UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) JENNIFER GRAY, ) ) Plaintiff, ) ) v. ) Civ. Action No. 09-1310 (EGS) ) UNITED STATES ARMY CRIMINAL ) INVESTIGATION COMMAND, et al. ) ) Defendants. ) )
MEMORANDUM OPINION
Pending before the Court in this Freedom of Information Act
case is defendants’ motion for summary judgment. Upon
consideration of the motion, the response and reply thereto, the
applicable law, the entire record, and for the reasons set forth
below, the defendants’ motion for summary judgment is DENIED.
The Court orders defendants to supplement their responses to
plaintiff’s request as described below.
I. BACKGROUND
According to the allegations of the Complaint, plaintiff was
briefly employed by the U.S. Army as the Public Affairs Officer
for the Arlington National Cemetery (“ANC”). While plaintiff
was employed there, one or more of her supervisors accessed her
e-mail account without her consent. After plaintiff was
terminated, she filed a formal complaint on October 14, 2008 with
the U.S. Army Criminal Investigation Command (“CID”) regarding
the unauthorized access to her e-mail account. Am. Compl. ¶ 12. The CID investigation concluded that an unknown person committed
the offense of Unauthorized Access to a U.S. Government Computer
and Wire Fraud when he/she accessed plaintiff's ANC e-mail
account and sent a reply from her e-mail account purporting to be
from plaintiff. Pl.'s Opp'n Ex. 1. In addition, the
investigation concluded that one particular supervisor (Thurman
Higginbotham, the Assistant Superintendant of ANC) made false and
misleading statements to federal agents. Pl.'s Opp'n Ex. 1.
Beginning in May of 2009, plaintiff made three FOIA requests
in an attempt to gather additional information regarding the CID
investigation. These requests were each denied in its entirety
on the basis of the exemption contained in 5 U.S.C.
§ 552(b)(7)(A) (“Exemption 7(A)”); the exemption contained in 5
U.S.C. § 552(b)(7)(C) (“Exemption 7(C)”); and the exemption
contained in 5 U.S.C. § 552(b)(6) (“Exemption 6").
Plaintiff filed suit in this Court on July 15, 2009 seeking
an order directing defendants to disclose the requested records
in their entirety and make electronic copies promptly available
to her, as well as reasonable costs and attorneys’ fees. In
addition she asks that the Court make a written finding pursuant
to § 552(a)(4)(F) that “the circumstances surrounding the
withholding raise questions whether agency personnel acted
arbitrarily or capriciously with respect to the withholding,” and
that the Court “refer this matter to the Office of the Special
2 Counsel for a proceeding to determine whether disciplinary action
is warranted against the appropriate officer or employee who was
primarily responsible for the withholding.” Am. Compl. at 11.
On November 24, 2009, defendants filed their motion for summary
judgment, relying on the same exemptions identified in their
earlier response to plaintiff’s request. The motion is now ripe
for review by the Court.
II. STANDARD OF REVIEW
The Court may grant a motion for summary judgment if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits or declarations,
show that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c). The moving party bears the burden of
demonstrating the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual
assertions in the moving party’s affidavits or declarations may
be accepted as true unless the opposing party submits his own
affidavits or declarations or documentary evidence to the
contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).
In a FOIA case, the Court may grant summary judgment based
on the information provided by the agency in affidavits or
declarations when the affidavits or declarations describe “the
documents and the justifications for nondisclosure with
3 reasonably specific detail, demonstrate that the information
withheld logically falls within the claimed exemption, and are
not controverted by either contrary evidence in the record nor by
evidence of agency bad faith.” Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981); see also SafeCard Services,
Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (agency
affidavits must be “relatively detailed and non-conclusory”).
Such affidavits or declarations are accorded “a presumption of
good faith, which cannot be rebutted by ‘purely speculative
claims about the existence and discoverability of other
documents.’” SafeCard Services, Inc., 926 F.2d at 1200 (D.C. Cir.
1991) (quoting Ground Saucer Watch, Inc. v. Central Intelligence
Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).
III. ANALYSIS
For the reasons discussed more fully below, the Court
concludes that the affidavits submitted by defendants fail to
provide adequate support for any of the claimed exemptions, and
therefore fail to support their motion for summary judgment.
Accordingly, defendants’ motion for summary judgment is DENIED.
A. FOIA
Congress enacted FOIA to “open up the workings of government
to public scrutiny through the disclosure of government records.”
Stern v. FBI, 737 F.2d 84, 88 (D.C. Cir. 1984)(quotation
omitted). Although FOIA is aimed toward “open[ness] . . . of
4 government,” id., Congress acknowledged that “legitimate
governmental and private interests could be harmed by release of
certain types of information.” Critical Mass Energy Project v.
