United States District Court, D. Connecticut
PROTECT OUR DEFENDERS and CONNECTICUT VETERANS LEGAL CENTER Plaintiffs,
DEPARTMENT OF DEFENSE and DEPARTMENT OF HOMELAND SECURITY Defendants.
MEMORANDUM OF DECISION GRANTING IN PART AND DENYING
IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [DKT.
VANESSA L. BRYANT UNITED STATES DISTRICT JUDGE
Protect Our Defenders (“POD”) and Connecticut
Veterans Legal Center (“CVLC”) (collectively
“Plaintiffs”) brought suit under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552,
seeking disclosure of records withheld and redacted by
Defendants Department of Defense (“DOD”) and
Department of Homeland Security (“DHS”)
(collectively “Defendants”). [Dkt. 1 (Compl.)].
Plaintiffs claim Defendants failed to conduct an adequate
records search and withheld and redacted documents which did
not fall within the asserted exemptions from disclosure under
the FOIA. Before the Court now is Defendants' Motion for
Summary Judgment, [Dkt. 37] seeking an order that their
records search was adequate and that they properly withheld
and redacted information requested by Plaintiffs. For the
following reasons, Defendants' Motion is granted in part
and denied in part.
facts recited below are asserted in the Complaint [Dkt. 1],
the parties' Local Rule 56(a) Statements [Dkts. 37-2,
40-1], and the summary judgment briefing and substantiated by
admissible evidence filed as exhibits. The Court presents the
facts in the light most favorable to the nonmoving
party-here, Plaintiffs-after drawing all reasonable
inferences in their favor. Sologub v. City of New
York, 202 F.3d 175, 178 (2d Cir. 2000).
submitted three requests for records to Defendants pursuant
to the Freedom of Information Act. [Dkt. 37-2 (Defs.' L. R.
56(a)1 Statement) at ¶ 6]. Five branches of the armed
forces-the Air Force, Army, and Navy and Marine Corps within
the DOD, and the Coast Guard within DHS-conducted searches
and issued responses to the requests. Id. at ¶
10. Defendants detailed their efforts in declarations and
Vaughn indices attached to the motion for summary
judgment. Id. ¶ 11. Defendants produced certain
documents, some of which were redacted, and withheld other
parties discussed the materials redacted and withheld and
present the following discovery disputes for the court to
resolve: first, whether the search for documents responsive
to Item #7 of the Second Request was legally adequate;
second, whether Defendants' properly withheld information
protected by privilege under Exemption 5; and third, whether
Defendants' properly withheld biographies and redacted
from disclosed documents the names of personnel at the rank
of Colonel and below under Exemption 6. Id. at
¶ 1; [Dkt. 40-1 (Plfs.' Rule 56(a) Statement) at
Response to Second Request Item #7
of the Second Requests sought information regarding the Air
Force “race and discipline working group” (the
“Working Group” or “Group”), referred
to by Plaintiffs as the “Air Force's diversity
team.” [Dkt. 37-2 at ¶ 12; Dkt. 48-10 at p.
3 ¶ 5]. Three Air Force offices were involved in the Working
Group-the Headquarters Office, the Secretary's Office,
and the JAG Office. Id. at ¶¶ 24-25. The
Headquarters Office served as the lead office for the study
and generation of written work for the Working Group, with
the Group's Study Director and Lead Data Analyst assigned
to that office. [Dkt. 48-10 at ¶ 5]. The Working Group
convened from April 2016 to June 2016. [Dkt. 37-2 at ¶
47; Dkt. 48-10 (Jones Second Suppl. Decl.) at ¶ 5]. The
Declarations of Colonel Jones, currently, and at all relevant
times, the Chief of the Headquarters Office, provide
background regarding the Working Group, relevant file
systems, and search efforts concerning Item #7. [Dkt. 37-2 at
Headquarters Office was deemed most likely to have responsive
documents based on its role in the Working Group. [Dkt. 48-10
at ¶¶ 5, 7]. Air Force personnel conducted initial
searches of the Headquarters Office shared network drive
using search terms in February and March 2018. [Dkt. 37-2 at
¶ 16; see also Dkt. 40-1 at ¶ 16; Dkt. 21
(3.12.2018 Status Report) at 9]. The Deputy Director of the
Analyses Foundation & Integration Division-the office
responsible for leading, carrying out, reviewing, and
ensuring the analytic integrity of studies conducted
throughout the Air Force-searched email records. [Dkt. 37-2
at ¶¶ 17-19; Dkt. 37-8 (Jones Decl.) at ¶ 6].
