United States District Court, District of Columbia
RAYMOND C. PULLIAM, Plaintiff,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.
BERMAN JACKSON United States District Judge
Raymond Pulliam sent Freedom of Information Act
("FOIA") requests to defendants Environmental
Protection Agency ("EPA"), United States Department
of Defense ("DOD"), and United States Department of
Justice ("DOJ") seeking records related to an
investigation into toxic contamination occurring at former
Army base Fort McClellan. Compl. ¶¶ 13,
27, 40 [Dkt. # 1]. Plaintiffs requests to DOJ and EPA were
identical, while plaintiffs request to DOD sought different
DOD did not respond to plaintiffs FOIA requests within the
statutorily-required twenty-day period, Compl.
¶¶ 26, 39; see 5 U.S.C §
552(a)(6)(A), and DOJ failed to make a final determination on
plaintiffs FOIA administrative appeal within the time
required. Compl. ¶¶ 42-45; see 5 U.S.C.
§§ 552(a)(6)(A)(ii), (a)(6)(C)(i). Plaintiff filed
this lawsuit on August 28, 2015 after exhausting the
administrative process. See Compl. All defendants
responded to the suit. Answer [Dkt. # 6]. EPA and DOJ
maintained that they had performed adequate searches for
responsive materials and that no records were located.
See Defs.' Status Reports [Dkt. ##
8-9], However, DOD determined that its search was not
adequate, see Defs.' Status Report [Dkt. # 8],
and it conducted another search that resulted in the
production of fifty-seven pages to plaintiff. See
Defs.' Statement of Undisputed Material Facts [Dkt. #
11-2] ("Defs.' SOF") ¶ 10; Decl. of Mark
H. Herrington [Dkt. # 11-3] ("Herrington Decl.")
¶ 6; see PL's Statement of Material Facts
to Which There is No Genuine Issue, & Resp. to Defs.'
SOF [Dkt. # 15-1] ("PL's SOF") ¶ 7.
12, 2016, defendants jointly filed a motion for summary
judgment contending that each agency's search was
adequate, and that DOD's redactions under Exemption
(b)(6) were proper. Defs.' Mot. for Summ. J. [Dkt. # 11]
("Defs.' Mot."); Mem. of P. & A. in Supp.
of Defs.' Mot. [Dkt. # 11-1] ("Defs.'
Mem.") at 5-14. Plaintiff filed a cross-motion for
summary judgment on June 13, 2016, in which he also opposed
defendants' motion, arguing that each agency's search
was inadequate. PL's Cross-Mot. for Summ. J. [Dkt. # 15]
("PL's Cross-Mot."); Mem. in Opp. to Defs.'
Mot. and in Supp. of PL's Mot. [Dkt. # 16]
("PL's Cross-Mem") at 6-13. Defendants filed a
reply in support of their motion for summary judgment, and in
opposition to plaintiffs cross-motion for summary judgment,
on July 11, 2016. Defs.' Reply in Supp. of Defs.'
Mot. & in Opp. to PL's Cross-Mot. [Dkt. # 17]
("Defs.' Cross-Opp."). Then, on August 3, 2016,
plaintiff filed his reply in support of his cross-motion for
summary judgment. PL's Reply in Supp. of PL's Mot.
[Dkt. #20] ("PL's Cross-Reply").
the Court finds that each agency has failed to establish that
it conducted an adequate search for records under FOIA, it
will deny defendants' motion in part, remand the matter
to the agencies, and deny plaintiffs motion as moot. However,
because the redaction of information from the pages produced
by DOD was justified under a FOIA exemption, and DOD produced
all segregable information, the Court will grant
defendants' motion in part.
The DOD Request
December 13, 2014, plaintiff submitted a FOIA request to the
DOD Office of the Secretary of Defense/Joint Staff FOIA
Office. Defs.' SOF ¶ 1; PL's SOF ¶ 7; Decl.
of Raymond Pulliam [Dkt. # 15-2] ("Pulliam Decl.")
