The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This Freedom of Information Act case is before the Court on the defendant's renewed motion for summary judgment. On September 28, 2011, the Court denied that motion without prejudice and granted in part the plaintiff's request for discovery. This Opinion explains the reasoning underlying that September 28, 2011 Order and sets forth the scope of permissible discovery.*fn1
On March 20, 2008, Dr. Norma J. Perez, at that time employed as a psychologist and coordinator of the post traumatic stress disorder ("PTSD") clinical team at a Department of Veterans Affairs ("VA") medical center in Temple, Texas, authored an e-mail that she sent to eight local VA colleagues. See Declaration of Norma J. Perez ("Perez Decl.") ¶¶ 1, 3, Oct. 1, 2010 [Dkt. No. 40-8]. This e-mail, titled "Suggestion," stated in full:
Given that we are having more and more compensation seeking veterans, I'd like to suggest that you refrain from giving a diagnosis of PTSD straight out. Consider a diagnosis of Adjustment Disorder, R/O PTSD.
Additionally, we really don't or have time to do the extensive testing that should be done to determine PTSD.
Also, there have been some incidence [sic] where the veteran has a C & P, is not given a diagnosis of PTSD, then the veteran comes here and we give the diagnosis, and the veteran appeals his case based on our assessment.
This is just a suggestion for the reasons listed above.
Perez Decl., Attachment, E-mail from Dr. Norma J. Perez at 1, Mar. 20, 2008. This e-mail was leaked to the public in May 2008. See generally Compl., Ex. 6.
Dr. Perez since has stated that her intent in sending this e-mail "was to emphasize the importance of providing an accurate diagnosis and to ensure that veterans receive treatment appropriate to their precise needs immediately; thus improving the access to care and quality of care provided to veterans." Perez Decl. ¶ 3. But many viewed the e-mail as suggesting that VA employees should refrain from giving PTSD diagnoses as a cost-cutting measure, see generally Compl., Ex. 6, and Dr. Perez's e-mail became the subject of a congressional hearing and substantial news coverage. See Opp. at 3.
On May 14, 2008, shortly after Dr. Perez's e-mail became public, plaintiff Citizens for Responsibility and Ethics in Washington ("CREW") submitted an FOIA request to the VA, stating:
CREW seeks from the [VA], any and all records from January 1, 2001, to the present relating to any and all guidance given to any VA staff, consultants and/or other recipient(s) of federal funds regarding the diagnosis of post traumatic stress disorder ("PTSD") in veterans. This request includes, but is not limited to, any and all records that reflect or contain guidance on (1) whether or not to make a diagnosis of PTSD; (2) alternative diagnoses that should or could be made in lieu of diagnosing PTSD; (3) time or expense factors bearing on a diagnosis of PTSD; and (4) guidance on PTSD diagnoses as they relate to veteran appeals. As used herein, "guidance" includes both formal and informal guidance, advice, recommendations, both formal and informal, no matter how memorialized. Please note that we are not seeking records about individual veterans or individual veteran applications for benefits.
Compl., Ex. 1, Letter from Anne L. Weismann to the VA at 1, May 14, 2008 [Dkt. No. 1-2]. CREW also requested from the VA a wavier of fees associated with processing its request for records. See id. at 2.
By letter dated June 5, 2008, the VA denied CREW's request for a fee waiver and also claimed that the request for documents was "'overly broad'" and imposed on the VA "'an extremely burdensome search effort.'" Compl. ¶ 18 (citation omitted). CREW appealed the VA's decisions administratively, see id. ¶ 19, but, as of August 27, 2008, the VA neither had responded to CREW's administrative appeal nor had produced any documents responsive to CREW's request. See id. ¶ 22. Consequently, on that date, CREW filed a complaint in this Court under the FOIA, making two claims: (1) that the VA failed to produce requested records; and (2) that the VA improperly denied CREW's request for a fee waiver. See id. at 6-8.
After CREW filed its complaint, the VA issued the requested fee waiver to CREW, reversing its prior position. See Order at 1, June 6, 2009 [Dkt. No. 12]. The Court therefore dismissed as moot CREW's second claim for relief, see id., leaving one remaining claim in this case: that the VA failed to produce requested records to CREW. See Compl. ¶ 2.
On September 23, 2009, the VA filed a motion for summary judgment in which it asserted that it had performed an adequate search and released to CREW all records responsive to CREW's request. See First MSJ at 1. CREW opposed the VA's motion, arguing, among other things, that the VA's declarations were deficient and that the VA had failed to conduct an adequate search for electronic records. See Opp. to First MSJ at 8-14. Regarding the issue of electronic records, although Dr. Perez's e-mail was dated March 20, 2008, CREW asserted that the VA's declarations revealed that its search of its electronic records "did not reach back to that time, but rather included only e-mail messages dating back to December 9, 2008." Id. at 9. In support of its position, CREW pointed to the declaration of John Livornese, the Director of FOIA Service for the VA, in which Mr. Livornese stated: "As a result of the search [of Dr. Perez's records], two files were provided by VA Exchange Administrators - a snapshot of her current mailbox and a copy of email messages dating back to 12/9/08, which contained one or more search terms and were deemed responsive." Declaration of John Livornese ("Sept. 2009 Livornese Decl.") ¶ 8, Sept. 18, 2009 [Dkt. Nos. 16-4, 36-3].
The VA subsequently explained in reply that it was "unable to recover emails created before December 9, 2008 because the VA's regular rotation of backup tapes precluded the recovery of older email messages." Reply to Opp. to First MSJ at 9. In a supplemental declaration dated November 5, 2009, Mr. Livornese further elaborated:
Results of the search of the Perez email account that were deemed responsive included a copy of email messages dating back to 12/9/08. Email messages prior to that date were not available for the following reasons: a search of email by history involves a search of emails that have been backed-up. Prior email messages are backed up, or copied, to a tape; when a request is made for a search of email, the tapes are restored. In this case, the availability for the tapes on the email system containing the Perez emails allowed for recovery back to the date of 12/9/08. Tapes containing information prior to this date had been placed back into tape rotation and reused, causing old data to be rewritten. Emails before 12/9/08, therefore, were ...