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Rodriguez v. Department of Defense

United States District Court, District of Columbia

February 15, 2017



          KETANJI BROWN JACKSON United States District Judge.

         Retired Colonel Robert W. Rodriguez (“Rodriguez” or “Plaintiff”) is a former U.S. Army officer who unsuccessfully petitioned the Army Board for Correction of Military Records (“ABCMR”) for relief under the Military Whistleblower Protection Act (“MPWA”), 10 U.S.C. § 1034, and then sought records related to the procedures that the Department of Defense (“DOD” or “Defendant”) applied to his subsequent appeal of the ABCMR's denial determination. To this end, in October of 2013, Rodriguez sent DOD two letters under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, requesting documents that generally consisted of: (1) the record on appeal, and “any and all documentation” that was “related in any way” to the administrative review process that was conducted with respect to his appeal, and (2) “any and all records” regarding DOD's decision to confer upon a certain official- Pasquale M. Tamburrino-the “decisional authority” to handle MPWA appeals. (Compl., ECF No. 1, ¶¶ 6, 8.) Rodriguez filed the instant FOIA lawsuit on January 26, 2014, to contest DOD's denial of his request for expedited processing and failure to produce any documents in response to his two FOIA requests (see id. ¶¶ 22, 26), after which DOD released a redacted subset of the records that Rodriguez requested.

         Before this Court at present are the parties' cross-motions for summary judgment. (See Def.'s Mot. for Summ. J. (“Def.'s Mot.”), ECF No. 18; Pl.'s Mot. for Summ. J. (“Pl.'s Mot.”), ECF No. 20.) Because DOD has now produced all of the records that it deems responsive to Rodriguez's request, the crux of parties' dispute is whether DOD's search for records was adequate, and also whether the agency was justified in employing FOIA Exemptions 5 and 6 to redact certain information from two of the responsive documents that it located in the search. (See Def.'s Mem. in Supp. of Def.'s Mot. for Summ. J. (“Def.'s Mem.”), ECF No. 18-1, at 9-20; Pl.'s Mem. in Opp'n to Def.'s Mot. & in Supp. of Pl.'s Mot. for Summ. J. (“Pl.'s Mem.”), ECF No. 19, at 17-25.)[1] Upon consideration of the parties' submissions, the relevant authorities, and the record as a whole, this Court agrees with Rodriguez that DOD's search for records was inadequate insofar as the agency unreasonably narrowed the search to the Office of Legal Policy, and that the agency has not provided a sufficient description of its methodology in conducting the search. As a result, Defendant must conduct the search anew, and the Court will decline to address the applicability of the FOIA exemptions at this time. Accordingly, and as explained below, DOD's motion for summary judgment will be DENIED in full, and Rodriguez's cross-motion for summary judgment will be GRANTED IN PART and DENIED IN PART. A separate order consistent with the memorandum opinion will follow.


         A. Factual Background

         The MWPA is a statute designed “to provide a degree of protection [from retaliation] to military personnel who report information on improper or illegal activities by other military personnel.” Hisgen v. Fanning, No. 14-1204 (RMC), 2016 WL 5108011, at *5 (D.D.C. Sept. 20, 2016) (internal quotation marks and citation omitted). Generally speaking, an aggrieved veteran may complain of retaliatory conduct to the Inspector General (“IG”), see 10 U.S.C. § 1034(c), and if the IG's investigation substantiates the allegation, the veteran can petition the ABCMR “to correct an error or remove an injustice” from his or her military personnel record, id. § 1552(a)(1), or seek a “recommend[ation] to the Secretary of the Army that disciplinary or administrative action be taken against” those responsible for the reprisal, 32 C.F.R. § 581.3(c)(2)(ii). Apparently, Rodriguez submitted such a petition to the ABCMR in October of 2009, and in 2010, his request for relief was substantially denied. (See Administrative Record Index, Ex. 2 to Def.'s Mot., ECF No. 18-4, at 6, 8; see also Compl. ¶ 3.) Rodriguez then launched an administrative appeal from the ABCMR's denial, and Pasquale Tamburrino-the then-Chief of Staff of DOD's Office of the Under Secretary of Defense, Personnel and Readiness (“OUSD(P&R)”)- reviewed his appeal in April of 2013, affirming the agency's denial. (See Compl. ¶ 3; see also Def.'s Mem. at 1.)

