Protect Our Defenders v. Department of Defense

          MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [DKT. 37]

          HON. VANESSA L. BRYANT UNITED STATES DISTRICT JUDGE

         Plaintiffs 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.

         I. Background

         All 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).

         Plaintiffs submitted three requests for records to Defendants pursuant to the Freedom of Information Act.^[1] [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 documents.

         The 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 ¶1].

         A. Response to Second Request Item #7

         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.”^[2] [Dkt. 37-2 at ¶ 12; Dkt. 48-10 at p. 3 ¶ 5]. Three Air Force offices^[3] were involved in the Working Group-the Headquarters Office, the Secretary's Office, and the JAG Office.^[4] 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 ¶¶ 14-15].

         The 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^[5] 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].

         On 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.^[6] 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].

         The 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].

         Other 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.^[7] 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].

         Colonel 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].

         B. Exemption 5 Withholdings

         DOD 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.^[8] [Dkt. 48 at 9].

         C. Exemption 6 Withholdings

         Plaintiffs 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, 85].

         Defendants 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.

         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, ” Halpren v. F.B.I., 181 F.3d 279, 286 (2d Cir. 1999).

         “The 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).

         “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). 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)).

         To 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.

         III. Discussion

         Defendants 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.)].

         A. Adequacy of Air Force Search of Records Responsive to Second Request Item #7

         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.” 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. 1998)).

         In Item #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.^[9][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 Second Request.

         Defendants 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.

         1. Description of Files and Searches

         Defendants 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, ^[10] the Secretary's Office, ^[11] and the JAG Office.^[12] [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.

         Colonel 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.

         Air 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.

         Considered 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)).

         Headquarters 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.

         Supplemental 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^[13] 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 altogether.

         The 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.

         2. Adequacy of Searches

         Based on the information Defendants do provide, the Court concludes that Defendants' searches were not reasonably calculated to uncover all responsive materials.

         First, 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 ...