AMY BERMAN JACKSON, District Judge.
Plaintiff Dr. Lonnie Parker brings this action against defendant U.S. Department of Justice ("DOJ") alleging that DOJ violated the Freedom of Information Act ("FOIA") by improperly withholding agency records. The parties have filed cross-motions for summary judgment. [Dkt. # 7 and # 12]. For the reasons stated below, the Court will remand the matter back to the agency to reconsider the FOIA requests in light of this opinion and deny defendant's motion for summary judgment without prejudice and deny plaintiff's motion as moot.
Plaintiff seeks review of defendant's response to a FOIA request submitted to DOJ on April 26, 2010. Def.'s Statement of Material Facts ("Def.'s SMF") ¶ 1. [Dkt. # 7]. Plaintiff sought six categories of records all relating to former Assistant U.S. Attorney Lesa Gail Bridges Jackson and her unauthorized practice of law while working for DOJ as an Assistant U.S. Attorney ("AUSA"). Ex. A to Boseker Decl. [Dkt. # 7]. The request included the following six categories of documents:
Id. Plaintiff's request stated that the disclosure of these records would serve the public interest by promoting government transparency, disclosing whether "there are safeguards and verification procedures used by the U.S. Attorney's Office to prevent against circumstances" involving unlicensed Assistant U.S. Attorneys, and determining whether DOJ had taken "corrective actions or policies or remedial measures." Id. at 2. DOJ processed plaintiff's request in two separate request files: (1) "the requests for records pertaining to personnel matters and law license records;" and (2) "the request for records pertaining to any disciplinary matters that may have involved Ms. Jackson." Def.'s SMF ¶ 3.
Regarding the first category of requests related to personnel and law license records, DOJ informed plaintiff on August 9, 2010, that it had found no responsive records to plaintiff's FOIA request. Id. at ¶ 5. On August 18, 2010, plaintiff appealed this response to DOJ's Office of Information Policy ("OIP"), and on September 30, 2010, OIP denied plaintiff's appeal. Id. at ¶¶ 6-8. OIP advised plaintiff that he could obtain the records from the National Personnel Records Center ("NPRC"), a division of the National Archives and Records Administration ("NARA"), which is located in St. Louis, Missouri. Id.
Plaintiff followed this advice and submitted a FOIA request for the documents to NARA. Ex. F to Stotter Decl. at 1-3. [Dkt. # 12]. NARA released three documents to plaintiff that had been located at NPRC but simultaneously informed him that it did not possess the records because they were never actually "accessioned" to NARA. Id. at 10-11. NARA explained:
Id.
Regarding the second category of records, those related to disciplinary matters
Finally, DOJ did not address the sixth category of documents plaintiff requested: "All agency records that document, discuss or otherwise describe any remedial measures or additional policies implemented by the U.S. Attorney's office to prevent future circumstance wherein a U.S. Attorney could be hired or remain employed as a U.S. Attorney, notwithstanding the fact that they were suspended from the practice of law, or not authorized to practice law." Ex. A to Boseker Decl. DOJ maintains that "[t]his item, both initially and currently, is not comprehended sufficiently to address, and has been interpreted as characterizing alleged facts, and too vague to constitute a FOIA request." Boseker Decl. ¶ 6 n. 1.
The district court reviews the agency's action de novo, and "the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B); accord Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). "FOIA cases are typically and appropriately decided on motions for summary judgment." Moore v. Bush, 601 F.Supp.2d 6, 12 (D.D.C.2009).
In any motion for summary judgment, the Court "must view the evidence in the light most favorable to the nonmoving party, draw all reasonable inferences in his favor, and eschew making credibility determinations or weighing the evidence." Montgomery v. Chao, 546 F.3d 703, 706 (D.C.Cir.2008); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, where a plaintiff has not provided evidence that an agency acted in bad faith, "a court may award summary judgment solely on the basis of information provided by the agency in declarations." Moore, 601 F.Supp.2d at 12.
FOIA requires the release of government records upon request to "ensure an informed citizenry, 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). But Congress also recognized "that legitimate governmental and private interests could be harmed by the release of certain types of information and provided nine specific exemptions under which disclosure could be refused." FBI v. Abramson, 456 U.S. 615, 621, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982); see also Ctr. for Nat'l Sec. Studies v. DOJ, 331 F.3d 918, 925 (D.C.Cir.2003) ("FOIA represents a balance struck by Congress between the public's right to know and the government's legitimate interest in keeping certain information confidential."). The Supreme Court has instructed that FOIA exemptions are to be "narrowly construed." Abramson, 456 U.S. at 630, 102 S.Ct. 2054.
