PAUL L. FRIEDMAN, District Judge.
This Freedom of Information Act case is before the Court on the defendant's renewed motion for summary judgment. On September 28, 2011, the Court denied that motion without prejudice and granted in part the plaintiff's request for discovery. This Opinion explains the reasoning underlying that September 28, 2011 Order and sets forth the scope of permissible discovery.
On March 20, 2008, Dr. Norma J. Perez, at that time employed as a psychologist and coordinator of the post traumatic stress disorder ("PTSD") clinical team at a Department of Veterans Affairs ("VA") medical center in Temple, Texas, authored an e-mail that she sent to eight local VA colleagues. See Declaration of Norma J. Perez ("Perez Decl.") ¶¶ 1, 3, Oct. 1, 2010 [Dkt. No. 40-8]. This e-mail, titled "Suggestion," stated in full:
Perez Decl., Attachment, E-mail from Dr. Norma J. Perez at 1, Mar. 20, 2008. This e-mail was leaked to the public in May 2008. See generally Compl., Ex. 6.
Dr. Perez since has stated that her intent in sending this e-mail "was to emphasize the importance of providing an accurate diagnosis and to ensure that veterans receive treatment appropriate to their precise needs immediately; thus improving the access to care and quality of care provided to veterans." Perez Decl. ¶ 3. But many viewed the e-mail as suggesting that VA employees should refrain from giving PTSD diagnoses as a cost-cutting measure, see generally Compl., Ex. 6, and Dr. Perez's e-mail became the subject of a congressional hearing and substantial news coverage. See Opp. at 3.
On May 14, 2008, shortly after Dr. Perez's e-mail became public, plaintiff Citizens for Responsibility and Ethics in Washington ("CREW") submitted an FOIA request to the VA, stating:
Compl., Ex. 1, Letter from Anne L. Weismann to the VA at 1, May 14, 2008 [Dkt. No. 1-2]. CREW also requested from the VA a wavier of fees associated with processing its request for records. See id. at 2.
By letter dated June 5, 2008, the VA denied CREW's request for a fee waiver and also claimed that the request for documents was "`overly broad'" and imposed on the VA "`an extremely burdensome search effort.'" Compl. ¶ 18 (citation omitted). CREW appealed the VA's decisions administratively, see id. ¶ 19, but, as of August 27, 2008, the VA neither had responded to CREW's administrative appeal nor had produced any documents responsive to CREW's request. See id. ¶ 22. Consequently, on that date, CREW filed a complaint in this Court under the FOIA, making two claims: (1) that the VA failed to produce requested records; and (2) that the VA improperly denied CREW's request for a fee waiver. See id. at 6-8.
After CREW filed its complaint, the VA issued the requested fee waiver to CREW, reversing its prior position. See Order at 1, June 6, 2009 [Dkt. No. 12]. The Court therefore dismissed as moot CREW's second claim for relief, see id., leaving one remaining claim in this case: that the VA failed to produce requested records to CREW. See Compl. ¶ 2.
On September 23, 2009, the VA filed a motion for summary judgment in which it
The VA subsequently explained in reply that it was "unable to recover emails created before December 9, 2008 because the VA's regular rotation of backup tapes precluded the recovery of older email messages." Reply to Opp. to First MSJ at 9. In a supplemental declaration dated November 5, 2009, Mr. Livornese further elaborated:
Supplemental Declaration of John Livornese ("Nov.2009 Livornese Supp. Decl.") ¶ 5, Nov. 5, 2009 [Dkt. Nos. 21-1, 36-3].
Far from putting this issue to rest, CREW considered the VA's reply a "revelation[] that the VA ... destroyed documents clearly responsive to CREW's ... FOIA ... request[.]" Pl. Surreply to First MSJ at 1. According to CREW, Mr. Livornese's supplemental declaration established that the "VA destroyed potentially responsive records after CREW made its FOIA request in this matter on May 14, 2008 — a request that expressly sought emails and other electronic records — and after CREW filed its lawsuit on August 27, 2008 in this case." Id. at 2-3 (emphasis in original).
