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Eberg v. U.S. Department of Defense

United States District Court, D. Connecticut

June 2, 2016

CHERYL EBERG, Plaintiff,
v.
U.S. DEPARTMENT OF DEFENSE, Defendant.

          RULING ON MOTION FOR SUMMARY JUDGMENT

          Victor A. Bolden United States District Judge

         Plaintiff, Cheryl Eberg, brings this action against Defendant, the United States Department of Defense. Plaintiff’s Complaint [Doc. No. 1] states two claims under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq.: (1) that Defendant failed to release responsive, non-exempt records in violation of FOIA, 5 U.S.C. § 552(a)(3)(A); and (2) that Defendant failed to make a reasonable effort to search for responsive records in violation of FOIA, 5 U.S.C. § 552(a)(3)(C).

         Defendant has moved for summary judgment. For the reasons set forth below, Defendant’s Motion for Summary Judgment [Doc. No. 28] is GRANTED in part and DENIED in part.

         I. FACTUAL BACKGROUND

         All of the facts recited below, derived from the Complaint [Doc. No. 1] and parties’ Local Rule 56(a) Statements [Doc. Nos. 28-2, 31-1], exhibits, affidavits, and supplemental filings, are undisputed unless otherwise noted, and the Court presents all facts “in the light most favorable to the nonmoving party”-here, Plaintiff-after drawing “all reasonable inferences in [her] favor.” Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir.2000) (quotation marks omitted). Additional facts are discussed in the analysis where relevant.

         Cheryl Eberg, a female veteran, served in the United States Army and the Connecticut Army National Guard from 1983 through 2011. In 2006, while serving in the Connecticut Army National Guard, Ms. Eberg’s unit was activated and transferred to Fort Dix, New Jersey to prepare for deployment to Iraq as part of Operation Iraqi Freedom. At the time, her surname was Gilbert, and her rank was Master Sergeant.

         During her time at Fort Dix and in Iraq, Master Sergeant Gilbert and other female soldiers allegedly were subjected to sex discrimination, including sexual harassment, particularly from Lieutenant Colonel William H. Adams, the Battalion Commander. Eventually, Master Sergeant Gilbert filed an Equal Opportunity (“EO”) complaint against Lieutenant Colonel Adams. Following her complaint, Lieutenant Colonel Adams allegedly engaged in numerous incidents of retaliatory conduct against her, including increasingly explicit sexual advances. After returning to the United States from Iraq in September 2007, Master Sergeant Gilbert had to continue interacting with Lieutenant Colonel Adams, until her honorable discharge in August 2011. Lieutenant Colonel Adams allegedly continued to harass her during this period.

         In 2014, Ms. Eberg began receiving disability compensation benefits for post-traumatic stress disorder (“PTSD”) induced by her experience of military sexual trauma (“MST”). Since retiring from the military, Ms. Eberg obtained employment with the Connecticut Department of Veterans Affairs, and also has become an advocate against sex discrimination in the military.

         In largely identical letters dated between April 17 and August 1, 2014, Ms. Eberg submitted FOIA requests to numerous different offices within the Department of Defense (“DoD”). As much of this dispute turns on the nature of these requests, the Court includes them here in their entirety:

Requester seeks the release of all and every underlying record containing the following:
(1) All complaints and records of an instance of alleged sexual assault (‘SA’), equal employment opportunity (‘EEO’), and sexual harassment (‘SH’) made by Requester at any time from her entry into service on or about August 5, 1983 up to her discharge on or about August 27, 2011, including but not limited to an EEO complaint she submitted while deployed in Iraq with the 143rd Combat Sustainment Support Battalion in 2006 and an Inspector General harassment complaint she submitted while in Connecticut with the 143rd Combat Sustainment Support Battalion in 2007. This Request seeks all records related to any EEO, SA, or SH complaint made by Requester, including but not limited to, the entire investigative or other file related to any such report or record, the underlying complaint, any records of investigation of such complaint, email and other communications about the complaint, witness statements, recommended disposition, adjudication, and/or appeal of such complaints.
(2) All complaints and records made by third parties of an instance of SA, EEO, and SH perpetrated against the Plaintiff at any time from her entry into service on or about August 5, 1983 up to her discharge on or about August 27, 2011. This Request seeks all records related to any EEO, SA, or SH complaints made that concern Requester, including but not limited to the entire investigative or other file related to any such report or record, the underlying complaint, any records of investigation of such complaint, email and other communications about the complaint, witness statements, recommended disposition, adjudication, and/or appeal of such complaints.
(3) All records of any general or special court-martial proceedings involving Col. William Adams, currently the Director of Logistics (GR) at the Army National Guard in Hartford, CT, at any time, including but not limited to charges sworn in all courts-martial, case files, judgments, sentences, and appeals.
(4) All complaints and records of an instance of SA, EEO, and SH made against Col. William Adams at any time, including but not limited to a complaint submitted on or after January 1, 2005 by Chris Gutierrez. This Request seeks all records related to any EEO, SA, or SH complaint made against Col. William Adams, including but not limited to the entire investigative or other file related to any such report or record, the underlying complaint, any records of investigation of such complaint, email and other communications about the complaint, witness statements, recommended disposition, adjudication, and/or appeal of such complaints.
(5) All records regarding the award of a Combat Action Badge to Requester, including but not limited to any recommendation that she be awarded such badge between September 15, 2006 and August 4, 2007, records relating to that recommendation, and disposition of any such recommendation.
(6) All records regarding the award of a Bronze Star Medal to Requester, including but not limited to any recommendation that she be awarded such badge between September 15, 2006 and August 4, 2007, records relating to that recommendation, and disposition of any such recommendation.

