Mountgordon v. U.S. Coast Guard

691 F.Supp.3d 72

Hilary MOUNTGORDON, Plaintiff, v. UNITED STATES COAST GUARD, Defendant.

Civil Action No. 21-1319 (RDM)

United States District Court, District of Columbia

Signed August 30, 2023

Maryam Hadden, Timothy Parlatore, Parlatore Law Group LLP, New York, NY, for Plaintiff.

Hilary Mountgordon, Lake Villa, IL, Pro Se.

Patricia K. McBride, U.S. Attorney's Office for the District of Columbia, Washington, DC, forDefendant.

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

Plaintiff Hilary Mountgordon brings this Freedom of Information Act ("FOIA") action against the United States Coast Guard. Before the Court are the parties' cross motions for summary judgment. Dkt. 14; Dkt. 22; Dkt. 23. The dispute centers on the Coast Guard's application of two exemptions to three sets of records.

For reasons that will become apparent below, this case brings to mind John Wooden's admonition: "If you don't have time to do it right, when will you have time to do it over?" Here, the Coast Guard's motion for summary judgment is poorly supported and lacking essential detail. Many of its withholdings are likely proper, but the Coast Guard has not taken the time to support its position. That means more work for the Coast Guard, Plaintiff's counsel, and the Court. And, more importantly, it also means unnecessary delay, which is antithetical to FOIA. Although the Court will provide the Coast Guard with an opportunity to fill in at least some of the gaps left in its initial motion—largely because the withheld information implicates the interests of third parties, who cannot be blamed for the Coast Guard's failings—this is not a process that can continue indefinitely. FOIA does not permit an agency to make a half-hearted effort with the expectation that, if unconvincing, it can simply "do it over"—again and again, until the Court is satisfied.

So, for the reasons set forth below, the Court will GRANT in part and DENY in part Defendant's motion for summary judgment, Dkt. 14, and will GRANT in part and DENY in part Plaintiff's cross-motion for summary judgment, Dkt. 22; Dkt. 23.

I. BACKGROUND

From July to November 2017, Plaintiff was an officer candidate enrolled in the Coast Guard's Officer Candidate School ("OCS"). Dkt. 1 at 3 (Compl. ¶ 12). During her training, Plaintiff allegedly injured her leg. Id. Plaintiff further alleges that, after she sustained that injury, "the officer in charge of her unit began bullying her" by issuing "a large[ ] number of demerits," culminating in a recommendation that she be removed from the OCS program. Id. at 3-4 (Compl. ¶¶ 12-14). Following proceedings before a review board, Plaintiff was removed from OCS and given a choice "between service as an enlisted member" (as opposed to serving as a commissioned officer) or "release[ ] from her remaining service obligation." Id. at 4 (Compl. ¶¶ 14-15). Plaintiff chose to be released from service. Id.

A year and a half later, Plaintiff made a telephonic complaint to the Department of Homeland Security's Office of the Inspector General ("OIG"), alleging "injury through negligence of herself and other officer candidates while in training and general allegations of bullying" at OCS. Id. at 5 (Compl. ¶ 16). Plaintiff's OIG complaint was referred to the Coast Guard Investigative Service, which further referred the complaint to the Coast Guard Leadership Development Center ("LDC"). Dkt. 14 at 3 (Def.'s SUMF). The LDC appointed an officer to conduct an administrative investigation into Plaintiff's complaint. Dkt. 14-1 at 2 (Judge Decl. ¶ 4). After receiving the investigating officer's report, the Commanding Officer of the LDC, Captain A.E. Waters, reviewed the report and produced a seven-page memorandum, which the Coast Guard sent to the DHS OIG. Id. at 2-3 (Judge Decl. ¶¶ 4-5); Id. at 9 (Ex. 1). That memorandum constituted the Coast Guard's "Final Action on Ms. Mountgordon's complaint." Id. at 2 (Judge Decl. ¶ 4).

The following year, Plaintiff submitted two later-consolidated FOIA requests to the Coast Guard, seeking records related to the internal investigation and handling of her OIG complaint. Dkt. 14 at 2 (Def.'s SUMF ¶ 2). More specifically, Plaintiff's consolidated request sought five categories of records: (1) the investigating officer's initial report; (2) any witness statements that accompanied the investigative report; (3) a list of the exhibits and enclosures appended to the Report; (4) the 2017 Coast Guard Academy ("CGA") Vital Signs Report; and (5) the Final Action Memorandum produced by the LDC commanding officer. Id. at 2-3 (Def.'s SUMF ¶ 2).

