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Mattachine Society of Washington, D.C. v. United States Department of Justice

United States District Court, District of Columbia

July 28, 2017

Mattachine Society of Washington, D.C., Plaintiff,
United States Department of Justice, Defendant.


          Royce C. Lamberth United States District Judge

         Before 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.

         I. BACKGROUND

         On 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.

         The 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.

         The 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.


         A. Summary Judgment

         Summary 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.

         In FOIA 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).

         B. Adequacy of the Search

         An 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. 1991).

         At the 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)).

         Affidavits 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.

         C. Production and Exemptions

         This 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 ...

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