After briefing on the VA's motion for summary judgment was complete, the VA made two supplemental releases of documents to CREW, containing, among other things, a copy of Dr. Perez's March 20, 2008 e-mail. See Notice of Supplemental Release at 1, Mar., 26, 2010 [Dkt. No. 24]; Notice of Supplemental Release at 1-2, Apr. 16, 2010 [Dkt. No. 30]. And the VA then withdrew its motion for summary judgment with the intent of filing a renewed motion that would consolidate all
Before the parties proceeded with a second round of summary judgment briefing, however, another issue arose: CREW sought the deposition of Mr. Livornese "to obtain information on the unexplained issue of destruction of electronic records[.]" Opp. to Mot. for Protective Order at 6, July 6, 2010 [Dkt. No. 34]. The VA sought a protective order precluding this deposition. See Mot. for Protective Order at 1, July 1, 2010 [Dkt. No. 33]. The VA argued that such discovery was inappropriate in this FOIA case; moreover, the VA asserted that CREW's concerns likely would be addressed in the VA's renewed summary judgment motion. See id. at 4-5. As the VA stated, its renewed motion would include "a declaration from Mr. Livornese and an IT employee who was more directly involved with the electronic search," which would address "the extent to which backup tapes were searched." Id. at 5 n. 2.
On July 14, 2010, the Court denied the VA's motion for a protective order, concluding that limited discovery through Mr. Livornese's deposition likely would assist the Court in resolving the issues in this case. See Memorandum Op. & Order at 1, July 14, 2010 [Dkt. No. 35]. Thus, the parties proceeded with Mr. Livornese's deposition, which took place on July 23, 2010.
Soon thereafter, on August 3, 2010, the VA filed its renewed motion for summary judgment. CREW filed its opposition, and the VA replied. Both sides then filed surreplies.
The fundamental purpose of the FOIA is to assist citizens in discovering "what their government is up to." U.S. Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (internal quotations and citation omitted) (emphasis in original). As the Supreme Court recently emphasized again, the FOIA strongly favors openness and "`broad disclosure'" with narrowly construed exemptions. Milner v. Department of the Navy, ___ U.S. ___, 131 S.Ct. 1259, 1265, 179 L.Ed.2d 268 (2011) (quoting Department of Justice v. Tax Analysts, 492 U.S. 136, 151, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989)). As Congress recognized in enacting the FOIA, an informed citizenry is "vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978); see also Department of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (purpose of the FOIA is "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny") (internal quotations and citation omitted). Therefore, "disclosure, not secrecy, is the dominant objective of the Act." Department of the Air Force v. Rose, 425 U.S. at 361, 96 S.Ct. 1592.
FOIA cases typically and appropriately are decided on motions for summary judgment. See Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C.2009); Bigwood v. U.S. Agency for Int'l Dev., 484 F.Supp.2d 68, 73 (D.D.C. 2007); Farrugia v. Executive Office for U.S. Attorneys, Civil Action No. 04-0294, 2006 WL 335771, at *3 (D.D.C. Feb. 14, 2006). And in an FOIA case, the Court ;may award summary judgment solely on the basis of information provided in affidavits or declarations when the affidavits or declarations are "relatively detailed and
The VA contends that it is entitled to summary judgment because it conducted reasonable searches for responsive records and released to CREW all responsive records in full except for one minor withholding, the redaction of a name, under FOIA Exemption 6. CREW argues that summary judgment is inappropriate because the VA has failed to conduct reasonable searches for responsive records. Most importantly for CREW's request for discovery, its opposition includes an allegation that the VA improperly destroyed relevant records. As CREW describes it, the VA "failed to impose a litigation hold for records responsive to CREW's FOIA request and, as a result, the VA has improperly destroyed responsive records after they were requested by CREW." Opp. at 9.
CREW's allegation of document destruction arises from four declarations of Mr. Livornese now filed in this case and the declarations of Ronald Klavohn, the Director of the Core Infrastructure Services group for the Office of Information and Technology at the VA. The Court reviews below those declarations as they relate to the allegation of document destruction.
In Mr. Livornese's first declaration, which he signed on September 18, 2009, he stated that the VA searched Dr. Perez's electronic records for documents responsive to CREW's FOIA request. See Sept. 2009 Livornese Decl. ¶ 8. He asserted, without providing any explanation, that the VA only was able to review Dr. Perez's e-mail messages dating back to December 9, 2008. See id. The e-mail that ultimately gave rise to this case, however, was sent by Dr. Perez nine months earlier, on March 20, 2008. See Perez Decl. ¶ 3.