To prevail in a FOIA action, an agency must first demonstrate that it has made "a good faith effort to conduct a search for the requested records, using
The first category of documents involves AUSA Jackson's personnel records. Def.'s SMF ¶ 3. The Court notes that, based on the record before it, it is completely unclear where the responsive documents are located and which agency has responsibility for searching and providing access to the documents. It is clear, though, that DOJ spent no more than one hour on the matter. The record includes the following information:
So, at best, DOJ has told plaintiff that the records are "most likely" in St. Louis at the NPRC and in NARA's custody and control. But, NARA states that it never received the rest of the records and points the plaintiff to DOJ's Records Management Office in Maryland. In either event, DOJ retains legal custody over the records.
While it is true that NARA is responsible for processing FOIA requests made at the NPRC under section (b) of the regulation, the Court cannot conclude that responding to the FOIA request in this case fell within NARA's purview instead of DOJ's because no one has been able to inform plaintiff or the Court where the records are actually located. And, there does not appear to have been any serious effort made to track them down. Therefore, based on this record, the Court cannot find as a matter of law that the search was adequate. Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C.Cir.1990) (finding that an agency has to make "a good faith effort to conduct a search for the requested records, using methods which can reasonably be expected to produce the information requested").
DOJ cites two cases for authority that it has conducted an adequate search because the records are at the NPRC. See Def.'s Reply at 3-4, citing Hart v. DOJ, 648 F.Supp.2d 113, 117 (D.D.C.2009) ("[T]he defendant has fully explained its search results: it does not have custody or control of the only records where the requested documents are likely to be found."); Bonaparte v. DOJ, No. 07-749, 2008 WL 2569379 (D.D.C.2008) ("Defendant reasonably explain[ed] that it could not produce records pertaining to [a] former AUSA ... [because the] personnel file had been `shipped to the National Personnel Records Center.'") (internal citation omitted). But those decisions are not helpful here because in both cases, there was no dispute that the records had been transferred to the NPRC. Here, there has been no clear factual showing that the records were actually moved or received, only a statement that such a transfer was "likely."
Although NARA is not a party to this lawsuit, it would behoove DOJ to communicate with NARA to ascertain: (1) where the records are located; (2) which agency bears responsibility to search the records in that location; and (3) the status of the accession of the records concerning Ms. Jackson to NARA's permanent collection. If the records have not been transferred to NARA, then DOJ must provide the Court with sufficient grounds to conclude that its search has been adequate.
The second category of documents involves records containing "information regarding any disciplinary action that may have been taken respecting former AUSA Jackson during her time of employment." Boseker Decl. ¶ 14. DOJ responded to plaintiff's request for these documents with a Glomar response asserting a categorical exemption of all potentially responsive documents under Exemptions 6 and 7(C).
To show that a Glomar response is appropriate, the agency must explain why it can neither confirm nor deny the existence of responsive records. See Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C.Cir.1976) ("Adapting these procedures to the present case would require the Agency to provide a public affidavit explaining in as much detail as is possible the basis for its claim that it can be required neither to confirm nor to deny the existence of the requested records."). This inquiry is not based on the actual content of the documents but on whether the potential harm created by revealing the existence of the documents is protected by a FOIA exemption. See Wolf, 473 F.3d at 374 ("In determining whether the existence of agency records vel non fits a FOIA exemption, courts apply the general exemption review standards established in non-Glomar cases."). Thus, the question presented to the Court is would revealing the existence of documents related to a disciplinary investigation of AUSA Jackson constitute an "invasion of personal privacy" under either Exemption 6 or 7(C).
FOIA Exemption 7(C) exempts documents compiled for law enforcement that "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7). Because this is a lower standard than Exemption 6, which requires a "clearly unwarranted" invasion of privacy, this Court will address this exemption first.
In order for particular records to qualify for the Exemption 7, the agency
Here, DOJ has not met its burden of demonstrating that the disciplinary records in question were compiled for law enforcement purposes. The only evidence the agency offers to support their contention otherwise is a single sworn statement that "[a]ll information at issue in this case was compiled for law enforcement purposes." Boseker Decl. ¶ 30. This conclusory statement is not sufficient for the Court to evaluate whether these particular disciplinary records meet the Rural Housing Alliance test. See Rural Hous. Alliance, 498 F.2d at 82 n. 48 (noting that when evaluating whether records were compiled for law enforcement purposes "a court must of course be wary of self-serving declarations of any agency"). In order to make this determination, DOJ must actually provide evidence that the disciplinary investigation focused on illegal activity which could result in civil or criminal sanctions.
Furthermore, plaintiff requested "[a]ll agency records ... which otherwise discuss or describe the reasons that [AUSA] Jackson is no longer an employee of the U.S. Attorney's Office at this time." Ex. A to Boseker Decl. at 2. This category of records could conceivably include documents unrelated to any law enforcement purpose.
Because DOJ failed to demonstrate that the responsive disciplinary records were compiled for law enforcement purposes, it cannot rely on Exemption 7(C) to sustain its Glomar response. See Jefferson v. DOJ, 284 F.3d 172, 179 (D.C.Cir.2002) ("[A] Glomar response was inappropriate in the absence of an evidentiary record produced by OPR to support a finding that all OPR records regarding AUSA Downing are law enforcement records.").
