UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
JACK A. SCHWANER, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-0476 (EGS)
)
DEPARTMENT OF THE ARMY, )
)
Defendant. )
)
MEMORANDUM OPINION
This matter is before the Court on defendant’s motion to
dismiss or, in the alternative, for summary judgment. For the
reasons discussed below, the Court denies the former and grants
the latter.
I. BACKGROUND
In November 2008, plaintiff submitted a request under the
Freedom of Information Act (“FOIA”), see 5 U.S.C. § 552, to the
Department of the Army (“the Army”), to the attention of the
Commander of Fort Eustis, an Army facility in Newport News,
Virginia. See Compl. at 1. He sought the following information:
(1) - List of all Ait Students in regular Army
status.
(2) - in Ranks of E-2 through E-4.
(3) - Names of Ait Student personnel.
(4) - Full Military addresses of Ait Student
personnel, by Company if possible.
(5)- This FOIA request pertains to Ait student
personnel who are presently in a “non-
deployable status[.]”
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Id., Ex. A (November 7, 2008 FOIA Request). The Army
acknowledged receipt of plaintiff’s request, and notified him
that it referred his request to the Initial Denial Authority for
a release determination. Id., Ex. B (December 19, 2008 letter
from N.K. Donnelly, Director, Information Management, Freedom of
Information Office, Fort Eustis, Virginia). The Commander,
United States Human Resources Command, “serves as the Initial
Denial Authority for all FOIA/Privacy Act requests relating to
active duty personnel records.” Mem. in Supp. of Def.’s Mot. to
Dismiss or, in the Alternative, Mot. for Summ. J. (“Def.’s
Mem.”), Decl. of Kathleen Vaughn-Burford (“Vaughn-Burford Decl.”)
¶ 2.
The Army denied plaintiff’s request in full, Vaughn-Burford
Decl. ¶¶ 8-11, and explained its rationale as follows:
At this time, lists of military personnel
cannot be released. Recent guidance from the
Department of Defense (DOD) has advised this
Command to withhold from public release the
names and other personal identifiers of active
duty personnel. Increased security awareness
demanded in times of national emergency
concurrent with the heightened interest in the
personal privacy of Army personnel has
required that restrictions be imposed on the
release of information. Therefore, the
information requested is exempt from
disclosure under Exemption 6 of the FOIA.
Id., Attach. 3 (February 25, 2009 letter from C. Eldon Mullis,
Colonel, U.S. Army, Chief of Staff). Although “[t]he letter
informed plaintiff of his right to appeal and the method by which
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he could do so,” plaintiff has not submitted an appeal either to
the Freedom of Information Office at Fort Eustis or to the Army’s
Office of General Counsel within the 60-day period allotted.1
Vaughn-Burford Decl. ¶ 12; see id., Attach. 3.
Plaintiff filed this civil action on March 2, 2009.2 See
Compl. at 1. Noting defendant’s failure to respond to his FOIA
request within the requisite time limits, see 5 U.S.C. §
552(a)(6), plaintiff “ask[ed] this Court to grant a motion
[directing the Army] to immediately supply the documentation [he]
requested[.]” Id. at 2.
II. DISCUSSION
A. Summary Judgment in a FOIA Case
The Court may grant a motion for summary judgment “if the
pleadings, the discovery and disclosure materials on file, and
any affidavits 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.” Fed. R. Civ. P. 56(c). The moving party bears
1
Plaintiff could have challenged defendant’s initial
determination by sending an appeal “through: Commander,
U.S. Army Human Resources Command; Attention: AHRC-FOIA,
200 Stovall Street, Alexandria, VA 22332-0400, to the
Secretary of the Army, Attention: Office of the General
Counsel.” Vaughn-Burford Decl., Attach. 3.
2
The Clerk of Court received plaintiff’s original
complaint and application to proceed in forma pauperis on
March 2, 2009. The Court granted his application on
March 11, 2009, and the Clerk officially entered these
items on the electronic docket on March 12, 2009.
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the burden of demonstrating an absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). Factual assertions in the moving party’s affidavits may
be accepted as true unless the opposing party submits his own
affidavits, declarations or documentary evidence to the contrary.
Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).