The initial searches produced the “Talking Paper on Air
Force Military Justice System Diversity Efforts” (the
“Talking Paper”), which relates to the creation
and performance of the Working Group. [Dkt. 37-2 at ¶
20; Dkt. 48-10 at ¶ 6].
April 16, 2018, the Air Force Legal Operations Agency
requested supplemental searches for additional records
relating to the creation of the Group and its work on court
martials. [Dkt. 37-2 at ¶ 21-22; Dkt. 48-10 at ¶
4]. The Headquarters Office conducted supplemental searches
between May 22, 2018 and June 18, 2018. Id. at
¶ 30; [Dkt. 37-10 at ¶ 7]. Those conducting the
searches did not use the provided agreed upon search
terms. See [Dkt. 37-2 at ¶¶
22-23]. They unilaterally limited the scope of the search
after determining that the terms were overly broad. [Dkt.
48-10 at 10].
member of the Working Group who was familiar with its
formation and performance, and knowledgeable about
Headquarters Office files, determined that the Headquarters
Office shared network drive was the most likely location to
have responsive records and searched the locations on the
shared drive mostly likely to contain such records. [Dkt.
48-10 at ¶ 7; Dkt. 37-2 at ¶ 31; Dkt. 37-10 at
¶ 7]. The member also reviewed emails in his/her account
from April through June 2016, the time period during which
the Group convened. [Dkt. 37-2 at ¶¶ 40-41; Dkt.
37-10 at ¶ 8]. With the exception of the one responsive
email identified, the resulting responsive documents
concerned the performance of the Working Group. [Dkt. 48-10
at ¶ 8].
members involved in the formation of the Working
Group-including the initial and final JAG Office leads, [Dkt.
37-10 at ¶ 11-12; Dkt. 37-2 at ¶ 50-57], and the
Special Assistant to the Secretary's Office, [Dkt. 37-2
at ¶ 59-62]-were asked to conduct a limited search of
their email accounts for emails specifically relating to the
Group's formation. Id. at ¶ 9; [Dkt. 37-2 at
¶ 42]. The Secretary's Office also determined that
it did not have responsive records on its shared drive. [Dkt.
37-2 at ¶ 60].
Jones's Second Supplemental Declaration claims that
“[a]ll USAF personnel involved in the searches
identified relevant locations based on their expertise and
knowledge of USAF records and recordkeeping” and
“concluded that there were no other locations
reasonably likely to have responsive records.” [Dkt.
48-10 at ¶ 11].
Exemption 5 Withholdings
withheld documents and information claiming deliberative
process and attorney client privilege under Exemption 5.
Id. at ¶ 91. Exemption 5 disputes remain as to
four documents-9-E, 9-G, 9-H, and 9-I. [Dkt. 48 at 9].
Exemption 6 Withholdings
seek Staff Judge Advocate (“SJA”) biographies
from each component. [Dkt. 37-2 at ¶ 63]. Defendants
withheld these biographies under Exemption 6, which protects
information in personnel and medical files and similar files
when disclosure would constitute a clearly unwarranted
invasion of privacy. Plaintiffs seek the biographies in full
and dispute the extent to which they are considered private,
treated as confidential, and distributed to non-DOD
personnel. [Dkt. 40-1 at ¶¶ 64-65, 67-68, 72, 79,
also withheld personal identifying information of government
and military personnel at the rank of Colonel (O-6) and below
pursuant to Exemption 6. [Dkt. 37-2 at ¶¶ 86-89].
Plaintiffs argue that they are entitled to identifying
information for individuals at the rank of Colonel.
Standard of Review
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, ” Halpren v. F.B.I., 181 F.3d 279,
286 (2d Cir. 1999).
agency must disclose its records ‘unless its documents
fall within one of the specific, enumerated exemptions set
forth in the Act.'” Associated Press v. United
States Dep't of Defense, 554 F.3d 274 (2d Cir. 2009)
(quoting Wood v. F.B.I., 432 F.3d 78, 82-83 (2d Cir.
2005)). “In keeping with the policy of full disclosure,
the exemptions are narrowly construed with doubts resolved in
favor of disclosure.” Halpren, 181 F.3d at 287
(quotation marks omitted).
