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Budik v. Dep't of the Army

September 30, 2010

EDITH M. BUDIK, M.D., PLAINTIFF,
v.
DEPARTMENT OF THE ARMY, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

In this action brought pro se under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, Plaintiff Edith M. Budik, M.D. ("Plaintiff") challenges the responses of Defendant Department of the Army ("Defendant") to her requests for information relating to her former employment at Landstuhl Regional Medical Center ("LRMC"). Specifically, at issue in this action are two separate FOIA requests lodged by Plaintiff with Defendant in August and September 2008.*fn1 Initially, Plaintiff sought a single document relating to her performance while employed at LRMC. Defendant produced the document, in redacted form, and Plaintiff now challenges only the propriety of Defendant's redactions. Subsequently, Plaintiff made a broader request for her personnel records. Defendant conducted a search for responsive materials, ultimately producing a number of documents; a subset of these documents were redacted and others were withheld in their entirety. Construing Plaintiff's submissions liberally, Plaintiff here challenges both the adequacy and good faith of Defendant's search, as well as the propriety of Defendant's decision to redact and withhold various documents. Presently before the Court is Defendant's [9] Motion for Summary Judgment, which Plaintiff has opposed. After reviewing the parties' submissions, including the attachments thereto, the relevant authorities, and the record as a whole, the Court shall GRANT-IN-PART and DENY-IN-PART Defendant's Motion for Summary Judgment, for the reasons set forth below.

I. BACKGROUND

A. Factual Background*fn2

1. Plaintiff's First Request: The Professional Practice Evaluation

On August 13, 2008, Plaintiff contacted LRMC -- where she was employed for a period of time in 2008 -- requesting the production of a "document written on [her] behalf and faxed on 30 June 2008 for a position at Dartmouth Hitchcock Medical Center." Def.'s Stmt. ¶ 3. Plaintiff's request was forwarded to Ralph G. England, a FOIA Officer responsible for handling certain information requests filed with LRMC. Id. ¶ 4; England Decl. ¶ 1. Shortly thereafter, Mr. England personally obtained a copy of the three-page document referenced in Plaintiff's request -- a Professional Practice Evaluation ("PPE") -- from the office of Col. Steven Princiotta, the Deputy Commander for Clinical Services at LRMC. England Decl. ¶ 5. Mr. England sent Plaintiff a copy of the requested PPE on September 3, 2008, albeit redacting the signature block and the e-mail address from the final page of the document pursuant to FOIA Exemption (b)(6). Def.'s Stmt. ¶ 6.

Dissatisfied, Plaintiff subsequently requested an unredacted version of the PPE. Id. ¶¶ 7-8. Plaintiff's follow-up request was forwarded to the FOIA Office for U.S. Army Medical Command ("MEDCOM") for further review.*fn3 Id. ¶¶ 9-10. Upon reviewing the record, MEDCOM determined that the signature block was "releasable," but concurred that the e-mail address appearing on the final page had been properly redacted pursuant to Exemption (b)(6). Id. ¶ 12. Accordingly, on October 30, 2008, Defendant released to Plaintiff the contents of the signature block. Id. Although Plaintiff was informed that she could further appeal the determination, no appeal has been received.*fn4 Id.

2. Plaintiff's Second Request: Personnel Records

On September 8, 2008, Plaintiff contacted Mr. England with a second FOIA request, this time seeking "a copy of [her] complete personnel file, i.e. a copy of any and all records related to [her] employment at [LRMC] to include documents, computer files, and [e]-mails." Id. ¶ 13.

Mr. England promptly reached out to Plaintiff, asking her to provide any additional information that would assist in locating the requested documents and requesting clarification as to whether Plaintiff sought e-mails maintained outside her personnel file. Id. ¶¶ 13-14; England Decl. ¶¶ 11-12 and Ex. I. After further dialogue ensued between Plaintiff and Mr. England, Def.'s Stmt. ¶¶ 14-16, Plaintiff's second FOIA request, in its final form, sought "a copy of [her] complete personnel records to include any and all documents and records related to [her] employment at [LRMC], to include documents, computer files, [f]axes, and any [e]-mails in these records." England Decl. Ex. L. By its terms, the request extended to "records housed in the personnel section, [her] duty section (radiology), and any and all documents from Dr. [Brian] Lein and Dr. [Steven] Princiotta."*fn5 Id.

a. Defendant's Initial Search

Mr. England coordinated the search for documents responsive to Plaintiff's second FOIA request. Def.'s Stmt. ¶¶ 13-21. In so doing, he contacted the Commander of LRMC, the Deputy Commander for Clinical Services, Pathology, the Radiology Department, the Personnel Division, Operations, Credentials, and the former Chief of Radiology requesting information pursuant to Plaintiff's request. Id. ¶ 18; England Decl. ¶ 13.

After learning that no one then working at LRMC's Radiology Department had any knowledge of existing records relating to Plaintiff, Mr. England reached out to Plaintiff's former supervisor, Col. Ricanthony Ashley, inquiring whether the Radiology Department maintained a file for Plaintiff. Def.'s Stmt. ¶ 17; England Decl. ¶¶ 18-19. Although Col. Ashley indicated that "a very small file" had once existed, after speaking directly with Col. Ashley, the Chief of Radiology conducted a further search of the Radiology Department, but was unable to find any documents relating to Plaintiff. Id.

