Carlborg v. Dep't of Navy

ROBERT S. CARLBORG, Plaintiff, v. DEPARTMENT OF THE NAVY, Defendant.

No. 18-cv-1881 (DLF)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

August 10, 2020

MEMORANDUM OPINION

Robert S. Carlborg brings this action against the Department of the Navy under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, et seq., and the Privacy Act, 5 U.S.C. § 552a, et seq., challenging the Navy's response to requests Carlborg made under both acts. Before the Court are Carlborg's Motion for Partial Summary Judgment, Dkt. 23, and the Navy's Cross-Motion for Summary Judgment, Dkt. 28. For the reasons that follow, the Court will grant the Navy's motion and deny Carlborg's motion.

I. BACKGROUND

In 2015, after an investigation into alleged misconduct, Robert Carlborg was involuntarily discharged from the United States Marine Corps. Compl. ¶ 3, Dkt. 5. Following his separation from the Marine Corps, Carlborg submitted various FOIA and Privacy Act requests for records related to his time in the Marine Corps and the investigation that ultimately led to his involuntary discharge. Id. Carlborg filed this lawsuit against the Navy over its response to those requests on August 10, 2018. See Dkt. 1.

Carlborg's complaint alleges five counts. The first pertains to a Privacy Act request submitted on February 5, 2018 that sought "a copy of any and all documents maintained on [Carlborg]" in the Marine Corps Manpower Management Information System Records, which retains pay and personnel records for "active duty, reserve, and retired Marines." Hughes Decl. ¶¶ 5-8, Dkt. 28-4. The Navy searched this system of records but found no responsive material because the records of administratively separated service members are only retained in this system for "6 months beyond the date the separation was processed." Id. ¶ 8. The Navy then searched a related system of records, the Optical Digital Imaging Records Management System, and located Carlborg's "Official Military Personnel File," which totaled 281 pages. Id. ¶ 9. The Navy processed this file under the Privacy Act, withheld "personal identifying information pertaining to third parties," and provided a redacted version of the file to Carlborg on March 28, 2019. Id.

Carlborg's second count relates to a FOIA request submitted on August 9, 2017 that sought emails to or from a Marine Corps officer that mentioned "Carlborg" between March 1, 2015, and October 31, 2015, along with any responses to those emails. See Compl. ¶ 10; McMillan Decl. ¶ 6, Dkt. 28-5. The Navy collected the officer's .pst file, McMillan Decl. ¶ 7, which stores "copies of messages, calendar events, and other items within Microsoft software, such as Microsoft Outlook," Defs.' Mem. in Supp. of Defs.' Mot. for Summ. J. ("Defs.' Mem.") at 7 n.1, Dkt. 28-2. The Navy searched the file as requested and found 244 pages of responsive email records. McMillan Decl. ¶ 7. After reviewing these records, the Navy withheld some information pursuant to FOIA Exemptions 5 and 6 and produced the remainder of the records to Carlborg on October 5, 2017. Id. ¶ 8. After Carlborg had administratively appealed, the Navy discovered "a series of email attachments that were not previously released or properly exempted," produced those attachments to Carlborg, and released some—but not all—of thematerial previously withheld under the FOIA exemptions that the Navy had previously invoked. Id. ¶ 8-11.

The third count concerns a Privacy Act request that Carlborg made on July 25, 2017, which sought an advisory opinion from the Staff Judge Advocate, Military, Policy Personnel Branch, about Carlborg's separation. Compl. ¶ 28. The Navy initially processed the advisory opinion under FOIA, "invoked exemptions [6] and [7(C)] to protect third parties' identities and information," and produced a redacted version of the opinion to Carlborg on August 4, 2017. Hughes Decl. ¶ 12. After Carlborg administratively appealed, the Navy reprocessed the advisory opinion under the Privacy Act and produced the opinion to Carlborg on July 20, 2018, withholding only a third party's signature at the end of the opinion. Id. ¶¶ 14-15.