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). That burden
remains with the agency when seeking to justify redaction of
identifying information. Associated Press, 554 F.3d
at 284. “Redaction, however, is ‘expressly
authorized by FOIA,' which indicates that Congress
‘recognized that the policy of informing the public
about the operation of its Government can be adequately
served in some cases without unnecessarily compromising
individual interests in privacy.'” Id.
(quoting United States Dep't of State v. Ray,
502 U.S. 164, 174 (1991)).
sustain its 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 falls within an exemption.” Carney,
19 F.3d at 812. “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 the affidavits.”
Id. (quotation marks and citations omitted). The
good faith presumption, however, only applies to agency
affidavits that are non-conclusory and “reasonably
detailed.” Halpren, 181 F.3d at 295.
move for summary judgment on each of the three contested
issues, arguing that as a matter of law (1) their search for
information responsive to Item #7 was adequate, (2)
withholdings pursuant to Exemption 5 are proper, and (3)
withholdings pursuant to Exemption 6 are proper. [Dkt. 37
(Mot. Summ. J.); Dkt. 37-1 (Mot. Summ. J. Mem.)]. Plaintiffs
argue that Defendants have not met their burden and summary
judgement is not appropriate. [Dkt. 40 (Opp'n Mem.)].
Adequacy of Air Force Search of Records Responsive to
Second Request Item #7
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.” Morley v. CIA, 508 F.3d 1108, 1114
(D.C. Cir. 2007). To meet this burden, agency 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.” SWAN I, 888 F.Supp.2d
at 244-45. “If . . . the record leaves substantial
doubt as to the sufficiency of the search, summary judgment
for the agency is not proper.” New York Times Co.
v. United States Dep't of Defense, 499 F.Supp.2d
501, 517 (S.D.N.Y. 2007) (quoting Campbell v. United
States Dep't of Justice, 164 F.3d 20, 27 (D.C. Cir.
#7 of their Second Request, Plaintiffs sought information
regarding the creation and performance of the “Air
Force's diversity team”-including when it was
created, names and qualifications of members, findings and
recommendations of the team, and whether any witnesses were
called to testify.[Dkt. 37-2 at ¶ 12]. In their
Opposition Memorandum, Plaintiffs argue that the Air Force
failed to adequately explain its relevant file systems and
its method of searching, and that the Air Force ignored
portions of Plaintiffs' request when conducting the
searches. [Dkt. 40 at 9]. Defendants argue that the evidence
establishes that DOD properly discharged its FOIA obligations
in searching for and responding to Item #7 of Plaintiff's
provide three declarations from Colonel Jones establishing
Defendants' efforts to search for records responsive to
Item #7. See [Dkt. 37-8 (Ex. 5 Jones Decl.); Dkt.
37-10 (Ex. 7 Suppl. Jones Decl.); Dkt. 48-10 (Ex. 21 Second
Suppl. Jones Decl.)]. Defendants' provided the Second
Supplemental Jones Declaration, which provides notable
additional detail regarding the file systems and searches,
with their Reply Memorandum, after submission of
Plaintiffs' Opposition. As laid out below, the Court
concludes that the totality of Defendants' submissions
sufficiently describes the file systems and searches but that
those searches were inadequate.
Description of Files and Searches
first confirmed with Plaintiffs that the “the Air
Force's diversity team” was meant to refer to the
Working Group identified in the “Talking Paper on Air
Force Military Justice System Diversity Efforts” (the
“Talking Paper”). [Dkt. 48-10 at p. 3 ¶ 5].
Three Air Force offices were involved in the Working Group:
the Headquarters Office,  the Secretary's Office,
and the JAG Office. [Dkt. 37-2 at ¶¶ 24-25]. The
Group convened for 90 days, between April and June 2016.
[Dkt. 48-10 at p. 3 ¶ 5]. The Headquarters Office served
as the lead for the study and generation of written work for
the Group, with the Group Study Director and Lead Data
Analyst both assigned to the Headquarters Office.
Id. at ¶ 5. As a result, Defendants determined
that it was the most likely office to have responsive
documents. Id. at ¶¶ 5, 7.
