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HUNT v. USMC

August 6, 1996

LINDA HUNT, Plaintiff,
v.
U.S. MARINE CORPS, et al., Defendants.



The opinion of the court was delivered by: HARRIS

 Before the Court are defendants' motion for summary judgment, plaintiff's opposition, cross-motion for summary judgment, and motion to compel a further search, and defendants' reply and opposition to plaintiff's cross-motion. *fn1" Plaintiff brings this action pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1994). She seeks the disclosure of documents which are held by defendants, the United States Marine Corps (Marine Corps) and the Department of Defense (DoD). Defendants contend that since all documents withheld from plaintiff are exempt from release under the FOIA, there is no genuine issue of material fact and defendants are entitled to summary judgment as a matter of law. Upon consideration of the entire record, the Court grants defendants' motion for summary judgment and denies both plaintiff's cross-motion for summary judgment and her motion to compel a further search. Although "findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56," Fed. R. Civ. P. 52(a), the Court nonetheless sets forth its reasoning.

 I. BACKGROUND

 Plaintiff, a freelance journalist, seeks the disclosure of numerous documents concerning Lieutenant Colonel Oliver North which have been withheld from her by the Marine Corps. When this suit was filed, North was engaged in an election for the office of United States Senator from Virginia. The immediacy and significance of that election prompted plaintiff to file this lawsuit, as well as a motion for a temporary restraining order, in an attempt to compel the Marine Corps to turn over the requested documents. Although North was defeated in his senatorial bid, plaintiff continues to press her claim for the release of the withheld documents, contending that North may seek public office in the future.

 On September 15, 1994, plaintiff administratively appealed both HQMC's withholding of documents and the adequacy of its search. Id., Attach. F. Although plaintiff's appeal was received by the Department of the Navy's administrative appeal authority on September 19, 1994, the statutory time for the agency's reply passed. On October 26, plaintiff sued the Marine Corps and the DoD, seeking a temporary restraining order. See Pl.'s Compl.; Mot. for T.R.O.. After hearing argument on plaintiff's motion for a temporary restraining order, the Court denied it on October 28, 1994.

 On October 31 and November 2, 1994, the General Litigation Division, Office of the Judge Advocate General, requested that HQMC and the National Naval Medical Center (NNMC), Bethesda, treat the plaintiff's declaration in support of her motion for a temporary restraining order as an initial request for any medical records on North. Defs.' Mot. for Summ. J., Attach. H. On November 1, HQMC informed plaintiff that it possessed North's outpatient records, and on November 4, NNMC informed plaintiff that it had located responsive records within the Health Care Records System, but each office took the position that the records were exempt from release under FOIA Exemption 6. Id., Attach. I, J. On November 4, 1994, the Deputy Assistant Judge Advocate General of the Navy responded to plaintiff's administrative appeal by releasing some additional documents, while denying release of the remainder of the documents. The Deputy Assistant also conveyed to plaintiff the Navy's conclusion that the government had performed an adequate search. Id., Attach. K. Plaintiff did not administratively appeal the denials by HQMC and NNMC of access to North's medical records. Id., Attach. L.

 On March 3, 1995, defendants filed a motion for summary judgment. Defendants submitted a Vaughn index along with their dispositive motion, characterizing the documents which were responsive to plaintiff's requests and which were withheld under various FOIA exemptions. See Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974). Plaintiff filed an opposition, a cross-motion for summary judgment and a motion to compel a further search on August 28, 1995. On October 20, 1995, defendants filed a reply to plaintiff's opposition and an opposition to plaintiff's cross-motion. In their reply to plaintiff's opposition, defendants submitted an additional affidavit to explain their search. See Decl. of Barbara L. Thompson (hereinafter "Thompson Decl."). Plaintiff failed to file a reply to defendants' opposition in the time allotted by the Court, and therefore waived her right to file her response. See supra n. 1.

 II. ANALYSIS

 In moving for summary judgment in a FOIA action, the moving party must show that no genuine dispute of material fact exists and that it is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). To prevail against a request under the FOIA, a defending agency must "prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements." National Cable Television Ass'n v. FCC, 156 U.S. App. D.C. 91, 479 F.2d 183, 186 (D.C. Cir. 1973). If the government agency seeks summary judgment based on an exemption in the FOIA statute, "it must provide a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply." Mead Data Cent., Inc. v. United States Dep't of Air Force, 184 U.S. App. D.C. 350, 566 F.2d 242, 251 (D.C. Cir. 1977). The government may submit detailed affidavits to demonstrate how requested information falls within a claimed exemption. If the affidavits are sufficiently detailed, nonconclusory, and uncontradicted by the record, and if no evidence in the record exists of bad faith, the court may grant summary judgment without an in camera examination of the documents. Hayden v. National Sec. Agency, 197 U.S. App. D.C. 224, 608 F.2d 1381, 1387 (D.C. Cir. 1979), cert. denied, 446 U.S. 937, 64 L. Ed. 2d 790, 100 S. Ct. 2156 (1980).

 Defendants claim that sixty-five documents were properly withheld under FOIA Exemptions 2, 5, and 6. Exemption 2 of the FOIA exempts from mandatory disclosure records "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). Exemption 5 protects "inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency." 5 U.S.C. § 552(b)(5). Exemption 6 permits the government to withhold all information about individuals in "personnel and medical files and similar files" where the disclosure of such information "would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). Plaintiff challenges the adequacy of defendants' search and the withholding of documents under these exemptions.

 A. Adequacy of the Search

 Plaintiff initially contends that defendants' search for responsive documents was inadequate. Plaintiff requests that defendants submit an additional affidavit explaining their search, or alternatively that the Court should allow plaintiff to take discovery regarding the adequacy of the search. Defendants attached a detailed affidavit to their reply which described their search. See Thompson Decl. The Court finds that defendants have fulfilled plaintiff's request for an additional affidavit describing their search, and therefore denies plaintiff's request for discovery. Furthermore, the Court finds that defendants have met their burden of showing that they made a good faith effort to conduct a search for the requested records, using methods reasonably expected to produce the desired information. Oglesby v. United States Dep't of the Army, 287 U.S. App. D.C. 126, 920 F.2d 57, 68 (D.C. Cir. 1990). Defendants demonstrated through the declaration of Barbara L. Thompson, the Head of HQMC's FOIA Program, that they performed a comprehensive search for all the requested documents by directing plaintiff's requests to the four agency offices reasonably expected to hold the responsive information. Thompson Decl. at 2, 5. In addition, Thompson stated that she conducted a personal search for North's DD Form 1610's, id. at 3, as well as a subsequent search for North's medical records. As plaintiff offers no evidence to show that the agency's search was not undertaken in good faith, see Maynard v. CIA, 986 F.2d 547, 560 (1st Cir. 1993), the Court finds that defendants' search was adequate.

 B. Exemption 2

 Although there had been a dispute over two documents withheld by the government under 5 U.S.C. § 552(b)(2), defendants subsequently released those ...


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