UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________
)
ALMA T. AUGUSTUS, )
)
Plaintiff, )
)
v. ) Civil Action No. 02-2545 (RWR)
)
JOHN MCHUGH, )
Secretary of the Army, )
)
Defendant. )
_________________________)
MEMORANDUM OPINION
Pro se plaintiff Alma Augustus asserts a claim under the
Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, against the
Secretary of the United States Army, arising from the Secretary’s
redactions of a Report of Investigation (“ROI”) concerning a
discrimination complaint Augustus filed against three Army
employees.1 The Secretary renews his motion for summary judgment
regarding his assertions of FOIA exemptions 6 and 7(C). See 5
U.S.C. § 552(b)(6), (7)(C). Augustus opposes, challenging as
inadmissible and incompetent evidence multiple documents
contained in the record. Because much of the evidence Augustus
challenges does not bear upon whether the redactions of the ROI
were legally permissible, and because the Secretary’s arguments
supporting the FOIA redactions are unopposed, summary judgment
will be entered for the Secretary.
1
Other claims in this action have been resolved or
dismissed.
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BACKGROUND1
Augustus, an African-American woman, was a Lieutenant
Colonel in the United States Army National Guard Bureau (“NGB”)
assigned to active duty as an Automation Officer at the Army
National Guard Readiness Center in Arlington, Virginia. (Am.
Compl. at 1.) See Augustus v. McHugh, 825 F. Supp. 2d 245, 248-
49 (D.D.C. 2011). She alleges that she was unlawfully denied a
promotion and suffered from other unlawful forms of
discrimination and retaliation after she voiced concerns about
the NGB’s alleged discriminatory personnel policies and
procedures. (Am. Compl. at 2-3.) See Augustus, 825 F. Supp. 2d
at 249.
Augustus asserts that the NGB’s discriminatory motives
underlying its failure to promote her were memorialized in an ROI
prepared by Major General Peter Gravett in March of 2001. (Am.
Compl. at 5 ¶ 7.) See Augustus, 825 F. Supp. 2d at 249. She
claims that the ROI “substantiated [her] unlawful gender and race
discrimination” claims and recommended that she be promoted
retroactively to the rank of Colonel. (Am. Compl. at 5 ¶ 7.)
See Augustus, 825 F. Supp. 2d at 249. Augustus claims further
that Lieutenant General Roger Schultz and Major General James T.
Jackson approved a separate ROI and deemed Gravett’s ROI
1
The background of this case is more fully discussed in an
earlier memorandum opinion issued on September 29, 2004, and in
Augustus v. McHugh, 825 F. Supp. 2d 245 (D.D.C. 2011).
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procedurally and substantively flawed and disregarded its
recommendations. Augustus, 825 F. Supp. 2d at 249. She asked
for an unredacted copy of the Gravett ROI but the NGB provided
only a redacted one. (Def.’s Mem. of P. & A. in Supp. of Def.’s
Mot. for Summ. J. (“Def.’s Mem.”) at 2.) She filed this action
seeking, in part, an unredacted copy. The Secretary supplied as
a Vaughn index2 an employee’s declaration stating that each
redaction was accompanied by a code corresponding to the agency’s
reasons for withholding the information. Contrary to that
description, however, a careful review of the ROI revealed a
paucity of coded designations and no basis to conclude that the
NGB properly withheld the redacted information under FOIA
exemptions 6 and 7(C). Augustus, 825 F. Supp. 2d at 255. Thus,
although Augustus’s motion for summary judgment and for an
unredacted copy of Gravett’s ROI was denied without prejudice,
the Secretary later filed as directed, id. at 260-61, a redacted
copy of Gravett’s ROI reflecting more fully the coded
designations identified in the Secretary’s Vaughn index.
The Secretary now moves for summary judgment as to
Augustus’s FOIA claim and his redactions under exemptions 6 and
7(C).
2
In Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973),
the D.C. Circuit held that an agency must provide an “itemized
explanation” for its withholding documents requested under the
FOIA. A filing setting forth those specific justifications is
commonly termed a Vaughn index.
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DISCUSSION
“‘[T]he central purpose of the summary judgment device
. . . is to weed out those cases insufficiently meritorious to
warrant the expense of a jury trial.’” Moore v. Hartman, 730 F.