“FOIA cases typically and appropriately are decided on
motions for summary judgment.” Defenders of Wildlife v. United
States Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009)
(citations omitted). In a FOIA case, the Court may grant summary
judgment based on the information provided in an agency’s
supporting affidavits or declarations 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 nor by
evidence of agency bad faith.” 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 about the
existence and discoverability of other documents.’” SafeCard
Servs., Inc. v. Sec. & Exch. Comm’n, 926 F.2d 1197, 1200 (D.C.
Cir. 1991) (quoting Ground Saucer Watch, Inc. v. Cent.
Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).
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B. Exhaustion of Administrative Remedies
“Exhaustion of administrative remedies is generally required
before seeking judicial review” under the FOIA. Wilbur v. Cent.
Intelligence Agency, 355 F.3d 675, 677 (D.C. Cir. 2004) (per
curiam); Pollack v. Dep’t of Justice, 49 F.3d 115, 118 (4th Cir.
1995) (stating that a plaintiff “may generally seek judicial
review of his FOIA request only after he has exhausted all
administrative remedies”). Exhaustion allows “the agency . . .
an opportunity to exercise its discretion and expertise on the
matter and to make a factual record to support its decision.”
Wilbur, 355 F.3d at 677 (quoting Oglesby v. United States Dep’t
of the Army, 920 F.2d 57, 61 (D.C. Cir. 1990)). Exhaustion under
the FOIA is not a jurisdictional requirement, Hidalgo v. Fed.
Bureau of Investigation, 344 F.3d 1256, 1258 (D.C. Cir. 2003),
but instead is a prudential consideration. Wilbur, 355 F.3d at
677. If a requester has not exhausted his administrative
remedies prior to the filing of a civil action, his claim is
subject to dismissal. See Hidalgo, 344 F.3d at 1258.
The FOIA requires that an agency “determine within 20 days
(excepting Saturdays, Sundays, and legal public holidays) after
the receipt of any such request whether to comply with such
request[.]” 5 U.S.C. § 552(a)(6)(A)(i). In “extraordinary
circumstances,” this time limit “may be extended by written
notice to the [requester] setting forth unusual circumstances for
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such extension and the date on which a determination is expected
to be dispatched.” 5 U.S.C. § 552(a)(6)(B)(i). If the agency
does not meet its deadline, “the requester can immediately sue to
obtain the requested records and he ‘shall be deemed to have
exhausted his administrative remedies’ because of the agency's
tardiness.” Judicial Watch v. Rossotti, 285 F. Supp. 2d 17, 26
(D.D.C. 2003) (quoting 5 U.S.C. § 552(a)(6)(C)); see Oglesby, 920
F.2d at 62 (“If the agency has not responded within the statutory
time limits, then, under 5 U.S.C. § 552(a)(6)(C), the requester
may bring suit.”). However, this so-called “constructive
exhaustion ceases to offer a basis for judicial action once an
agency actually responds.” Smith v. Fed. Bureau of
Investigation, 448 F. Supp. 2d 216, 220 (D.D.C. 2006) (citing
Oglesby, 920 F.2d at 61, 63-64). “If a requester actually
receives an agency's untimely response before filing suit under §
552(a)(6)(A)(i), he must utilize the administrative appeals
process – which includes, as a final step, the right to sue in
federal court – to resolve any FOIA disputes.” Judicial Watch,
285 F. Supp. 2d at 26.
Plaintiff represents that he “never received the Letter
dated Feb.25,09 [sic] listing [a 5 U.S.C. § 522(b)(6)] exemption
making [it] impossible to respond.” Pl.’s Opp’n at 2.3 The
3
The Court construes plaintiff’s July 29, 2009
submission [Dkt. #11] as his opposition to defendant’s
motion to dismiss or for summary judgment.
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Army, he asserts, “failed miserably in responding to the
Plaintiff’s [FOIA] request,” id. at 3, and thus, apparently,
relieved him of any obligation to pursue an administrative appeal
of the Army’s initial determination. The Court is not persuaded
by plaintiff’s assertion, however, because he submits no
declaration or other evidence to support his contention that he
did not receive a response, whether timely or not, to his FOIA
request. See Keys v. Dep’t of Homeland Sec., No. 08-0726
(ESH/AK), 2009 WL 614755, at *5 (D.D.C. Mar. 10, 2009)
(“Plaintiff's unsupported argument that he cannot recall ever
receiving a response from the EOUSA . . . is unavailing in light
of the sworn declarations and documentary evidence demonstrating
that EOUSA responded to his FOIA request.”).
