United States District Court, District of Columbia
C. Lamberth United States District Judge.
case concerns a Freedom of Information Act ("FOIA")
request sent by plaintiff, Blank Rome LLP, to defendant,
Department of the Air Force on March 25, 2014. Plaintiff
challenges the sufficiency of defendant's response to its
request. Defendant has moved to dismiss, or, in the
alternative, for summary judgment. Plaintiff opposes
defendant's motion and has cross moved for partial
summary judgment. For the reasons stated below,
defendant's motion to dismiss is granted as to Count II
of plaintiffs Complaint. Defendant's motion for summary
judgment is granted as to the adequacy of the search, and
plaintiffs cross motion for summary judgment. As to the
propriety of Exemption 5, defendant's motion for summary
judgment is granted in part and denied in part, and
plaintiffs cross-motion for summary judgment is granted in
part and denied in part.
FOIA request at issue in this case centers around a
termination for convenience of a utility contract at Fort
Monroe, Virginia. In 2004, the Defense Energy Support Center
and Dominion Virginia Power ("DVP") signed a
50-year utility privatization contract for Fort Eustis, Fort
Story, and Fort Monroe, three Army bases in Virginia.
PL's Response to Def's Statement of Facts ¶ 4,
ECF No. 20-1. As part of a base closure and realignment
action, Fort Monroe was scheduled to close on September 15,
2011. Id. ¶ 5. The Air Force 633d Contracting
Squadron (“CONS”) subsequently submitted a notice
of partial termination for convenience to DVP for Contract
Line Item 0007 (“CLIN0007”). Id. ¶
7. On March 25, 2014, plaintiff submitted a FOIA request to
the Air Force seeking ten categories of records dated or
created between January 1, 2009 and March 25, 2014.
Id. ¶¶ 1, 3. All of the listed categories
of documents sought are communications related to the
termination of CLIN0007. Id. ¶ 3.
plaintiff submitted its request, Timothy A. Lyon-Air Force
Base Records, FOIA, and Privacy Act Manager for Joint Base
Langley Eustis (“JBLE”)-forwarded the request to
Technical Sergeant Bradley Benedictus to perform the search
for responsive records. First Benedictus Decl. ¶ 5, ECF
No. 17-1. TSgt. Benedictus worked as a contract administrator
at the 633d CONS at JBLE and, as such, was responsible for
administering the contract at issue from January 2012 through
December 2014. Id. ¶ 1. With the exception of
email records, the 633d CONS at JBLE held all records
responsive to the FOIA request; if any records were generated
in different sections of the Air Force, they were provided to
the 633d CONS. Second Benedictus Decl. ¶ 3, ECF No.
22-1. As the contract administrator, TSgt. Benedictus was
most familiar with the termination of CLIN0007 and was
included on all or virtually all email communications
regarding the termination of CLIN0007. First Benedictus Decl.
¶ 5. TSgt. Benedictus reviewed the request, which
specified ten categories of information, but did not read it
to be limited to those ten categories. Second Benedictus
Decl. ¶ 2. Accordingly, he searched for all records that
would fall within the ten categories, as well as other
records regarding the termination of CLIN0007. Id.
Benedictus conducted the following searches for documents
responsive to the FOIA request: 1) TSgt. Benedictus pulled
all responsive documents related to CLIN0007 from the 633d
CONS's hard copy records; 2) TSgt. Benedictus copied all
documents related to CLIN0007 from the 633d CONS's shared
drive; 3) TSgt. Benedictus conducted a search of his active
electronic mail and personal storage email file. First
Benedictus Decl. ¶ 6. Regarding the email search
specifically, TSgt. Benedictus stored all emails related to
the termination of CLIN0007 in a separate folder, and copied
all of those emails as responsive. Id. ¶ 9. He
also searched through his uncategorized emails in search of
any related to the termination of CLIN0007. Id. He
additionally reviewed emails from the former contract
administrator, SSgt. Andrew Smith. Id. ¶ 6.
the parties exchanged several communications regarding
plaintiff's FOIA request in which plaintiff raised
concerns over defendant's delay and failure to produce
responsive documents. Compl. ¶ 17-24, ECF No. 1. After
not receiving a satisfactory answer or any production of
documents, plaintiff, on July 28, 2014, filed its first
administrative appeal for constructive denial and arbitrary
and capricious action to withhold records. Id.