Supp. 2d 174, 178 (D.D.C. 2010) (quoting Greene v. Dalton, 164
F.3d 671, 675 (D.C. Cir. 1999)). Summary judgment is proper
“when the pleadings and evidence show ‘that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.’” Akers v. Beal Bank, Civil Action
No. 09-0724 (RMU), 2012 WL 639287, at *1 (D.D.C. Feb. 29, 2012)
(quoting Fed. R. Civ. P. 56(a)).
“‘To survive a motion for summary judgment, the party
bearing the burden of proof at trial . . . must provide evidence
showing that there is a triable issue as to an element essential
to that party’s claim.’” Etheridge v. FedChoice Fed. Credit
Union, 789 F. Supp. 2d 27, 32 (D.D.C. 2011) (quoting Arrington v.
United States, 473 F.3d 329, 335 (D.C. Cir. 2006)); accord Moore
v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). The nonmovant must
“go beyond the pleadings and by her own affidavits, or by the
‘depositions, answers to interrogatories, and admissions on
file,’ designate ‘specific facts showing that there is a genuine
issue for trial.’” LaFavors v. Shinseki, Civil Action No. 10-
1755 (RLW), 2012 WL 640878, at *1 (D.D.C. Feb. 29, 2012) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
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In considering a summary judgment motion, a court accepts as
true the nonmovant’s evidence and draws “justifiable inferences
. . . in [her] favor.” Estate of Parsons v. Palestinian Auth.,
651 F.3d 118, 123 (D.C. Cir. 2011). “[I]f the evidence presented
on a dispositive issue is subject to conflicting interpretations,
or reasonable persons might differ as to its significance,
summary judgment is improper.” Etheridge, 789 F. Supp. 2d at 32
(quotation marks and citation omitted). “[I]f undisputed facts
point unerringly to a single, inevitable conclusion, [however,]
summary judgment [is] warranted.” Keefe Co. v. Americable Int’l,
Inc., 169 F.3d 34, 38 (D.C. Cir. 1999) (quotation marks and
citation omitted).
“When ruling on summary judgment, courts need only consider
admissible evidence.” U.S. Info. Sys., Inc. v. Int’l Bhd. of
Elec. Workers Local Union Number 3, No. 00 Civ. 4763, 2006 WL
2136249, at *5 (S.D.N.Y. Aug. 1, 2006) (citing Raskin v. Wyatt
Co., 125 F.3d 55, 66 (2d Cir. 1997) (“The principles governing
admissibility of evidence do not change on a motion for summary
judgment.”)). “[C]ourts are free to strike or disregard
inadmissible statements in parties’ summary judgment
submissions.” Id. (citing 11 James Wm. Moore et al., Moore’s
Fed. Practice § 56.14[4][a] (affidavits, deposition testimony,
and documents containing inadmissible evidence properly
disregarded)).
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However, “[i]n a FOIA case, the Court may grant summary
judgment based solely on information provided in an agency’s
affidavits or declarations if they are relatively detailed and
when they 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 [or] by evidence of agency bad faith.’”
Thornton-Bey v. Exec. Office for U.S. Attorneys, Civil Action No.
11-773 (JEB), 2012 WL 593546, at *2 (D.D.C. Feb. 24, 2012)
(quoting Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.
Cir. 1981)). “Such affidavits or declarations are accorded ‘a
presumption of good faith, which cannot be rebutted by “purely
speculative claims[.]”’” Id. (quoting SafeCard Servs., Inc. v.
SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)) (additional citation
omitted).
I. ADMISSIBILITY OF CHALLENGED EVIDENCE
Augustus challenges as unauthenticated the Secretary’s
citations to the first administrative record that was filed but
cannot now be located in the Clerk’s Office, his citations to
“derivative” administrative records filed thereafter, the Gravett
ROI the Secretary filed as an attachment to his summary judgment
motion, and the declaration that explains each redaction of
Gravett’s ROI. The Secretary counters that the administrative
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record evidence Augustus challenges relates only to a different
claim that has already been resolved, and that his submissions
satisfy the summary judgment requirements in a FOIA case.
Here, as is explained below, the Secretary has proffered a
declaration detailing the justifications for the redactions in
the report she seeks, as well as a copy of that redacted report.
Those are the documents that bear upon whether the redactions in
the ROI were legally permissible. Augustus has not challenged
those documents with contrary evidence or evidence of agency bad
faith. The declaration is accorded a presumption of good faith
and provides an ample basis for deciding the Secretary’s motion.
In any event, Augustus offers no factual basis to establish that
these documents are inauthentic or that the declarant and Gravett
could not testify that the submitted copies of their writings are
what they purport to be. See Fed. R. Evid. 901. These documents
are appropriate to consider in connection with the Secretary’s
motion.
