United States District Court, District of Columbia
C. Lamberth United States District Judge
the Court are defendant's Motion for Summary Judgment and
plaintiffs Cross-Motion for Summary Judgment. Having
considered the motions, responses, replies, exhibits,
filings, and applicable law, the Court grants in-part and
denies in-part the parties' motions.
January 25, 2013, the Mattachine Society of Washington, D.C.
("MSDC") submitted a Freedom of Information Act
("FOIA") request to the Federal Bureau of
Investigation ("FBI") regarding the production of
documents related to Executive Order 10450 ("EO
10450"). Compl. 4, ECF No. 1. EO 10450 was signed by
President Eisenhower in 1953, and ostensibly gave the heads
of federal agencies the ability to investigate and dismiss
government employees if they posed a risk to national
security. Id. at 1-3. MSDC claims that this stated
purpose was merely pretextual, and that in reality EO 10450
allowed J. Edgar Hoover to purge the FBI of gay and lesbian
employees whom he had previously identified via the "Sex
Deviate Program." Id. at 1-2. The adoption of
EO 10450 legalized the firing of government employees on the
basis of sexual perversion. Id. at 3. In the
following decades, the FBI and the United States Civil
Service Commission ("CSC") discharged thousands of
employees from federal service for sexual perversion under EO
10450. Id. at 3.
Government's response to MSDC's FOIA request for
documents regarding this program or its overseer Warren E.
Burger, then Civil Division Chief for the Department of
Justice at the time of EO 10450's enactment, resulted in
the production of 552 pages of documents and the withholding
of 583 additional documents. Id. at 4. Because of
the apparent paucity of documents produced in response to
request for all documentation of a 40 year program, MSDC
filed this suit requesting that this Court order the
Department of Justice ("DOJ") and the FBI release
all materials currently identified. MSDC also requests that
the FBI conduct a new, more thorough search and review of
their files to identify further responsive documents.
Id. at 5.
Government filed a Motion for Summary Judgment, ECF No. 37,
arguing that they have conducted an adequate search and
produced all responsive documents. Def.'s Mot. for Summ.
J. 3. Plaintiff has filed a Cross-Motion for Summary
Judgment, ECF No. 40, arguing that the DOJ improperly invoked
statutory exemptions to withhold certain responsive
documents. Pl.s' Cross-Mot. for Summ. J. 1-2. The Court,
in response to the plaintiffs opposition of Government's
Motion for Summary Judgment, granted ex parte, in
camera review of unredacted versions of FBI 458-460, FBI
935-938, FBI 1151-1152, and FBI 1268-1269 in order to
determine whether the Government's invocation of
statutory exemptions to withhold or redact responsive
documents was proper. Order 1, ECF No. 48.
judgment is appropriate when "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. ClV. PRO. 56(a). Summary judgment 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. Dept. of Health
& Human Servs., 865 F.2d 320, 325 (B.C.
Cir. 1989) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). All evidence must be viewed
"in the light most favorable to the nonmoving party,
" and if a genuine dispute exists, "parties should
be given the opportunity to present direct evidence and
cross-examine the evidence of their opponents in an
adversarial setting." Id.
cases, an agency defendant may be entitled to summary
judgment if it can demonstrate that (1) no material facts are
in dispute, (2) it has conducted an adequate search for
responsive records, and (3) each responsive record that it
has located has either been produced to the plaintiff, is
unidentifiable, or is wholly exempt from disclosure.
Weisberg v. Dept. of Justice, 705 F.2d 1344,
1350-1351 (D.C. Cir. 1983).
Adequacy of the Search
agency that has received a FOIA request must "conduct a
search reasonably calculated to uncover all relevant
documents." Truitt v. Dept. of State, 897 F.2d
540, 541 (D.C. Cir. 1990) (internal quotation marks omitted).
The adequacy of a search does not depend upon whether it
uncovers all documents that may conceivably exist, but upon
the agency demonstrating 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." Oglesby v. Dept. of Army, 920
F.2d 57, 68 (D.C. Cir. 1990). Therefore, an agency need not
demonstrate that it has conducted a perfect search or that it
"search[ed] every record system." SafeCard
Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir.
summary judgment stage, the agency must demonstrate that it
complied with FOIA "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 material . . . were
searched.'" Iturraldev. Comptroller of
Currency, 315 F.3d 311, 313-314 (D.C. Cir. 1991). The
plaintiff may then "provide countervailing evidence as
to the adequacy of the agency's search."
Id. at 314. If a review of the record created by
these affidavits raises "substantial doubt" as to a
search's adequacy, "particularly in view of
'well defined requests and positive indications of
overlooked materials, '" summary judgment in the
agency defendant's favor would not be appropriate.
Valencia-Lucena v. U.S. CoastGuard, 180 F.3d 321,
326 (D.C. Cir. 1999) (quoting Founding
Church of Scientology v. Nat'lSec. Agency, 610 F.2d
824, 837 (D.C. Cir. 1979)).
provided in support of the adequacy of an agency's search
"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.
Production and Exemptions
Court determines de novo whether an agency has
properly withheld information under a claimed FOIA exemption.
See Mead Data Cent., Inc. v. Dept. of Air Force, 566
F.2d 242, 251 (D.C.Cir.1977). "The underlying facts are
viewed in the light most favorable to the [FOIA] requester,
" Weisberg, 705 F.2d at 1350, and the
exemptions must be narrowly construed. FBI v.
Abramson,456 U.S. 615, 630 (1982). 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). And
FOIA requires that "[a]ny reasonably segregable ...