Service Women's Action Network et al v. U.S. Department of Defense et al

Filing 52

MEMORANDUM OF DECISION granting in part and denying in part 35 Motion for Summary Judgment. Status report due within 30 days of the entry of this decision... Signed by Judge Mark R. Kravitz on 3/30/12. (Brown, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

SERVICE WOMEN'S ACTION
NETWORK, AMERICAN CIVIL
LIBERTIES UNION, and AMERICAN
CIVIL LIBERTIES UNION OF
CONNECTICUT,
Plaintiffs,
v.
DEPARTMENT OF DEFENSE and
DEPARTMENT OF VETERANS
AFFAIRS,
Defendants.

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NO. 3:10cv1953 (MRK)

MEMORANDUM OF DECISION
The Service Women's Action Network, the American Civil Liberties Union, and the
American Civil Liberties Union of Connecticut (collectively "Plaintiffs") bring this action
against the Department of Defense and the Department of Veterans Affairs (collectively
"Defendants"). Plaintiffs' Amended Complaint [doc. # 13] states two claims under the Freedom
of Information Act ("FOIA"), 5 U.S.C. § 552 et seq.: (1) that Defendants failed to promptly
release responsive records in violation of FOIA, 5 U.S.C. § 552(a)(3)(A); and (2) that
Defendants failed to make a reasonable effort to search for responsive records in violation of
FOIA, 5 U.S.C. § 552(a)(3)(C). Plaintiffs request that this Court order Defendants to disclose
and release requested records in their entirety, to make copies available to the Plaintiffs, and
award Plaintiffs costs and reasonable attorney's fees.
Pending before the Court is Defendants' Motion for Summary Judgment [35]. The Court
finds that Defendants appropriately did not respond to the first two requests made of all
1

Department of Defense ("DoD") agencies, that there is a question of fact as to whether Plaintiffs'
eleventh request of DoD agencies was unduly burdensome, and that various contested
declarations submitted in support of Defendants' motion are sufficient or insufficient. Based on
these conclusions, which are described in greater detail below, Defendants' Motion for Summary
Judgment is GRANTED IN PART and DENIED IN PART.

I.
These facts are culled from the Amended Complaint [doc. # 13] and parties' Local Rule
56(a) Statements [docs. # 35-2, 48-1], exhibits, and affidavits. All of the facts recited below are
undisputed unless otherwise noted, and the Court presents all facts "in the light most favorable to
the nonmoving party"—here, Plaintiffs—after drawing "all reasonable inferences in [their]
favor." Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir. 2000) (quotation marks
omitted). Additional facts are discussed in the analysis where relevant.

A.
Service Women's Action Network ("SWAN") is a nonpartisan, nonprofit organization
that supports, defends, and empowers current service women and female veterans through
advocacy initiatives and community programs. American Civil Liberties Union ("ACLU") is a
national, nonpartisan public interest organization of more than 500,000 members, dedicated to
protecting the constitutional and civil rights of individuals. In recent years, the ACLU Women's
Rights Project has taken a primary role at the local, state, and national levels to ensure
governmental accountability for violence against women and girls through litigation, policy
advocacy, and public education. ACLU of Connecticut ("ACLU CT") is a non-profit, non-

2

partisan membership organization dedicated to protecting individual civil rights and the
principles of individual liberty embodied in the United States and Connecticut Constitutions.
Plaintiffs believe that the extent of sexual assault and harassment within the military is
extensive and damaging on multiple levels. Plaintiffs allege that the government is not
responding adequately to protect women from such incidents: the government has not
meaningfully condemned such violence against women in the military; the government has not
reformed its internal procedures to allow victims to report such incidents anonymously (and
thereby avoid professional and social retaliation); the government is not adequately prosecuting
alleged aggressors or appropriately punishing convicted ones; and the government is not
adequately budgeting or paying for the treatment of women who have experienced sexual trauma
for the physical or mental disabilities that often accompany or follow such experiences. Plaintiffs
allege that the government is intentionally shielding information regarding the true extent of
sexual violence in the military because disclosure would result in negative publicity and
increased expenses.
The U.S. Department of Defense ("DoD") is the federal agency responsible for
coordinating and supervising government activity relating directly to national security and the
U.S. armed forces. The U.S. Department of Veterans Affairs ("VA") is the federal agency
responsible for helping veterans by providing certain benefits and services.

B.
By letter dated October 15, 2010, Plaintiffs submitted FOIA requests to six different
offices within DoD: the Department of the Navy, the Office of the Inspector General, the
Department of the Air Force, the Department of the Army, the Commandant of the Marine
Corps, and the Office of Freedom of Information. DoD received the letters on October 15, 2010.
3

As much of this dispute turns on exactly what these requests were for, the Court includes
them here in their entirety:
Requesters seek the release of records 1 containing the following:
1. Information pertaining to where and how the DoD stores military-related
reports and investigations about military sexual trauma ("MST")
complaints, equal opportunity ("EO") complaints, sexual harassment
("SH") complaints, and/or domestic violence ("DV") complaints.
2. Information concerning how service members can request or obtain from
DoD military-related reports and investigations about MST, EO, SH,
and/or DV complaints.
3. The number of requests by service members for the release of records
relating to MST, EO, SH, and DV complaints, in FY2006, FY2007,
FY2008, FY2009, and/or FY2010.
4. The number of reports relating to MST, EO, SH, and/or DV complaints
released to service members or the public in FY2006, FY2007, FY2008,
FY2009, and/or FY2010.
5. The number of military-related incidents of SH, EO, DV, and/or MST
reported by service members in FY2006, FY2007, FY2008, FY2009,
and/or FY2010.
6. The number of sexual-assault-related courts-martial in FY2006, FY2007,
FY2008, FY2009, and/or FY2010.
7. The number of charges sworn in all sexual-assault-related courts-martial
in FY2006, FY2007, FY2008, FY2009, and/or FY2010.
8. The number of sexual-assault-related courts-martial that resulted in
acquittal in FY2006, FY2007, FY2008, FY2009, and/or FY2010.
9. The number of sexual assault related courts-martial that resulted in
convictions in FY2006, FY2007, FY2008, FY2009, and/or FY2010.
10. The crimes for which convictions in sexual assault-related courts-martial
were secured, and/or the sentences awarded for those convictions in
FY2006, FY2007, FY2008, FY2009, and/or FY2010.
11. All records related to the non-judicial or administrative resolution of
sexual assault-related complaints that did not result in court martial in
FY2006, FY2007, FY2008, FY2009, and/or FY2010.
12. A breakdown by gender and/or race of any information that falls within
the scope of requests 1 though 11.
Am. Compl. [doc. # 13-2] Ex. A.
1

The term "records" as used herein includes all records or communications preserved in
electronic or written form, including but not limited to correspondences, documents, data,
videotapes, audio tapes, emails, faxes, files, guidance, guidelines, evaluations, instructions,
analyses, memoranda, agreements, notes, orders, policies, procedures, protocols, reports, rules,
technical manuals, technical specifications, training manuals, or studies.
4

As of December 13, 2010, Plaintiffs had received denials of fee waivers from the Office
of Freedom of Information and the Office of the Inspector General, letters from the Office of
Freedom of Information and the Office of the Inspector General claiming they could find no
requested records, and a letter from the Army Crime Records Center refusing to search for the
requested records.
By letters dated December 16, 2010, Plaintiffs administratively appealed the decisions of
the Office of Freedom of Information, the Office of the Inspector General, and the Army Crime
Records Center.