¶ 6. Plaintiff requested the following information:
All correspondence whether in electronic or handwritten
format, including but not limited to electronic mail (email),
memorandums, or other documents related to H.R. 411 (Fort
McClellan Health Registry Act), HR. 2052 (For McClellan
Health Registry Act), Fort McClellan exposures, Fort
McClellan toxic contamination, H.R. 4816 (Toxic Exposure
Research and Military Family Support Act of 2014), and / or
H.R. 5680 (Veterans' Toxic Wounds Research Act of 2014).
Ex. A to Pulliam Decl.; Defs.' SOF ¶ 1; PL's SOF
¶ 7. The date range for the record search was May 1,
2013 through December 12, 2014. Ex. A to Pulliam Decl.;
Defs.' SOF ¶ 1; PL's SOF ¶ 7. On January
12, 2015, after being informed that his request was too
broad, plaintiff narrowed his request to "[a]ll
correspondence to, from or carbon copied (CC)" to
Elizabeth King and Mary McVeigh. Ex. B to Pulliam Decl.;
Defs.' SOF ¶¶ 2-3; PL's SOF
¶ 7. Defendants interpret the narrowed request as
calling only for the emails of those two individuals,
Defs.' SOF ¶ 9, but plaintiff maintains that DOD was
still obliged to search for all correspondence "whether
in electronic or handwritten format, including but not
limited to electronic mail (email), memorandums, or other
documents" related to the topics mentioned above.
PL's SOF ¶ 2; Ex. B to Pulliam Decl. Ultimately, DOD
provided fifty-seven responsive pages to plaintiff, which had
been redacted for information related to junior personnel.
Defs.' SOF ¶¶ 8, 10-11, 13; PL's SOF ¶
The EPA Request
February 25, 2015, plaintiff submitted a FOIA request through
EPA's online FOIA portal, and the request was assigned to
EPA Region 4. Defs.' SOF ¶ 16; PL's SOF ¶
8; Decl. of Scott Levine [Dkt. #11-7] ("Levine
Decl.") ¶ 4. Plaintiff sought the following
All documentation related to investigation/complaint filed by
Heather White, General Counsel Environmental Working Group on
June 26, 2003; VIA FACSIMILE & FIRST CLASS MAIL and
addressed to: Glenn A. Fine, U.S. Department of Justice,
Office of the Inspector General and Nikki L. Tinsley, U.S.
Environmental Protection Agency Office of the Inspector
General regarding allegations against: Christine Todd
Whitman, Administrator of the EPA and William A. Weinischke,
Department of Justice Senior Counsel.
EPA Ex. A to Defs.' Mot. [Dkt. # 11-8]; Defs.' SOF
¶ 16; PL's SOF ¶ 8. Plaintiff also included the
June 26, 2003 letter from Heather White referenced in the
request. Defs.' SOF ¶ 17; see EPA Ex. B to
Defs.' Mot. [Dkt. #11-8]. The request was ultimately
transferred to the EPA Office of Inspector General
("OIG") on March 18, 2015. Defs.' SOF
¶¶ 18-19. Due to a backlog of FOIA
requests, the OIG was only able to provide plaintiff with a
status update before plaintiff filed suit. Defs.'SOF
The DO J Request
February 25, 2015, plaintiff sent the same FOIA request to
the Office of Inspector General at the Department of Justice
("DO J OIG") that it submitted to
DO J OIG responded to plaintiffs request by letter dated
March 3, 2015 and informed plaintiff that no responsive
documents had been located. Defs.' SOF ¶ 35.
FOIA case, the district court reviews the agency's
decisions de novo and "the burden is on the
agency to sustain its action." 5 U.S.C. §
552(a)(4)(B); Military Audit Project v. Casey, 656
F.2d 724, 738 (D.C. Cir. 1981). "[T]he vast majority of
FOIA cases can be resolved on summary judgment."