Although defendant responded to plaintiff’s FOIA request
beyond the time limits set forth by statute, its declarant
demonstrates that the Army responded before plaintiff filed this
civil action. At that point, plaintiff was obligated to exhaust
his administrative remedies, and he fails to establish that he
did so. Accordingly, defendant’s motion for summary judgment on
this ground will be granted.
C. Exemption 6
Even if plaintiff had exhausted his administrative remedies
prior to filing this action, the Court concludes that defendant
would have prevailed on the alternative ground: that the relevant
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records properly were withheld under Exemption 6.
Exemption 6 protects from disclosure “personnel and medical
files and similar files the disclosure of which would constitute
a clearly unwarranted invasion of personal privacy.” 5 U.S.C. §
552(b)(6). The term “similar files” is construed broadly and is
“intended to cover detailed Government records on an individual
which can be identified as applying to that individual.” United
States Dep’t of State v. Washington Post Co., 456 U.S. 595, 602
(1982) (citation omitted). The threshold is “fairly minimal,”
such that “[a]ll information which applies to a particular
individual is covered by Exemption 6, regardless of the type of
file in which it is contained.” Washington Post Co. v. United
States Dep’t of Health & Human Servs., 690 F.2d 252, 260 (D.C.
Cir. 1982) (quoting Washington Post, 456 U.S. at 602) (internal
quotation marks omitted). In this way, the “FOIA’s protection of
personal privacy is not affected by the happenstance of the type
of agency record in which personal information is stored.” Id.;
see New York Times Co. v. Nat’l Aeronautics & Space Admin., 920
F.2d 1002, 1004-05 (D.C. Cir. 1990) (en banc) (concluding that
Exemption 6 protected disclosure of a tape of voice
communications aboard the Challenger space shuttle because “it
applies to particular individuals”).
Exemption 6 requires “a balancing of the individual’s right
of privacy against the preservation of the basic purpose of the
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Freedom of Information Act to open agency action to the light of
public scrutiny.” Dep’t of the Air Force v. Rose, 425 U.S. 352,
372 (1976) (internal quotation marks and citation omitted); see
United States Dep’t of Justice v. Reporters Comm. for Freedom of
the Press, 489 U.S. 749, 756 (1989). The privacy interest at
stake belongs to the individual, not the agency. Reporters Comm.
for Freedom of the Press, 489 U.S. at 763-65; Nat’l Ass’n of
Retired Fed. Employees v. Horner, 879 F.2d 873, 875 (D.C. Cir.
1989) (acknowledging an individual’s significant privacy interest
“in avoiding the unlimited disclosure of his or her name and
address”), cert. denied, 494 U.S. 1078 (1990). It is the
requester’s obligation to articulate a public interest sufficient
to outweigh an individual’s privacy interest, and the public
interest must be significant. See Nat’l Archives and Records
Admin. v. Favish, 541 U.S. 157, 172 (2004).
There is no dispute that the information plaintiff has
requested, that is, lists of certain Army personnel, their ranks,
companies, and addresses, are “personnel and medical files and
similar files,” 5 U.S.C. § 552(b)(6), such that they fall within
the scope of Exemption 6. Having determined that the Army makes
its threshold showing, the Court next must determine whether the
disclosure of such records would constitute a clearly unwarranted
invasion of these individuals’ personal privacy.
Defendant’s declarant explains that, in 2001, “the
9
Department of Defense issued guidance and a determination
regarding release of personally identifying personal information
under the [FOIA],” and [i]n accordance with this guidance, “it is
the practice of [the Army’s Human Resources Command] not to
release names of military members in response to FOIA requests.”
Vaughn-Burford Decl. ¶ 9. The memorandum on which defendant
relies, see id., Attach. 2 (November 9, 2001 Memorandum Regarding
the Withholding of Personally Identifying Information under the
Freedom of Information Act), begins by stating that “[t]he
President has declared a national emergency by reason of the
terrorist attacks on the United States.” Id. at 1. For this
reason, “[a]ll Department of Defense personnel should have a
heightened security awareness concerning their day-to-day duties
and recognition that the increased security posture will remain a
fact of life for an indefinite period of time.” Id. In light of
“the heightened interest in personal privacy of [Department of
Defense (“DoD”)] personnel that is concurrent with the increased
security awareness demanded in times of national emergency,” id.,
DoD components “shall ordinarily withhold lists of names and
other identifying information of personnel currently or recently
assigned within a particular component, unit, organization or
office with the [DoD] in response to requests under the FOIA.”