¶ 25. In the fall of 2014, after several more
communications between the parties, the Air Force released to
plaintiff eighty-two responsive documents, along with a List
of Denied Records and a Release Letter, and withheld all
other responsive documents under FOIA Exemption 5, 5 U.S.C.
§ 552(b)(5), claiming deliberative process privilege or
attorney-client privilege. See Id. ¶¶
26-30, First Lyon Decl. ¶ 3, ECF No. 17-2. Plaintiff
complained that the production was deficient and on January
26, 2015, filed its second administrative appeal arguing that
the search was inadequate and that Exemption 5 was
inapplicable. Compl. ¶¶ 32-40. After several more
communications between the parties regarding the processing
of the second appeal, plaintiff filed the instant lawsuit on
July 24, 2015. Id. ¶¶ 41-47.
plaintiff filed this lawsuit, the Air Force expanded its
search to include documents held by Air Force members besides
TSgt. Benedictus who worked on the CLIN0007 termination
settlement negotiations. First Lyon Decl. ¶ 4. TSgt.
Benedictus provided the following names of those Air Force
employees who provided input on the CLIN0007 termination
negotiations to Captain David Mitchell at the Air Force Legal
Operations Agency: 1) Colonel Christopher Wegner, 2) Rosita
Goodrum, 3) Stacy Ellingsen, 4) Margaret Patterson, 5) Thomas
White, and 6) Elijah Horner. First Benedictus Decl. ¶
10. Captain Mitchell requested that each of the six listed
individuals search their email for responsive records using
the search terms “Dominion, ” “DVP, ”
“CLIN 0007, ” “SP0600-04-C-8253, ”
“Virginia Power, ” “termination, ”
and “Fort Monroe.” First Lyon Decl. ¶ 5.
Colonel Wegner did not find any responsive documents, Ms.
Goodrum found two responsive documents, and Ms. Patterson
found eight responsive documents. Id. Ms. Ellingsen
and Mr. Horner were no longer Air Force employees and did not
have access to their Air Force email accounts. Id.
Mr. White was also no longer an Air Force employee and could
not be located. Id. Accordingly, on December 15,
2015, Captain Mitchell requested that the Air Force Cyber
Operations Center conduct a search for the stored emails of
Colonel Wegner, Ms. Ellingsen, Mr. Horner, and Mr. White.
Id. ¶ 6. An account and electronic mailbox for
Colonel Wegner could be restored only as of July 14, 2015,
outside the date range of plaintiff's FOIA request.
Id. There were no accounts or electronic mailboxes
available for Ms. Ellingsen and Mr. White, and although there
was an account for Mr. Horner, there was no electronic
mailbox. Id. Thus, the Air Force was unable to find
responsive documents from these four accounts. Additionally,
after determining that responsive documents may have existed
in the Department of the Army, the Defense Contract Audit
Agency (“DCAA”), and the Government
Accountability Office (“GAO”), the Air Force
referred plaintiff's FOIA request to these organizations
on November 10, 2015. Id. ¶ 10.
November 18, 2015, after reviewing the documents previously
withheld, the Air Force released an additional 177 documents
in full, and produced 25 documents partially redacted under
Exemption 5. Id. ¶ 7. On November 20, 2015 the
Air Force produced two emails from Ms. Goodrum, which were
partially redacted, and on December 16, 2015 the Air Force
produced eight emails from Ms. Patterson, three of which were
partially redacted. Id. ¶ 8. Defendant also
produced a Vaughn Index, which accompanied the first
Benedictus and Lyon declarations and its Motion to
Dismiss/Motion for Summary Judgment, and listed thirty
documents that it had redacted under Exemption 5. See
Vaughn Index, ECF No. 17-1. Defendant claimed that the
deliberative process privilege or the attorney-client
privilege applied to the redactions. See Id. In
early 2016, after TSgt. Benedictus conducted a second review
of the documents withheld or redacted under Exemption 5, the
Air Force released Vaughn Index Items 2, 24, and 30,
and released the first redaction in Item 1. Second Benedictus
Decl. ¶ 7. On March 3, 2016, the Air Force produced
Vaughn Index Items 20-23. Third Benedictus Decl.
