UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
LORI GILBERT,
Plaintiff
v. Civil Action No. 1: 21-cv-00318 (CJN)
UNITED STATES AIR FORCE,
Defendant.
MEMORANDUM OPINION
Major Lori Gilbert submitted a FOIA request to the United States Air Force seeking various
records relating to an investigation regarding her command of a unit at Joint Base San Antonio-
Lackland. Following various rounds of productions and motions practice, two issues remain: Whether
the Air Force conducted its search for responsive documents in good faith, and whether the Air Force
properly withheld documents in reliance on the Inspector General Act, 5 U.S.C. App’x 3 § 7(b). For
the reasons that follow, the Court concludes that the Air Force’s search was adequate and that its
withholdings are proper—and accordingly grants Defendant’s Motion for Summary Judgment while
denying Plaintiff’s.
I. Background
Lori Gilbert holds the rank of Major in the United States Air Force, a role in which she has
served on active duty since 2006. ECF 14 at 1. On July 16, 2018, she became the Director of
Operation for the 625th Air Communications Squadron at Joint Base San Antonio-Lackland in Texas.
Id. In October of that year, the Squadron released a “Unit Climate Assessment,” which revealed a
“pattern of dissatisfaction among some unit personnel with” Gilbert. ECF 12-1 at 2. According to
Gilbert, she learned that Meredith Costey, a civilian employee who served as a flight director, had 1 solicited members of the unit for comments regarding Gilbert’s leadership. ECF 13-2 at 2. Gilbert
also attests that she was told by Costey in January 2019 that, acting on behalf of Gibert’s superior
Colonel Micheal Cote, Costey had collected comments about Gilbert from other members of the unit
and had forwarded those comments to Cote by email. Id. Two months later, an investigating officer
notified Gilbert that she was the subject of a Commander Directed Investigation into her role in the
dissatisfaction. ECF 13 at 1.
An investigation report followed, alleging that “several personnel [had] approached the
ACOMS Commander… in person and via email over the course of months, outlining concerns with
[Gilbert’s] leadership.” ECF 13-5 at 2. The report also alluded to deeper tensions—namely, Gilbert’s
allegations that criticisms of her leadership style were brought “solely on racial grounds.” Id. That
investigation report ultimately resulted in a Letter of Reprimand against Gilbert, a two-year
Unfavorable Information File, a negative Officer Performance Report, and a black mark on her
Officer Selection Record. ECF 14 at 1–2. Gilbert claims that the effects of these repercussions are
permanent and detrimental. Id.
Gilbert wanted more information on what had led to such an indicting report. She therefore
submitted a FOIA request to the Air Force seeking, among other things: the appointment and tasking
letter from Cote that had instigated the investigation; the background statement leading to the
investigation; the complete report of the investigation, including all exhibits, attachments, and notes
of witness interviews; any/all historical information on Gilbert’s squadron; “Inspector General
recommendations” concerning the investigation; the “EO recommendation concerning the
investigation”; and all emails/correspondences to and from various persons—including Meredith
Costey and Colonel Cote—from July 2018 through December 2019. Id. at 2–3; ECF 30-3 at 1–2.
Two days after it received her FOIA request, the Air Force contacted Gilbert and asked her
to amend part 16—that is, the part seeking all pertinent communications from Colonel Cote during
2 the relevant timeframe. ECF 30-5 at 1. Gilbert declined to do so. Id. Two days later, the Air Force
sent Gilbert a final response letter containing 1,808 pages of responsive documents, but it also
withheld certain records on three grounds: (1) that the Inspector General Act, 5 U.S.C. App’x 3 §
7(b) (via 5 U.S.C. §552(b)(3)) protected certain complaints brought against Gilbert; (2) that an
internal legal review of the investigation was protected under §552(b)(5) as intra-agency legal work
product; and (3) that employees’ names, duty titles, phone numbers, email addresses and contact
information in certain documents were protected under §552(b)(6) as personnel files “the disclosure
of which would constitute a clearly unwarranted invasion of personal privacy.”