C.
By letter dated October 15, 2010, Plaintiffs submitted FOIA requests to five different
offices within VA: the Veterans Benefits Administration ("VBA"), the Board of Veterans
Appeals ("BVA"), the Office of the General Counsel, the Office of Inspector General, and the
Veterans Health Administration. VA received the letters on October 15, 2010.
Again, as much of this dispute turns on exactly what these requests were for, the Court
includes them here in their entirety:
Requesters seek the release of records 2 containing the following:
1. The number of benefit claims filed, approved, and rejected for PostTraumatic Stress Disorder ("PTSD") in FY2006, FY2007, FY2008,
FY2009, and/or FY2010.
2. The distribution of disability ratings for PTSD claims in FY2006, FY2007,
FY2008, FY2009, and/or FY2010.
3. The distribution of disability ratings for PTSD claims awarded in FY2006,
FY2007, FY2008, FY2009, and/or FY2010.
2

The term "records" as used herein includes all records or communications preserved in
electronic or written form, including but not limited to correspondences, documents, data,
videotapes, audio tapes, emails, faxes, files, guidance, guidelines, evaluations, instructions,
analyses, memoranda, agreements, notes, orders, policies, procedures, protocols, reports, rules,
technical manuals, technical specifications, training manuals, or studies.
5

4. The number of benefit claims filed for PTSD that list military sexual
trauma ("MST") as a causal factor in FY2006, FY2007, FY2008, FY2009,
and/or FY2010.
5. The number of benefit claims approved and rejected for MST-related
PTSD in FY2006, FY2007, FY2008, FY2009, and/or FY2010.
6. The number of benefit claims rejected for MST-related PTSD in FY2006,
FY2007, FY2008, FY2009, and/or FY2010 based on lack of direct service
connection.
7. The number of benefit claims approved for MST-related PTSD in
FY2006, FY2007, FY2008, FY2009, and/or FY2010 where the evidence
of direct service connection consisted solely of the veteran's service record
and/or those where the evidence of direct service connection consisted of
the veteran's service record and corroborating evidence from outside the
service record.
8. The number of benefit claims rejected for MST-related PTSD in FY2006,
FY2007, FY2008, FY2009, and/or FY2010 where the evidence of direct
service connection consisted solely of the veteran's service record and/or
those where the evidence of direct service connection consisted of the
veteran's service record and corroborating evidence from outside the
service record.
9. For FY2006, FY2007, FY2008, FY2009, and/or FY2010, the number of
benefit claims based on MST-related PTSD for which the VA advised the
claimant that evidence from sources other than the veteran's service
records or evidence of behavior changes may constitute credible
supporting evidence of the stressor, and the number of benefit claims
based on MST-related PTSD for which the VA allowed the claimant the
opportunity to furnish this type of evidence or advise VA of potential
sources of such evidence.
10. The distribution of disability ratings for benefit claims awarded for MSTrelated PTSD in FY2006, FY2007, FY2008, FY2009, and/or FY2010.
11. The number of benefit claims filed for non-PTSD conditions that list MST
as a causal factor in FY2006, FY2007, FY2008, FY2009, and/or FY2010.
12. The number of benefit claims approved and rejected for non-PTSD, MSTrelated conditions in FY2006, FY2007, FY2008, FY2009, and/or FY2010.
13. The number of benefit claims rejected for non-PTSD, MST-related
conditions in FY2006, FY2007, FY2008, FY2009, and/or FY2010 based
on lack of direct service connection.
14. The number of benefit claims approved for non-PTSD, MST-related
conditions in FY2006, FY2007, FY2008, FY2009, and/or FY2010 where
the evidence of direct service connection consisted solely of the veteran's
service record, and/or where the evidence of direct service connection
consisted of the veteran's service record and corroborating evidence from
outside the service record.
15. The number of benefit claims rejected for non-PTSD, MST-related
conditions in FY2006, FY2007, FY2008, FY2009, and/or FY2010 where
the evidence of direct service connection consisted solely of the veteran's
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service record, and/or where the evidence of direct service connection
consisted of the veteran's service record and corroborating evidence from
outside the service record.
16. The distribution of disability ratings for benefit claims awarded for nonPTSD, MST-related conditions in FY2006, FY2007, FY2008, FY2009,
and/or FY2010.
17. The number of benefit claims approved and rejected for each type of nonMST-related PTSD in FY2006, FY2007, FY2008, FY2009, and/or
FY2010.
18. A breakdown by gender and/or race of any information that falls within
the scope of requests 1 through 17.
Am. Compl. [doc. # 13-3] Ex. B.
As of December 13, 2010, Plaintiffs had received a response from the BVA providing
partial records in response to some requests and claims that it could not respond to others.
Plaintiffs also received responses from the Office of Inspector General and the Office of the
General Counsel claiming that they did not possess any requested records.
By letters dated December 16, 2010, Plaintiffs administratively appealed the decisions of
the BVA, the Office of Inspector General, and the Office of the General Counsel. 3

II.
As with all motions for summary judgment, summary judgment in a FOIA case is
appropriate only when the "depositions, documents, electronically stored information, affidavits
or declarations, stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials" submitted to the Court "show[] that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.
R. Civ. P. 56(c)(1)(A); Fed. R. Civ. P. 56(a).

3

Plaintiffs do not appear to now contest the sufficiency of the FOIA responses from the VA's
Office of the General Counsel, the VA's Office of Inspector General, or the Veteran's Health
Administration.
7

On a motion for summary judgment in a FOIA action, "the defending agency has the
burden of showing that its search was adequate and that any withheld documents fall within an
exemption to the FOIA." Carney v. U.S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994) (citing
5 U.S.C. § 552(a)(4)(B); EPA v. Mink, 410 U.S. 73, 79 (1973)). To satisfy that burden, the
agency may rely on "[a]ffidavits or declarations supplying facts indicating that the agency has
conducted a thorough search and [explaining in reasonable detail] why any withheld documents
fall within an exemption." Id.
To establish the adequacy of a search, an agency affidavit or declaration must be
"relatively detailed and non-conclusory" and "submitted in good faith." SafeCard Servs., Inc. v.
SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quotation marks omitted); see also Wood v. FBI,
432 F.3d 78, 85 (2d Cir. 2005). This means, for instance, that an agency affidavit or declaration
must describe in reasonable detail the scope of the search and the search terms or methods
employed. See, e.g., Maynard v. CIA, 986 F.2d 547, 559 (1st Cir. 1993); N.Y. Times Co. v. U.S.
Dep't of Def., 499 F. Supp. 2d 501, 518 (S.D.N.Y. 2007). Because "[a]ffidavits submitted by an
agency are accorded a presumption of good faith[,] . . . discovery relating to the agency's search
and the exemptions it claims for withholding records generally is unnecessary if the agency's
submissions are adequate on their face." Carney, 19 F.3d at 812 (quotation marks and citation
omitted).