Compl. Ex. A [Doc. No. 14].

         In April 2014, Ms. Eberg faxed her FOIA request to the Office of the Secretary of Defense and Joint Staffs FOIA Requester Service Center. On April 25, 2014, the DoD Freedom of Information Division (“FOID”) sent a “no records” response letter to Plaintiff, and suggested the names and addresses of other agenices that may have the records sought. In April 2014, Ms. Eberg faxed her FOIA request to the DoD Office of Inspector General (“IG”) FOIA Requester Service. On August 22, 2014, the DoD IG FOIA Office informed Plaintiff it had conducted a search related to requests 1 and 2 and found no responsive records.

         On April 22, 2014, Ms. Eberg mailed her FOIA request to the FOIA Office of Headquarters, Army Materiel Command (“AMC”). On May 7, 2014, the AMC FOIA Office requested from Ms. Eberg additional information that would identify which unit the 143rd Combat Support Sustainment Battalion was attached to during the deployment to Iraq. On May 13, 2014, the AMC FOIA Office informed Ms. Eberg by e-mail that her FOIA request was referred to the Connecticut Army National Guard (“CTARNG”). On May 20, 2014, CTARNG notified Ms. Eberg that it had found a copy of her Army Commendation Medal and provided the document to her. It also referred her to the DAIG for IG records and provided the address. On June 26, 2014, Ms. Eberg appealed CTARNG’s response, and on July 7, 2014, CTARNG responded by reiterating that it did not possess responsive records.

         On July 29, 2014, the AMC FOIA Office informed Ms. Eberg by e-mail to contact four organizations that may have the requested records: (1) the United States Army Office of the Inspector General; (2) the United States Army Office of the Judge Advocate General; (3) the United States Army Crime Records Center; and (4) the Connecticut Army National Guard. Ms. Eberg was advised to contact these organizations directly. On August 6, 2014, the AMC FOIA Office sent Ms. Eberg a letter outlining the actions taken to refer the FOIA request to other Army agencies. On August 19, 2014, after receiving additional unit information from Ms. Eberg, the AMC FOIA Office e-mailed the Pacific Command (“PACOM”) FOIA Office about the FOIA request. On September 12, 2014, the AMC FOIA Office received a “No Records Found” certificate from the PACOM FOIA officer, which the AMC FOIA Office sent by e-mail to Ms. Eberg’s attorney. On August 4, 2014, the AMC FOIA Office received an appeal from Ms. Eberg, dated August 1, 2014. It responded in a letter dated August 6, 2014, verifying the appeal and explaining the actions it had taken.