On November 5, 2009, Mr. Livornese submitted a supplemental declaration in which he provided an explanation for the purported December 9, 2008 limitation on available e-mails:
Nov. 2009 Livornese Supp. Decl. ¶ 5 (emphasis added).
Mr. Livornese then signed a second supplemental declaration, dated March 12, 2010, which was not provided to CREW's counsel until the day of Mr. Livornese's court-ordered deposition on July 23, 2010. See Second Supplemental Declaration of John Livornese ("Mar.2010 Livornese 2d Supp. Decl."), Mar. 12, 2010 [Dkt. Nos. 36-3]. Mr. Livornese stated in that declaration that he was submitting it "to further clarify the searches that were performed." Id. ¶ 3. He did not revise either of his two prior sworn statements that the VA only was able to review Dr. Perez's e-mails dating back to December 9, 2008. Nor did he suggest that those statements were inaccurate in any way. Instead, Mr. Livornese stated only that more information "clarifying that issue" would be forthcoming in a subsequent declaration by another, unnamed VA employee:
Mar. 2010 Livornese 2d Supp. Decl. ¶ 6 (citation omitted).
In its renewed motion for summary judgment, filed on August 3, 2010, the VA specifically acknowledged that Mr. Livornese inadvertently had made inaccurate statements in his first two declarations. See Mot. at 11. As the VA described it,
Id. at 11 (citations omitted).
With its renewed motion for summary judgment, the VA submitted the declaration of Ronald Klavohn. See Declaration of Ronald Klavohn ("Klavohn Decl."), Mar. 31, 2010 [Dkt. No. 36-3]. Mr. Klavohn signed and dated that declaration on March 31, 2010, see id. at 2 — almost a month before the VA produced Mr. Livornese for deposition on July 23, 2010, and only 19 days after Mr. Livornese signed his second supplemental declaration. Although
In his March 31, 2010 declaration, Mr. Klavohn explained that — contrary to what Mr. Livornese previously twice stated under oath — December 9, 2008 in fact was not the date of the oldest available e-mail messages retrieved through the electronic search of Dr. Perez's records. Klavohn Decl. ¶ 9. Rather, December 9, 2008 was the date of the oldest monthly recovery tape that was available at the time of the electronic search, id. ¶ 7, and this backup tape "would contain any emails that were in [Dr. Perez's] mailbox on [December 9, 2008] but the actual email messages could go back further in time; in other words the emails on the tape could date back earlier than the date of the tape." Id. ¶ 9.
Regarding the creation of backup tapes, Mr. Klavohn described the following process:
Klavohn Decl. ¶ 7 (emphasis added).
After CREW pointed out that Mr. Klavohn's declaration provided no explanation whatsoever as to why monthly backup tapes were not created between January 2008 and November 2008, see Opp. at 7, Mr. Klavohn submitted a supplemental declaration, dated September 30, 2010, in which he stated:
Supplemental Declaration of Ronald Klavohn ("Klavohn Supp. Decl.") ¶¶ 3, 5, 6, Sept. 30, 2010 [Dkt. No. 40-5].
Mr. Livornese submitted a fourth declaration, dated September 29, 2010, over a year after his first declaration in this case, in which he finally retracts his prior inaccurate statements and confirms that "December 9, 2008 is the date of the oldest back-up tape that was searched," not the date of the oldest retrievable e-mails. See Supplemental Declaration of John Livornese ("Sept. 2010 Livornese 4th Decl.") ¶ 8, Sept. 29, 2010. Mr. Livornese explained in that declaration that his "prior testimony was based upon an error in the report from OIT, and that the ... electronic search recovered a broader range of records than [he] initially believed." Id.