III.
Defendants maintain that there was no need to respond to the first two requests sent to all
DoD offices, as they were questions about government policies, rather than requests for files or
similar information. As an agency need not respond to or "answer questions disguised as a FOIA
request," Scraff-Martinez v. DEA, 770 F. Supp. 2d 17, 23 (D.D.C. 2011) (quotation marks
8

omitted), Defendants properly did not respond to the first two DoD Items. Summary judgment is
therefore granted with regard to the first two requests sent to all DoD offices.

IV.
Before the Court can determine whether the Defendants' searches were reasonable, as
required by 5 U.S.C. § 552(a)(3)(C), it must first determine what materials the Defendants were
obligated to search for—which is relevant to evaluating Plaintiffs' first claim under 5 U.S.C.
§ 552(a)(3)(A). Plaintiffs argue that their requests sought individual information; Defendants
maintain that all requests were for aggregate or statistical data.
The Court finds that many of the DoD FOIA requests appear to anticipate statistical or
aggregate responses: Items 3-9 all ask for "[t]he number of" a certain type of document. See Am.
Compl. [doc. # 13] Ex. A. Item 12 requests a gender and/or race breakdown of the requested
information, which seems to be a request for statistical data. See id. Similarly, with the exception
of a final claim that also requests a race and/or gender-based breakdown of the provided
information, all of the VA FOIA requests ask either for "[t]he number of" a certain type of
document or "[t]he distribution of disability ratings" for different types of claims. See id. Ex. B.
Excepting DoD Items 10 and 11, then, all of the Plaintiffs' requests appear to be for statistical or
aggregate responses.
The only requests susceptible to reading as requests for individualized data are Items 10
and 11 of the DoD FOIA requests:
10. The crimes for which convictions in sexual assault-related courts-martial
were secured, and/or the sentences awarded for those convictions in
FY2006, FY2007, FY2008, FY2009, and/or FY2010.
11. All records related to the non-judicial or administrative resolution of
sexual assault-related complaints that did not result in court martial in
FY2006, FY2007, FY2008, FY2009, and/or FY2010.

9

Id. Ex. A. Plaintiffs maintain that, construed liberally, Items 10 and 11 clearly ask for individual
records. 4 Defendants argue that both request statistical or aggregate data, as (1) both should be
read in the larger context of the other requests, (2) the fact that Item 12 requests a breakdown by
gender and/or race implies that 10 or 11 must be susceptible to such a breakdown, and
(3) Plaintiffs' subsequent filing of a separate FOIA request implicitly acknowledges this one's
failure to request individual records.
The most sensible reading of Item 10 is as a request for aggregate data: specifically, for a
list of crimes for which court martial convictions were secured and/or for a list of the sentences
awarded for those convictions. While "[t]he crimes for which convictions in courts-martial were
secured are certain to be in the records of the courts-martial," Pls.' Resp. [doc. # 47] at 9, along in
other places, this is essentially saying that information in lists may be found in documents from
which that list was made, which would be true for any list. The FOIA request generally asks for
release of records "containing" the following information—not for all records possibly relating to
such information. See Am. Compl. [doc. # 13] Ex. A.
Item 11, however, requests "records containing . . . [a]ll records" relating to the nonjudicial or administrative resolution of complaints that did not result in court martial. Despite this
odd phrasing, the Court is not sure how the DoD agencies could read this as a request for
aggregate data. Instead, in contrast to the other requests, it specifically asks for all records, a
word which is defined within the FOIA request as encompassing a substantial number of types of

4

Plaintiffs also argue that in February 2011 and subsequent discussions between the parties,
Plaintiffs clarified that they were requesting individual records. However, what is relevant is the
text as presented to the agency, not as construed by a plaintiff after litigation commences. See,
e.g., Wilson v. U.S. Dep't of Transp., 730 F. Supp. 2d 140, 155 (D.D.C. 2010) ("[A]n agency
need only conduct a search as to the original request, and not to subsequent additions or
clarifications."). Accordingly, the Court analyzes the text as received by the agency.
10

documents. This is not a case of Plaintiffs later attempting to change the terms of a request: by its
terms, the request appears to ask for reams of documents.
The fact that every other request—in both the DoD and VA FOIA letters—appears to ask
for aggregate data does not mean that Item 11 may not ask for individual data. It may explain
why Defendants misread the request, but it is disingenuous for Defendants to now attempt to
argue that this single Item never asked for "all records." The Defendants' argument that Item 12,
which asks for a gender and/or race breakdown of the previous requests, must imply that the
previous requests were for aggregate data is also unconvincing. Item 12 is simply a separate
request for any information the DoD might have on such breakdowns. Nor does Plaintiffs'
subsequent filing of a new FOIA request imply that its original filing did not include a similar
request; rather, it was an appropriate response to the fact that Defendants refused to fulfill this
one.
"When [a] request demands all agency records on a given subject then the agency is
obliged to pursue any 'clear and certain' lead it cannot in good faith ignore. But, an agency need
not conduct a search that is unduly burdensome." Halpern v. FBI, 181 F.3d 279, 288 (2d Cir.
1999) (citations omitted). As written, Item 11's request is clear enough—but it may also be
unduly burdensome. Plaintiffs ask for "all records" relating to the non-judicial or administrative
resolution of a sexual assault-related complaint that did not result in a court martial for five
different years—where a "record" includes, but is not limited to, "correspondences, documents,
data, videotapes, audio tapes, emails, faxes, files, guidance, guidelines, evaluations, instructions,
analyses, memoranda, agreements, notes, orders, policies, procedures, protocols, reports, rules,
technical manuals, technical specifications, training manuals, or studies." Am. Compl. [doc.
# 13] Ex. A. Given this expansive request, the Court is tempted to find as a matter of law that the

11

request is unduly burdensome. However, as the Court must examine the facts and draw
inferences in favor of the non-moving Plaintiffs, and as Defendants have not submitted evidence
on this point, see Defs.' Reply [doc. # 50] (stating only that the relevant data cannot be
reasonably searched and therefore a response would be unduly burdensome), the Court
concludes that there is a genuine issue of material fact as to whether the Item 11 request is
unduly burdensome. Accordingly, summary judgment with regard to this request is denied.

V.
The Court now turns to evaluating the adequacy of the Defendants' searches. In order to
do so, it examines the numerous declarations submitted with Defendants' Motion for Summary
Judgment [doc. # 35].
Plaintiffs contest the sufficiency of many of these affidavits. Specifically, Plaintiffs
contend that many of the declarations are not made by a person who undertook or supervised the
search, that the declarations contain an inadequate description of the agency's file systems and/or
search, that the declarations fail to prove that the agency conducted an adequate search, and/or
that there is countervailing evidence that certain agencies acted in bad faith.
The Court first reviews the relevant case law for each of these issues. It then examines
the various agencies' affidavits to determine whether they are sufficient.