Gilbert appealed those withholdings—and further alleged that the agency had not conducted
an adequate search. Id. When the Air Force delayed in resolving that internal appeal, Gilbert filed
this action (and the Air Force terminated the appeal). Id. at 4; ECF 30-1 at 8. For the next several
months here the Air Force made additional productions while the parties submitted joint status
reports. See ECF 27, 28, 29. Some of those additional productions came even after the parties had
filed summary judgment briefs, as a result of which the Court ordered the Air Force to file a final
Vaughn index and supporting declaration to make clear what issues remained in dispute. ECF 30-1.
As noted above, two issues remain live: Whether the Air Force conducted its search for
relevant documents in good faith, and whether the Air Force properly relied on the Inspector General
Act as the basis for its §552(b)(3) withholdings. ECF 32 at 2, 6.
II. Analysis
Summary judgment is appropriate when “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A dispute is “genuine” only if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “In the
FOIA context, summary judgment may be granted on the basis of agency affidavits if they contain
3 reasonable specificity of detail rather than merely conclusory statements, and if they are not called
into question by contradictory evidence in the record or by evidence of agency bad faith.” Evans v.
Fed. Bureau of Prisons, 951 F.3d 578, 584 (D.C. Cir. 2020) (internal alteration and quotation marks
omitted).
A. Adequacy of Search
As noted above, Gilbert contends that the Air Force’s search for responsive records was
conducted in bad faith, and therefore was inadequate. The crux of this contention is a September 2018
email that Gilbert believes was sent from Costey to Cote (the sender’s name and email address is
redacted in the eversion produced to Gilbert). It is undisputed that the Air Force did not produce this
email in its initial production, but did produce it later after conducting additional searches. Gilbert
asks a reasonable question: “Why was the September 2018 email, which led to a formal investigation
of plaintiff… not located until an electronic search was conducted, as a result of this litigation, in May
2021?” ECF 32 at 4. The Air Force’s answer is that the “email account that the [September 18]
email[] w[as] considered protected under the ‘Protected Communications’” category. “This category
includes any communication between supervisor and employee.” ECF 19-1 at 3.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
LORI GILBERT,
Plaintiff
v. Civil Action No. 1: 21-cv-00318 (CJN)
UNITED STATES AIR FORCE,
Defendant.
MEMORANDUM OPINION
Major Lori Gilbert submitted a FOIA request to the United States Air Force seeking various
records relating to an investigation regarding her command of a unit at Joint Base San Antonio-
Lackland. Following various rounds of productions and motions practice, two issues remain: Whether
the Air Force conducted its search for responsive documents in good faith, and whether the Air Force
properly withheld documents in reliance on the Inspector General Act, 5 U.S.C. App’x 3 § 7(b). For
the reasons that follow, the Court concludes that the Air Force’s search was adequate and that its
withholdings are proper—and accordingly grants Defendant’s Motion for Summary Judgment while
denying Plaintiff’s.
I. Background
Lori Gilbert holds the rank of Major in the United States Air Force, a role in which she has
served on active duty since 2006. ECF 14 at 1. On July 16, 2018, she became the Director of
Operation for the 625th Air Communications Squadron at Joint Base San Antonio-Lackland in Texas.
Id. In October of that year, the Squadron released a “Unit Climate Assessment,” which revealed a
“pattern of dissatisfaction among some unit personnel with” Gilbert. ECF 12-1 at 2. According to
Gilbert, she learned that Meredith Costey, a civilian employee who served as a flight director, had 1 solicited members of the unit for comments regarding Gilbert’s leadership. ECF 13-2 at 2. Gilbert
also attests that she was told by Costey in January 2019 that, acting on behalf of Gibert’s superior
Colonel Micheal Cote, Costey had collected comments about Gilbert from other members of the unit
and had forwarded those comments to Cote by email. Id. Two months later, an investigating officer
notified Gilbert that she was the subject of a Commander Directed Investigation into her role in the
dissatisfaction. ECF 13 at 1.
