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Pulliam v. United States Environmental Protection Agency

United States District Court, District of Columbia

February 13, 2018

RAYMOND C. PULLIAM, Plaintiff,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.

          MEMORANDUM OPINION

          AMY BERMAN JACKSON, United States District Judge

         Plaintiff 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. 2017).

         Both 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 1.

         Because 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 searches.

         BACKGROUND[1]

         Plaintiff 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.

         On 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.

         On 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.

         Plaintiff 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.

         On May 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 briefed.[2]

         STANDARD OF REVIEW

         The 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.

         ANALYSIS

         I. The Department of Defense

         In its 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.

         A. The Supplemental DOD Searches

         To 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.

         Herrington 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 request. Id.

         On 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 adequate.

         B. The Supplemental DOD Searches are Inadequate

         In his 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.

         Plaintiff 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.

         While 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.[3]

         The 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 emails.[4]

         For 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.[5]

         Turning 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.

         The 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.

         First, 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, ...


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