A.
Plaintiffs critique many of the agencies for failing to provide a declaration from someone
who undertook or directly supervised the records search. Instead, the declarations associated with
these offices all come from individuals at the top of the supervisory ladder. The declarants all
aver that their declarations are based on their personal knowledge, upon their review of

12

information available to them in their official capacities, and upon their own conclusions. While
acknowledging that a supervisor may rely on second-hand information in drafting declarations,
Plaintiffs question whether any supervisor may submit a sufficient declaration or whether a
declarant must either have personally conducted the search or supervised not only the person
who conducted the search but the search itself.
Case law does not provide a definitive answer. Most cases simply state that the
supervisor of a search may testify to the search without distinguishing between general
supervisors (such as the head of an agency) and supervisors who personally oversee a search.
See, e.g., Truesdale v. U.S. Dep't of Justice, 803 F. Supp. 2d 44, 50 (D.D.C. 2011) (relying on an
affidavit from a "supervisor" without clarifying the supervisor's role, except to say that she
supervises the handing of FOIA requests); Garcia v. U.S. Dep't of Justice, 181 F. Supp. 2d 356,
368 (S.D.N.Y. 2002) (finding that the Acting Chief of the Litigation Unit, which processes
litigation requests, was the appropriate individual to describe the search for responsive
documents, without clarifying whether he was a general or specific supervisor); SafeCard Servs.,
Inc., 926 F.2d at 1201 (finding that a paralegal who "was in charge of coordinating the SEC's
search and recovery efforts" was "the most appropriate person to provide a comprehensive
affidavit").
Second Circuit case law provides only weak support for Plaintiffs' argument that only a
supervisor who personally supervised the search may submit an affidavit. In Carney, the Second
Circuit found that "[a]n affidavit from an agency employee responsible for supervising a FOIA
search is all that is needed to satisfy Rule 56(e); there is no need for the agency to supply
affidavits from each individual who participated in the actual search." 19 F.3d at 814 (discussing
affidavits written by officials who had either personally supervised, were personally involved in

13

processing, or who supervised the processing of the FOIA requests). At least one lower court has
since read Carney as requiring that an affidavit from the agency employee who was responsible
for supervising the search—not any just a supervisor—should be obtained. See Katzman v. CIA,
903 F. Supp. 434, 438 (E.D.N.Y. 1995).
The district courts of D.C. seem to have taken a different route, finding that effectively
any supervisor is capable of submitting a sufficient declaration. In Blunt-Bey v. U.S. Dep't of
Justice, 612 F. Supp. 2d 72, 74 (D.D.C. 2009), a district court found that officials who learn
about a search "through the performance of their official duties and their review of the official
files" have sufficient "personal knowledge" to testify about the search under Rule 56. Accord
Holt v. U.S. Dep't of Justice, 734 F. Supp. 2d 28, 38 (D.D.C. 2010) ("[E]ach declarant has stated
his or her familiarity with the component's procedures for handling FOIA and Privacy Act
requests, and each declaration is based on the declarant's review of the component's official files.
The Court may accept the declaration of a person who did not conduct the search itself if in his
declaration, he attests to his personal knowledge of the procedures used in handling a FOIA
request and his familiarity with the documents in question." (citations, quotation marks, and
alterations omitted)).
At least one Second Circuit district court has explicitly applied similar reasoning, see
Adamowicz v. IRS, 672 F. Supp. 2d 454, 463 (S.D.N.Y. 2009) (rejecting the claim that a
government agency must submit declarations from officers who actually supervised and
conducted the search in question and instead finding that a supervisor who delegates the search
to another, who in turn delegates to another, is the appropriate person to submit a declaration)
affirmed 402 F. App'x 648 (2d Cir. 2010), and at least one has implicitly applied similar
reasoning, see El Badrawi v. Dep't of Homeland Sec., 583 F. Supp. 2d 285, 299 (D. Conn. 2008)

14

(not questioning the sufficiency of a declaration filed by the Chief of the agency's FOIA
Appeals, Policy, and Litigation Branch who had learned of information relating to the request in
her official capacity).
The Court believes that the discrepancies within the case law reflect the fact-intensive
nature of this inquiry. Depending on the nature of the search and the role and experience of the
supervisor, some supervisors who did not personally supervise a particular search may
nonetheless learn enough about it to be able to submit a sufficient declaration based on personal
knowledge; others may not. Accordingly, while the Court finds the D.C. district court approach
persuasive, in the absence of clear Second Circuit guidance it ultimately resolves the parties'
arguments on this point on the basis of the individual declarations rather than as a matter of law.

B.
Agency FOIA declarations should provide reasonably detailed information about the
"scope of the search and the search terms or methods employed." Godaire v. U.S. Dep't of
Justice, No. 3:10cv01266 (MRK), 2011 WL 3047656, at *2 (D. Conn. Jul. 25, 2011). Affidavits
must also aver "that all files likely to contain responsive materials (if such records exist) were
searched." El Badrawi, 583 F. Supp. 2d at 298 (quotation marks omitted); see also McCready v.
Nicholson, 465 F.3d 1, 14 (D.C. Cir. 2006) ("At the summary judgment stage, where the agency
has the burden to show that it acted in accordance with the statute, the court may rely on a
reasonably detailed affidavit, setting forth the search terms and the type of search performed, and
averring that all files likely to contain responsive materials (if such records exists) were
searched" (quotation marks omitted)).
To provide a complete description of the search, affidavits "must detail files searched and
the general scheme of the agency file system." Fisher v. FBI, 94 F. Supp. 2d 213, 218 n.2 (D.
15

Conn. 2000); see also Katzman, 903 F. Supp. at 438 (noting that agency declarations must
"identify the searched files and describe at least generally the structure of the agency's file
system which renders any further search unlikely to disclose additional relevant information"
(quotation marks omitted)). "Without at least an elementary description of the general scheme of
an agency's file system, a FOIA requester has no basis upon which to dispute an agency's
assertion that any further search is unlikely to disclose additional relevant information." El
Badrawi, 583 F. Supp. 2d at 300 (quotation marks and alteration omitted) (finding that a
description of the database searched was not sufficient, as the affidavit did not also describe the
general scheme of the file system).
While an agency must describe the search and the files searched, there is no requirement
that agencies describe all of their file systems. Instead, an adequate description need only
provide reasonable detail about the parameters and execution of an agency's search and aver that
all files likely to contain responsive material were searched. See id.; McCready, 465 F.3d at 14.
As an initial matter, many of the Plaintiffs' complaints regarding search descriptions are
based on the claim that certain declarations fail to describe all of their file systems. Defendants
argue that the information they have provided regarding searched databases is sufficient.
Defendants reason that, as federal agencies publish in the Federal Register a notice briefly
describing every system of records they maintain that tracks information retrievable by the name
or other personal identifier of an individual, much of the information Plaintiffs request could be
discovered through a few Google searches.
Google searches may allow Plaintiffs to undercover much of the missing information if
Plaintiffs' sole intention was to learn about the government's file systems, but that is not the
purpose of the declaration requirement. Declarations are supposed to allow the Plaintiffs—and

