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Walston v. United States Department of Defense

United States District Court, District of Columbia

February 28, 2017

LINDA P. WALSTON, Plaintiff,
v.
UNITED STATES DEPARTMENT OF DEFENSE, Defendant.

          MEMORANDUM OPINION

          Emmet G. Sullivan United States District Judge

         The plaintiff, Linda P. Walston, filed this civil case against the defendant, the United States Department of Defense (“DOD”), alleging violations of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. See Compl., ECF No. 1 ¶¶ 1-2, 19-20. Currently pending before the Court is DOD's motion for summary judgment. Upon consideration of the motion, the response and reply thereto, the applicable law, and the entire record, DOD's motion for summary judgment is GRANTED IN PART and DENIED IN PART.

         I. Background

         Ms. Walston discovered that someone hacked her personal computer on various occasions between 2010 and 2014 and, in the course of that hacking activity, altered, deleted, or destroyed certain of her computer files and operating systems. Def.'s Statement of Material Facts (“Def.'s SMF”), ECF No. 12-1 ¶ 2; Pl.'s Opp. to Def.'s Mot. for Summ. J. (“Pl.'s Opp.”), ECF No. 13 at 3; Pl.'s Statement of Material Facts (“Pl.'s SMF”), ECF No. 13-1 ¶ 7. One of the computer forensics specialists that Ms. Walston hired to identify the hacker suggested to her that the hacker might have been an employee of the Defense Information Systems Agency (“DISA”). Def.'s SMF ¶ 2; Pl.'s Opp. at 3; Pl.'s SMF ¶ 7. DISA is a component of DOD. Compl. ¶ 3. Accordingly, Ms. Walston filed a complaint with DOD's Office of Inspector General (“DOD OIG”) on September 2, 2014. Pl.'s SMF ¶ 7; Def.'s Resp. to Pl.'s SMF, ECF No. 14-1 ¶ 7. The complaint alleged that a DISA employee had hacked her computer, altered or deleted files, and reported Ms. Walston's activities to a third party. Def.'s SMF ¶ 2. The complaint was delegated to DISA's Office of the Inspector General (“DISA OIG”) and assigned the case number 2014-0193. Pl.'s SMF ¶ 7; Def.'s Resp. to Pl.'s SMF ¶ 7.

         On April 21, 2015, Ms. Walston filed a FOIA request with DISA for “all documents, reports, records, statements, and files that refer or relate to the DISA OIG complaint #2014-0193.” Def.'s SMF ¶ 1. Eventually, on November 3, 2015, DISA responded to Ms. Walston's request by providing her with two redacted documents: (1) a December 24, 2014 memorandum from DISA OIG to DOD OIG concluding that Ms. Walston's allegations that a DISA employee had hacked her computer were unfounded and (2) the report that provided the analysis undergirding the determination that the allegations were unfounded. Def.'s SMF ¶ 3; Pl.'s SMF ¶ 11. Finding DISA's records production inadequate, on November 13, 2015 Ms. Walston filed an administrative FOIA appeal, Def.'s SMF ¶ 4; Pl.'s SMF ¶ 12, and ultimately filed this action against DOD on December 18, 2015. Def.'s SMF ¶ 4; Pl.'s SMF ¶ 13.

         On March 7, 2016, DISA provided Ms. Walston with 13 pages of emails among DISA analysts discussing their analyses of her complaint that a DISA employee had hacked her computer. Def.'s SMF ¶ 5; Pl.'s SMF ¶ 17. Ms. Walston, in turn, sent an email through counsel asserting that DISA still had not provided all of the documents and records that she had requested. Def.'s SMF ¶ 6; Pl.'s SMF ¶ 18. On March 23, 2016, DISA produced an additional 32 pages of internal administrative documents and documents that Ms. Walston had submitted to DISA. Def.'s SMF ¶ 7; Pl.'s SMF ¶ 19.

         On June 6, 2016, DOD filed its motion for summary judgment. See Def.'s Mot. for Summ. J., ECF No. 12. DOD asserts that summary judgment is warranted because it conducted an adequate search for records in response to Ms. Walston's FOIA request; properly redacted its productions pursuant to the applicable FOIA exemptions; and complied with FOIA's segregability requirement. See generally Def.'s Mem. in Supp. of Mot. for Summ. J. (“Def.'s Mem. Supp.”), ECF No. 12. In her opposition, filed on July 11, 2016, Ms. Walston does not challenge the propriety of DOD's assertion of FOIA exemptions or its compliance with FOIA's segregability requirement. See Pl.'s Opp. at 6. Instead, her only argument is that genuine issues of material fact concerning the adequacy of DISA OIG's document search foreclose a grant of summary judgment as to that issue. See Id. at 7-11. On August 11, 2016, DOD filed its reply brief, maintaining that an adequate search was conducted. See generally Def.'s Reply, ECF No. 14. DOD's motion is ripe for adjudication.

         II. Standard of Review

         Summary judgment is granted when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Waterhouse v. District of Columbia, 298 F.3d 989, 991 (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 (1986). After the underlying facts and inferences drawn from them are analyzed in the light most favorable to the FOIA requester, summary judgment is appropriate when the agency proves that it has fully discharged its FOIA obligations. Moore v. Aspin, 916 F.Supp. 32, 35 (D.D.C. 1996) (citing Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)). “FOIA cases typically and appropriately are decided on motions for summary judgment.” Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of the Fed. Reserve Sys., 762 F.Supp.2d 123, 130 (D.D.C. 2011) (internal quotation marks omitted).

         When considering a motion for summary judgment under FOIA, the court must conduct a de novo review of the record. See 5 U.S.C. § 552(a)(4)(B). The court may award summary judgment on the basis of information provided by the agency in affidavits or declarations. See Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973). Agency affidavits or declarations must be “relatively detailed and non-conclusory.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks omitted). Such affidavits or declarations are “accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” Id. (internal quotation marks omitted).

         III. Analysis

         A. The Search for Records

         In response to a challenge to the adequacy of its search for requested records, an agency “must show beyond material doubt . . . that it has conducted a search reasonably calculated to uncover all relevant documents.” Weisberg, 705 F.2d at 1351. Thus, the “‘issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate.'” Id. (quoting Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982)). The adequacy of a search is measured by the reasonableness of the agency's effort to find the responsive records in light of the specific request that was made, Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir. 1986), and depends upon the circumstances of the case. Weisberg, 705 F.2d at 1351. To meet its burden, the agency may provide “‘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) (quoting Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). Any factual assertions in such an affidavit will be accepted as true unless the requesting party submits affidavits or other documentary evidence contradicting those assertions. Wilson v. U.S. Dep't of Transp., 730 F.Supp.2d 140, 148 (D.D.C. 2010) (citing Neal v. Kelly, 963 F.2d 453, 456-57 (D.C. Cir. 1992)).

         Here, DOD initially offered a declaration of Mark H. Herrington, an Associate Deputy General Counsel in the Office of General Counsel of DOD responsible for overseeing DOD's FOIA litigation, that averred that “searches were completed using the case number ‘2014-0193'”; that records pertaining to DISA OIG investigations--including reports, letters, and emails--are stored in an electronic database and in a shared drive and are organized exclusively by case number; ...


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