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 brought this action against defendants
Environmental Protection Agency ("EPA"), United
States Department of Defense ("DOD"), and United
States Department of Justice ("DO J") under the
Freedom of Information Act ("FOIA"), seeking
records related to an investigation into toxic contamination
at a former Army base, Fort McClellan. Compl. ¶¶
13, 27, 40 [Dkt. # 1]. On February 16, 2017, the Court
remanded the case to all three agencies, instructing them to
"conduct a further search for responsive records, to
provide a more detailed justification for the adequacy of
their searches, and to release any reasonably segregable
non-exempt material to plaintiff consistent with FOIA."
Pulliam v. EPA, 235 F.Supp.3d 179, 194 (D.D.C.
parties have filed renewed motions for summary judgment.
See Renewed Mot. for Summ. J. on Pl's Compl.
[Dkt. # 25] ("Defs.' Renewed Mot."); Mem. of P.
& A. in Supp. of Defs.' Renewed Mot. [Dkt. # 25-1]
("Defs.' Renewed Mem."); Pl's Renewed Mot.
for Summ. J. [Dkt. # 26] ("Pl's Renewed
Cross-Mot."); Pl's Combined Mem. in Opp. to
Defs.' Renewed Mot. & in Supp. of Pl's Renewed
Cross-Mot. [Dkt. ## 26-27] ("Pl's Renewed
Cross-Mem."). Defendants maintain that they have
fulfilled all of their obligations under FOIA, see
generally Defs.' Renewed Mem., but plaintiffs argue
that defendants' declarations do not adequately explain
their searches and that therefore, defendants have
"fail[ed] to meet their statutory burden to demonstrate
that they have undertaken a search reasonably calculated to
locate all responsive records to [p]laintiff s FOIA requests
at issue in this action." Pl's Renewed Cross-Mem. at
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 EPA was justified under a FOIA exemption, and EPA produced
all segregable information, the Court will grant
defendants' motion in part. Further, plaintiff is
entitled to undertake limited discovery regarding DOD's
submitted a FOIA request to each agency named in this action.
His requests to DOJ and EPA were identical, while his request
to DOD sought different information.
December 13, 2014, plaintiff requested the following
information from DOD:
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), H.R. 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. [Dkt. # 15-2]; 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. Plaintiff ultimately narrowed his request to
correspondence on the same subject matter "to, from or
carbon copied (CQ" to Elizabeth King and Mary McVeigh.
Ex. B to Pulliam Decl.; Defs.' SOF ¶¶ 2-3;
Pl's SOF ¶ 7. DOD provided fifty-seven responsive
pages to plaintiff, and the Court already ruled that the
redactions from those documents were proper pursuant to
Exemption 6. See Pulliam, 235 F.Supp.3d at 189.
February 25, 2015, plaintiff sent a FOIA request to EPA and
the Office of Inspector General at the Department of Justice
("DOJ OIG"). Defs.' SOF ¶¶ 16, 31;
Pl's SOF ¶¶ 8-9; Decl. of Scott Levine [Dkt.
#11-7] ("Levine Decl.") ¶ 4. Plaintiff sought
the following information:
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. for Summ. J. [Dkt. # 11-8];
Defs.' SOF ¶ 16; Pl's SOF ¶ 8. Plaintiff
also included, or provided a link to, the June 26, 2003
letter from Heather White referenced in the request.
Defs.' SOF ¶ 17; see EPA Ex. B to
Defs.' Mot. for Summ. J. [Dkt. # 11-8]; DOJ Ex. 1 to
Defs.' Mot. for Summ. J. [Dkt. # 11-6]. Due to a backlog
of FOIA requests, the EPA OIG was only able to provide
plaintiff with a status update before plaintiff filed suit.
Defs.' SOF ¶¶ 20-21. And the DOJ OIG responded
to plaintiff s request by letter dated March 3, 2015 and
informed him that no responsive documents had been located.
Id. ¶ 35.
filed a complaint in this Court on August 28, 2015.
See Compl. The parties filed cross-motions for
summary judgment, Defs.' Mot. for Summ. J. [Dkt. # 11];
Pl's Cross-Mot. for Summ. J. [Dkt. # 15], and in its
February 16, 2017 Memorandum Opinion, the Court denied
defendants' motion in part, found plaintiffs motion to be
moot, and remanded the case to the agencies for further
action. See Pulliam, 235 F.Supp.3d at 194.
26, 2017, defendants filed their renewed motion for summary
judgment, Defs.' Renewed Mot., and plaintiff filed his
opposition and cross-motion on June 28, 2017. Pl's
Renewed Cross-Mot. The motions have been fully
standard of review under Federal Rule of Civil Procedure 56,
and the legal standard under FOIA and for the adequacy of a
search, were set out fully in the Court's previous
opinion. See Pulliam, 235 F.Supp.3d at 185-87. The
same legal framework applies now.
The Department of Defense
previous memorandum opinion, the Court concluded that
DOD's search was inadequate because it limited its search
to electronic mail when plaintiffs request was broad enough
to cover all correspondence "to, from, or cc'd to
Elizabeth King or Mary McVeigh, " including, but not
limited to, electronic mail, memoranda, or other documents,
in electronic or handwritten format. Pulliam, 235
F.Supp.3d at 188-89. DOD maintains that it has now conducted
an adequate search. See Defs.' Renewed Mem. at
6; Defs.' Renewed Reply at 3-5. But the Court finds that
DOD still falls short.