In response, the agency provided Plaintiff with a link to access the 2017 CGA Vital Signs Report, which is a publicly available document, see Dkt. 1-5 at 10 (Ex. D), and successfully located the remaining records. With respect to the remaining four records, the Coast Guard produced one record in full, one record in part, and withheld two records in their entirety. First, the Coast Guard provided Plaintiff with the full list of exhibits and enclosures appended to the Report. See Dkt. 14-1 at 5 (Judge Decl. ¶ 10). That list is not at issue in this litigation. Second, the Coast Guard provided Plaintiff with the full Final Action Memorandum, redacting only the names and ranks of "junior Coast Guard personnel" pursuant to FOIA Exemption 6. See id. at 3 (Judge Decl. ¶ 5). Third, the Coast Guard withheld in its entirety the investigative report pursuant to FOIA Exemption 5's deliberative-process privilege. Dkt. 14 at 24; Dkt. 24 at 7. Finally, the Coast Guard withheld, also in their entirety, the witness statements that accompanied the investigative report pursuant to FOIA Exemption 5's deliberative-process privilege and Exemption 6. Dkt. 24 at 7, 9-14.

A note about the witness statements: Throughout this litigation, the parties refer to the witness statements as "Exhibit 15," but, as the Coast Guard observes, "not all the material in . . . [E]xhibit [15] [is] actually a witness statement." Dkt. 14 at 12. Exhibit 15 consists of 38 pages: 14 pages of witness statement summaries; 8 pages of rights warning forms (essentially the Coast Guard's version of a Miranda waiver) signed by four witnesses; 15 pages of emails sent by then-officer candidates to the officer conducting the administrative investigation, including a six-page email (along with an 8 page performance evaluation) from one officer candidate, and a second one-page email from another officer candidate; and a one-page email from a medical officer to the investigating officer describing a policy contained in the Coast Guard's medical manual. Dkt. 14-1 at 5-7 (Judge Decl. ¶¶ 11-12); Dkt. 24 at 9-14. The Coast Guard withheld all of Exhibit 15, with the exception of the email to the medical officer, which the agency produced with only the names of the officers redacted pursuant to Exemption 6. Dkt. 24 at 7.¹

Plaintiff filed this suit pro se on May 4, 2021, seeking an order compelling the Coast Guard to disclose "any and all non-exempt records to Plaintiff's FOIA request." Dkt. 1 at 13 (Compl.). After the Coast Guard moved for summary judgment, Dkt. 14, counsel appeared on behalf of Plaintiff and both responded the Coast Guard's motion, Dkt. 22, and cross-moved for summary judgment, Dkt. 23. Because the Coast Guard provided Plaintiff with the web address for the 2017 Vital Signs Report and with a copy of the list of exhibits and enclosures appended to the investigative report, the parties' dispute concerns only the investigative report itself, which was withheld in full; the witness statements and related records, which were withheld in full; and the Final Action Memorandum, which was withheld in part. Both motions are fully briefed and ripe for the Court's consideration.

II. LEGAL STANDARD

The Freedom of Information Act is premised on the notion that an informed citizenry is "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). It, thus, mandates that an agency disclose records on request, unless they fall within one of nine exemptions. "These exemptions are explicitly made exclusive and must be narrowly construed." Milner v. Dep't of Navy, 562 U.S. 562, 565, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011) (internal citations and quotation marks omitted).

FOIA cases are typically resolved on motions for summary judgment under Federal Rule of Civil Procedure 56. See, e.g., Shapiro v. Dep't of Just., 153 F. Supp. 3d 253, 268 (D.D.C. 2016). To prevail on a summary judgment motion, the moving party must demonstrate that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In a FOIA action, "the Court may award summary judgment to an agency solely on the basis of information provided in affidavits or declarations that describe '. . . the justifications for nondisclosure [of records] with reasonably specific detail . . . and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.' " Thomas v. FCC, 534 F. Supp. 2d 144, 145 (D.D.C. 2008) (alterations in original) (quoting Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)). Accordingly, "[s]ummary judgment is warranted when the agency's affidavits 'describe 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.' " Elec. Frontier Found. v. Dep't of Just., 739 F.3d 1, 7 (D.C. Cir. 2014) (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)).

The Court reviews the agency's decision to withhold records...