         On August 21, 2014, the AMC FOIA Office referred the FOIA request to the Office of the Department of the Army Inspector General (“DAIG”). On or about August 29, 2014, the DAIG received Ms. Eberg’s FOIA request. On September 3, 2014, the DAIG conducted a search of the electronic Inspector General Action Request System database (“IGARS”) and found no responsive records. On September 9, 2014, another search of IGARS was done using the alternative surnames “Gilbert” and “Pilgrim, ” and again no responsive records were found. On September 10, 2014, the DAIG contacted the 25th Infantry Division, the 8th Theater Support Command, and the Hawaii National Guard IG offices asking for records pertaining to any IG complaint filed by Ms. Eberg. All three offices responded that they had no records of IG complaints from Ms. Eberg. On September 15, 2014, the DAIG informed Ms. Eberg that no IG records responsive to her FOIA request existed and that the IGARS records only had a three-year retention period. On September 23, 2014, Ms. Eberg appealed the “no records response, ” and in response, the DAIG conducted another search of IGARS for IG subject containing “Adams” and complainants containing “Gutierrez” in the last name. The search revealed no responsive records. On October 14, 2014, the DAIG also asked the DAIG Non-Senior Officials and Senior Officials Investigative Divisions and the National Guard Bureau (“NGB”) IG Office for responsive records, but all three responded that they did not have any. The DAIG searched another database called FOIAXpress on December 29, 2014, and found a five-page responsive document. On January 9, 2015, the DAIG responded to Ms. Eberg’s appeal and released a redacted copy of the found document to her. On January 30, 2015, the Army OGC denied Ms. Eberg’s appeal, finding that DAIG and the other six IG offices had made a thorough search. On March 16, 2015, the Information Resource Management Division of the DAIG found two more responsive records, which were released to Ms. Eberg in redacted form on March 19, 2015.

         On April 22, 2014, Ms. Eberg mailed her FOIA request to the United States Army Crime Records Center of the United States Army Criminal Investigation Command (“USACIDC”). In a letter dated May 8, 2014 to Ms. Eberg, USACIDC neither confirmed nor denied the existence of responsive records, which is known as a Glomar response. Ms. Eberg submitted an appeal in a letter dated June 26, 2014. On January 21, 2015, the Department of the Army Office of the General Counsel (“OGC”) denied this appeal, finding that USACIDC had made a thorough search and that there were no responsive records.

         On August 1, 2014, Ms. Eberg mailed her FOIA request to the NGB FOIA Requestor Service Center. The NGB referred part of the request to the United States Army Central Command (“USARCENT”) on August 11, 2014. USARCENT tasked three components with searching for responsive documents. No response was sent to Ms. Eberg regarding the results of these searches. On September 28, 2014, Ms. Eberg made a subsequent FOIA request restating the items requested in her first request. On October 24, 2014, the NGB responded by referring to the August 11, 2014 referral letter.

         In August 2014, Ms. Eberg mailed her FOIA request to the United States Army Office of the Judge Advocate General (“OTJAG”). OTJAG referred the request to the United States Army Human Resources Command (“AHRC”), the Clerk of the Court for the Army Court of Criminal Appeals (“ACCA”), and the Department of the Army Office of the Deputy Chief of Staff G-1 (“G-1”), which is the organization that handles EO matters. The United States claims it also referred to request to the Office of the Administrative Assistant for the Army (“OAA”). On September 30, 2014, OTJAG received a FOIA appeal from Ms. Eberg, which OTJAG informed her it was not forwarding to the Army OGC because its earlier notice to her was not a denial.

         On August 13, 2014, the Office of the Clerk of the Court in the ACCA received the FOIA request referral. On February 25, 2015, the Clerk of the Court notified Ms. Eberg of a “no records” result. On August 14, 2014, the G-1 received the FOIA request referral and forwarded the request to its EO Policy Branch to conduct a search. The EO Policy Branch provided a “No Record” response letter to Ms. Eberg on September 12, 2014. On August 18, 2014, the AHRC received the FOIA request referral with respect to request items 5 and 6. The Awards and Decorations Branch of AHRC searched three databases and found no responsive records. On September 16, 2014, the AHRC notified Ms. Eberg of the “no records” result.

         On November 19, 2014, Ms. Eberg sent a FOIA request to the Connecticut Army National Guard pursuant to the Connecticut state FOIA statute. On November 25, 2014, the Connecticut Military Department (“CTMD”) responded to the request acknowledging receipt, and on December 8, 2014, it notified Ms. Eberg that it did not have any responsive records. On November 18, 2015, the Connecticut Freedom of Information Commission dismissed Ms. Eberg’s Connecticut FOIA request, holding that all the records sought are maintained exclusively as federal records outside the jurisdiction of the Connecticut FOIA.