16

the Court—to evaluate the reasonableness of an agency's search. Defendants' argument therefore
implies that the Court must comb the internet to evaluate whether the searches were reasonable.
The Court declines to do so and instead looks only to the declarations to determine whether they
provide enough of a review of the respective relevant file systems that the Plaintiffs and Court
may evaluate the searches' sufficiency.
Therefore, although the Court summarily dismisses Plaintiffs' arguments that are only
generalized critiques of an agency's failure to describe all commands, departments, record
systems, databases, et cetera, the Court will be concerned when a declaration does not reasonably
describe why one source of records and not another was searched.
Finally, if an agency declaration fails to adequately describe a search, that lapse alone
does not establish an absence of good faith—or the failure to conduct a reasonable search. See
N.Y. Times, 499 F. Supp. 2d at 518. Instead, "[t]he appropriate next step is for Defendants to
submit to the Court a reasonably detailed affidavit or affidavits which indicate the rigors of their
search, following review of which the Court will determine whether the search was adequate
under FOIA." Id. (quotation marks and alterations omitted).

C.
Plaintiffs critique numerous declarations for failing to demonstrate that the relevant
agency conducted an adequate search, relying heavily on the maxim that, "[a]lthough a requester
must reasonably describe the records sought, an agency also has a duty to construe a FOIA
request liberally." Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890
(D.C. Cir. 1995) (quotation marks, citation, and alteration omitted).
Courts also recognize, however, that "a search need not be perfect, only adequate, and
adequacy is measured by the reasonableness of the effort in light of the specific request."
17

Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir. 1986); see also Amnesty Int'l USA v. CIA, No.
07 Civ. 5435 (LAP), 2008 WL 2519908, at *9 (S.D.N.Y. Jun 19, 2008) ("Reasonableness does
not demand perfection . . . an agency is not expected to take extraordinary measures to find the
requested records, but only to conduct a search reasonably designed to identify and locate
responsive documents." (quotation marks omitted)). The question is not whether any additional
responsive documents conceivably exist, but rather whether the agency's search was reasonably
calculated to discover responsive documents. See id. Therefore, the fact that an agency might
later discover relevant documents does not necessarily mean that the original search was
unreasonable. See Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 489 (2d Cir. 1999) ("That
some documents were not discovered until a second, more exhaustive, search was conducted
does not warrant overturning the district court's [finding that the search was adequate]."). An
agency need not produce records it has already publicly disseminated, see U.S. Dep't of Justice v.
Tax Analysts, 492 U.S. 136, 152 (1989) (finding that an agency need not produce requested
materials that it has previously published or made available), nor need an agency create a new
record in response to a request for one, see Scraff-Martinez, 770 F. Supp. 2d at 22-23.
As noted above, the burden of demonstrating that a search is adequate rests on the
agency. See 5 U.S.C. § 552(a)(4)(B); Carney, 19 F.3d at 812. To satisfy that burden, an agency
may submit non-conclusory declarations that explain, in reasonable detail, the scope and method
of the agency's search, as well as any justifications for acknowledged non-disclosures. See id. "A
district court in a FOIA case may grant summary judgment in favor of an agency on the basis of
agency affidavits if they contain reasonable specificity of detail rather than merely conclusory
statements, and if they are not called into question by contradictory evidence in the record or by

18

evidence of agency bad faith." Grand Cent. P'ship, 166 F.3d at 478 (quotation marks omitted)
(emphasis in original).

D.
Once an agency has shown its search to be adequate, the burden shifts to the plaintiff to
demonstrate bad faith. See Fisher, 94 F. Supp. 2d at 218. A FOIA plaintiff must "make a
showing of bad faith on the part of the agency sufficient to impugn the agency's affidavits or
declarations, or provide some tangible evidence that an exemption claimed by the agency should
not apply or summary judgment is otherwise inappropriate." Carney, 19 F.3d at 812 (citation
omitted). "[E]ven if an agency has met its burden by submitting, in good faith, relatively detailed
and nonconclusory affidavits, the requester may nonetheless produce countervailing evidence,
and if the sufficiency of the agency's identification or retrieval procedure is genuinely in issue,
summary judgment is not in order." El Badrawi, 583 F. Supp. 2d at 299 (quotation marks
omitted).
An agency declaration cannot be rebutted, however, by "purely speculative claims about
the existence and discoverability of other documents." Safecard Servs., Inc., 926 F.2d at 1200
(quotation marks omitted). If a plaintiff fails to satisfy this burden, summary judgment is
appropriate. See Carney, 19 F.3d at 812.

VI.
A.
Plaintiffs take issue with three declarations, submitted on behalf of the Department of the
Navy, by Robin Patterson, the Head of the Department of the Navy, Chief of Naval Operations,
Privacy and FOIA Policy Officer; Tammy Tideswell, the Initial Denial Authority for

19

Commander, Navy Installation Command's FOIA Program; and David Harrison, the Director of
Code 20, the Criminal Law Division of the Office of the Judge Advocate General.
The Court finds that both Ms. Patterson and Ms. Tidewell's declaration fail to adequately
describe the search and meet their burden of demonstrating that the search was sufficient.
Additionally, Plaintiffs have introduced countervailing evidence based on admissions in Ms.
Patterson's declaration. Summary judgment with regard to the Navy's searches is therefore
inappropriate at this time. The Court finds Mr. Harrison's declaration sufficient.

1.
Plaintiffs first argue that Ms. Patterson's declaration is insufficient because she relied on
information obtained from an individual over whom she exercised no direct authority. David
German, a GS-14 level federal employee with over thirteen years experience as the Navy
Personnel Command FOIA officer, advised Ms. Patterson and/or the person conducting the
search under Ms. Patterson's supervision that, based on his knowledge of the Command's filing
systems, it did not maintain any responsive records to Plaintiffs' FOIA request. The Court finds
that Ms. Patterson reasonably relied on Mr. German's conclusion, and her declaration is not
rendered insufficient as a result.

2.
Plaintiffs next argue that the three declarations all fail to describe the searches
adequately. Plaintiffs first observe that, while Ms. Patterson does describe the Navy commands
she and another agreed would produce responsive documents, the lack of a list of all possible
commands makes it difficult to evaluate whether Ms. Patterson's chosen commands are
appropriate. Plaintiffs also note that the fact that Ms. Patterson later came to learn that two

20

additional commands also had responsive records indicates that still more commands may also
have had such information.
As noted above, Ms. Patterson is not obligated to provide a complete list of all commands
or to review each command one by one and explain why it was not searched. Ms. Patterson also
appropriately describes why the commands selected for search were selected and, with one
exception, 5 adequately describes their searches. Furthermore, the unearthing of responsive
records in other commands is not dispositive, as the issue is not whether any additional
responsive documents might conceivably exist, but rather whether the original search was
reasonably designed to discover responsive documents. See, e.g., Amnesty Int'l, 2008 WL
2519908, at *9; see also Grand Cent. P'ship, Inc., 166 F.3d at 489.
However, the Court cannot determine from Ms. Patterson's declaration whether the
original search was calculated to return responsive documents. See El Badrawi, 583 F. Supp. 2d
at 300 (finding a description of the searched database insufficient, as the larger file system was
not described). Rather than describing her reasons for selecting only certain commands for
search and not others, Ms. Patterson simply states that she and the search coordinator
"determined it was unlikely that any other commands would have responsive records." Patterson
Decl. [doc. # 35-16] ¶ 6. Ms. Patterson therefore implicitly avers that all files likely to contain
responsive material were searched, but she fails to provide sufficient details about why she
selected specific commands for search and not others. Cf. McCready, 465 F.3d at 14.

