Protect Our Defenders v. Dep't of Def.

401 F.Supp.3d 259

PROTECT OUR DEFENDERS and Connecticut Veterans Legal Center, Plaintiffs,

v.DEPARTMENT OF DEFENSE and Department of Homeland Security, Defendants.

3:17-cv-02073 (VLB)

United States District Court, D. Connecticut.

Signed July 12, 2019

Michael J. Wishnie, Jerome N. Frank Legal Services—Wall St. Yale Law School, New Haven, CT, Aaron Paul Wenzloff, Community Activism Law Alliance, Chicago, IL, for Plaintiff.

Carolyn Aiko Ikari, U.S. Attorney's Office, Hartford, CT, Natalie Nicole Elicker, U.S. Attorney's Office, New Haven, CT, for Defendants.

MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [DKT. 37]

Hon. Vanessa L. Bryant, United States District Judge

Plaintiffs Protect Our Defenders ("POD") and Connecticut Veterans Legal Center ("CVLC") (collectively "Plaintiffs") brought suit under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking disclosure of records withheld and redacted by Defendants Department of Defense ("DOD") and Department of Homeland Security ("DHS") (collectively "Defendants"). [Dkt. 1 (Compl.) ]. Plaintiffs claim Defendants failed to conduct an adequate records search and withheld and redacted documents which did not fall within the asserted exemptions from disclosure under the FOIA. Before the Court now is Defendants' Motion for Summary Judgment, [Dkt. 37] seeking an order that their records search was adequate and that they properly withheld and redacted information requested by Plaintiffs. For the following reasons, Defendants' Motion is granted in part and denied in part.

I. Background

All facts recited below are asserted in the Complaint [Dkt. 1], the parties' Local Rule 56(a) Statements [Dkts. 37-2, 40-1], and the summary judgment briefing and substantiated by admissible evidence filed as exhibits. The Court presents the facts in the light most favorable to the nonmoving party—here, Plaintiffs—after drawing all reasonable inferences in their favor. Sologub v. City of New York , 202 F.3d 175, 178 (2d Cir. 2000).

Plaintiffs submitted three requests for records to Defendants pursuant to the Freedom of Information Act.¹ [Dkt. 37-2 (Defs.' L. R. 56(a)1 Statement) at ¶ 6]. Five branches of the armed forces—the Air Force, Army, and Navy and Marine Corps within the DOD, and the Coast Guard within DHS—conducted searches and issued responses to the requests. Id. at ¶ 10. Defendants detailed their efforts in declarations and Vaughn indices attached to the motion for summary judgment. Id. ¶ 11. Defendants produced certain documents, some of which were redacted, and withheld other documents.

The parties discussed the materials redacted and withheld and present the following discovery disputes for the court to resolve: first, whether the search for documents responsive to Item # 7 of the Second Request was legally adequate; second, whether Defendants' properly withheld information protected by privilege under Exemption 5; and third, whether Defendants' properly withheld biographies and redacted from disclosed documents the names of personnel at the rank of Colonel and below under Exemption 6. Id. at ¶ 1; [Dkt. 40-1 (Plfs.' Rule 56(a) Statement) at ¶1].

A. Response to Second Request Item # 7

Item # 7 of the Second Requests sought information regarding the Air Force "race and discipline working group" (the "Working Group" or "Group"), referred to by Plaintiffs as the "Air Force's diversity team."² [Dkt. 37-2 at ¶ 12; Dkt. 48-10 at p. 3 ¶ 5]. Three Air Force offices³ were involved in the Working Group—the Headquarters Office, the Secretary's Office, and the JAG Office.⁴ Id. at ¶¶ 24-25. The Headquarters Office served as the lead office for the study and generation of written work for the Working Group, with the Group's Study Director and Lead Data Analyst assigned to that office. [Dkt. 48-10 at ¶ 5]. The Working Group convened from April 2016 to June 2016. [Dkt. 37-2 at ¶ 47; Dkt. 48-10 (Jones Second Suppl. Decl.) at ¶ 5]. The Declarations of Colonel Jones, currently, and at all relevant times, the Chief of the Headquarters Office, provide background regarding the Working Group, relevant file systems, and search efforts concerning Item # 7. [Dkt. 37-2 at ¶¶ 14-15].

The Headquarters Office was deemed most likely to have responsive documents based on its role in the Working Group. [Dkt. 48-10 at ¶¶ 5, 7]. Air Force personnel conducted initial searches of the Headquarters Office shared network drive using search terms⁵ in February and March 2018. [Dkt. 37-2 at ¶ 16; see also Dkt. 40-1 at ¶ 16; Dkt. 21 (3.12.2018 Status Report) at 9]. The Deputy Director of the Analyses Foundation & Integration Division—the office responsible for leading, carrying out, reviewing, and ensuring the analytic integrity of studies conducted throughout the Air Force—searched email records. [Dkt. 37-2 at ¶¶ 17-19; Dkt. 37-8 (Jones Decl.) at ¶ 6]. The initial searches produced the "Talking Paper on Air Force Military Justice System Diversity Efforts" (the "Talking Paper"), which relates to the creation and performance of the Working Group. [Dkt. 37-2 at ¶ 20; Dkt. 48-10 at ¶ 6].