Exemption 6 allows withholding of "personnel and medical files and similar files" the disclosure of which "would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). The primary purpose of Exemption 6 is "to protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information." U.S. Dep't of State v. Wash. Post Co., 456 U.S. 595, 599, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982). Such a determination is made by "weigh[ing] the privacy interest in non-disclosure against the public interest in the release of records in order to determine whether, on balance, the disclosure would work a clearly unwarranted invasion of personal privacy." Lepelletier v. FDIC, 164 F.3d 37, 46 (D.C.Cir.1999) (internal quotation marks omitted and citation omitted).
The first step in the balancing test under Exemption 6 is to determine whether there is an individual privacy interest in the material withheld. Nat'l Ass'n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 874 (D.C.Cir.1989). The Supreme Court has recognized that "the concept of personal privacy ... is not some limited or `cramped notion.'" Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 165, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004), quoting DOJ v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 763, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). Rather, "privacy encompass[es] the individual's control of information concerning his or her person." Reporters Comm., 489 U.S. at 763, 109 S.Ct. 1468. FOIA's privacy exemptions were "intended to cover detailed Government records on an individual which can be identified as applying to that individual." Wash. Post Co., 456 U.S. at 602, 102 S.Ct. 1957 (internal quotation marks and citation omitted). Information need not be intimate or embarrassing to qualify for Exemption 6 protection. See Horowitz v. Peace Corps, 428 F.3d 271, 279 (D.C.Cir.2005). Generally, personal identifying information such as a person's name, address, phone number, date of birth, criminal history, medical history, and social security number may be protected under Exemption 6. Wash. Post Co., 456 U.S. at 600, 102 S.Ct. 1957; Horner, 879 F.2d at 875; Taitz v. Obama, 754 F.Supp.2d 57, 60 (D.D.C.2010).
Here, the Court finds that AUSA Jackson has a valid privacy interest at stake in DOJ's disclosure of disciplinary documents about her. These records, if they exist, would reveal that DOJ took internal disciplinary action as a result of her misconduct, implicating her recognized interest "in avoiding disclosure of personal matters." Reporters Comm., 489 U.S. at 762, 109 S.Ct. 1468.
Plaintiff argues, however, that any privacy interest is not significant because the events underlying any disciplinary action are a matter of public knowledge.
Next, the public interest in disclosure must be weighed against AUSA Jackson's privacy interest. Although DOJ maintains that there is no public interest to be balanced in this case, the Court finds that there is a valid public interest in knowing how DOJ handles the investigation of unlicensed attorneys. See Lurie v. Dep't of Army, 970 F.Supp. 19, 37 (D.D.C.1997) ("The public interest also extends to knowing whether an investigation was comprehensive and that the agency imposed adequate disciplinary measures"), citing Dunkelberger v. DOJ, 906 F.2d 779, 781 (D.C.Cir.1990).
Because the Court finds that there is both a real private interest and a valid public interest here, DOJ must weigh the privacy interest in non-disclosure against the public interest in the release of the records. See Judicial Watch v. U.S. Dep't of Homeland Sec'y, 598 F.Supp.2d 93, 96 (D.D.C.2009) ("[A]n agency must, for each record, conduct a particularized assessment of the public and private interest at stake."). DOJ has not engaged in any balancing of the public and private interests at stake here. Accordingly, the Court will remand the case to the agency to engage in the statutory exercise established under FOIA.
Finally, DOJ failed to respond to plaintiff's sixth and final FOIA request, maintaining that "[t]his item, both initially and currently, is not comprehended sufficiently to address, and has been interpreted as characterizing alleged facts, and too vague to constitute a FOIA request." Boseker Decl. ¶ 6 n. 1. Plaintiff requested:
Ex. A to Boseker Decl. at 2.
The Court finds this request clear enough to constitute a valid FOIA request. The plaintiff requested information related to DOJ's policies regarding unauthorized
The Court concludes that DOJ's response to plaintiff's FOIA requests and the declaration it submitted in support of its motion for summary judgment are insufficient to resolve the cross-motions before it. Accordingly, defendant's motion for summary judgment is denied without prejudice, plaintiff's motion is denied as moot, and the matter is remanded to DOJ for further action consistent with this opinion.
The parties are directed to file a joint status report on or before June 1, 2012, that is described further in the separate order issued this day.
Given that there are seventeen Federal Records Centers, only one of which contains DOJ documents that are always accessed through NARA, this sentence does not provide enough detail regarding the scope and method of the agency's search to demonstrate that the search was "reasonably calculated to uncover all relevant documents." Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C.Cir. 1999), quoting Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C.Cir.1990). To carry its burden, DOJ must present more than conclusory statements such as this one. See SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991) ("In order to establish the adequacy of a search, agency affidavits must be... `relatively detailed and nonconclusory....'"), quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C.Cir.1981). Furthermore, any search that stops after the agency determined that the records were located at the Federal Record Center, without more, was inadequate in light of 36 C.F.R. § 1250.8(c).