         Rodriguez then sought to attack the ACBMR's denial of relief on two fronts. First, on May 31, 2013, Rodriguez filed a petition for judicial review of that agency decision in the D.C. Circuit. (See Def.'s Stmt. of Material Facts not in Genuine Dispute (“Def.'s Stmt.”), ECF No. 18-2, ¶ 1; Pl.'s Stmt. of Material Facts not in Genuine Dispute (“Pl.'s Stmt.”), ECF No. 19-1, ¶ 1.) Second, on October 8, 2013, Rodriguez filed two FOIA request letters with DOD's FOIA Office, seeking records related to his administrative appeal. (See Def.'s Stmt. ¶ 2; Pl.'s Stmt. ¶ 2.)

         One of Rodriguez's FOIA requests, numbered 14-F-0013, generally sought “any and all information related to ‘materials'” that Rodriguez had “submitted in [the MWPA] appeal” (FOIA Request 14-F-0013, Compl. Ex. 1, ECF No. 1-1, at 2 (also referred herein as “the first FOIA request”)), and further identified two “particular” sets of records: (1) all materials that Rodriguez had submitted for his MWPA appeal “on September 28, 2013, and October 22, 2012, respectively, as well as the prior reviews of the [ABCMR]” (id.); and (2) “any and all documentation, including electronic correspondence, related in any way to . . . Tamburrino's examin[ation and] review of this evidentiary record” (id. (alteration in original)). Rodriguez's other FOIA request, numbered 14-F-0014, sought the expedited processing and production of “any and all information” regarding the purported designation of the Chief of Staff of OUSD(P&R) as the “decisional authority to review MWPA appeals, on behalf of the Secretary of [D]efense, by the Acting Under Secretary of Defense (P&R), on December 14, 2012.” (FOIA Request 14-F-0014, Compl. Ex. 2, ECF No. 1-2, at 2 (also referred herein as “the second FOIA request”).) Both request letters sought review and production on an expedited basis, and on October 21, 2013, DOD denied Rodriguez's request for expedited treatment on the grounds that Rodriguez had failed to demonstrate any basis for his allegation that the document requests implicated a “loss of substantial due process rights.” (Def.'s Stmt. ¶ 6; see also Pl.'s Stmt. ¶ 6.)

         The agency then undertook to process Rodriguez's two FOIA requests in the ordinary course. Notably, on January 13, 2014, DOD filed a Certified Index of Record (“Certified Record”) in Rodriguez's then-pending D.C. Circuit appeal-a filing that, in the agency's view, simultaneously “encompassed all or nearly all documents responsive to [Rodriguez's] FOIA requests, ” and as a result, the agency merely mailed Rodriguez a hard copy of the Certified Record in satisfaction of its duty to respond to the FOIA requests. (Def.'s Stmt. ¶ 9.) However, when Rodriguez “indicated that he thought there were additional documents responsive to his request[, ]” the agency “agreed to continue processing [Rodriguez's] FOIA requests to completion[.]” (Id.)