¶ 2, ECF. No. 30-1.
on April 15, 2016, the Air Force produced a Rule 4 File in
ASBCA No. 60383, an appeal of a Contracting Officer's
Final Decision arising out the termination of CLIN0007.
Pl.'s Supp. Br. In Opp'n 3, ECF No. 29. Although
plaintiff's FOIA request sought some of the same
documents produced in the Rule 4 File, the Rule 4 File
contained documents within the FOIA request's
specifications that were not produced or listed on
defendant's Vaughn Index. Id. On June
3, 2016 the Air Force sent plaintiff 128 documents responsive
to the FOIA request which were produced in the Rule 4 filing,
most of which had previously been released in prior
productions. Third Benedictus Decl. ¶ 3. Finally, on
June 15, 2016, the Air Force released to plaintiff
Vaughn Index Items 1, 4-19, 25, 26, and 29.
Id. ¶ 4. Thus, the only Vaughn Index
Items currently withheld by the Air Force under Exemption 5
are Items 3, 27, and 28. Id. In addition, the Air
Force has refused to produce a DCAA Audit Report from
September 30, 2015, claiming it is as outside the date range
of plaintiff's request. Pl.'s Reply Br. 5, ECF No.
December 23, 2015, defendant filed a motion to dismiss, or in
the alternative, motion for summary judgment, arguing that it
fulfilled its obligations under FOIA and properly withheld
information under Exemption 5. Def.'s Mot. to Dismiss 3,
ECF No. 17. Plaintiff subsequently cross-moved for partial
summary judgment and asked the Court to conduct an in
camera review of the redacted documents, order the Air
Force to produce the unredacted copies, and order the Air
Force to complete the required search and production.
Pl.'s Opp'n to Def.'s Mot. to Dismiss 2, ECF No.
judgment is appropriate where “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed. R. Civ. Proc. 56(a). It is “appropriate only in
circumstances where ‘the evidence is such that a
reasonable jury could not return a verdict for the nonmoving
party.'” Washington Post Co. v. U.S. Dep't
of Health & Human Servs., 865 F.2d 320, 325 (D.C.
Cir. 1989) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). The Court must view all evidence
“in the light most favorable to the nonmoving
party” and, if a genuine dispute exists, “then
parties should be given the opportunity to present direct
evidence and cross-examine the evidence of their opponents in
an adversarial setting.” Id. These standards
apply to FOIA actions. Id.; Nat'l Sec.
Counselors v. C.I.A., 960 F.Supp.2d 101, 133 (D.D.C.
2013) (“FOIA cases typically and appropriately are
decided on motions for summary judgment.” (internal
quotation marks omitted)).
Adequacy of a Search
agency receives a FOIA request it is obligated to
“conduct a search reasonably calculated to uncover all
relevant documents.” Truitt v. Dep't of
State, 897 F.2d 540, 541 (D.C. Cir. 1990) (internal
quotation marks omitted). To determine whether a search was
adequate, courts consider “a standard of
reasonableness” asking “not whether any
further documents might conceivably exist but rather whether
the government's search for responsive documents was
adequate.” Id. (internal quotation marks
omitted). Thus, an agency “must show that it made a
good faith effort to conduct a search for the requested
records, using methods which can be reasonably expected to
produce the information requested.” Oglesby v. U.S.
Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). An
agency need not, however, “search every record system,
” or conduct a perfect search. See id.;
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201
(D.C. Cir. 1991).
summary judgment stage, the agency bears the burden of
showing that it complied with FOIA and it may meet this
burden “by providing ‘a reasonably detailed
affidavit, setting forth the search terms and the type of
search performed, and averring that all files likely to
contain responsive materials . . . were searched.'”
Iturralde v. Comptroller of Currency, 315 F.3d 311,
313-14 (D.C. Cir. 2003). Courts may rely on these
declarations to grant summary judgment, see Morley v.
C.I.A., 508 F.3d 1108, 1116 (D.C. Cir. 2007), but they
must be must be “relatively detailed and
non-conclusory, ” Defs. of Wildlife v. U.S. Border
Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009) (quoting
SafeCard, 926 F.2d at 1200). The plaintiff may then
“provide ‘countervailing evidence' as to the
adequacy of the agency's search.”