Nuclear Regulatory Comm’n, 975 F.2d 871, 872 (D.C. Cir. 1992)
(citations and quotations omitted). As such, pursuant to FOIA’s
nine exemptions, an agency may withhold requested information.
5 U.S.C. § 552(a)(4)(B); 5 U.S.C. § 552(b)(1)-(9). However,
“[b]ecause FOIA establishes a strong presumption in favor of
disclosure, requested material must be disclosed unless it falls
squarely within one of the nine exemptions carved out in the
Act.” Burka v. U.S. Dep’t of Health and Human Servs., 87 F.3d
508, 515 (D.C. Cir. 1996) (citations omitted).
B. Exemption 7(A)
In their motion for summary judgment, defendants primarily
rely on Exemption 7(A) as the basis for withholding the requested
materials. Exemption 7(A) permits an agency to withhold “records
or information compiled for law enforcement purposes, but only to
the extent that the production of such law enforcement records or
information . . . could reasonably be expected to interfere with
enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). In analyzing
whether documents were properly withheld under Exemption 7(A),
the courts of this Circuit have held that “an agency must show
that they were compiled for law enforcement purposes and that
their disclosure (1) could reasonably be expected to interfere
5 with (2) enforcement proceedings that are (3) pending or
reasonably anticipated.” Mapother v. Dep’t of Justice, 3 F.3d
1533, 1540 (D.C. Cir. 1993); see also Kay v. FCC, 976 F. Supp.
23, 37 (D.D.C. 1997) (“The applicability of Exemption 7(A)
involves a two-step analysis: (1) whether a law enforcement
proceeding is pending or prospective; and (2) whether release of
information about it could reasonably be expected to cause some
articulable harm.”)
Plaintiff opposes the application of Exemption 7(A), arguing
that an allegedly pending administrative disciplinary action is
not a law enforcement proceeding within the meaning of the
exemption, that defendants have failed to show that the
administrative disciplinary action is in fact pending, and that
defendants have failed to demonstrate that the disclosure of
these records would interfere with any enforcement proceeding.
As is explained below, the Court concludes that although
defendants have adequately demonstrated that there is a pending
administrative proceeding and that such a proceeding does qualify
as a law enforcement proceeding within the meaning of Exemption
7(A), the defendants have failed to provide sufficient support
for their assertion that the release of the requested records
would interfere with a pending proceeding. Each argument is
discussed in turn.
6 i. The Application of Exemption 7(A) to an Administrative Disciplinary Proceeding
Plaintiff contests the applicability of Exemption 7(A) on
the grounds that defendants have, at most, alleged a “pending
administrative and/or disciplinary action,” rather than a pending
law enforcement proceeding. Pl.’s Opp’n at 9. Plaintiff
concedes that she “does not dispute that the record(s) in
question, to the degree they have thus far been identified, were
initially created for a law enforcement purpose and therefore are
potentially subject to Exemption 7 protection.” Pl.’s Opp’n at 8
n.3. However, with respect to Exemption 7(A) in particular,
plaintiff accuses defendants of “trying to bootstrap the
existence of an alleged ‘administrative and/or disciplinary
action’ into the gambit of a law enforcement proceeding.” Pl.’s
Opp’n at 9.
The Court disagrees and concludes that records compiled for
a pending administrative disciplinary action may fall within
Exemption 7(A). As plaintiff herself notes, courts have applied
Exemption 7(A) to various types of proceedings. See Tax Analysts
v. IRS, 294 F.3d 71 (D.C. Cir. 2002) (“‘law enforcement purposes’
under Exemption 7 includes both civil and criminal matters within
its scope. . . . FOIA makes no distinction between agencies
whose principal function is criminal law enforcement and agencies
with both law enforcement and administrative functions.”) (citing
Pratt v. Webster, 673 F.2d 408, 416 (D.C. Cir. 1982)); Rural
7 Housing Alliance v. U.S. Dep’t of Agriculture, 498 F.2d 73, 81
(D.C. Cir. 1974) (“the law enforcement purposes protected by
exemption 7 include both civil and criminal purposes”); Judicial
Watch, Inc. v. Rossotti, 285 F. Supp. 2d 17, 30 (D.D.C. 2003)
(“The documents in question relate to an on-going civil
investigation by IRS and are exempt under Exemption 7(A).”) Nor,
contrary to plaintiff’s assertions, will this Court be the first
District Court to conclude that Exemption 7(A) applies to a
pending administrative disciplinary proceeding. See Envtl. Prot.
Servs. v. EPA, 364 F. Supp. 2d 575 (N.D. W. Va. 2005) (“[T]he
documents withheld by the EPA pursuant to Exemption 7(A) were
compiled for law enforcement purposes. . . . The disclosure of
these withheld documents would prematurely reveal the EPA’s case
against the plaintiff in the administrative proceeding that is
currently pending.”)