The Supplemental DOD Searches
support its contention that it has conducted an adequate
search, DOD offered the declaration of Mark H. Herrington,
the Associate Deputy General Counsel in the agency's
Office of General Counsel ("OGC"), who is currently
supervising this FOIA case. See Third Decl. of Mark
H. Herrington [Dkt. # 25-2] ("Third Herrington
Decl.") ¶¶ 1-2.
averred that, pursuant to the Court's opinion, he
instructed the Office of the Secretary of Defense/Joint Staff
FOIA office to task the offices of the Assistant Secretary of
Defense for Legislative Affairs and the Under Secretary of
Defense for Acquisition, Technology, and Logistics to conduct
a search of their paper records for responsive material.
Third Herrington Decl. ¶ 4. He explained that he asked
the office of the Assistant Secretary of Defense for
Legislative Affairs to conduct a search because it was the
"office in which the two individuals worked."
Id. And he stated that the office of the Under
Secretary of Defense for Acquisition, Technology, and
Logistics conducted a search because the "broad mission
of the office" covered the subject matter of plaintiff s
March 31, 2017, a management services specialist and the
deputy director of operations for the office of the Assistant
Secretary of Defense for Legislative Affairs informed the
FOIA office that they did not locate any responsive documents
to plaintiffs request, and they further advised that any
correspondence by Elizabeth King or Mary McVeigh during the
relevant time period "would only be stored
electronically." Third Herrington Decl. ¶ 5. And a
few days later, the Deputy Assistant Secretary of Defense for
Environment, Safety and Occupational Health and the Assistant
for Safety and Health within the office of the Under
Secretary of Defense for Acquisition, Technology, and
Logistics told the FOIA office that no responsive materials
were located because the office "does not maintain paper
files of correspondence on coordination or
collaborations" during the relevant time period.
Id. ¶ 6. But this does not end the matter
because the Court cannot find that the searches were
The Supplemental DOD Searches are Inadequate
original declaration, Herrington said that he asked DOD
Enterprise IT Services Directorate ("EITSD") to
search the emails of the two individuals named in plaintiffs
request. See First Decl. of Mark H. Herrington [Dkt.
# 11-3] ("First Herrington Decl.") ¶ 6. The
Court ruled that DOD's initial searches were inadequate
not only because they did not include a search for paper
records, but because the search for electronically stored
material was improperly limited to electronic mail and not
other digitally stored records. See Pulliam, 235
F.Supp.3d at 189. DOD's declarant now avers that he
originally asked EITSD to search all electronic files, not
just emails, in the office of the Assistant Secretary of
Defense for Legislative Affairs. Fourth Decl. of Mark H.
Herrington [Dkt. # 28-1] ("Fourth Herrington
Decl.") ¶ 7. As a result, DOD argues that it has
conducted an adequate search for electronic records.
See Defs.' Renewed Reply at 3.
contends that "there remains a factual dispute as to
whether the agency actually performed a search for all
electronic records, as [defendant] now claim[s], [or] if the
agency's prior sworn testimony evidence, indicating that
[it] only searched for email records, was true and
accurate." Pl's Renewed Cross-Reply at 1-2. And
plaintiff requests "leave to undertake a limited
telephonic deposition of a DOD designated witness"
pursuant to Federal Rule of Civil Procedure 56(d) to clarify
what search was actually performed. Id. at 2.
there is a presumption of good faith that attaches to agency
declarations, and the fourth declaration is supported by the
fact that three electronic records that are not emails were
produced, see Fourth Herrington Decl. ¶¶
8-10, the discrepancy gives rise to a question of fact that
is best resolved by discovery.
Court's previous analysis of the DOD's search was
based on its declarant's description of an electronic
search that only covered emails. DOD never once sought to
supplement or correct Herrington's declaration, it did
not seek reconsideration of the Court's ruling on the
grounds of mistake, and it never argued in its papers that
the search included electronic files other than
those reasons, the Court will grant plaintiffs request to
take a limited telephonic deposition of a DOD witness that is
no more than ninety minutes in length.
to DOD's search for paper records, DOD maintains that it
conducted an adequate search of the office of the Assistant
Secretary of Defense for Legislative Affairs and of the
office of the Under Secretary of Defense for Acquisition,
Technology, and Logistics because the declaration
"describes with reasonable detail DOD's search
processes and the document retention policies" of the
offices. Defs.' Renewed Reply at 5. However, the
Herrington declarations do not do so.
declarant averred that he was informed by the office of the
Assistant Secretary of Defense for Legislative Affairs that
because Ms. King and Ms. McVeigh no longer worked there, all
of their paper files had been "placed into burn bags and
incinerated, " and any other correspondence by them
"would only be stored electronically." Third
Herrington Decl. ¶ 5; Fourth Herrington Decl. ¶ 4.
This account raises a number of concerns.
even if the office of the Assistant Secretary of Defense for
Legislative Affairs has a policy to incinerate paper files
when a staff member departs, that does not automatically mean
that a physical search for records would not have turned up
responsive documents. Since the request covered
correspondence from the two employees in question,