         On January 5, 2015, the Assistant Secretary of the Army, Manpower and Reserve Affairs, Army Equal Opportunity Policy Branch (“AEOPB”) received the FOIA request as a referral from the Army Litigation Division. The AEOPB searched the Equal Opportunity Reporting System database (“EORS”) and electronic mail files, but found no responsive records after using the search terms, “Cheryl Eberg, Cheryl Gilbert, and Cheryl Pilgrim.” On March 11, 2015, the EO Advisor, Headquarters, 45th Sustainment Brigade (“45th SB”) received the FOIA request as a referral from the Army Legal Services Agency. The EO Advisor’s search, which used the possible names, “Cheryl Eberg, ” “Gilbert, ” and “Pilgrim, ” revealed no responsive records.

         II. STANDARD OF REVIEW

         “FOIA was enacted to promote honest and open government and to assure the existence of an informed citizenry to hold the governors accountable to the governed.” Grand Cent. P’ship., Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999) (quotation marks omitted). FOIA reflects “a general philosophy of full agency disclosure, ” Dep’t of Air Force v. Rose, 425 U.S. 352, 360 (1976) (quotation marks omitted), and “adopts as its most basic premise a policy strongly favoring public disclosure of information in the possession of federal agencies, ” Halpern v. F.B.I., 181 F.3d 279, 286 (2d Cir.1999).

         “There are, however, limits to FOIA’s reach. Specifically, in recognition of those interests that may at times conflict with the policy of full disclosure, FOIA also provides nine exemptions from its disclosure requirement.” El Badrawi v. Dep’t of Homeland Sec., 583 F.Supp.2d 285, 292 (D. Conn. 2008) (quotation marks and citations omitted). Yet, “[i]n keeping with the policy of full disclosure, the exemptions are narrowly construed with doubts resolved in favor of disclosure.” Halpern, 181 F.3d at 287 (quotation marks omitted).

         “As with all motions for summary judgment, summary judgment in a FOIA case is appropriate only when the . . . materials submitted to the Court show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Serv. Women’s Action Network v. Dep’t of Def., 888 F.Supp.2d 231, 240 (D. Conn. 2012) (quotation marks omitted) (hereinafter “SWAN I”). “In order to prevail on a motion for summary judgment in a FOIA case, the defending agency has the burden of showing that its search was adequate and that any withheld documents fall within an exemption to FOIA.” Carney v. United States Dep’t of Justice, 19 F.3d 807, 812 (2d Cir.1994).

         To sustain that burden, the agency may rely on “[a]ffidavits or declarations supplying facts indicating that the agency has conducted a thorough search and giving reasonably detailed explanations why any withheld documents fall within an exemption.” Id.

Affidavits submitted by an agency are accorded a presumption of good faith; accordingly, discovery relating to the agency’s search and the exemptions it claims for withholding records generally is unnecessary if the agency’s submissions are adequate on their face. When this is the case, the district court may forgo discovery and award summary judgment on the basis of affidavits.

Id. (quotation marks and citations omitted). However, this good faith presumption only applies to agency affidavits or declarations that are “reasonably detailed.” Halpern, 181 F.3d at 295. Affidavits “must be relatively detailed and non-conclusory, ” which “means, for instance, that [they] must describe in reasonable detail the scope of the search and the search terms or methods employed.” SWAN I, 888 F.Supp.2d at 241 (quotation marks omitted).

         “Finally, FOIA instructs district courts to review de novo agency decisions to withhold records. The de novo standard of review for FOIA cases is well established in this circuit.” El Badrawi, 583 F.Supp.2d at 292 (citations omitted).

         III. DISCUSSION

         Defendant argues that, as a matter of law, it conducted a reasonable search for responsive records and established that any withheld documents were properly withheld or redacted. Plaintiff argues that Defendant has not met its burden and that summary judgment is not appropriate.

         A. Adequacy of Searches

         “To prevail on summary judgment when the adequacy of an agency’s search is at issue, the defending agency must show beyond material doubt that it has conducted a search reasonably calculated to uncover all relevant documents.” Vietnam Veterans of Am. Connecticut Greater Hartford Chapter 120 v. Dep’t of Homeland Sec., 8 F.Supp. 3d 188, 205 (D. Conn. 2014) (quotation marks omitted). In order to meet this burden, agency affidavits and declarations

should provide reasonably detailed information about the scope of the search and the search terms or methods employed . . . [and] must also aver that all files likely to contain responsive materials (if such records exist) were searched. To provide a complete description of the search, affidavits must detail files searched and the general scheme of the agency file system. Without at least an elementary description of the general scheme of an agency’s file system, a FOIA requester has no basis upon which to dispute an agency’s assertion that any further search is unlikely to disclose additional relevant information.... [A]n adequate description need only ...

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