Accordingly, the Court finds that defendants have provided
sufficient evidence of a law enforcement proceeding within the
meaning of Exemption 7(A).
ii. Whether the Enforcement Proceeding is Pending or Reasonably Anticipated
Plaintiff next argues that the pending disciplinary
proceeding asserted by defendants is, at most, hypothetical.
Pl.’s Opp’n at 10. In particular, plaintiff claims that the
investigation into the unauthorized access of her email is over
and the U.S. Attorney’s Office has already declined to prosecute.
8 In support of her claims, she points to a two-page document
titled “CID Report of Investigation.” Pl.’s Opp’n Ex. 1. The
document provides a brief “investigative summary” stating that an
unknown person did access plaintiff’s email account but
ultimately concluding with the statement that “Mr. Jay Prabhu,
Assistant United States Attorney (AUSA), Eastern District of
Virginia, Alexandria, VA, declined prosecution of this
investigation.” Pl.’s Opp’n Ex. 1.
In support of their contention that a disciplinary action is
nonetheless pending, defendants submitted the declaration of
William Koon, the “Attorney-Advisor and Labor Counselor for
Commander of Joint Force Headquarters - National Capitol Region
and the Military District of Washington,” who “advises the
Commander . . . concerning issues with civilian employees.”
Declaration of William Koon (“Koon Decl.”) ¶ 1. Mr. Koon states
that “[t]he Commanding General is awaiting completion of two
other investigations into the conduct of some of the same
officials at Arlington National Cemetery before making a
determination as to whether disciplinary action against the
officials is proper.” Koon Decl. ¶ 3.
Plaintiff correctly asserts that Exemption 7(A) is only
applicable to a law enforcement proceeding that is “pending or
reasonably anticipated.” Mapother, 3 F.3d at 1540. However, the
CID Report of Investigation cited by plaintiff merely states that
9 the U.S. Attorney’s Office has declined prosecution. It does not
contradict the assertion by Mr. Koon that the U.S. Army is still
considering whether to take disciplinary action against the
subjects of the investigation. Koon Decl. ¶ 3. Although the
explanation provided by Mr. Koon is brief, it is “reasonably
detailed and non-conclusory.” SafeCard Services, Inc., 926 F.2d
at 1200. The Court concludes that defendants have satisfied
their burden of showing that the proceeding is pending or at
least reasonably anticipated.
iii. Whether the Disclosure Would Interfere with the Enforcement Proceeding
An agency invoking Exemption 7(A) must show that the
disclosure of the requested materials “could reasonably be
expected to interfere with enforcement proceedings.” 5 U.S.C.
§ 552(b)(7)(A). Here, defendants fail to meet their burden.
This Circuit has held that an agency invoking Exemption 7(A)
“must show, by more than [a] conclusory statement, how the
particular kinds of investigatory records requested would
interfere with a pending enforcement proceeding.” Campbell v.
Dep’t of Health and Human Servs., 682 F.2d 256, 259 (D.C. Cir.
1982). Although the agency is not required to submit a
“document-by-document” response to plaintiff’s FOIA request, the
submissions must at least “focus upon categories of records
encompassed by [plaintiff’s] request.” Id. at 265. In
particular, the agency affidavits or declarations “must
10 demonstrate specifically how each document or category of
documents, if disclosed, would interfere with the investigation,
for example, how revelation of any particular record or record
category identified as responsive to [plaintiff’s] request would
reveal to particular targets actual or potential, the scope,
direction, or focus of the [agency’s] inquiry.” Id.; see also
Crooker v. Bureau of Alcohol, Tobacco & Firearms, 789 F.2d 64, 67
(D.C. Cir. 1986); Bevis v. Dep’t of State, 801 F.2d 1386, 1389-90
(D.C. Cir. 1986).
In support of their claim that disclosure of the report of
investigation would “interfere with enforcement proceedings,”
defendants rely on the following statements in the declaration of
Mr. Koon:
Releasing the report of investigation prior to a determination concerning administrative and/or disciplinary action would violate the privacy rights of the subjects of the investigation; reveal the scope, direction and limits of the investigation prematurely; reveal the identity of cooperating witnesses and/or informants; reveal physical or testimonial evidence; reveal the strengths and weaknesses in the case and reveal transactions being investigated. This information is key to enforcing any potential disciplinary action.
Releasing the report prior to any potential disciplinary action could result in destruction of evidence or intimidation of witnesses, which would make any disciplinary action more difficult, if not impossible, to take effectively.
