Buckovetz v. U.S. Department of the Navy

Filing 15

ORDER: (1) Denying Defendant's denying 11 Motion for Summary Judgment; and (2) Denying Plaintiff's 12 Motion for in Camera Review. Before May 24, 2016, Defendant shall either release the requested documents to Plaintiff or file a renewed motion for summary judgment with adequate, detailed factual support for withholding such information. Signed by Judge Roger T. Benitez on 4/13/2016. (All non-registered users served via U.S. Mail Service)(knb)

FILED

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APR 1 4 2016

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CLERK US DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
BY
... c:.. DEPUTY

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 15-cv-838-BEN (MDD)

DENNIS M. BUCKOVETZ,
Plaintiff,

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ORDER:

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(1) DENYING DEFENDANT'S
MOTION FOR SUMMARY
JUDGMENT

v.

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U.S. DEPARTMENT OF THE NAVY,

(2) DENYING PLAINTIFF'S
MOTION FOR IN CAMERA

Defendant.

REVIEW

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Before this Court is a Motion for Summary Judgment, filed by Defendant United

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States Department ofthe Navy. (Docket No. 11.) In opposition, Plaintiff Dennis

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Buckovetz filed a motion for in camera review. (Docket No. 12.)

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BACKGROUND

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On September 12,2014, Plaintiff submitted a Freedom ofInformation Act

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("FOIA") request, seeking all documents relating to and associated with a sexual

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harassment complaint. Plaintiff requested the complaint itself, email correspondence,

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and related records resulting from the complaint. Plaintiff is not the complainant or the

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subject of the complaint. Defendant denied Plaintiff's request in full pursuant to an

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1 attorney-client privilege exemption, citing 5 U.S.C. § 552(b)(5). Plaintiff appealed the
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denial on January 7, 2015. Even after following up in March 2015, Plaintiffs appeal

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went unanswered. Plaintiff then initiated this action on April 16, 2015, challenging the

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denial of his FOIA request.

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After Plaintiff filed the instant lawsuit, Defendant subsequently released eighteen

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pages of responsive documents subject to redactions under Exemption 6. On March 1,

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2016, Defendant filed the instant motion for summary judgment, arguing it properly

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withheld documents and portions thereof pursuant to Exemptions 5 and 6. In support of

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its motion, Defendant filed the Declaration of Cinthia Christopher, the FOIA Coordinator

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for the Marine Corps Recruit Depot ("MCRD"), and a Vaughn index.

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LEGAL STANDARD

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Summary judgment is appropriate when "there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P.

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56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In

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considering a summary judgment motion, the evidence of the nonmovant is to be

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believed, and all justifiable inferences are to be drawn in his or her favor. Anderson, 477

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U.S. at 255.

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A moving party bears the initial burden of showing there are no genuine issues of

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material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It can do so by

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negating an essential element of the non-moving party's case, or by showing that the non-

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moving party failed to make a showing sufficient to establish an element essential to that

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party's case, and on which the party will bear the burden of proof at trial. Id. The burden

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then shifts to the non-moving party to show that there is a genuine issue for trial. Id.

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In an action brought under the FOIA, the withholding agency bears the burden of

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proving it may withhold documents under one of the exemptions. 5 U.S.C. §

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552(a)(4)(B); Us. Dep't a/State v. Ray, 502 U.S. 164,173 (1991). It may meet this

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burden by submitting affidavits showing that the information falls within the claimed

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exemption. Minier v. CIA, 88 F.3d 796, 800 (9th Cir. 1996). "In evaluating a claim for
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exemption, a district court must accord 'substantial weight' to [agency] affidavits,

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provided the justifications for nondisclosure 'are not controverted by contrary evidence in

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the record or by evidence of [agency] bad faith. '" Id. (citation omitted).

DISCUSSION

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The FOIA provides for public access to official information that might be

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"shielded unnecessarily" from public view. Dep't ofAir Force v. Rose, 425 U.S. 352,

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361 (1976). By enumerating nine exemptions, the FOIA also recognizes that some

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information may legitimately be kept from the public and allows the government to

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withhold certain documents and portions thereof. See 5 U.S.C. § 552(b)(1 )-(9).

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I.

Defendant's Motion for Summary Judgment
Defendant contends that it properly withheld documents and redacted documents.

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Plaintiff argues that Defendant performed an inadequate search for the requested

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documents. In addition, Plaintiff contends that the declaration and Vaughn index do not

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provide sufficient detail to support the Defendant's nondisclosure.

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A. Adequate Search

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To show compliance with the FOIA, an agency must demonstrate that it

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"conducted a search reasonably calculated to uncover all relevant documents." Zemansky

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v. EPA, 767 F.2d 569, 571 (9th Cir. 1985) (citation and internal quotation marks omitted).

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"[T]he issue to be resolved is not whether there might exist any other documents possibly

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responsive to the request, but whether the search for those documents was adequate." Id.

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(emphasis in original).

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Upon receiving the FOIA request, Ms. Christopher contacted the human resources

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office at the MCRD. She was informed that some documents did exist but was referred .

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to a Jennifer Gazzo, Counsel for Labor & Employment Law, to determine which records

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could be released. Ms. Gazzo concluded that all the documents were protected by

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attorney-client privilege and attorney work-product. Ms. Gazzo also indicated that the

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human resources for Camp Pendleton might have responsive records. Ms. Christopher

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then denied Plaintiffs request pursuant to Exemption 5. Interestingly, the MCRD human
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1 resources office subsequently found more documents which were responsive to Plaintiffs
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request, and Defendant released them subject to redactions. It does not appear that Ms.

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Christopher reviewed any documents to determine whether they were responsive to

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Plaintiff s request or asked other staff members to identify the documents they thought

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might be responsive, yet subject to exemption.

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Plaintiff notes that letters of reprimand, which were issued as a result of an

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investigation into the harassment complaint, were not released. According to Plaintiff,

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these documents should have been located as part of his FOIA request because they are

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records associated with the sexual harassment complaint. In addition, Plaintiff notes that

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the complainant is a "Non-Appropriated Fund" or "NAF" employee, and thus her

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personnel file would be located at the NAF human resources office, not the MCRD

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human resources office. Defendant did not respond to Plaintiff s arguments.

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Viewing the facts in the light most favorable to Plaintiff, Defendant has not

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sufficiently demonstrated that it conducted an adequate search under the FOIA. See Our

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Children's Earth Found. v. Nat 'I Marine Fisheries Serv., 85 F. Supp. 3d 1074, 1083

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(N.D. Cal. 2015).

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B. Exemption 6

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Pursuant to the (b)( 6) exemption, information contained in personnel, medical, and

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similar files is protected from disclosure where such disclosure would "constitute a

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clearly unwarranted invasion of personal privacy." § 552(b)(6). "Exemption 6 requires

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the government to balance the individual's right to privacy against the public's interest in

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disclosure." Council on Am.-Islamic Relations, Cal. v. FBI, 749 F. Supp. 2d 1104, 1117

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(S.D. Cal. 2010) (citing Rose, 425 U.S. at 372 andHuntv. FBI, 972 F.2d286, 287 (9th

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Cir. 1992)).

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Ms. Christopher declares that the eighteen pages released to Plaintiff subject to

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redactions were obtained from the complainant's personnel file in the MCRD human

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resources office. The documents consist of the sexual harassment complaint and

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correspondence between staff. She claims that the complaint itself was completely
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1 redacted because Defendant has an interest in protecting victims of sexual harassment.
2· From the remaining documents, Defendant redacted employee names and identifying
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information. Ms. Christopher states that these redactions were made pursuant to

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Exemption 6. The declaration is vague and conclusory.

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The Vaughn index indicates that redactions of the same eighteen pages were made

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pursuant to both Exemption 6 and 7(C). However, the Vaughn index is largely

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inadequate. For example, it concludes that page 11 is an email exchange and, "Names

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redacted pursuant to Exemption 6 and 7(c) to protect personal privacy." Defendant

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provides no information as to why disclosing names associated with this email string

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would qualify as a "clearly unwarranted invasion of personal privacy." Similarly, three

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more email strings were released with names and statements redacted that might identify

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the individuals involved in the conversation. Defendant provides no factual basis or

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authority for redacting names of individuals discussing "the process with which

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complaints will be investigated."

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C. Exemption 5

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"[I]nter-agency or intra-agency memorandums or letters which would not be

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available by law to a party other than an agency in litigation with the agency" are exempt

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from disclosure. § 552(b)(5). Documents which are ordinarily privileged in the civil

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discovery context are protected from disclosure under Exemption 5. NLRB v. Sears,

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Roebuck & Co., 421 U.S. 132, 149 (1975) (noting the attorney-client and attorney work-

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product privileges are protected). An agency must support its claim of attorney-client

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privilege by "show[ing] that these documents involved the provision of specifically legal

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advice or that they were intended to be confidential and were kept confidential." Nat'l

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Res. Def. Council v. Us. Dep't ofDef., 388 F. Supp. 2d 1086,1104 (C.D. Cal. 2005)

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(emphasis in original) (citing Judicial Watch, Inc. v. Us. Postal Serv., 297 F. Supp. 2d

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252, 267 (D.D.C. 2004)).

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Defendant failed to meet its burden of showing that the responsive documents are
subject to Exemption 5. The Vaughn index provided does not address a single document
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1 withheld, in full or in part, by Exemption 5. Nor does Ms. Christopher describe the
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requested documents in detail.· Instead, Ms. Christopher states that she requested any

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responsive documents, was informed they were all communications with an attorney and

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grant summary judgment based on such conclusory statements." Nat 'I Res. De! Council,

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388 F. Supp. 2d at 1104 (citation omitted).

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D. Conclusion

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Defendant has failed to meet its burden under the FOIA. The record is insufficient

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to show that Defendant conducted an adequate search for the requested documents and

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that the responsive documents are subject to any exemptions. Defendant's Motion is

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therefore DENIED.

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II.

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Plaintiff's Motion for In Camera Review

Plaintiff asks this Court to review the undisclosed information in camera to
determine whether the documents should be released.

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"[T]he district court must require the government to justify FOIA withholdings in

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as much detail as possible on the record before resorting to in camera review." Lion

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Raisins v. Us. Dep 't ofAgriculture, 354 F.3d 1072, 1084 (9th Cir. 2004) (citation

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omitted).

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As Defendant has failed to publicly provide detailed affidavits and an adequate

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Vaughn index, the Court cannot grant Plaintiffs request. Accordingly, Plaintiffs motion

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for in camera review is DENIED. See id (district court erred in relying on in camera

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review when government failed to provide detailed declarations).

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III

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III
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United States District Judge
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