Gray v. United States Army Criminal Investigation Command, Civ. Action No. 09–1310 (EGS).

742 F.Supp.2d 68

Jennifer GRAY, Plaintiff,

v.UNITED STATES ARMY CRIMINAL INVESTIGATION COMMAND, et al., Defendants.

Civ. Action No. 09–1310 (EGS).

United States District Court, District of Columbia.

Sept. 30, 2010.

Mark S. Zaid, Bradley P. Moss, Mark S. Zaid, P.C., Washington, DC, for Plaintiff.Kathryn Ann Donnelly, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

EMMET G. SULLIVAN, District Judge.

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 Superintendent 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 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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 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 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 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.

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 Housing Alliance v. U.S. Dep't of Agriculture, 498 F.2d 73, 81 (D.C.Cir.1974) (“the law enforcement purposes protected...