United States District Court, District of Columbia
LINDA P. WALSTON, Plaintiff,
UNITED STATES DEPARTMENT OF DEFENSE, Defendant.
G. Sullivan United States District Judge
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.
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.
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.
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.
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.
Standard of Review
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).
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
The Search for Records
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)).
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; ...