Carlborg's fourth count is based on two Privacy Act requests for records "maintained on" Carlborg. Compl. ¶¶ 40-42. The first request sought Carlborg's records from the HQMC Correspondence Control Files System, which maintains records relating to "Marines or former Marines who have been the subject of correspondence from a member of Congress." Id. ¶ 40. The second request sought records from the Performance File, which contains the records of those "who, while on active duty or in a reserve status, become the subject of investigation, indictment, or criminal proceedings by military or civilian authorities." Id. ¶ 42. In response to Carlborg's request, the Navy searched each system twice using the keyword "Carlborg." Hughes Decl. ¶¶ 31, 36. In addition, all individuals "who might reasonably have been expected to handle" Carlborg's case searched their own emails, .pst files, desktop, and shared drives for any potentially responsive records. Id. ¶¶ 18, 31. On January 12, 2018, the Navy produced 161 pages of records in response to Carlborg's requests. Compl. ¶ 65. After a series ofadministrative appeals, on July 20, 2018 the Navy produced additional records that had been created after the Navy's previous search. Hughes Decl. ¶ 33.

Carlborg's fifth count concerns two FOIA requests for email records regarding the disciplinary action that led to his separation from the Marine Corps. Compl. ¶¶ 73-76. The first request was made on February 21, 2016, and sought any email sent or received by nine named Marines regarding Carlborg's disciplinary action from June 30, 2014 to October 9, 2015. Pl's Ex. 20, Dkt. 23-2; McMillan Decl. ¶ 15. Carlborg's other request was submitted on April 12, 2016 and sought all emails sent or received by three named Marine Corps officers regarding their assignment to Carlborg's Board of Inquiry or their handling of Carlborg's case from February 5, 2015 to October 9, 2015. Pl's Ex. 19, Dkt. 23-2. In response to the first request, the Navy searched the emails of the requested individuals for the keyword "Carlborg" and provided the responsive material onto a compact disc. McMillan Decl. ¶ 15 & Ex. C. In response to Carlborg's second request, the Navy searched the emails of the three specified individuals for the keywords "Carlborg" and "Board of Inquiry." McMillan Decl., Ex. D at 2. Carlborg received the results from both requests on August 4 and August 5, 2016. McMillan Decl. ¶ 16.

On January 13, 2020, Carlborg filed a motion for partial summary judgment. Dkt. 23. On May 15, 2020, the Navy filed a cross-motion for summary judgment on all counts. Dkt. 28.

II. LEGAL STANDARDS

Rule 56 of the Federal Rules of Civil Procedure mandates that "[t]he court shall grant summary judgment if 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' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Paige v. Drug Enf't Admin., 665 F.3d 1355, 1358 (D.C. Cir. 2012). A fact is material ifit "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The Privacy Act mandates that "[e]ach agency that maintains a system of records shall . . . upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him . . . to review the record and have a copy made of all or any portion thereof in a form comprehensible to him." 5 U.S.C. § 552a(d)(1). The Privacy Act also allows individuals to request notice that an agency's system of records contains information about them. See 5 U.S.C. §§ 552a(e)(4)(G), (f)(1). FOIA provides that "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A).

The Privacy Act and FOIA are structurally similar. Londrigan v. FBI, 670 F.2d 1164, 1169 (D.C. Cir. 1981). Both provide a requester with access to federal agency records about the requester and create a private cause of action when an agency fails to comply with a valid request. See 5 U.S.C. §§ 552a(d)(1), (g)(1) (Privacy Act); 5 U.S.C. §§ 552(a)(3)(A), (a)(4)(B) (FOIA). Unlike FOIA, however, the Privacy Act "does not have disclosure as its primary goal. Rather, the main purpose of the Privacy Act's disclosure requirement is to allow individuals on whom information is being compiled and retrieved the opportunity to review the information and request that the agency correct any inaccuracies." Henke v. U.S. Dep't of Commerce, 83 F.3d 1453, 1456-57 (D.C. Cir. 1996).

Under both the Privacy Act and FOIA, an agency must conduct an adequate and reasonable search for relevant records. See Chambers v. U.S. Dep't of Interior, 568 F.3d 998,1003 (D.C. Cir. 2009) (stating that "the Privacy Act, like FOIA, requires" that a search "be reasonably calculated to uncover all relevant documents" (internal quotation marks omitted)). In this Circuit, courts apply the same standard under both statutes to determine the adequacy of a search. See id.; Hill v. U.S. Air Force, 795 F.2d 1067, 1069 (D.C. Cir. 1986) (per curiam) (affirming search's adequacy under Privacy Act for the same reasons the search was affirmed under FOIA). Thus, "[i]n a suit seeking agency documents—whether under the Privacy Act or the FOIA—at the summary judgment stage, where the agency has the burden to show that it acted in accordance with the statute, the court may rely on a reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely...