Zaldivar #166954 v. United States Department of Veterans Affairs et al

Filing 68

ORDER The reference to the Magistrate Judge is withdrawn as to Defendants' Motion for Summary Judgment (Doc. 49 ). Defendants' Motion for Summary Judgment (Doc. 49) is granted, and this action is terminated with prejudice. The Clerk of Court must enter judgment accordingly. Signed by Judge David G Campbell on 8/22/2016.(KMG)

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1 2 MGD WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jose Adalberto Zaldivar, Sr., 10 11 12 13 No. CV 14-01493-PHX-DGC (DMF) Plaintiff, v. ORDER United States Department of Veterans Affairs, et al., 14 Defendants. 15 16 Plaintiff Jose Adalberto Zaldivar, who is currently confined in the Arizona State 17 Prison Complex-Eyman, brought this case pursuant to the Freedom of Information Act 18 (FOIA) and the Privacy Act (PA). (Doc. 1.) Pending before the Court is a Motion for 19 Summary Judgment filed by the Department of Veterans Affairs Regional Office— 20 Phoenix (VARO) and the Department of Veterans Affairs Office of General Counsel 21 (OGC).1 (Doc. 49.) The Court will grant the Motion and terminate this action. 22 I. Background2 23 In his Complaint, Plaintiff alleged that he submitted six FOIA/PA requests to the 24 VARO between 2002 and 2013, but that VARO failed to provide proper responses to 25 26 27 28 1 The Court provided notice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc), regarding the requirements of a response. (Doc. 52.) 2 The full background of this action is set forth in the Court’s October 27, 2015 Order. (Doc. 34.) 1 these requests and the OGC denied an appeal filed by Plaintiff. (Doc. 1.) Plaintiff also 2 alleged that the Veterans Affairs Office of Inspector General (OIG) failed to respond to 3 his request for an appeals handbook. (Id.) On screening under 28 U.S.C. § 1915A(a), the 4 Court determined that Plaintiff stated a claim and directed the OIG, the VARO, and the 5 OGC to answer the claims in Counts One and Two of the Complaint, and dismissed the 6 remaining claims and Defendants. (Doc. 9.) Subsequently, the OIG filed a Motion to 7 Dismiss the claim against it for lack of jurisdiction (Doc. 20), and the VARO and the 8 OGC filed a Partial Motion to Dismiss three claims based on the statute of limitations 9 (Doc. 21). 10 On October 27, 2015, the Court granted both Motions to Dismiss, leaving only 11 two remaining claims against the VARO and the OGC: (1) Plaintiff’s April 26, 2012 12 FOIA/PA request in Count One, and (2) Plaintiff’s May 20, 2013 FOIA/PA request in 13 Count Two. (Doc. 34.) The VARO and the OGC now move for summary judgment on 14 the two remaining requests. 15 II. Summary Judgment 16 A court “shall grant summary judgment if the movant shows that there is no 17 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 18 of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 19 (1986). 20 responsibility of presenting the basis for its motion and identifying those portions of the 21 record, together with affidavits, which it believes demonstrate the absence of a genuine 22 issue of material fact. Id. at 323. If the moving party meets its initial responsibility, the 23 burden then shifts to the opposing party who must demonstrate the existence of a material 24 factual dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 25 III. Under summary judgment practice, the moving party bears the initial Discussion 26 Defendants argue that (1) Plaintiff did not exhaust his administrative remedies 27 with respect to the April 26, 2012 request, (2) the agency’s searches in response to both 28 -2- 1 requests were adequate, and (3) any redactions of the personal information of Plaintiff’s 2 former spouse in response to the May 30, 2013 request were proper. (Doc. 49.) 3 A. 4 5 6 7 8 April 26, 2012 Request 1. Relevant Facts By letter dated April 26, 2012, Plaintiff filed a FOIA/PA request with the VARO seeking the following information: (1) The application for VA compensation for Plaintiff’s “dependent spouse,” referred to as an “application for apportionment”; 9 (2) A VA letter by Ms. LaCenia dated April 3, 2012; 10 (3) Correspondence in response to the application for apportionment; 11 (4) The address of the OIG; 12 (5) Notes, telephone calls, and inquiries regarding the application for 13 apportionment; 14 (6) All documentation, applications, inquiries or requests made by letter or 15 telephone regarding Plaintiff’s VA compensation claim, including the names, addresses 16 and phone numbers of the requesting part(ies); 17 (7) The names, addresses, and phone numbers of spouses and children entitled 18 to dependency and indemnity compensation. 19 (Doc. 51 (Defs.’ Statement of Facts (“DSOF”)) ¶ 1; Doc. 51-2 at 2-8.)3 20 The VARO received Plaintiff’s request on May 4, 2012 and responded on May 30, 21 2012 by sending Plaintiff a copy of his entire claims file. The VARO explained that it 22 did not include Plaintiff’s military service treatment records (STR) because those had 23 been provided to him on November 10, 2011 in response to a previous request. (Doc. 51 24 ¶¶ 1, 2; Doc. 51-2 at 10.) The entire claims file and STR is over 3,000 pages, and, 25 according to the VARO’s FOIA/PA Officer, Marcelle Jeanisse, the VARO is the only 26 location at the VA where “one would reasonably expect to find documents responsive to 27 28 3 The citation refers to the document and page number generated by the Court’s Case Management/Electronic Case Filing system. -3- 1 Plaintiff’s April 26, 2012 request.” (Doc. 51 ¶¶ 2-3; Doc. 51-3 at 3 ¶ 11.) Plaintiff 2 received the VARO’s response, totaling 2,476 pages, on June 21, 2012. (Doc. 66 ¶ 2; 3 Doc. 65 ¶ 30.) 4 Before he received the VARO’s response, Plaintiff, by letter dated June 4, 2012, 5 filed an appeal with the VARO, asserting that he had not received any documents in 6 response to his April 26, 2012 request. (Doc. 51 ¶ 4; Doc. 51-2 at 12-24.) The VARO 7 noted on Plaintiff’s appeal letter that the FOIA request had already been completed and 8 took no further action on the appeal. (Id. ¶ 6.) Plaintiff does not dispute that this notation 9 was made on his appeal but he denies “the validity of those reasons.” (Doc. 66 ¶ 6.) 10 By letter dated June 13, 2012, the Disabled American Veterans, acting as 11 Plaintiff’s designated representative, requested Plaintiff’s claims file “to include STR’s 12 and Apportionments.” (Doc. 51 ¶ 7; Doc. 51-2 at 26.) The VARO “Triage Team” that 13 processes incoming mail noted on the letter, “FOIA Request Complete 5/30/2012 14 Already!!,” and the VARO took no further action regarding the request. (Doc. 51 ¶ 8; 15 Doc. 51-2 at 26.) 16 2. 17 Exhaustion a) Legal Standard 18 FOIA requires that, upon receipt of a FOIA request, an administrative agency shall 19 “determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) . . . 20 whether to comply with such request and shall immediately notify the person making 21 such request of such determination and the reasons therefor, and of the right of such 22 person to appeal to the head of the agency any adverse determination. . . .” 5 U.S.C. 23 § 552(a)(6)(A)(i). Likewise, an agency must make a determination within 20 days of 24 receipt of an appeal. 5 U.S.C. § 552(a)(6)(A)(ii). If an agency does not respond to a 25 FOIA request within the applicable time period, the requester may file a lawsuit, but “this 26 option lasts only up to the point that an agency actually responds. Once the agency has 27 responded to the request, the petitioner may no longer exercise his option to go to court 28 immediately. Rather, the requester can seek judicial review only after he has -4- 1 unsuccessfully appealed to the head of the agency as to any denial and thereby exhausted 2 his administrative remedies.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 61 (D.C. Cir. 3 1990). 4 “Exhaustion of administrative remedies is generally required before filing suit in 5 federal court so that the agency has an opportunity to exercise its discretion and expertise 6 on the matter and to make a factual record to support its decision.” Oglesby, 920 F.2d at 7 61 (citing McKart v. United States, 395 U.S. 185, 194 (1969)). When administrative 8 remedies have not been exhausted prior to suit, a FOIA claim is subject to dismissal. See 9 Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003) (noting that an appeal made before 10 an agency has acted on a FOIA request deprives the agency of the “opportunity to 11 consider the very issues that [the plaintiff] has raised in court”). 12 b) Analysis 13 Defendants argue that Plaintiff did not comply with VA regulations by filing a 14 proper appeal with the OGC within 60 days of an adverse determination, as required by 15 38 C.F.R. § 1.559(b) and (d). (Doc. 49 at 6.) Rather, Plaintiff filed a “premature appeal” 16 with the VARO, and he never filed a proper appeal with the OGC after receiving 17 VARO’s timely response to the April 26, 2012 request. (Id. at 6-7.) 18 Plaintiff responds that he constructively exhausted his administrative remedies by 19 filing a timely appeal to the VARO to the attention of “FOIA/Privacy Act Appeals 20 Officer” by letter dated June 4, 2012. (Doc. 64 at 10.) Plaintiff asserts that he was 21 unaware of 38 C.F.R. § 1.559 “due to circumstances beyond [his] control as to access to a 22 meaningful adequate law library,” and that he was using a 2008 version of the 23 regulations. (Id.; Doc. 65 at 7 ¶ 43(d).) As to VARO’s contention that it timely 24 responded to Plaintiff’s FOIA request on May 30, 2012, Plaintiff says the agency 25 responded by “flooding [him] with excessive documents without having to provide 26 specific documents requested in the April 26, 2012 FOIA/Privacy Act Request, especially 27 not having to answer to the phone conversation contact with VA Rep. Ms. LaCenia on 28 April 26, 2012.” (Id.) -5- 1 There is no dispute that the VARO received Plaintiff’s FOIA request on May 4, 2 2012, and responded by letter dated May 30, 2012, less than 20 business days after 3 receiving the request, by providing Plaintiff with his entire claims file, minus the SRTs. 4 Thus, the VARO timely responded to Plaintiff’s FOIA request. Plaintiff’s attempted 5 appeal, claiming he did not receive a response, was filed before he received the VARO’s 6 response on June 21, 2012.4 (Doc. 51-2 at 12-14; Doc. 66 ¶ 2.) Plaintiff does not claim 7 that he filed any appeal challenging the adequacy of the VARO’s response after he 8 received it. By not filing an appeal on the VARO’s actual response, Plaintiff deprived 9 the agency of “an opportunity to exercise its discretion and expertise on the matter and to 10 make a factual record to support its decision.” Oglesby, 920 F.2d at 61. 11 Because Plaintiff did not file an appeal with respect to the VARO’s response to his 12 April 26, 2012 FOIA request, he did not exhaust his administrative remedies. 13 Accordingly, the Court will grant summary judgment to Defendants on Plaintiff’s 14 April 26, 2012 request in Count One for failure to exhaust administrative remedies. 15 16 17 3. Adequacy of the Search Alternatively, the Court will grant summary judgment to Defendants on the adequacy of the VARO’s search for records in response to Plaintiff’s FOIA/PA request. 18 a) Legal Standard 19 FOIA requires that an agency responding to a request “demonstrate that it has 20 conducted a search reasonably calculated to uncover all relevant documents.” Lahr v. 21 Nat’l Transp. Safety Bd., 569 F. 3d 964, 986 (9th Cir. 2009) (quoting Zemansky v. EPA, 22 767 F.2d 569, 571 (9th Cir. 1985)). Such a showing can be made by “reasonably 23 detailed, nonconclusory affidavits submitted in good faith.” Zemansky, 767 F.2d at 571. 24 Such affidavits or declarations are entitled to “a presumption of good faith, which cannot 25 be rebutted by purely speculative claims about the existence and discoverability of other 26 27 28 4 Plaintiff asserts in his Complaint that the VARO’s response is postmarked June 1, 2012, and he appears to allege that his delay in receiving the response was due to prison officials. (See Doc. 1 at 8-9.) -6- 1 documents.” 2 Treasury, 534 F. Supp. 2d 1126, 1131 (N.D. Cal. 2008). An agency “need not set forth 3 with meticulous documentation the details of an epic search for the requested records.” 4 Id. (quotation omitted). “[T]he issue to be resolved is not whether there might exist any 5 other documents possibly responsive to the request, but rather whether the search for 6 those documents was adequate.” Citizens Comm’n on Human Rights v. FDA, 45 F.3d 7 1325, 1328 (9th Cir. 1995) (quotation omitted) (emphasis in original). In general, the 8 sufficiency of a search is determined by the “appropriateness of the methods” used to 9 carry it out, “not by the fruits of the search.” Iturralde v. Comptroller of the Currency, 10 315 F.3d 311, 315 (D.C. Cir. 2003). The failure of an agency “to turn up a particular 11 document, or mere speculation that as yet uncovered documents might exist, does not 12 undermine the determination that the agency conducted an adequate search for the 13 requested records.” Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004). Lawyers’ Comm. for Civil Rights of S.F. Bay Area v. U.S. Dep’t of 14 Once a search has been conducted, FOIA requires disclosure unless the records 15 fall within one of nine narrow exemptions. See 5 U.S.C. § 552(b); Minier v. CIA, 88 F.3d 16 796, 800 (9th Cir. 1996). These “limited exemptions do not obscure the basic policy that 17 disclosure, not secrecy, is the dominant objective of the Act.” Dep’t of Interior v. 18 Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001) (internal citation omitted). 19 The exemptions “have been consistently given a narrow compass,” and agency records 20 that “do not fall within one of the exemptions are improperly withheld.” Dep’t of Justice 21 v. Tax Analysts, 492 U.S. 136, 151 (1989) (quotation omitted). 22 “To carry their summary judgment burden, agencies are typically required to 23 submit an index and ‘detailed public affidavits’ that, together, ‘identify [ ] the documents 24 withheld, the FOIA exemptions claimed, and a particularized explanation of why each 25 document falls within the claimed exemption.’” Yonemoto v. Dep’t of Veterans Affairs, 26 686 F.3d 681, 688 (9th Cir. 2012). These submissions—commonly referred to as a 27 Vaughn index—“must be from affiants who are knowledgeable about the information 28 sought and detailed enough to allow the court to make an independent assessment of the -7- 1 government’s claim of exemption.” Id. (internal quotation omitted). Whether by Vaughn 2 index or by affidavit or some combination of the two, the government must “provide 3 enough information, presented with sufficient detail, clarity, and verification, so that the 4 requester can fairly determine what has not been produced and why, and the court can 5 decide whether the exemptions claimed justify the nondisclosure.” Fiduccia v. U.S. 6 Dep’t. of Justice, 185 F.3d 1035, 1043 (9th Cir. 1999). “To justify withholding, the 7 government must provide tailored reasons in response to a FOIA request. It may not 8 respond with boilerplate or conclusory statements.” Shannahan v. IRS, 672 F.3d 1142, 9 1148 (9th Cir. 2012). 10 Ultimately, the threshold issue on a motion for summary judgment is whether the 11 agency’s explanations are full and sufficiently specific to afford the FOIA requester a 12 meaningful opportunity to contest, and the district court an adequate foundation to 13 review, the soundness of the withholding. See Wiener v. FBI, 943 F.2d 972, 977-79 (9th 14 Cir. 1991) (noting that specificity is the defining requirement of the Vaughn index). 15 b) Analysis 16 In his Declaration, FOIA/PA Officer Jeanisse explains that the VARO provided 17 Plaintiff “the entirety of his claims folder minus his” STRs, which were provided to 18 Plaintiff on November 20, 2011. (Doc. 51-3 at 3, ¶ 9.) Jeanisse avers that other than 19 Plaintiff’s claims file, “there is no other location in which one would reasonably expect to 20 find documents responsive to Plaintiff’s April 26, 2012 request.” (Id.) 21 Plaintiff responds that the VARO “assumes that there is no requirement that an 22 agency search all possible sources when it believes all responsive documents are likely to 23 be located in one place—Plaintiff’s ‘entire claim file.’” (Doc. 65 at 12.) Plaintiff 24 contends that his request was for specific documents, particularly a phone conversation 25 with Ms. LaCenia, and that specific document “was not included in the 2476 pages 26 Plaintiff was flooded with.” (Id.) Because this and other documents he sought were not 27 produced, Plaintiff argues that the VARO’s response was inadequate. (Id.) 28 -8- 1 Defendants have met their burden of showing that they conducted a search for 2 documents that was “reasonably calculated to uncover all relevant documents” by 3 presenting Jeanisse’s Declaration about where he conducted the search and that it is the 4 most likely location for documents responsive to Plaintiff’s request. See Lahr, 569 F. 3d 5 at 986; Zemansky, 767 F.2d at 571. Jeanisse states that Plaintiff’s entire claims file was 6 sent to Plaintiff, except for his STRs, which had been provided to Plaintiff previously. 7 (Doc. 51-3 at 3 ¶ 9.) Jeanisse does not assert that any documents were withheld from 8 Plaintiff or that the VARO claimed any exemptions. Jeanisse’s Declaration is entitled to 9 a presumption of good faith, and Plaintiff has not rebutted that presumption. Plaintiff 10 appears to speculate that other documents exist, but he has not shown how Jeanisse’s 11 search was inadequate or even that there were any other locations where responsive 12 documents might be found. Therefore, the Court finds that the VARO’s search for 13 records was adequate. 14 Iturralde, 315 F.3d at 315; Wilbur, 355 F.3d at 678. Accordingly, the Court will grant 15 summary judgment to Defendants on the adequacy of the search. See Citizens Comm’n on Human Rights, 45 F.3d at 1328; 16 B. 17 Defendants argue that the search for records in response to Plaintiff’s May 20, 18 2013 request was adequate and that any redactions made to the documents produced were 19 permitted under FOIA and the PA. 20 21 22 23 24 25 26 May 20, 2013 Request 1. Relevant Facts By letter dated May 20, 2013, which the VARO date stamped as received on July 17, 2013, Plaintiff filed a FOIA/PA request seeking copies of the following: (1) A VA letter awarding benefits to Mrs. Zaldivar dated sometime before June 27, 2002; (2) A letter from Mrs. Zaldivar to the VA from around or before January 10, 2002 regarding the reopening of her case; 27 28 -9- 1 2 (3) A “Report of Contact,”5 VA Form 119, from Mrs. Zaldivar to the VARO prior to April 19, 2002 regarding a letter from a bank; 3 (4) The “law providing VA benefits”; 4 (5) Mrs. Zaldivar’s Report of Contact to the VARO, attention “Chris,” dated 5 6 7 8 9 10 January 1, 2002, thanking someone for their “kind assistance on the phone today”; (6) A “financial status to re-open the request for apportionment that [Ms. Zaldivar] filed in April”; (7) A Report of Contact, VA Form 119, regarding Mrs. Zaldivar’s letter to the VARO dated December 26, 2001 in which she said she had called and requested a form; (8) A complete and unredacted copy of an e-mail provided on June 21, 2012 11 and “other e-mail and phone contact messages not previously released.” 12 (Doc. 51 ¶ 9; Doc. 51-2 at 28-33.) 13 When Plaintiff did not receive a response to his request, he filed an appeal with the 14 VARO by letter dated July 15, 2013, asserting that he construed the failure to respond as 15 “a denial of [his] good-faith effort to obtain the relevant documents.” (Doc. 51-2 at 35- 16 36.) The VARO did not respond to this appeal letter and decided to file it with Plaintiff’s 17 claim file because it was an “invalid NOD [Notice of Disagreement]” on a pending FOIA 18 request and so no action was necessary. (Doc. 51 ¶ 11.) Plaintiff states that his request 19 was “specifically written as an ‘appeal,’ not a Notice of Disagreement,” and the VARO 20 did not notify Plaintiff that they decided to take no action by filing it as a NOD letter. 21 (Doc. 65 at 9 ¶ 51.) 22 By letter dated December 18, 2014, Veterans Service Center Manager D. Luzi 23 responded to Plaintiff’s request. (Doc. 51-2 at 41-42.) According to Plaintiff, Luzi’s 24 response enclosed copies of the following: 25 26 (1) An unredacted three-page letter dated September 15, 2001 from the VARO to Plaintiff advising him that Mrs. Zaldivar had requested an apportionment; 27 28 5 Defendants explain that Reports of Contacts are internal VA forms in which VA employees summarize conversations. (Doc. 51 ¶ 9(c).) - 10 - 1 2 3 4 5 6 7 8 9 (2) An unredacted three-page letter dated December 26, 2001 from Mrs. Zaldivar containing a “Notice of Disagreement”; (3) An unredacted one-page letter dated April 24, 2001 from Mrs. Zaldivar to the VARO “(Re: 345/Team 3)” requesting an application for apportionment; (4) A two-page letter dated September 15, 2001 from the VARO to Mrs. Zaldivar, with her address redacted, requesting information and enclosing two forms; (5) A two-page letter dated December 21, 2001 from the VARO to Mrs. Zaldivar, with her address redacted, denying a claim for apportionment; (6) A one-page letter dated January 10, 2002 from Mrs. Zaldivar to the VARO, 10 “Team 3/CM (Chris),” with her social security number redacted as well as information 11 below her signature and name;6 12 (7) A two-page “Financial Status Report” dated June 11, 2002 and signed by 13 Mrs. Zaldivar with her social security number, address, telephone number, and names and 14 addresses of current and former employers redacted;7 15 16 17 (8) An unredacted one-page letter dated April 4, 2002 from DM Federal Credit Union to VA regarding a “joint owner of account”; and (9) One page of e-mails between Mrs. Zaldivar (with her e-mail address 18 redacted) and VA personnel between June 28, 2002 and March 31, 2003. 19 (Doc. 65 at 9-10; Doc. 65-4 at 21 to Doc. 65-5 at 8.) 20 The December 18, 2014 response stated that under the PA and FOIA Exemption 21 (b)(6), the agency could not provide Rebecca J. Zaldivar’s personal information such as 22 her address, social security number, and telephone number because such disclosure 23 24 25 26 27 28 6 Defendants assert that the redacted information below Mrs. Zaldivar’s signature cannot be described because only a redacted copy exists in the VA files. (Doc. 51 ¶ 12(f).) Plaintiff responds that this letter “in its entirety was disclosed in the VARO’s May 30, 2012 release of records. (Doc. 65 at 10, citing Ex. R (Doc. 65-4 at 4).) 7 Plaintiff asserts that this same document was released “in its entirety” with the May 30, 2012 disclosure from the VARO. (Doc. 65 at 10, citing Ex. S (Doc. 65-4 at 1115.) - 11 - 1 “would be an unwarranted invasion of her personal privacy” and so the information was 2 withheld. (Doc. 51-2 at 41.) 3 By letter dated January 20, 2015, Plaintiff filed an Appeal with the OGC. 4 (Doc. 51 ¶ 19; Doc. 51-2 at 44-47.) Plaintiff’s letter stated that he was appealing the 5 response to his May 20, 2013 request and the “July 15, 2013 Appeal due to the untimely 6 response.” 7 determination in its entirety of December 18, 2014 from D. Luzi” because the documents 8 VARO produced had been released previously and were not new or the ones he 9 requested. (Id.) Plaintiff asserted that he “was very specific as to the documents being 10 sought” and “since no specific documents requested nor the regulations talked about, in 11 state civil proceedings by Ms. Rebecca Zaldivar and her attorney were provided, I will 12 continue my request through the civil complaint filed with the U.S. District Courts.” (Id. 13 at 45-46.) 14 documents released, that Mrs. Zaldivar’s letter does not satisfy his request for a Report of 15 Contact, that her personal information such as her social security number and telephone 16 number are a matter of public record and were “supplied by Ms. Rebecca Zaldivar as an 17 adverse party to various court proceedings,” and that the “disclosure of documents 18 submitted by Rebecca Zaldivar are strictly for impeachment purposes as they relate to 19 subject matter of any direct testimony given by her in civil court (state) proceedings.” 20 (Id. at 46-47.) (Doc. 51-2 at 45.) Plaintiff also said he was appealing “the adverse Plaintiff said that one page of a two-page email was missing from the 21 On April 20, 2015, the OGC issued its Final Agency Decision in response to 22 Plaintiff’s appeal. (Doc. 51-2 at 59-63.) The OGC Decision noted that the FOIA Officer 23 who conducted the search did not locate any Reports of Contact with the subject matters 24 described by Plaintiff, but “in an attempt to be as responsive as possible, the FOIA 25 Officer located the above-referenced documents disclosed to you which disclosures of 26 information were closely related to the subjects of your requests.” (Id. at 61.) The 27 Decision described the FOIA Officer’s search of “thousands of pages of records” in 28 Plaintiff’s file, including a page-by-page search that took long hours to conduct, but still - 12 - 1 no Reports of Contacts as described by Plaintiff were located. (Id. at 62.) The Decision 2 affirmed the determination that “there are no other records located within the Phoenix 3 VARO responsive to your request.” (Id.) 4 As to the exemptions claimed by the VARO, the Decision states that Mrs. 5 Zaldivar’s social security number was properly withheld under FOIA Exemptions (b)(3) 6 and (b)(6) and 38 U.S.C. § 5701, and that her physical and email addresses, telephone 7 number, and names and locations of her current and former employe[r]s” were properly 8 withheld under FOIA Exemption (b)(6). (Id. at 62.) The OGC also found that the 9 information withheld under the PA was “about Mrs. Zaldivar and pertains only to her,” 10 and that an agency “cannot disclose any record which is contained in a Privacy Act- 11 protected file to any person except pursuant to a written request by, or with the prior 12 written consent of, the individual to whom the record pertains, unless one of twelve 13 exceptions applies (5 U.S.C. 552a(b)(1)-(1)).” (Id. at 63.) 14 As to Plaintiff’s July 15, 2013 appeal letter to VARO, OGC advised Plaintiff that 15 “pursuant to VA regulations, the [OGC] is the only appellate authority for FOIA and 16 Privacy Act appeals (38 C.F.R. 1.559(b)).” (Id. at 60.) 17 2. Adequacy of the Search 18 In his Declaration, Jeanisse describes the search he conducted in response to 19 Plaintiff’s May 20, 2013 FOIA request, the documents sent to Plaintiff, and the 20 information redacted. (Doc. 51-3 at 1-7.) Jeanisse states that he did “a page-by-page 21 review of Plaintiff’s entire claims file with the VA, which encompassed thousands of 22 pages of records” and took many hours. (Id. at 6 ¶ 22.) Jeanisse further avers that “other 23 than [Plaintiff’s] claims file, there is no other location in which one would reasonably 24 expect to find documents responsive to Plaintiff’s May 20, 2013 request.” (Id.) Jeanisse 25 asserts that he was not able to locate all of the specific documents Plaintiff requested but 26 tried to be as responsive as possible, and so disclosed several documents that “were 27 closely related to the specific documents requested.” (Id.) Jeanisse also prepared a two- 28 page Vaughn Index describing the information redacted and the FOIA and Privacy Act - 13 - 1 exemptions that allow the withholding of that information. (Id. ¶ 23; Doc. 51-4 at 1-2.) 2 According to Jeanisse, “[t]hese were the only matters withheld from Plaintiff in response 3 to this request.” (Doc. 51-3 ¶ 23.) 4 Defendants argue that the search for documents in this case “was diligent and was 5 conducted using the only location that could reasonably be expected to contain the 6 requested documents.” (Doc. 49 at 10.) Although Plaintiff asserted in his appeal to the 7 OGC that documents exist that were not found during the VARO’s search, Defendants 8 argue that the standard is whether the search conducted was adequate, “‘not whether 9 responsive documents might possibly exist.’” 10 (Id., quoting Citizens Against UFO Secrecy, Inc. v. DOD, 21 Fed. App’x 774, 775 (9th Cir. 2001).) 11 Plaintiff responds that his request “stems from a divorce hearing based on 12 Plaintiff[’s] ex-spouse attempting to force funds from Plaintiff (Exhibit Z) after his 13 conviction but before he was sentenced.” (Doc. 65 at 12.) Plaintiff asserts that the 14 “closely related documents” provided by the VARO do not fulfill his FOIA/Privacy Act 15 request and that the VARO’s search for responsive records “remain[s] elusive.” (Doc. 64 16 at 12.) Plaintiff contends that the “VARO’s release of documents dated May 30, 2013 17 revealed three contact notes” from June 7, 2001, June 30, 2001 and April 24, 2002, yet 18 the “VARO claims none exist.” (Doc. 64 at 12-13, citing Doc. 65-6 at 23, 25 and 27.) 19 Plaintiff states that he “merely seeks the disclosure of information and documents 20 relevant to the testimony of Ms. Zaldivar in civil and criminal trial hearings.” (Id. at 13, 21 citing Vaughn v. Rosen, 484 F.2d 82, n.23 (D.C. Cir. 1973).) 22 Plaintiff appears to challenge the adequacy of the search for documents responsive 23 to his May 20, 2013 request, but only obliquely. Plaintiff argues that the “closely related 24 documents” do not fulfill his request, but that does not demonstrate that the VARO’s 25 search for records was inadequate. Plaintiff cites to three Reports of Contact that he says 26 VARO disclosed to him “by letter dated May 30, 2013,”8 but he does not explain why 27 28 8 There is no VARO letter dated May 30, 2013 in the record, and it is possible Plaintiff meant that VARO provided these documents in its May 30, 2012 response to his - 14 - 1 these three documents are significant. Plaintiff’s May 20, 2013 request sought three 2 Reports of Contact with Mrs. Zaldivar dated December 26, 2001, January 1, 2002 and 3 sometime prior to April 19, 2002, but VARO did not locate those documents. The three 4 Reports of Contact Plaintiff says were previously disclosed are dated June 7, 2001, 5 June 30, 2001, and April 24, 2002, and do not appear to be the documents he sought in 6 his May 20, 2013 request. Therefore, it is not clear if Plaintiff is arguing that because 7 three Reports of Contact were released to him, there must be others, or if he is arguing 8 something else altogether. Nevertheless, the prior release of Reports of Contacts does not 9 support that VARO’s search was inadequate. 10 Defendants have met their burden of showing that they conducted a search for 11 documents that was “reasonably calculated to uncover all relevant documents” by 12 presenting Jeanisse’s Declaration about where he conducted the search and the methods 13 he used. See Lahr, 569 F. 3d at 986; Zemansky, 767 F.2d at 571. Jeanisse’s Declaration 14 is entitled to a presumption of good faith, and Plaintiff has not rebutted that presumption. 15 Plaintiff appears to speculate that other documents exist, but he has not shown or even 16 argued how Jeanisse’s search was inadequate. Therefore, the Court finds that VARO’s 17 search for records was adequate. See Citizens Comm’n on Human Rights, 45 F.3d at 18 1328; Iturralde, 315 F.3d at 315; Wilbur, 355 F.3d at 678. Accordingly, the Court will 19 grant summary judgment to Defendants on the adequacy of the search. 20 21 22 23 3. Exemptions VARO argues that it properly redacted certain information about Plaintiff’s former wife pursuant to FOIA Exemption (b)(6) and the PA. (Doc. 49 at 10-11.) a) 24 FOIA Exemption (b)(6) (1) Legal Standard 25 FOIA Exemption (b)(6) exempts “personnel and medical files and similar files the 26 disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 27 5 U.S.C. § 552(b)(6). To determine whether a record is properly withheld under 28 April 26, 2012 request. - 15 - 1 Exemption (b)(6), the court “must balance the privacy interest protected by the 2 exemptions against the public interest in government openness that would be served by 3 disclosure.” Lahr, 569 F.3d at 973. Exemption (b)(6) “requires that the invasion of 4 privacy be ‘clearly unwarranted’” and that disclosing the information “‘would constitute’ 5 an unwarranted invasion of privacy.” Id. (quoting U.S. Dept. of Justice v. Reporters 6 Comm. for Freedom of the Press, 489 U.S. 749, 755-56 (1989)). When the government 7 “has identified a cognizable privacy interest, ‘the only relevant public interest in the 8 FOIA balancing analysis is the extent to which disclosure of the information sought 9 would shed light on an agency’s performance of its statutory duties or otherwise let 10 citizens know what their government is up to.’” Id. (quoting Bibles v. Or. Natural Desert 11 Ass’n, 519 U.S. 355, 355-56 (1997)). 12 (2) Analysis 13 Defendants assert that the only information redacted by the VARO under 14 Exemption (b)(6) is the “private contact information of Plaintiff’s ex-spouse and her 15 social security number.” (Doc. 59 at 13, citing Vaughn Index.) They argue that “this is 16 wholly private information and sheds no light on the VA’s conduct.” (Id.) 17 Plaintiff responds that “any redaction of the personal information of Plaintiff’s ex- 18 spouse has been waived.” (Doc. 64 at 13.) Plaintiff asserts that the “VARO voluntarily 19 surrendered documents in its May 30, 2012 disclosure in its entirety, without redactions, 20 as clean copies” and that Mrs. Zaldivar “has also released documents on her own behalf 21 as exhibits when the need arises.” (Id. at 13-14, citing Doc. 65 ¶¶ 30, 52 and Exs. H, P- 22 S.) Plaintiff does not say specifically what information has previously been released, but 23 argues that Mrs. Zaldivar “has never exercised her right to privacy or confidentiality nor 24 has VARO produced such document on record,” and so Mrs. Zaldivar “has waived her 25 right to non-disclosure under the Privacy Act.” (Id. at 14.) 