Jones's declarations explain that the Air Force has a
decentralized file management system, with each organization
managing and maintaining its own files. [Dkt. 48-10 at ¶
3]. Each organization has a shared network drive with an
Electronic Records Management folder containing the
organization's official records. Id. Personnel
within each organization also have access to and may store
records on a personal drive, the H drive, which requires a
Common Access Card (“CAC”) to access.
Id. This file system, along with former Working
Group members' personal knowledge, led Defendants to
conclude that responsive documents would most likely reside
on the Headquarters Office shared network drive. Id.
Force personnel have an email account controlled at the local
organizational level. [Dkt. 37-2 at ¶¶ 34-35]. They
receive a new email account, and lose access to their old
account, when they have a permanent change of station
(“PCS”). Id. at ¶¶ 37-38.
Unless an individual creates a back up of his/her emails to
another medium prior to a PCS, he/she will lose all emails
from the earlier account. Id. at ¶ 39.
in their entirety, the Court concludes that Defendants did
not adequately describe their filings systems and searches,
as required to allow the Court to determine whether the
relevant locations were searched, for the reasons described
below. See El Badrawi v. Dep't of Homeland
Security, 583 F.Supp.2d 285, 300 (D. Conn. 2008)
(“[T]his court, other courts in this Circuit, and the
D.C. Circuit, have all held that affidavits describing a
search 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.” (internal
citations, quotation marks, and brackets omitted)).
Office personnel and the Deputy Director of the Air Force
Analyses Foundation & Integration Division conducted an
initial search of their emails and the Headquarters Office
shared network drive in late February and early March 2018.
[Dkt. 37-2 at ¶¶ 16-20; Dkt. 37-8 at ¶ 6; Dkt.
48-10 at ¶ 6]. Defendants represent that they used the
search terms “race” and “justice, ”
though an earlier status update from the parties states that
Defendants did not use these individual terms, but rather
used the search phrase “race and justice” which
would necessarily yield fewer results. Id. at ¶
16; Dkt. 40-1 at ¶ 16; Dkt. 21 (3.12.2018 Status Report)
at 9]. It is unclear what search terms were used and it is
also unclear what folders on the Headquarters Office shared
network drive were searched using the terms.
searches were conducted between May and June 2018. [Dkt. 37-2
at ¶¶ 30; Dkt. 37-10 at ¶ 7]. The Headquarters
Office Chief of Strategic Communications, a former member of
the Working Group familiar with its formation and performance
and knowledgeable about the Headquarters Office files,
searched the locations on the shared network drive most
likely to contain responsive records. [Dkt. 48-10 at ¶
7; Dkt. 37-2 at ¶ 31; Dkt. 37-10]. That individual
determined that use of the supplemental search terms provided
by Plaintiffs would lead to overinclusive results.
[Dkt. 48-10 at 10]. Specifically, according to Colonel
Jones's declaration, use of the search terms would have
returned records from not only the Headquarters Office
Working Group, but many other Air Force organizations that
were part of the larger USAF Diversity and Inclusion team,
such as the civilian and military Equal Opportunity programs,
the Air Force Personnel Center, which conducts its own
demographics studies, and Development Teams, which conduct
barrier analyses on career fields and processes. Id.
Defendants provide no explanation for why the search terms
could not have been used on a more limited set of folders if,
as Colonel Jones's declarations indicate, former working
group members were able to identify the relevant locations.
Additionally, Defendants do not explain why they failed to
propose alternative search terms rather than abandon them
Court took considerable effort to piece together the
information in the three declarations of Colonel Jones
regarding the searches. Even doing so, the Court was unable
to discern a clear structure of the drives, folders, and
files that Defendants did and did not search. The
declarations explain that each office has a separate shared
network drive, that each individual has access to a private H
drive, and that each individual has an email account for each
position which he/she loses access to upon a PCS.
See [Dkt. 48-10 at ¶ 10]. They do not, however,
explain what folders within the shared network drive the
former group members identified and searched or why use of
the recommended, or any, search terms was unworkable.
Adequacy of Searches
on the information Defendants do provide, the Court concludes
that Defendants' searches were not reasonably calculated
to uncover all responsive materials.
while Colonel Jones declares that the Headquarters Office and
Secretary's Office searched their shared network drives,
Defendants provide no indication that the JAG Office searched
its shared network drive. Defendants do not provide a
satisfactory explanation for this. Even though the
Headquarters Office led efforts to create Group work product,
the possibility that members saved responsive documents to
their respective office shared network drives is not out of
the question. The ...