Id.
Neither the defendant’s supporting declaration nor the
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memorandum on which it relies directly address the personal
privacy interests of enlisted military personnel. It is easy to
conclude, however, that such personnel, like any individuals,
have a recognized privacy interest in avoiding disclosure of
personal information. See, e.g., Judicial Watch, Inc. v. Food &
Drug Admin., 449 F.3d 141, 152-53 (D.C. Cir. 2006) (recognizing
privacy interests of agency personnel, private individuals, and
companies who worked on the approval of the controversial drug
mifepristone); Horner, 879 F.2d at 875. As the District of
Columbia Circuit instructs, “[a] substantial privacy interest is
anything greater than a de minimis privacy interest.” Multi Ag
Media LLC v. Dep’t of Agric., 515 F.3d 1224, 1229-30 (D.C. Cir.
2008) (citing Horner, 879 F.2d at 874). The privacy interests of
military personnel for reasons similar to those the Army asserts
in this case have been considered and accepted in this district.
See Schoenman v. Fed. Bureau of Investigation, 575 F. Supp. 2d
136, 160 (D.D.C. 2008) (commenting that “the Air Force members
whose names and other identifying information was redacted from
the Intelligence Information Reports have a significant – i.e.,
more than de minimis – privacy interest in that information,
particularly in light of a Department of Defense policy change
after the terrorist attacks of September 11, 2001”); Kimmel v.
United States Dep’t of Defense, Civ. A. No. 04-1551(HHK), 2006 WL
1126812, at *3 (D.D.C. Mar. 31, 2006) (“DoD acted out of concern
11
that employees of DoD could become targets of terrorist assaults,
and the court has no reason to question this determination.”).
Lastly, the Court considers whether the public interest in
disclosure of the withheld information outweighs the military
personnel’s personal privacy interests. Plaintiff’s sole attempt
at opposing defendant’s motion reads as follows:
Prior [to] Oct. 12, 01 was the day one of our
most precious freedoms died, the Justice
Department and Federal Judges let it slipped
[sic] beneath the radar and without fanfare[.]
[Former Attorney [General] John Ashcroft
quashed most [of] the [FOIA][, and] all that
hard work by the Defendant in their many
unrelated cases failed to respond to the
Plaintiff[’s] Civil Action (a), (b) and (c)
listed in No. 09-0476 making Civ. No. 09-0476
(EGS) against the Dept. Of the Army stand on
its own merits.
Pl.’s Opp’n at 3. The argument is unintelligible, and cannot
withstand defendant’s showing. Plaintiff does not argue, nor
does the Court find, that release of the withheld information
would shed any light on the Amy's performance of its duties.
“Having already concluded that the privacy interest at issue
here is more than de minimis, the Court ‘need not linger over the
balance; something, even a modest privacy interest outweighs
nothing every time.’” Schoenmann, 575 F. Supp. 2d at 161
(quoting Horner, 879 F.2d at 879). Absent a showing of a public
interest of such magnitude as to outweigh the recognized privacy
interests of military personnel, the Court concludes that the
Army’s decision to withhold records responsive to plaintiff’s
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FOIA request under Exemption 6 was proper. See, e.g., Kimmel,
2006 WL 1126812, at *3; Voinche v. Fed. Bureau of Investigation,
940 F. Supp. 323, 329-30 (D.D.C. 1996) (concluding that the
release of names and identifying features of individuals would
serve no articulable public interest, and that the agency
properly invoked Exemption 6 to protect the individuals’ privacy
interests), aff’d, No. 96-5304, 1997 WL 411685 (D.C. Cir. June
19, 1997), cert. denied, 522 U.S. 950 (1997).
III. CONCLUSION
The Army shows both that plaintiff did not exhaust his
administrative remedies prior to the filing of this civil action
and that the records plaintiff requested properly were withheld
in full under Exemption 6. The Army thus demonstrates that there
are no genuine issues of fact in dispute as to its compliance
with the FOIA and that it is entitlement to judgment as a matter
of law. Accordingly, the Court will grant its motion for summary
judgment, and will deny its motion to dismiss as moot. An Order
is issued separately.
Signed: EMMET G. SULLIVAN
United States District Judge
Dated: March 17, 2010
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