An investigation report followed, alleging that “several personnel [had] approached the
ACOMS Commander… in person and via email over the course of months, outlining concerns with
[Gilbert’s] leadership.” ECF 13-5 at 2. The report also alluded to deeper tensions—namely, Gilbert’s
allegations that criticisms of her leadership style were brought “solely on racial grounds.” Id. That
investigation report ultimately resulted in a Letter of Reprimand against Gilbert, a two-year
Unfavorable Information File, a negative Officer Performance Report, and a black mark on her
Officer Selection Record. ECF 14 at 1–2. Gilbert claims that the effects of these repercussions are
permanent and detrimental. Id.
Gilbert wanted more information on what had led to such an indicting report. She therefore
submitted a FOIA request to the Air Force seeking, among other things: the appointment and tasking
letter from Cote that had instigated the investigation; the background statement leading to the
investigation; the complete report of the investigation, including all exhibits, attachments, and notes
of witness interviews; any/all historical information on Gilbert’s squadron; “Inspector General
recommendations” concerning the investigation; the “EO recommendation concerning the
investigation”; and all emails/correspondences to and from various persons—including Meredith
Costey and Colonel Cote—from July 2018 through December 2019. Id. at 2–3; ECF 30-3 at 1–2.
Two days after it received her FOIA request, the Air Force contacted Gilbert and asked her
to amend part 16—that is, the part seeking all pertinent communications from Colonel Cote during
2 the relevant timeframe. ECF 30-5 at 1. Gilbert declined to do so. Id. Two days later, the Air Force
sent Gilbert a final response letter containing 1,808 pages of responsive documents, but it also
withheld certain records on three grounds: (1) that the Inspector General Act, 5 U.S.C. App’x 3 §
7(b) (via 5 U.S.C. §552(b)(3)) protected certain complaints brought against Gilbert; (2) that an
internal legal review of the investigation was protected under §552(b)(5) as intra-agency legal work
product; and (3) that employees’ names, duty titles, phone numbers, email addresses and contact
information in certain documents were protected under §552(b)(6) as personnel files “the disclosure
of which would constitute a clearly unwarranted invasion of personal privacy.”
Gilbert appealed those withholdings—and further alleged that the agency had not conducted
an adequate search. Id. When the Air Force delayed in resolving that internal appeal, Gilbert filed
this action (and the Air Force terminated the appeal). Id. at 4; ECF 30-1 at 8. For the next several
months here the Air Force made additional productions while the parties submitted joint status
reports. See ECF 27, 28, 29. Some of those additional productions came even after the parties had
filed summary judgment briefs, as a result of which the Court ordered the Air Force to file a final
Vaughn index and supporting declaration to make clear what issues remained in dispute. ECF 30-1.
As noted above, two issues remain live: Whether the Air Force conducted its search for
relevant documents in good faith, and whether the Air Force properly relied on the Inspector General
Act as the basis for its §552(b)(3) withholdings. ECF 32 at 2, 6.
II. Analysis
Summary judgment is appropriate when “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A dispute is “genuine” only if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “In the
FOIA context, summary judgment may be granted on the basis of agency affidavits if they contain
3 reasonable specificity of detail rather than merely conclusory statements, and if they are not called
into question by contradictory evidence in the record or by evidence of agency bad faith.” Evans v.
Fed. Bureau of Prisons, 951 F.3d 578, 584 (D.C. Cir. 2020) (internal alteration and quotation marks
omitted).