Brayton v. Office of U.S. Trade Representative, 641
F.3d 521, 527 (D.C. Cir. 2011).
judgment is appropriate "if 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.P. 56(a). The party seeking summary judgment
"bears the initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact." Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation
marks omitted). To defeat summary judgment, the non-moving
party must "designate specific facts showing that there
is a genuine issue for trial." Id. at 324
(internal quotation marks omitted).
mere existence of a factual dispute is insufficient to
preclude summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). A dispute is
"genuine" only if a reasonable fact-finder could
find for the non-moving party; a fact is "material"
only if it is capable of affecting the outcome of the
litigation. Id. at 248; Laningham v. U.S.
Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In the FOIA
context, "the sufficiency of the agency's
identification or retrieval procedure" must be
"genuinely in issue" in order for summary judgment
to be inappropriate. Weisberg v. Dep't of
Justice 627 F.2d 365, 371 n.54 (D.C. Cir. 1980), quoting
Founding Church of Scientology v. Nat'l Sec.
Agency, 610 F.2d 824, 836 (D.C. Cir. 1979) (internal
quotation marks omitted). In assessing a party's motion,
the court must "view the facts and draw reasonable
inferences 'in the light most favorable to the party
opposing the summary judgment motion.'" Scott v.
Harris, 550 U.S. 372, 378 (2007) (alterations omitted),
quoting United States v. Diebold, Inc., 369 U.S.
654, 655 (1962) (per curiam).
judgment may be granted on the basis of agency
affidavits" in FOIA cases, when those affidavits
"contain reasonable specificity of detail rather than
merely conclusory statements, " and when "they are
not called into question by contradictory evidence in the
record or by evidence of agency bad faith." Judicial
Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215
(D.C. Cir. 2013), quoting Consumer Fed'n of Am. v.
Dep't of Agric, 455 F.3d 283, 287 (D.C. Cir. 2006).
However, a plaintiff cannot rebut the good faith presumption
afforded to an agency's supporting affidavits through
"purely speculative claims about the existence and
discoverability of other documents." SafeCard
Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d
1197, 1200 (D.C. Cir. 1991), quoting Ground Saucer Watch,
Inc. v. Cent. Intelligence Agency, 692 F.2d 770, 771
(D.C. Cir. 1981).
requires the release of government records upon request. Its
purpose is "to ensure an informed citizenry, vital to
the functioning of a democratic society, needed to check
against corruption and to hold the governors accountable to
the governed." Nat'l Labor Relations Bd. v.
Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).
At the same time, Congress recognized "that legitimate
governmental and private interests could be harmed by release
of certain types of information and provided nine specific
exemptions under which disclosure could be refused."
Fed. Bureau of Investigation v. Abramson, 456 U.S.
615, 621 (1982); see also Ctr. for Natl Sec. Studies v.
Dep't of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003)
("FOIA represents a balance struck by Congress between
the public's right to know and the government's
legitimate interest in keeping certain information
confidential."), citing John Doe Agency v. John Doe
Corp., 493 U.S. 146, 152 (1989). The Supreme Court has
instructed that "FOIA exemptions are to be narrowly
construed." Abramson, 456 U.S. at 630.
prevail in a FOIA action, an agency must first demonstrate
that it has 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). Second, the agency must
show that "materials that are withheld . . . fall within
a FOIA statutory exemption." Leadership Conference
on Civil Rights v. Gonzales, 404 F.Supp.2d 246, 252
(D.D.C. 2005). Any "reasonable segregable"
information in a responsive record must be released, 5 U.S.C.
§ 552(b), and "non-exempt portions of a document
must be disclosed unless they are inextricably intertwined
with exempt portions." Mead Data Cent., Inc. v. U.S.
Dep't of Air Force, 566 F.2d 242, 260 (D.C. Cir.
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