . . . and concluded that the Navy had made a prior determination that ‘the ODNMS and its contents constitute attorney work-product[]’ . . . .” “The agency declarant’s statement that ‘the request fails to specify what information [plaintiffs] desire[],’ . . . is not entitled to the presumption of good faith where it is contradicted by contrary evidence in the record – the contemporaneous denial letters acknowledging and identifying the records sought – and the declarant’s statements in her own declarations.” “It strains credulity to believe that HMC is ‘unclear’ as to what records the request seeks where the agency declarant not only identified the scope of the request, . . . but also calculated the time to process it . . . .”
- Procedural Requirements, Searching for Responsive Records: “The court denies Defendants’ motion for summary judgment on the ground that Plaintiffs’ FOIA request is unduly burdensome.” “HMC concedes that it did not conduct a search of the ODNMS after receiving Plaintiffs’ FOIA request.” “It argues that it was not obligated to search the ODNMS because ‘complying with [Plaintiffs’] FOIA request would be an unduly burdensome task.’” “Defendants are correct that an agency can decline to process a request when it ‘would require an agency to undertake an unreasonably burdensome search,’ but Plaintiffs’ request does not fit that mold.” “And HMC’s attempt to stretch the rule to exempt it from FOIA’s core obligation to review and produce responsive, non-exempt records is unsupported by this district’s case law.” “Here, HMC’s search is simple and does not require it to expend excessive resources to identify relevant records.” “As the court has explained, the requested records are easily identified, already located, and require a straightforward responsiveness review.” “By HMC’s own declaration, responsive records are located in no more than three repositories.” “And the records within those databases do not need to be individually reviewed for responsiveness.” “Instead, if a record is in the ODNMS, it is responsive; if a record is not in the ODNMS, it is not.” “In short, Defendants’ search for responsive records will require nowhere near the thousands of hours courts in this district have found to impose an undue burden.”
“Undeterred, HMC attempts to fit its refusal to review records in the ODNMS into FOIA’s rule that an agency need not undertake an overly burdensome search.” “It argues that ‘just as courts have held that an agency need not undertake a search for documents that would place an inordinate strain on agency resources, the same rationale would apply to a review and segregability analysis that would place an undue burden on the Navy.’” “The court is unpersuaded by Defendants’ claim that HMC is ‘not required to review potentially responsive and non-exempt records because doing so “would be overly burdensome.”’” “Tellingly, all but one of Defendants’ supporting citations held that an unduly burdensome search, not review, negated the agency’s obligation to process the FOIA requests at issue.” “Those cases do not support the agencies’ position because HMC ‘has already located the responsive records and thus need not conduct any additional search; the only issue is whether it must spend the time to review those records to make redactions.’” “Defendants’ remaining citation involves a sui generis holding ‘based on the unique facts’ of [Ayuda, Inc. v. FTC, 70 F. Supp. 3d 247, 276 (D.D.C. 2014)].” “As here, the FTC had no trouble locating the database and did not argue that it was incapable of searching for or retrieving the Consumer Sentinel database records.” “‘Instead, the agency’s argument for non-disclosure focuse[d] only on the burden of manually identifying and redacting the exempt information across the already retrieved twenty million responsive records’ in the database.” “The court was therefore faced with the question whether the FTC could ‘withhold the entire universe of information contained in the data fields’ even though only a small percentage of the information was exempt, but redacting the exempt information would require an ‘unreasonably burdensome manual review.’” “The court held that the unique ‘facts and equities’ of the case compelled it to find that the FTC properly withheld the ‘entire universe of information given the burden of removing the subset of exempt information.’” “It couched its decision in several caveats, most importantly that it was not faced with ‘a situation in which an agency seeks to protect its own potentially confidential information – such as agency information covered by the deliberative process privilege – by withholding a substantially broader set of information that does not contain privileged information.’” “It also reasoned that if the plaintiffs had ‘sought a smaller, more manageable universe of records and not the twenty million complaints’ in the Consumer Sentinel database, the solution might have been ‘simple’ – the court ‘could order the FTC to expend a reasonable amount of resources to identify and redact the exempt personal information from each complaint.’” “Plaintiffs’ request here is more analogous to the Ayuda caveats: HMC seeks to protect its own potentially confidential information, relying on the Exemption 5 privileges including the deliberative process privilege.” “And the 4,400 records at issue in this case are a much ‘smaller, more manageable universe of records’ than the twenty million complaints at issue in Ayuda.” “The court therefore declines to extend the reasoning in Ayuda to this case.”