Iturralde, 315 F.3d at 314. However, “[a]gency
affidavits are accorded a presumption of good faith, which
cannot be rebutted by ‘purely speculative claims about
the existence and discoverability of other
documents.'” SafeCard, 926 F.2d at 1200.
They may, however, be rebutted by evidence of bad faith.
Id. In addition, summary judgment is not appropriate
when “a review of the record raises substantial doubt,
particularly in view of ‘well defined requests and
positive indications of overlooked materials.'”
Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321,
326 (D.C. Cir. 1999) (quoting Founding Church of
Scientology v. Nat'l. Sec. Agency, 610 F.2d 824, 837
(D.C. Cir. 1979)).
Deliberative Process Privilege
agency claiming an exemption to FOIA bears the burden of
establishing that the exemption applies. Fed. Open Mkt.
Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352
(1979). An agency satisfies that burden by submitting
affidavits that “describe the justifications for
nondisclosure with reasonably specific detail, demonstrate
that the information withheld logically falls within the
claimed exemption, and are not controverted by either
contrary evidence in the record nor by evidence of agency bad
faith.” Larson v. Dep't of State, 565 F.3d
857, 862 (D.C. Cir. 2009) (internal quotation marks omitted).
FOIA requires that “[a]ny reasonably segregable portion
of a record shall be provided to any person requesting such
record after deletion of the portions which are
exempt.” 5 U.S.C.A. § 552(b). District Courts have
a duty to consider the issue of segregability, even if not
raised by the parties. Trans-Pac. Policing Agreement v.
U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir.
Exemption 5, which encompasses the deliberative process
privilege, applies to “inter-agency or intra-agency
memorandums or letters that would not be available by law to
a party other than an agency in litigation with the
agency.” 5 U.S.C. § 552(b)(5). “[T]he
ultimate purpose of this long-recognized privilege is to
prevent injury to the quality of agency decisions.”
N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132,
151 (1975). Three policy bases underlie this privilege:
First, it protects creative debate and candid consideration
of alternatives within an agency, and, thereby, improves the
quality of agency policy decisions. Second, it protects the
public from the confusion that would result from premature
exposure to discussions occurring before the policies
affecting it had actually been settled upon. And third, it
protects the integrity of the decision-making process itself
by confirming that “officials should be judged by what
they decided(, ) not for matters they considered before
making up their minds.”
Russell v. Dep't of the Air Force, 682 F.2d
1045, 1048 (D.C. Cir. 1982) (quoting Jordan v. U.S.
Dep't of Justice, 591 F.2d 753, 772-73 (D.C. Cir.
1978)). Therefore, Exemption 5 “protects not only
communications which are themselves deliberative in nature,
but all communications which, if revealed, would expose to
public view the deliberative process of an agency.”
Id. at 1048.
order for material to qualify for withholding or redaction
under Exemption 5, it “must be both
‘predecisional' and part of the ‘deliberative
process.'” McKinley v. Bd. of Governors ofFed. Reserve Sys., 647 F.3d 331, 339 (D.C. Cir.
2011) (internal quotation marks omitted). A document is
predecisional if it is “prepared in order to assist an
agency decisionmaker in arriving at his decision, and may
include recommendations, draft documents, proposals,
suggestions, and other subjective documents which reflect the
personal opinions of the writer rather than the policy of the
agency.” Formaldehyde Inst. v. Dep't of Health
& Human Servs., 889 F.2d 1118, 1122 (D.C. Cir. 1989)
(internal citations and quotation marks omitted). To qualify
a document as predecisional, “a court must be able
‘to pinpoint an agency decision or policy to which the
document contributed.'” Senate of the Com. of
Puerto Rico on Behalf of Judiciary Comm. v. U.S. Dep't of
Justice, 823 F.2d 574, 585 (D.C. Cir. 1987). A
predecisional document may lose its status if it is later
adopted as an agency position. Coastal States Gas Corp.
v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir.
1980). A document is part of the deliberative process
“if the disclosure of [the] materials would expose an
agency's decisionmaking process in such a way as to
discourage candid discussion within the agency and thereby
undermine the agency's ability to ...