         The entire search for records was conducted by Lieutenant Colonel Ryan D. Oakley (“Lt. Col. Oakley”), an official in OUSD(P&R)'s Office of Legal Policy. (See Def.'s Mem. at 10-11.) DOD maintains that Lt. Col. Oakley is “a United States Air Force Judge Advocate, ” who is also “the Deputy Director of Legal Policy . . . tasked to respond to FOIA request for records maintained in the [Office of Legal Policy] OUSD(P&R).” (Def.'s Stmt. ¶ 19.) According to the agency, Lt. Col. Oakley was uniquely positioned to conduct the search for records responsive to Rodriguez's FOIA requests because Oakley “had prepared all written correspondence related to [Rodriguez's] military whistleblower reprisal appeal and provided them” to Tamburrino, including “all supporting materials provided in [the] appeal . . . as well as the prior decisional documents of the [ACBMR].” (Def.'s Stmt. ¶ 22.) Moreover, “Lt. Col. Oakley personally provided all documents submitted by [Rodriguez's] counsel (along with a correspondence package his office prepared) to the designated decisional authority for review” in the first instance. (Id. ¶ 23.) What is more, according to the agency, “[t]he Office of Legal Policy retains physical and electronic records of documentation relating to appeals filed under” the MWPA, and that “[a]ll official correspondence and records are maintained in filing cabinets located in the office and computer/electronic files located on the Legal Policy share drive.” (Id. ¶ 26; see also Id. (asserting that “[a]ll responsive records are maintained, sorted, and are accessible only be personnel assigned to the OUSD(P&R) Office of Legal Policy”).) Indeed, DOD contends that even before Rodriguez filed his FOIA requests, Oakley had already started to search the records of the Office of Legal Policy for similar documents in response to an internal request that DOD counsel made for records pertaining to the D.C. Circuit case. (See Id. ¶ 25; see also May 19, 2016, Hr'g Tr., ECF No. 26, at 10- 11.)

         Lt. Col. Oakley avers that he “located all responsive records through a manual search of physical office files in the OUSD(P&R) Office of Legal Policy, and a search of [that office's] electronic files (which contained scanned copies of the same records, as well as correspondence prepared by the Office of Legal Policy in response to [Rodriguez's] appeal).” (Def.'s Stmt. ¶ 26; see also Decl. of Ryan D. Oakley (“Oakley Decl.”), Ex. 1 to Def.'s Mot., ECF No. 18-3, ¶ 4.) Oakley also performed two e-mail searches of the individual email accounts of the Deputy Director of the Office of Legal Policy (himself) and the Director “using the key terms ‘LTC Rodriguez, ' ‘Military Whistleblower Reprisal, ' ‘MWPA, ' and ‘Appeal'” (Oakley Decl. ¶ 8), but apparently, “[n]o responsive email records were located” (id.).

         The scope of the search that Lt. Col. Oakley conducted regarding Rodriguez's two FOIA requests is generally depicted in the following diagram of the relevant agency sub-parts, and so, too, are the key facts that frame the current dispute:

         (Image Omitted)

         Lt. Col. Oakley's search of physical and electronic records within the Office of Legal Policy initially yielded the following categories of documents responsive to Rodriguez's two FOIA requests (totaling 1, 963 pages): (1) “records relating to the designation of a successor for purposes of oversight, review and appeal duties on military whistleblower appeals;” (2) the supporting documents that Tamburrino had allegedly considered before reaching his decision related to Rodriguez's administrative appeal and that had become part of the Certified Record in the D.C. Circuit case; and (3) correspondence from Tamburrino to Rodriguez's counsel in response to a letter counsel had sent. (Oakley Decl. ¶ 5; see also Def.'s Mem. at 2.) In response to further requests for information, DOD released two additional sets of documents. First, on July 18, 2014, DOD released “two standard OUSD(P&R) staff coordination sheets” that usually accompany official correspondence (Def.'s Stmt. ¶¶ 12, 28; see also Pl.'s Stmt. ¶ 12). Prior to releasing the coordination sheets, DOD redacted an agency counsel's name and legal advice from these records. (See Vaughn Index, Ex. 6 to Def.'s Mot., ECF No. 18-8, at 1.) Second, on September 11, 2014, DOD released a 43-page “Staff Action Control and Coordination Portal (SACCP) packet” (Def.'s Stmt. ¶ 14; see also Pl.'s Stmt. ¶ 14), which Lt. Col. Oakley allegedly located in response to Plaintiff's second FOIA request (14-F-0014), and which contained an action memo that designated the Chief of Staff as the decisional authority in MWPA appeals and related documentation (see Def.'s Mem. at 12-14).

         B. Procedural History

         On January 26, 2014, Rodriguez filed the instant complaint challenging DOD's denial of expedited processing and seeking disclosure of all responsive documents. (See generally Compl.) On April 22, 2014, this Court granted the parties' joint motion to stay the case pending further releases and the resolution of a second administrative review that the agency agreed to undertake in settlement of the D.C. Circuit appeal. (See Order, ECF No. 10.)[2] DOD ...

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