“Even taking HMC at its word that ‘review and analysis for redactions due to applicable FOIA exemptions’ would require at least 1 hour per case entry, the court does not find roughly 8,500 hours of review time ‘unreasonably burdensome.’”
“Because Defendants have not made any representations regarding the burden of searching for records in the repositories outside ODNMS 2.0, the court declines to grant summary judgment to Plaintiffs on the issue of HMC’s search burden at this time.”
- Exemption 5, Attorney Work-Product Privilege; Litigation Considerations, Evidentiary Showing “Reasonably Segregable” Showing: The court relates that “HMC’s primary justification for withholding the ODNMS is that it is attorney work product and therefore wholly exempt from disclosure under Exemption 5.” “HMC contends that because case entries are created ‘for the specific purpose of advising commanders on officer personnel actions which are subject to administrative review and litigation,’ every ODNMS entry and the information it contains is subject to the work-product privilege.” “Even if some cases ‘do not resolve in an administrative proceeding or litigation, the cases and data entered for the case were prepared in contemplation of litigation or administrative proceeding.’” “But the court finds a genuine issue of fact on this question, especially where HMC’s declarations state that ‘[t]he majority of information included in individual case entries is kept for internal case management purposes’ and used to ‘keep track of the status of the misconduct and promotion cases for internal administrative purposes.’” “While these goals are not necessarily at odds with preparing for future litigation, the court notes that HMC developed and uses the ODNMS ‘to ensure the Marine Corps complies with its statutory obligations in managing its officer personnel.’” “Those obligations require officer promotion boards to review credible adverse information when considering an officer for promotion.” “In that light, tracking credible adverse information is not undertaken for the purpose of preparing for litigation, but instead to comply with Congress’s directives.” “And HMC must comply with internal Marine Corps regulations that in turn ensure compliance with these statutory mandates.”
“Similarly, HMC argues that every case entry is created ‘for the specific purpose of future litigation, either criminal, civil, or administrative,’ . . . because officer misconduct and substandard performance cases ‘are often subject to criminal or civil litigation, and/or administrative proceedings[]’ . . . .” “Defendants effectively ask the court to infer that every staff judge advocate who has ever opened a case entry in the ODNMS had an ‘objectively reasonable’ ‘subjective belief that litigation was a real possibility.’” “But this Circuit has cautioned against sweeping too much government activity under the work-product privilege’s protection.” “The court appreciates that potential future litigation ‘touches virtually any object of an [HMC] attorney’s attention,’ but if Defendants ‘were allowed to withhold any document prepared by any person in the Government with a law degree simply because litigation might someday occur, the policies of the FOIA would be largely defeated.’” “That is why HMC must meet its evidentiary burden to ‘provide some indication of the type of litigation for which the document's use is at least foreseeable.’” “It may ultimately be the case that each record in the ODNMS is covered by the privilege, but the declarations submitted by one HMC attorney without reference to a single case entry in the ODNMS do not allow the court to conclude that all 4,400 case entries and the records they contain were prepared in anticipation of litigation.”
“Even if the court ultimately determines that records in the ODNMS are protected under the work-product privilege, Defendants’ argument that attorney work-product information can never be segregated is incorrect.” “While it is true that where a document is ‘fully protected as work product, . . . segregability is not required,’ the ODNMS is not a single document.” “[Defendants’] declarations demonstrate that HMC did not even attempt to segregate potentially responsive, non-exempt information.” “As a result, Defendants did not produce a non-conclusory affidavit attesting to a line-by-line review of each document withheld in full, much less a Vaughn index describing the withheld information.”