Koon Decl. ¶¶ 4-5. However, these conclusory, boilerplate
statements, without reference to specific documents or even
11 categories of documents, fail to support the agency’s motion for
summary judgment on the basis of Exemption 7(A). The statements
by Mr. Koon appear designed to cover every scenario in which a
plaintiff seeks the disclosure of records related to a law
enforcement proceeding. The contention by Mr. Koon that the
disclosure of these records would “reveal the identity of
cooperating witnesses and/or informants” is particularly telling
- the agency has not bothered to determine what harm would result
if these particular records were released.
Accordingly, despite the Court’s conclusion that the
affidavit of Mr. Koon is sufficient to demonstrate that a pending
or reasonably anticipated administrative disciplinary proceeding
exists, the defendants ultimately fail to provide sufficient
support for their invocation of Exemption 7(A).
iv. Segregable Material
The defendants have also failed to satisfy their burden of
demonstrating that there is no reasonably segregable material.
An agency claiming an exemption is required to provide “any
reasonably segregable portion of a record . . . after deletion of
the portions which are exempt[.]” 5 U.S.C. § 552(b); see also
Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d
242, 260 (D.C. Cir. 1977) (“an agency cannot justify withholding
an entire document simply by showing that it contains some exempt
material. It has long been a rule in this Circuit that non-exempt
12 portions of a document must be disclosed unless they are
inextricably intertwined with exempt portions.”)
An agency asserting that there is no segregable information
in a document “must provide a more detailed justification
than . . . conclusory statements.” Id. at 261; see also
Krikorian v. Dep’t of State, 984 F.2d 461, 467 (D.C. Cir. 1993)
(holding that the Vaughn index and the affidavits provided by an
agency “must supply ‘a relatively detailed justification,
specifically identifying the reasons why a particular exemption
is relevant and correlating those claims with the particular part
of a withheld document to which they apply.’”) (quoting Schiller
v. NLRB, 964 F.2d 1205, 1210 (D.C. Cir. 1992)).
Defendants have provided a Vaughn Index containing a list of
the withheld documents. Defs.’ Mot. Summ. J., Ex. A Declaration
of Phillip J. McGuire (“McGuire Decl.”) Tab 13. Although the
Index provides some identifying information, giving labels to the
documents such as “crime scene sketch” or an “agent’s
investigation report”, it contains little else. McGuire Decl.
Tab 13. Every single one of the roughly 40 documents in the
index is accompanied by a statement that the document is withheld
“in its entirety under Exemptions (b)(6); (b)(7)(A) and
(b)(7)(C)[.]” McGuire Decl. Tab 13. Defendants argue that
“[a]ll records were compiled in the course of an ongoing
investigation and disciplinary action. Therefore none of the
13 materials were segregable.” Defs.’ Mem. at 12-13.
Defendants’ blanket assertion of non-segregability is
contrary to the case law requiring that defendants indicate for
each document “which portions of the document are disclosable and
which are allegedly exempt.” Defenders of Wildlife v. U.S.
Border Patrol, 623 F. Supp. 2d 83, 90 (D.D.C. 2009) (quoting
Wilderness Soc’y v. Dep’t of Interior, 344 F. Supp. 2d 1, 19
(D.D.C. 2004). Accordingly, the Court concludes that defendants
have failed to establish that there are no segregable portions of
the withheld documents.
C. Whether Exemption 6 or Exemption 7(C) Apply in the Alternative
Having concluded that defendants failed to provide
sufficient evidence for the application of Exemption 7(A), the
Court now turns to the two other exemptions relied upon by
defendants. Exemption 6 provides that an agency may withhold
“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). Exemption 7(C) also guards the
privacy interests of individuals, providing that an agency may
withhold “records or information compiled for law enforcement
purposes . . . to the extent that the production of such law
enforcement records or information . . . could reasonably be
expected to constitute an unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(7)(C).
14 With respect to both Exemptions 6 and 7(C), the Court is
unable to evaluate whether either exemption was properly applied
in light of defendants’ statement in their reply brief that they
“did not assert that Exemptions 6 and 7(C) justify withholding
the Report of Investigation in its entirety.” Defs.’ Reply at 6.
Defendants have, however, indeed withheld the entire
investigatory file. Defendants claim that “once enforcement
proceedings are complete, and Exemption 7(A) no longer applies,
some information would still be protected under Exemptions 6 and
7(A).” In light of the failure by defendants to sufficiently
demonstrate non-segregability, and in light of the defendants’
own assertion that it is not relying on these exemptions for the
withholding of the entire file, the Court concludes that these
exemptions cannot be properly applied at this time.
IV. CONCLUSION
For the foregoing reasons, it is hereby ordered that
defendants’ motion for summary judgment is DENIED. An
appropriate Order accompanies this Memorandum Opinion.
SIGNED: Emmet G. Sullivan United States District Court Judge September 30, 2010