II. FOIA EXEMPTIONS 6 and 7(C)
Under FOIA, “‘a federal agency must disclose agency records
unless they may be withheld pursuant to one of the nine
enumerated exemptions listed in § 552(b).’” Clemmons v. U.S.
Army Crime Records Ctr., Civil Action No. 05-02353 (RCL), 2007 WL
1020827, at *5 (D.D.C. Mar. 30, 2007) (quoting U.S. Dep’t of
Justice v. Julian, 486 U.S. 1, 8 (1988)). “[T]he agency
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resisting disclosure bears the burden of persuasion in defending
its action.” Ctr. for Int’l Envtl. Law v. Office of U.S. Trade
Representative, Civil Action No. 01-498 (RWR), 2012 WL 640882, at
*3 (D.D.C. Feb. 29, 2012) (citing 5 U.S.C. § 552(a)(4)(B)). “In
order to provide an effective opportunity for the requesting
party to challenge the applicability of an exemption and for the
court to assess the exemption’s validity, ‘[t]he description and
explanation the agency offers should reveal as much detail as
possible as to the nature of the document, without actually
disclosing information that deserves protection.’” Id. (quoting
Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172, 1176 (D.C. Cir.
1996)). While FOIA “‘calls for broad disclosure of Government
records[,]’ . . . courts have construed the exemptions to FOIA
very narrowly to allow for a greater dissemination of
information.” Beattie v. Astrue, Civil Action No. 01-2493 (RWR),
2012 WL 628346, at *7 (D.D.C. Feb. 28, 2012) (quoting CIA v.
Sims, 471 U.S. 159, 167 (1985)). The non-movant nonetheless
bears the burden of controverting the movant’s asserted
justifications “by either contrary evidence in the record [or] by
evidence of agency bad faith.” Thornton-Bey, 2012 WL 593546, at
*2 (quotation marks and citation omitted).
The Secretary invokes FOIA exemptions 6 and 7(C) (Def.’s
Mem. at 10-16), which exempt from disclosure (1) “personnel and
medical files and similar files the disclosure of which would
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constitute a clearly unwarranted invasion of personal privacy;”
and (2) “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 constitute an unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(6), (7)(C). The Secretary argues
that the declaration he filed serves as the Vaughn index for all
redacted portions of the Gravett ROI. (Def.’s Mem. of P. & A. in
Supp. of Def.’s Mot. for Summ. J. at 5.) Specifically, the
declaration
apportioned codes to the redacted
information, correlated the codes to a
specific FOIA exemption, and explained that
the redacted information was comprised of
names and identifying information of
witnesses, personal information of the
Investigating Officer and Panel Members,
names and identifying information of persons
against whom the Plaintiff made allegations,
and names and identifying information of
third parties, as well as social security
numbers of these individuals.
(Id. at 6.)
As is noted above, the declaration enjoys a presumption of
good faith which Augustus has not rebutted with contrary evidence
in the record or evidence of agency bad faith. Indeed, despite
the February 3, 2012 Order (Dkt. No. 205) warning Augustus that
any unanswered arguments may be treated as conceded, her
opposition did not challenge the Secretary’s proffered
justifications under FOIA for having redacted the Gravett ROI.
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These arguments will be deemed conceded, and summary judgment
will be entered in favor of the Secretary. See Iweala v.
Operational Tech. Services, Inc., 634 F. Supp. 2d 73, 80-81
(D.D.C. 2009) (deeming conceded an employer’s exhaustion argument
in its motion for summary judgment where the plaintiff failed to
respond to it in her opposition); Franklin v. Potter, 600 F.
Supp. 2d 38, 60 (D.D.C. 2009) (treating defendant’s argument in
motion for summary judgment as conceded where plaintiff failed to
address it in his response); see also Fed. Deposit Ins. Corp. v.
Bender, 127 F.3d 58, 67 (D.C. Cir. 1997) (concluding that the
district court did not abuse its discretion in granting a motion
for summary judgment as conceded for the plaintiff’s failure to
timely oppose it).
CONCLUSION
There are no material factual disputes regarding the
Secretary’s FOIA redactions, and his unopposed arguments entitle
him to judgment as a matter of law. His motion for summary
judgment will be granted. A separate order accompanies this
memorandum opinion.
SIGNED this 2nd day of July, 2012.
/s/
RICHARD W. ROBERTS
United States District Judge
Augustus v. Harvey
Combined Opinion