Ultimately, Mr. England was able to retrieve one hundred and thirty-two (132) pages of documents responsive to Plaintiff's requests. Def.'s Stmt. ¶ 17; England Decl. ¶ 20. These 132 pages comprised the only documents maintained by LRMC that were responsive to Plaintiff's request. Id.

b. The LRMC Documents

Of the 132 pages located during the course of Defendant's search, 108 "belonged" to LRMC, in the sense that the documents did not originate from other units. England Decl. ¶ 20. On November 20, 2008, Defendant released to Plaintiff all 108 pages, which included Officer Evaluation Reports, Plaintiff's orders, memoranda, a letter of reprimand, a rebuttal to the reprimand, and various e-mails (the "LRMC Documents"). Def.'s Stmt. ¶ 18.

Approximately 57 of the 108 pages produced by Defendant were redacted.*fn6 Pl.'s Stmt. ¶ 1; England Decl. ¶ 21. Some documents were redacted to remove "third-party personal information" pursuant to FOIA Exemption (b)(6). Buchholz Decl. ¶ 6; England Decl. ¶ 21; Vaughn-Burford Decl. ¶ 6. Specifically, Defendant withheld the names and e-mail addresses of certain individuals, concluding that the disclosure of such information would threaten the individuals' privacy interests. Buchholz Decl. ¶ 18. Yet other redactions were made to e-mail correspondence relating to an "incident" involving Plaintiff, correspondence which purportedly discussed what the response to that incident would be from Plaintiff's chain of command. Buchholz Decl. ¶¶ 11-12; England Decl. ¶ 21; Vaughn-Burford Decl. ¶ 6. Defendant claims that the e-mail correspondence concerning the incident was properly redacted under FOIA Exemption (b)(5). Id.

c. Plaintiff's Appeal and Defendant's Supplemental Search

Plaintiff was informed that she could appeal Defendant's redaction decisions concerning the LRMC Documents, a right which Plaintiff exercised on January 6, 2009. Def.'s Stmt. ¶¶ 18-20. In a letter of appeal, Plaintiff argued, among other things, that the information she requested was outside the scope of any of FOIA's exemptions, and asserted "the right to know why any exemption [was] being applied specifically in [her] case." England Decl. Ex. V.

In addition, Plaintiff noted in her appeal that there appeared to be a lack of documentation produced from the period extending from May 2008 through June 2008, and requested that Defendant conduct an additional search for documents originating from Drs. Lein and Princiotta within that time period. Id. Upon receiving Plaintiff's appeal, Mr. England asked Drs. Lein and Princiotta to conduct a further search of their computers for any e-mails pertaining to Plaintiff in the designated time period. England Decl. ¶ 28. The supplemental search failed to yield any additional documents.*fn7 Def.'s Stmt. ¶ 21; England Decl. ¶ 28.

In the meantime, Plaintiff's appeal was forwarded to Human Resource Command and, thereafter, to the Office of the General Counsel at the Pentagon. Def.'s Stmt. ¶¶ 23-24. Both offices reviewed Plaintiff's file and the documents at issue, and concurred that the LRMC Documents had been properly redacted. Id. ¶¶ 25, 27-28.

d. The MEDCOM Documents

As described above, only 108 of the 132 pages located during the course of Defendant's search "belonged" to LRMC. The remaining documents were referred out to four separate units -- MEDCOM, the 21st Theater Sustainment Command ("21st TSC"), the Walter Reed Army Medical Center ("WRAMC"), and United States Army Europe ("USAREUR") -- as the e-mails were to or from personnel assigned to those units and not LRMC. Of the twenty four (24) pages within this group, six (6) were sent to MEDCOM for review (the "MEDCOM Documents"). Id. ¶ 29.

On December 23, 2008, following MEDCOM's review, Defendant released to Plaintiff additional documents responsive to Plaintiff's second FOIA request.*fn8 Id. ¶ 30. Defendant withheld and/or redacted information pursuant to Exemptions (b)(5) and (b)(6), though it is by no means clear from the record how much information was withheld and/or redacted. Id.; Buchholz Decl. ¶ 9; Peterson Decl. ¶¶ 8-9. As with the LRMC Documents, the names and e-mail addresses of certain individuals were withheld and/or redacted to remove "third-party personal information" pursuant to Exemption (b)(6). Buchholz Decl. ¶¶ 16, 18. Other information was withheld and/or redacted from e-mail correspondence relating to an "incident" involving Plaintiff, correspondence which purportedly discussed what the response to that incident would be from Plaintiff's chain of command. Id. ¶¶ 11-12.*fn9

Plaintiff was notified that she could appeal Defendant's determination relating to the MEDCOM Documents, and Plaintiff exercised that right. Def.'s Stmt. ¶¶ 30-31. On July 22, 2009, after reviewing Plaintiff's entire file and the six pages of documents, the Office of the General Counsel concurred in the initial determination.*fn10 Id. ¶ 34.

e. The 21st TSC Documents

Of the 132 pages located during Defendant's search, seven (7) were sent to the 21st TSC for review and response (the "21st TSC Documents"). Def.'s Stmt. ¶ 35. The seven pages consisted of e-mails from the 21st TSC military counsel to the Commander of LRMC, as well as certain draft documents. Craig Decl. ¶ 3; Swope Decl. ¶¶ 4-5. Defendant determined that none of the information was releasable, and withheld all seven pages citing the attorney-client privilege and the "deliberative process" privilege under ...


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