A. Adequacy of Search
As noted above, Gilbert contends that the Air Force’s search for responsive records was
conducted in bad faith, and therefore was inadequate. The crux of this contention is a September 2018
email that Gilbert believes was sent from Costey to Cote (the sender’s name and email address is
redacted in the eversion produced to Gilbert). It is undisputed that the Air Force did not produce this
email in its initial production, but did produce it later after conducting additional searches. Gilbert
asks a reasonable question: “Why was the September 2018 email, which led to a formal investigation
of plaintiff… not located until an electronic search was conducted, as a result of this litigation, in May
2021?” ECF 32 at 4. The Air Force’s answer is that the “email account that the [September 18]
email[] w[as] considered protected under the ‘Protected Communications’” category. “This category
includes any communication between supervisor and employee.” ECF 19-1 at 3.
Gilbert argues that this position suggests a bad faith investigation; she claims that, because the
September 18 email was so central to her request, the Air Force could have withheld it from the initial
production only out of malice. The Air Force’s original position as to this document appears to have
been that it was covered by FOIA exemption (b)(3) as a communication between supervisor and
employee. Whatever the merits of that position, the Air Force later changed it, and ultimately
produced the document in redacted form.
The Air Force’s initial position does not appear to be so outlandish that it can only be explained
by malice. But in any event, it’s unclear why that should matter much now. After all, the Air Force
produced the document to Gilbert long ago (subject to the redactions discussed below). Perhaps as
4 important, even if Gilbert were right that the Air Force acted in bad faith in withholding a document
it had located in its early search efforts, she has failed to demonstrate how that decision also reflects
bad faith in how the Air Force conducted its searches for responsive records. Put differently, Gilbert
fails to link the Air Force’s alleged bad faith in not producing one document it did locate to a claimed
deficiency in its efforts to locate other responsive records.
To be sure, Gilbert does contest how the Air Force conducted its search—in particular, she
challenges how the initial search of email records in 2020 was done by the email custodians
themselves, rather than through a centralized search of the electronic records. ECF 32 at 4. But since
its original search and production, the Air Force has conducted a full electronic search of the
custodians’ email accounts. ECF 30-1 at 15–16. And it has explained why such a search wasn’t
feasible the first time: The “Electronically Stored Information” process used during the later search
was “not an approved FOIA process for searching emails” in 2020. Id. at 26. In the Court’s view, the
custodian-dependent searches followed up by the ESI process was adequate here.
B. The Inspector General Act
The second remaining dispute is whether the Air Force has appropriately relied on the
Inspector General Act in withholding information that might disclose the identity of the complainant
in the September 18 email. Gilbert does not dispute that the Act might apply in appropriate
circumstances as a qualifying statute under FOIA exemption 3; instead, she argues, it cannot apply
here because she claims to already know the identity of the complainant: Meredith Costey. ECF 32
at 6.
To be sure, Gilbert has some information to suggest that Costey was the complainant. But is
that enough? In Cottone v. Reno. 193 F.3d 550 (D.C. Cir. 1999), the Court of Appeals laid out a three-
part test for determining whether non-public information has been confirmed through public
disclosures. Under that test, the non-public information must be “as specific as the information
5 previously released,” id. at 555; the non-public information must “match the information previously
disclosed,” id.; and the non-public information must have “already . . . been made public through an
official and documented disclosure,” id. These requirements ensure that the “information sought is
truly public and that the requester receive[s] no more than what is publicly available.” Id.
The problem for Gilbert is that she does not make a serious effort to satisfy the last part of this
test. In particular, Gilbert fails to establish that the Air Force has ever made public, “through an
official and documented disclosure,” the identity of the complainant—let alone that it was Costey.
And the record does not otherwise demonstrate that the Air Force has confirmed the identify as
required by Cottone. Accordingly, while Gilbert surely believes (and has reason to believe) that the
September 18 email was sent by Costey, that is not enough to demonstrate that the identity of the
complainant has been disclosed. As a result, the Air Force properly withheld this information under
exemption 3.
III. Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment, ECF 12, is
GRANTED and Plaintiff’s Cross-Motion for Summary Judgment, ECF 14, is DENIED. A separate
order will accompany this opinion.
DATE: August 14, 2025 13 J. NICHOLS United States District Judge