26 Plaintiff has not identified what public interest would be served by the disclosure 27 of Mrs. Zaldivar’s contact information and social security number. Even assuming Mrs. 28 Zaldivar had disclosed the information in some other proceeding or the agency did not - 16 - 1 assert the exemption in a prior release of records, such disclosure still fails to shed light 2 on how the agency performed its statutory duties in Plaintiff’s case. See, e.g., Fiduccia, 3 185 F.3d at 1047 (holding that the privacy interests of the individuals involved 4 outweighed the FOIA purpose of disclosure even though the information may have been 5 disclosed in “various courthouses”). Nor does Plaintiff’s citation to an Eighth Circuit 6 case discussing FOIA Exemption (b)(5) compel disclosure of the information withheld by 7 VARO under Exemption (b)(6). See North Dakota v. Andrus, 581 F.2d 177 (8th Cir. 8 1978) (holding that the government waived its right to assert Exemption (b)(5), which 9 exempts from disclosure certain “inter-agency or intra-agency memorandums or letters,” 10 because the government had previously disclosed the documents to counsel in a separate 11 litigation). The Andrus case involved the government’s waiver of its own right to assert 12 Exemption (b)(5), whereas here the government is asserting Exemption (b)(6) as to the 13 disclosure of Mrs. Zaldivar’s information. Moreover, to the extent Plaintiff claims he has 14 already received the documents he is complaining were not disclosed in their entirety, his 15 request for records would be moot. 16 17 18 19 Accordingly, the Court will grant summary judgment to Defendants on claimed FOIA Exemption (b)(6). b) Privacy Act Exemption (1) Legal Standard 20 The Privacy Act governs the disclosure of, access to, and amendment of records 21 on individuals that are maintained by federal agencies.” Lane v. Dep’t of Interior, 523 22 F.3d 1128, 1138-39 (9th Cir. 2008) (citing 5 U.S.C. § 552a). Thus, “an individual may 23 ‘gain access to his [or her] record’ upon request, id. § 552a(d)(1), and a cause of action 24 arises if an agency refuses to comply with a request, id. § 552a(g)(1)(B).” Id. at 1139. 25 On the other hand, the PA prohibits disclosure of “any record” to any person or agency 26 unless there is a written request by or written consent of the individual to whom the 27 record pertains,” subject to certain exceptions. Id. The government “need not show that 28 it produced every responsive document, but only that the search for those documents was - 17 - 1 adequate.” 2 government may show that its search was adequate by providing “reasonably detailed, 3 nonconclusory affidavits submitted in good faith.” Zemansky, 767 F.2d at 571 (quoting 4 Weisberg v. United States Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). 5 Id. (quoting Zemansky, 767 F.2d at 571) (emphasis in original). (2) The Analysis 6 Defendants argue that the information Plaintiff claims he should have access to— 7 the redacted contact information and social security number of his ex-spouse—“are not 8 records pertaining to [Plaintiff],” even if the information can be found in his claim file. 9 (Doc. 49 at 14.) They assert that Plaintiff’s “filings alone demonstrates his desire to 10 retaliate against his ex-spouse since being convicted of numerous counts of sexual abuse 11 and sexual contact with a minor in a proceeding where his ex-spouse was the ‘key 12 prosecution witness.’” (Id., citing Doc. 51 ¶ 21, Doc. 51-2 at 65-66, Doc. 1 ¶ 20.) 13 Defendants argue that Plaintiff’s situation “is on all fours” with the situation in 14 DePlanche v. Califano, 549 F. Supp. 685, 693-98 (W.D. Mich. 1982), a case in which a 15 father sought access to a social security benefits file accessible by the father’s social 16 security number that contained the address of his minor children. 17 DePlanche denied access to the address, finding that the information was not the father’s 18 record within subsection (a)(4) or information pertaining to him under subsection (d)(1) 19 of the Privacy Act. Id. at 694-96. The court in 20 Plaintiff responds generally that his former wife “has waived right to non- 21 disclosure under the Privacy Act and VARO’s release of documents surrendered 22 documents as clean copies makes VARO’s rights waived as well in protecting the 23 information.” (Doc. 64 at 13-14.) Plaintiff does not argue that the information withheld 24 under the PA pertains to him and not to his wife, or that she has consented to such 25 disclosure. The Court accordingly will grant summary judgment to Defendants on the 26 withholding of the information relating to Plaintiff’s former spouse under the Privacy 27 Act. 28 /// - 18 - 1 2 3 4 5 6 IT IS ORDERED: (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ Motion for Summary Judgment (Doc. 49). (2) Defendants’ Motion for Summary Judgment (Doc. 49) is granted, and this action is terminated with prejudice. The Clerk of Court must enter judgment accordingly. Dated this 22nd day of August, 2016. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 19 -

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