On April 16, 2018, the Air Force Legal Operations Agency requested supplemental searches for additional records relating to the creation of the Group and its work on court martials. [Dkt. 37-2 at ¶ 21-22; Dkt. 48-10 at ¶ 4]. The Headquarters Office conducted supplemental searches between May 22, 2018 and June 18, 2018. Id. at ¶ 30; [Dkt. 37-10 at ¶ 7]. Those conducting the searches did not use the provided agreed upon search terms.⁶ See [Dkt. 37-2 at ¶¶ 22-23]. They unilaterally limited the scope of the search after determining that the terms were overly broad. [Dkt. 48-10 at 10].

The member of the Working Group who was familiar with its formation and performance, and knowledgeable about Headquarters Office files, determined that the Headquarters Office shared network drive was the most likely location to have responsive records and searched the locations on the shared drive mostly likely to contain such records. [Dkt. 48-10 at ¶ 7; Dkt. 37-2 at ¶ 31; Dkt. 37-10 at ¶ 7]. The member also reviewed emails in his/her account from April through June 2016, the time period during which the Group convened. [Dkt. 37-2 at ¶¶ 40-41; Dkt. 37-10 at ¶ 8]. With the exception of the one responsive email identified, the resulting responsive documents concerned the performance of the Working Group. [Dkt. 48-10 at ¶ 8].

Other members involved in the formation of the Working Group—including the initial and final JAG Office leads, [Dkt. 37-10 at ¶ 11-12; Dkt. 37-2 at ¶ 50-57], and the Special Assistant to the Secretary's Office, [Dkt. 37-2 at ¶ 59-62]—were asked to conduct a limited search of their email accounts for emails specifically relating to the Group's formation.⁷ Id. at ¶ 9; [ Dkt. 37-2 at ¶ 42]. The Secretary's Office also determined that it did not have responsive records on its shared drive. [Dkt. 37-2 at ¶ 60].

Colonel Jones's Second Supplemental Declaration claims that "[a]ll USAF personnel involved in the searches identified relevant locations based on their expertise and knowledge of USAF records and recordkeeping[ ]" and "concluded that there were no other locations reasonably likely to have responsive records." [Dkt. 48-10 at ¶ 11].

B. Exemption 5 Withholdings

DOD withheld documents and information claiming deliberative process and attorney client privilege under Exemption 5. Id. at ¶ 91. Exemption 5 disputes remain as to four documents—9-E, 9-G, 9-H, and 9-I.⁸ [Dkt. 48 at 9].

C. Exemption 6 Withholdings

Plaintiffs seek Staff Judge Advocate ("SJA") biographies from each component. [Dkt. 37-2 at ¶ 63]. Defendants withheld these biographies under Exemption 6, which protects information in personnel and medical files and similar files when disclosure would constitute a clearly unwarranted invasion of privacy. Plaintiffs seek the biographies in full and dispute the extent to which they are considered private, treated as confidential, and distributed to non-DOD personnel. [Dkt. 40-1 at ¶¶ 64-65, 67-68, 72, 79, 85].

Defendants also withheld personal identifying information of government and military personnel at the rank of Colonel (O-6) and below pursuant to Exemption 6. [Dkt. 37-2 at ¶¶ 86-89]. Plaintiffs argue that they are entitled to identifying information for individuals at the rank of Colonel.

II. Standard of Review

"FOIA was enacted to promote honest and open government and to assure the existence of an informed citizenry to hold the governors accountable to the governed." Grand Cent. P'ship., Inc. v. Cuomo , 166 F.3d 473, 478 (2d Cir. 1999) (quotation marks omitted). FOIA reflects "a general philosophy of full agency disclosure," Dep't of Air Force v. Rose , 425 U.S. 352, 360, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (quotation marks omitted), and "adopts as its most basic premise a policy strongly favoring public disclosure of information in the possession of federal agencies," Halpern v. F.B.I. , 181 F. 3d 279, 286 (2d Cir. 1999).

"The agency must disclose its records ‘unless its documents fall within one of the specific, enumerated exemptions set forth in the Act.’ " Associated Press v. United States Dep't of Defense , 554 F.3d 274 (2d Cir. 2009) (quoting Wood v. F.B.I. , 432 F.3d 78, 82-83 (2d Cir. 2005) ). "In keeping with the policy of full disclosure, the exemptions are narrowly construed with doubts resolved in favor of disclosure." Halpern , 181 F.3d at 287 (quotation marks omitted).

"As with all motions for summary judgment, summary judgment in a FOIA case is appropriate only when the ... materials submitted to the Court show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Serv. Women's Action Network v. Dep't of Def. , 888 F. Supp. 2d 231, 240 (D. Conn. 2012) (quotation marks omitted) (hereinafter "SWAN I "). "In order to prevail on a motion for summary judgment in a FOIA case, the defending agency has the burden of...