5

Ms. Patterson's description of the Department of the Navy Sexual Assault Prevention and
Response Office's search is overly conclusory; although the Department produced responsive
documents, Ms. Patterson's only declaration of their search is that it "included all information
that they both generated and maintained that was responsive to the request." Patterson Decl.
[doc. # 35-16] ¶ 9. The Court agrees with Plaintiffs that this is not a sufficient description of how
the Department's search was conducted.
21

Ms. Patterson's description of the Naval Inspector General file system is similarly
inadequate because, although she describes the databases it searched, she fails to describe why
those were the only databases searched. See Patterson Decl. [doc. # 35-16] ¶ 13. It may well be
that there were no other responsive databases, or that there were no other databases at all.
Regardless, Ms. Patterson must explain why the searched databases were selected for search and
why others were not.
Ms. Tideswell's declaration likewise fails to describe the search at the Commander, Navy
Installation Command (CNIC), insofar as she fails to explain why only four of the departments
were contacted to conduct searches. While Ms. Tideswell does describe the departments
contacted for various searches, see Tideswell Decl. [doc. # 35-17] ¶¶ 6-9, she does not explain
why other departments were not searched. 6 See El Badrawi, 583 F. Supp. 2d at 300.
However, Plaintiffs' attempt to make a similar argument with regard to Mr. Harrison's
declaration fails. 7 Plaintiffs argue that Mr. Harrison's declaration does not describe Code 20's file

6

Plaintiffs also argue that Ms. Tideswell failed to adequately describe CNIC's search on the
basis of her statement that CNIC collects court-martial data but does not maintain it. See
Tideswell Decl. [doc. # 35-17] ¶ 6. Plaintiffs believe that Ms. Tidewell was obligated to explain
this seeming contradiction and that, based on her description, a search for material related to
court-martial records was warranted. The Court disagrees, and finds Ms. Tideswell's explanation
sufficient. See id. ("CNIC does not maintain this data; OJAG Code 20 is the release authority for
all courts-martial records and reports . . . ."). The Court also finds that Ms. Tidewell reasonably
relied on third-party representations that records were not stored at certain facilities when
concluding that a search of certain departments were futile. See id. ¶¶ 7-8.
7
Plaintiffs also argue that Shaka Thorne's declaration fails to note whether the Naval Criminal
Investigative Service (NCIS) databases can be searched by gender or race, with the implication
that this makes it impossible to tell if a search for Item 12 was adequate. The declaration merely
states that the databases "are indexed by personal identifiers such as names, social security
numbers, dates and places of birth and other pertinent data to enable the positive identification of
individuals." Thorne Decl. [doc. # 35-18] ¶ 7. Defendants subsequently conducted a
supplemental search based on gender and race and produced the results to Plaintiffs. See Donart
Decl. [doc. # 50-3] ¶¶ 6-7. The Court believes that the supplemental search sufficiently addresses
Plaintiffs' concerns.
22

system adequately because he doesn't give sufficient descriptions of the databases or clarify that
his list constitutes is the entirety of Code 20's databases.
Mr. Harrison's declaration lists certain databases that may have contained related
information and explains why they were not searched, see Harrison Decl. [doc. # 35-19] ¶ 3
(noting that four record systems are not designed to systematically collect sexual-assault-related
court-martial data); describes other individual records and explains why they were not searched,
see id. ¶ 4 ("[W]e do not compile the disparate pieces of information contained within each of
these individual records."); describes the database that was ultimately searched for relevant
records and explained why this was the only database searched, see id. ¶ 5 (noting that CMTIS
alone tracks all courts-martial records); and describes reasons for why certain requests were
outside of the scope of Code 20's military justice responsibilities, see id. ¶ 7. The Court finds this
description more than sufficient to satisfy the agency's burden with regard to describing the file
systems. See McCready, 465 F.3d at 14.

3.
Arguing that the Department of the Navy failed to liberally or reasonably construe
Plaintiffs' requests, see Nation Magazine, 71 F.3d at 890, Plaintiffs contest whether the agency
has met its burden of proof in proving it conducted an adequate search.8
8

In her declaration, Shaka Thorne, on behalf of the Naval Criminal Investigative Service,
describes three databases that are usually searched in response to perfected FOIA requests and
notes that these records are not searchable by generic type of complaint, crime, or outcome.
Instead, the records are searchable by a broad variety of offense codes, including indecent
assault, rape, domestic assault, and special inquiry. Plaintiffs contend that Ms. Thorne refused to
produce data because the terms used in the FOIA request did not precisely match the terms of the
NCIS database. See Throne Deposition [doc. # 35-18] ¶ 7 ("NCIS does not maintain a separate
system of records that compiles the number of specific complaints outside of the broad
categories listed above. Accordingly, NCIS would have to create a new record for the
compilation of complaints that meet narrower criteria than what is now used in response to the
immediate request."). NCIS has since conducted a supplemental search to compile statistics
23

First, Plaintiffs maintain that Ms. Patterson's description of the Naval Inspector General's
search of the CMIS and NIGHTS databases indicate that the search was too narrow. The Office
searched for complaints within the relevant time period in which the subject line and
investigation summary included the term "Sexual Harassment," "Equal Opportunity," "Domestic
Violence," or "Sexual Trauma." See Patterson Decl. [doc. # 35-16] ¶¶ 13-14. Plaintiffs maintain
that "Sexual Assault" should have been one of the search terms, along with the terms Shaka
Thorne indicated were used in the Navy (namely "Rape," "Indecent Assault," and "Domestic
Assault"). Defendants argue that agencies have significant discretion in selecting what search
terms to use, see Media Research Ctr. v. U.S. Dep't of Justice, Nos. 10-2013 (ESH), 11-0426
(ESH), 2011 WL 4852224, at *5 (D.D.C. Oct. 13, 2011), and that it was reasonable for the Naval
Inspector General to limit its search terms to the type of complaints Plaintiffs listed in its request.
While it may have been reasonable to limit the search terms to Plaintiffs' request, Ms.
Patterson does not explain why she chose to do so. Given the lack of a reasonable description,
the Court finds that Ms. Patterson's declaration does not meet the required burden of proof with
regard to her description of the Naval Inspector General's search.
Second, Plaintiffs argue that Code 20 also failed to properly construe their FOIA
requests, as Code 20 did not search at least four databases which Mr. Harrison acknowledged
"may include documents related to individual sexual assault related courts-martial" because they
were not designed to systematically collect sexual-assault-related court martial data. See
Harrison Decl. [doc. # 35-97] ¶¶ 3, 4. Given that Defendants apparently understood all DoD
requests to request aggregate data, the decision not to search databases that collected only
individualized data was reasonable at the time. However, as there is a question of fact as to
about the contested terms and has produced the results of that search to Plaintiffs. See Donart
Decl. [doc. # 50-3] ¶¶ 6-7. The Court believes this supplemental search should satisfy Plaintiffs'
concerns.
24

whether Item 11's request for individualized data is unduly burdensome, Code 20 may need to
conduct an additional search of these four databases and provide an additional declaration.

