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Blank Rome LLP v. Department of Air Force

United States District Court, District of Columbia

September 20, 2016

BLANK ROME LLP, Plaintiff,


          Royce C. Lamberth United States District Judge.


         This 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.


         The 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.

         After 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.

         TSgt. 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.

         Meanwhile, 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.

         After 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.

         On 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.

         Then, 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. 26.

         On 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. 20.


         A. Summary Judgment

         Summary 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)).

         B. Adequacy of a Search

         When an 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).

         At the 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)).

         C. Deliberative Process Privilege

         An 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. 1999).

         FOIA 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.

         In 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 ...

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