According to CREW, these declarations establish that the VA improperly destroyed responsive records. See Opp. at 9; Pl. Surreply at 4. And relying on the court of appeals' decision in Chambers v. U.S. Department of the Interior, 568 F.3d 998 (D.C.Cir.2009), CREW argues that the VA's improper destruction of responsive records "bears on the issue of whether the agency conducted an adequate search." Opp. at 9. Moreover, "in light of the [VA's] conduct in this case," CREW requests that the Court (1) "state clearly for the VA the obligations of federal agencies to preserve evidence and impose litigation holds for responsive materials upon receipt of FOIA requests"; (2) approve the deposition, at the VA's expense, of Dr. Perez and possibly the recipients of her March 20, 2008 e-mail, as well as the deposition of Mr. Klavohn for purposes of obtaining discovery regarding the circumstances of the suspension of normal operations in saving backup tapes; and (3) order the VA "to attempt to reconstruct the destroyed records or information contained in the destroyed records[.]" Opp. at 11-12.
Upon consideration of the parties' papers, the attached declarations and exhibits, the relevant legal authorities, and the entire record in this case, the Court will grant in part CREW's second request; will deny without prejudice CREW's third request; and will deny CREW's first request. Because the Court concludes that limited discovery should proceed, the Court also will deny without prejudice the VA's renewed motion for summary judgment.
The Court is deeply troubled (1) that Mr. Livornese, prior to his court-ordered deposition on July 23, 2010, made inaccurate statements in two declarations; (2) that Mr. Livornese signed a second supplemental declaration on March 12, 2010 that was not provided to CREW's counsel until four months later, at Mr. Livornese's court-ordered deposition on July 23, 2010; (3) that Mr. Livornese's second supplemental declaration did not correct his prior inaccurate statements — or even suggest
The Court is not yet ready to conclude that the myriad declarations, the way they evolved and changed, and the timing of their disclosure means that the VA improperly destroyed responsive records. Nor is the Court ready to order at this time the VA to attempt to reconstruct any of its records, since such an order must be based on a finding of improper document destruction. See Landmark Legal Found. v. EPA, 272 F.Supp.2d 59, 67 (D.D.C.2003) ("Reconstruction of ... destroyed documents to the extent possible is an appropriate remedy for bad faith document destruction."); Cal-Almond, Inc. v. U.S. Department of Agric., 960 F.2d 105, 109 (9th Cir.1992) ("Absent a showing that the government has improperly destroyed agency records, FOIA does not require these records to be recreated.") (internal quotations omitted).
But the Court does believe that counsel for the VA decided as a matter of litigation tactics not to be forthcoming by withholding relevant evidence until after the limited discovery ordered by this Court was concluded: Although Mr. Livornese signed his second supplemental declaration on March 12, 2010, it was not provided to CREW until the date of his court-ordered deposition, on July 23, 2010. Although Mr. Klavohn signed his first declaration on March 31, 2010, it was not provided to CREW until after Mr. Livornese's deposition concluded. These litigation tactics — which at the very least contradict the fundamental purpose of the FOIA — rendered Mr. Livornese's deposition at best incomplete, and perhaps useless. The Court therefore agrees with CREW that it should be permitted to take additional discovery for the purpose of determining whether the explanation for the current state of affairs is document destruction, incompetence, or something in between. It is clear to the Court that this discovery will be central to any subsequent dispositive motion and will assist the Court in resolving any such motion once filed.
Consequently, in light of its broad discretion to manage discovery, see, e.g., Budik v. Department of the Army, 742 F.Supp.2d 20, 39 (D.D.C.2010), the Court will grant in part CREW's second request: that is, it will approve the deposition of Mr. Klavohn and an additional deposition of Mr. Livornese, both at the VA's expense, for the purpose of obtaining discovery regarding the circumstances of the suspension of normal operations in saving backup tapes as it relates to this case and whether the explanation for the suspension is document destruction or something else. The Court will not, at this time, approve the deposition of Dr. Perez or the recipients of her March 20, 2008 e-mail; CREW, however, may make an appropriate motion for such discovery after taking the depositions of Mr. Klavohn and Mr. Livornese.
The Court will deny CREW's request to "state clearly for the VA the obligations of federal agencies to preserve evidence and impose litigation holds for responsive materials upon receipt of FOIA requests."
For the foregoing reasons, the Court will deny without prejudice the defendant's renewed motion for summary judgment [Dkt. No. 36] and will grant in part the plaintiff's request for discovery. An Order consistent with this Opinion issued on September 28, 2011. An Order specifying the terms of the permissible discovery, as set forth in this Opinion, shall issue this same day.
SO ORDERED.