4.
Plaintiffs contend that they have countervailing evidence demonstrating bad faith
regarding Ms. Patterson's declaration: namely, that the Navy's inability to produce Unit
Punishment Books for all requested years does not explain the failure to produce them for some
of the requested years. Ms. Patterson states that the Navy need not produce Unit Punishment
Books because the Unit Punishment Books, which "usually contains ledger entries of [NonJudicial Punishments] and other punishments . . . are only retained for a period of two years and
are then destroyed." Patterson Decl. [doc. # 35-16] ¶ 19. As there is implicit evidence that Unit
Punishment Books do exist, and as no plausible reason is given for the agency's failure to
produce them, the Court finds that summary judgment with regard to the Navy is inappropriate at
this time.
Plaintiffs also argue that Code 20's decision not to search repositories for courts-martial
records of trial on the basis that they were physically located in disparate locations was not a
sufficient justification and, as a result, there is a question of fact as to whether Code 20
conducted a search reasonably calculated to produce all relevant records. 9
The Court disagrees with Plaintiffs' assessment of Code 20's reasons for not producing
individual trial records. Mr. Harrison explains that "[e]ven though Code 20 is responsible for
retrieving individual Navy and Marine Corps [records of trial], we do not compile the disparate
9

Plaintiffs observe that Code 20 did not provide any data for FY2006, presumably because
CMTIS did not record information from cases prior to October 2006 and some data has been lost
or corrupted. See Harrison Decl. [doc. # 35-19] ¶ 10. As Plaintiffs note, however, this does not
mean that all data from FY2006 was lost or corrupted. Code 20 has since provided data for
FY2006 to Plaintiffs from the only database that contains such information. See Nelson Decl.
[doc. # 50-4] ¶¶ 4-6.
25

pieces of information contained within each of these individual records." Harrison Decl. [doc.
# 35-19] ¶ 4. Instead, the physical records are located in dispersed locations. See id. Given that
Code 20 apparently believed Plaintiffs to be requesting aggregate data, this paragraph appears to
be a good faith attempt to explain why additional aggregate data was not produced. As noted
above, Code 20 may need to conduct an additional search, depending on this Court's ruling
regarding whether producing individual files is unduly burdensome. For the purposes of this
motion, however, Plaintiffs have not offered sufficient countervailing evidence to create a
question of fact regarding the reasonableness of Code 20's search.

B.
The Office of the Inspector General's declaration, submitted by John R. Crane, the
Assistant Inspector General for the Office of Communications and Congressional Liaison, is
sufficient and summary judgment with regard to this agency is warranted. Mr. Crane's
responsibilities include the role of Freedom of Information Act/Privacy Act ("FOIA/PA")
Appellate Authority for the office. He is also the second line supervisor of the FOIA/PA Initial
Denial Authority, who heads the office's FOIA Requester Service Center/Privacy Act Office. He
states that, based on his current position and past experience, he is familiar with the office's
FOIA procedures. Mr. Crane doesn't seem to have actually supervised the search, but seems to
have been an attenuated supervisor of a person who did. Mr. Crane personally handled SWAN's
administrative appeal.
A declaration from a person who actually supervised the search—who appears to be the
unnamed Chief or the unnamed Senior Specialist—would have been preferable, but that doesn't
mean Mr. Crane's declaration is inadequate. As the declaration provides a thorough description
of the search and of the reasons why certain actions were taken, the Court finds that Mr. Crane
26

has sufficient personal knowledge to testify to the search under Rule 56. See, e.g., Blunt-Bey, 612
F. Supp. 2d at 74; cf. El Badrawi, 583 F. Supp. 2d at 299 (not questioning the sufficiency of a
declaration filed by the agency's FOIA branch chief who learned of relevant information in her
official capacity).
Nor did Mr. Crane fail to adequately describe the agency's file system on the basis that he
did not describe all of the agency's components. Rather, the Court finds that Mr. Crane provides
an adequate explanation for why only certain file systems were searched. See Crane Decl. [doc.
# 35-4] ¶ 6 (noting that, based on their experience, the search coordinators determined that while
no component would likely have responsive records because "[n]o DoD IG component conducts
audits, evaluations, reviews, or investigations of military-related sexual trauma, sexual
harassment, equal opportunity, or domestic violence complaints or of sexual-assault-related
courts-martial . . . or maintains records containing the types of statistical information on these
topics," three thoroughly-described components were determined to be the most likely
candidates for turning up responsive records).

C.
Plaintiffs contest the sufficiency of information in two of the Department of the Air
Force's declarations (submitted by John M. Espinal, the FOIA Manager, Headquarters Air Force,
Information Management Operations Branch, and Stephen V. Miliano, the Director of Equal
Opportunity Operations, Air Force Personnel Center) on the basis that they do not adequately
describe the relevant searches. The Court agrees, and concludes that summary judgment with
regard to this agency is therefore unwarranted.
First, Plaintiffs contend that the Air Force did not sufficiently describe its FOIA file
system. See El Badrawi, 583 F. Supp. 2d at 300. Mr. Espinal's declaration explains generally that
27

when Headquarters Air Force, Information Management Operations Branch (HAF/IMOB)
receives a FOIA request, it creates a record describing the requested records. See Espinal Decl.
[doc. # 35-5] ¶ 3 (noting that, "[a]mong the items of information that are entered in the database,
we record the name and address of the requester, the date of the request, and a description of the
records requested."). Plaintiffs contend that without a more thorough description of what
information is recorded about FOIA requests, it is impossible to determine if the Air Force
conducted an appropriate search in response to Item 3 (which requested the number of requests
by service members for the release of records relating to MST, EO, SH, and DV complaints).
The Court agrees. The Air Force should submit a supplemental declaration describing whether it
is possible to search the FOIA database for the information requested in Item 3.
Second, Plaintiffs note that the Air Force did not produce race or gender data for EO and
SH complaints because it was "not readily available" and because it maintained that reviewing
and tabulating quarterly and annual summaries would be "overly burdensome." Miliano Decl.
[doc. # 35-8] ¶ 6. Plaintiffs note that the Air Force is required to conduct a reasonable search,
that there is no exclusion for items "not readily available," and that Mr. Miliano's failure to
describe the summaries makes it impossible to determine whether producing them or a review of
them would be overly burdensome. Defendants maintain that responding to this request would
require reviewing individual cases one-by-one and creating a new record, which it is not required
to do.
While the Court agrees that the Air Force is under no obligation to create a new record,
see Scraff-Martinez, 770 F. Supp. 2d at 22-23, it is not clear from Mr. Miliano's declaration why
the quarterly or annual summaries themselves would not be responsive to Item 12 or why
producing them would be unduly burdensome. Accordingly, the Air Force should either disclose

28

those summaries or submit a supplemental affidavit explaining why the summaries are nonresponsive.

