United States District Court, District of Columbia
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For CHARLES LUDLAM, PAULA HIRSCHOFF, Plaintiffs: Jeffrey Paul Kushan, LEAD ATTORNEY, James Asa High, Jr., SIDLEY AUSTIN LLP, Washington, DC.
For UNITED STATES PEACE CORPS, Defendant: Marian L. Borum, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.
Emmet G. Sullivan, United States District Judge.
This Freedom of Information Act (" FOIA" ) case is before the Court on defendant the United States Peace Corps' Motion to Dismiss or, in the Alternative, for Summary Judgment. For the reasons explained below, the Motion to Dismiss will be GRANTED and the Motion for Summary Judgment will be GRANTED IN PART AND DENIED IN PART.
Plaintiffs Charles Ludlam and Paula Hirschoff are former Peace Corps volunteers. Both plaintiffs have been advocates for strengthening and revitalizing the Peace Corps; they have served on the boards of non-profit organizations supporting returned Peace Corps volunteers and testified before Congress on behalf of current Peace Corps volunteers. Compl. ¶ ¶ 3-5.
On April 15, 2009, plaintiffs submitted a FOIA request seeking production, in electronic format, of a country-by-country breakout of the Peace Corps' 2008 survey of its Volunteers. Compl. ¶ 18. The Peace Corps acknowledged the information existed, but stated that it " is not available in the format [plaintiffs] asked for." Compl. ¶ 24. The Peace Corps informed plaintiffs that it would cost anywhere from approximately $850 -$3100 for the Peace Corps to search for and produce the information, and that production would not be electronic. Id. ¶ ¶ 24-28.
On May 27, 2009, plaintiffs filed an appeal of the Peace Corps' decisions regarding the document production format and costs. Id. ¶ 29. While the appeal was pending, plaintiffs were approached by a Peace Corps staffer who informed plaintiffs that the country-by-country breakout of the 2008 survey was available, in electronic format. Id. ¶ 31. The staffer emailed the information to plaintiffs, who then posted it on the PeaceCorpsWiki website. Id. ¶ 31. On June 24, 2009, the Acting Director of the Peace Corps Office of Management emailed Ludlam, noted that the information he sought was available on PeaceCorpsWiki, and concluded " it doesn't appear necessary for [the Peace Corps] to continue to staff your request for these." Id. ¶ 33.
On December 16, 2010, Ludlam submitted a second FOIA request, seeking " a copy of the Peace Corps comprehensive survey of the Volunteers for 2009 and 2010, [including] the worldwide results and the breakouts of the results country by country and program by program for each country." Id. ¶ 40.  On March 17, 2011, the FOIA officer provided aggregated worldwide summary results of the 2009
and 2010 Annual Volunteer Surveys (" AVS" ), but informed Mr. Ludlam that the individual country and program survey results were withheld under Exemptions 5 and 6 of FOIA. Id. ¶ 48. Specifically, the agency claimed the information sought was exempt from disclosure because it was covered by the deliberative process privilege, or because it involved matters of personal privacy. Id.
Mr. Ludlam appealed the decision on March 18, 2011. In his appeal, Mr. Ludlam narrowed his request to omit Volunteer responses to " open-ended questions" in the AVS. Id. ¶ 49. On April 15, 2011, Earl Yates, Associate Director for Management at the Peace Corps, released to Mr. Ludlam the 2009 and 2010 results on a regional level. See Miller Decl. ¶ 17. However, Yates denied his appeal for country-by-country and program-by-program responses, citing the same Exemptions. Id. ¶ 12, 17.
Plaintiffs filed this action on August 31, 2011, challenging only the denial of the December 16, 2010 FOIA request. Shortly thereafter, the Peace Corps released additional information to Mr. Ludlam. On or about January 31, 2012, the Peace Corps provided Ludlam a significant portion of the country-by-country and program-by-program AVS results for 2009 and 2010. Miller Decl. ¶ 14. The Peace Corps continued to withhold, in whole or in part, Volunteer responses to seven questions in the 2009 AVS and ten questions in the 2010 AVS on a country-by-country and program-by-program breakouts. Id. On February 2, 2012, the defendant moved to dismiss, or in the alternative, for summary judgment. The motion is now ripe for the Court's decision.
II. STANDARD OF REVIEW
A. Motion to Dismiss
Exhaustion of administrative remedies in FOIA cases is " generally required before filing suit in federal court so that the agency has an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision." Oglesby v. Dep't of Army, 920 F.2d 57, 61, 287 U.S. App. D.C. 126 (D.C. Cir. 1990) (overruled in part on other grounds). FOIA requires the requester to exhaust administrative remedies; when a defendant disputes that a FOIA plaintiff has done so, the matter is properly the subject of a motion under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Hidalgo v. Fed. Bureau of Investigation, 344 F.3d 1256, 1260, 358 U.S. App. D.C. 104 (D.C. Cir. 2003).
B. Summary Judgment
Pursuant to Federal Rule of Civil Procedure 56, summary judgment should be granted if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991, 353 U.S. App. D.C. 205 (D.C. Cir. 2002). In determining whether a genuine issue of fact exists, the court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Likewise, in ruling on cross-motions for summary judgment, the court shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed. See Citizens for Responsibility & Ethics in Wash. v. Dep't of Justice, 658 F.Supp.2d 217, 224 (D.D.C. 2009) (citing Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir. 1975)).
FOIA requires agencies to disclose all requested agency records, 5 U.S.C. § 552(a),
unless one of nine specific statutory exemptions applies, id. § 552(b). It is designed to " pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (citations omitted). " Given the FOIA's broad disclosure policy, the United States Supreme Court has 'consistently stated that FOIA exemptions are to be narrowly construed.'" Wolf v. CIA, 473 F.3d 370, 374, 374 U.S. App. D.C. 230 (D.C. Cir. 2007) (quoting Dep't of Justice v. Julian, 486 U.S. 1, 8, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988)).
" FOIA's strong presumption in favor of disclosure places the burden on the agency to justify the withholding of any requested documents." Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) (citation omitted). The government may satisfy its burden of establishing its right to withhold information from the public by submitting appropriate declarations and, where necessary, an index of the information withheld. See Vaughn v. Rosen, 484 F.2d 820, 827-28, 157 U.S. App. D.C. 340 (D.C. Cir. 1973). " If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone." ACLU v. Dep't of the ...