D.
Plaintiffs take issue with four declarations, submitted on behalf of the Department of the
Army, provided by (1) Malcom H. Squires, the Clerk of Court for the United States Army Court
of Criminal Appeals; (2) Michelle Kardellis, the Chief of the FOIA and Privacy Division, U.S.
Army Criminal Investigation Command Crime Record Center; (3) Terrance J. Sanders, the Equal
Opportunity Branch Chief, HQDA for the Deputy Chief of Staff, Army G-1; and (4) Nathan F.
Evans, a Program and Policy Analyst, Sexual Harassment/Assault Response and Prevention
Division, Human Resources Policy Directorate, Army G-1.
The Court finds that Ms. Kardellis and Mr. Sanders fail to adequately describe searches
conducted by their respective agencies and that the declarations submitted by Mr. Squires, Ms.
Kardelis, and Mr. Sanders all fail to carry the agency's burden of proof. Summary judgment is
therefore inappropriate with regard to their respective agencies at this time. However, the Court
finds Mr. Evans's declaration sufficient.

1.
Plaintiffs argue that many of the Army searches were inadequately described. While
some of Plaintiffs' initial claims raised important points, many of their concerns have been
addressed by Defendants' supplemental filings. 10

10

Other claims simply fail. For example, Plaintiffs contend that Ms. Kardellis never adequately
explains why no search was conducted with regard to Item 11. The Court disagrees: Ms.
Kardelis, like Mr. Harrison, apparently all understood all DoD requests to request aggregate data.
Therefore, her decision not to search databases that collected only individualized data was
reasonable at the time. However, as there is a question of fact as to whether Item 11's request for
29

First, Plaintiffs originally argued that Mr. Squires failed to adequately describe the Army
Court-Martial Information System (ACMIS), because he did not describe whether the database
searches may be broken down by gender or race, and by extension did not explain why such a
breakdown was not produced. However, as noted in his second declaration, Mr. Squires
subsequently had a subordinate conduct an ACMIS search using the following parameters: the
years 2005-2010; sex offense cases involving adult victims; race and gender of the accused; and
the gender of victims (because ACMIS does not track victim's race). This information was
compiled in a spreadsheet and submitted to Plaintiffs. See Second Squires Decl. [doc. # 50-2]
¶¶ 5-6.
Second, Plaintiffs argued that the Army failed to describe how it maintains records of
FOIA requests, making it impossible to evaluate the reasonableness of a search for information
on the number of requests by service members for records pertaining to military sexual trauma,
equal opportunity, and sexual harassment. See Pls.' Resp. [doc. # 47] at 20 ("[I]n contrast to the
Air Force, the Army declarations say nothing about the Army's FOIA record-keeping practices.
They fail to state whether a database to track these records even exists.").
Defendants counter that because no DoD component tracks whether a FOIA requester is
a service member, they cannot provide additional information about the filing systems. See
Second Kammer Decl. [doc. # 501-1] ¶ 3 (stating the DoD systems that track FOIA requests
track only information required by FOIA, and that FOIA does not require agencies to track and
maintain data on requests received by service members).
While the Court finds that the Army's original failure to describe their record-keeping
practices would have constituted an inadequate description of its search, Mr. Kammer's

individualized data is unduly burdensome, the Record Center may need to conduct an additional
search and provide an additional declaration at a later date.
30

supplemental declaration provides a sufficient reason for why this failure is harmless: as the
Army did not have the requested information, it could not provide it. Mr. Kammer's
supplemental declaration also excuses the EO Office's failure to conduct a search for information
on the number of requests by service members for information on MST, EO, SH, and DV
complaints (Item 4). See id. ¶ 4 (stating that the data responsive to Item 4 is not tracked or
maintained).
Some of Plaintiffs' other critiques, however, are not adequately addressed by
supplemental filings. First, Plaintiffs claim that Ms. Kardelis's declaration fails to provide
information on whether the ACRC database contains information on gender and race. All that is
known is that the file system is indexed by "pertinent data to enable the positive identification of
individuals" and that it "cannot be searched by generic type of complaint or crime." Kardelis
Decl. [doc. # 35-11] ¶ 7. In explaining why a search for Item 12 was outside of the agency's
normal business-as-usual responses, the agency simply stated that "[a]bsent specific offense
codes, no search could be conducted for the items requested." Id. ¶ 8(f). The Court finds that this
declaration does not provide a sufficient description of the ACRC database to allow the Court to
evaluate whether a reasonable search was conducted.
Similarly, the EO Office failed to describe why it did not search its database for
gender/race breakdowns of information pertaining to sexual harassment, despite acknowledging
that its database had relevant information. See Sanders Decl. [doc. # 35-13] ¶ 7 ("After careful
review, it was determined data maintained by this office[] could answer EO and SH complaint
data provided by the EORS. However, responses and final determinations of SH data is reported
by the SHARP office."). Plaintiffs correctly note that the reference to the SHARP office's
disposition of responses and final determinations does not explain why the EO office did not

31

conduct a search for SH complaints, especially as the EO office did conduct a search of EO
complaints and provided the relevant numbers, along with their racial and gender breakdown, to
Plaintiffs. See id. ¶ 8.

2.
Arguing that the Department of the Army failed to liberally or reasonably construe
Plaintiffs' requests by reading them as not requiring a search of the Army Criminal Investigation
Command Crime Record Center (ACRC), Plaintiffs contest whether the Department of the Army
has met its burden of proof in proving it conducted an adequate search. See Nation Magazine, 71
F.3d at 890.
According to Ms. Kardelis's declaration, ACRC was not searched because "law
enforcement records are not categorized or referenced by the generic description used in the
subject FOIA request, such as 'equal opportunity,' 'military sexual trauma' or 'domestic violence'
complaints or incidents." Kardelis Decl. [doc. # 35-11] ¶ 8(c). Instead, law enforcement records
may only be searched for specific offense codes that relate to certain crimes. Ms. Kardelis
maintains that a search for the information in Items 3-5 would entail the "creation of a record at
significant time and expense." Id. Plaintiffs contend that a reasonable reading of their requests
would have been to construe them as requesting information about crimes like "rape" (Offense
Code 6E1) or "forced non-consensual sodomy" (Offense Code 6F8).
The Court agrees. "Sexual assault" is easily read as encompassing rape and other nonconsensual sexual crimes defined in the Army's offense codes. The fact that the agency was
unwilling to read the Plaintiffs' request liberally to include such terms seems to be almost willful
blindness.

32

Nor does the Court find Defendants' claim that ACRC would have had to create new
records to respond to Item 5 a sufficient counterargument. The Court believes that Defendants'
understanding of what it means to create a new record may be unreasonably limited. DoD
regulations implementing FOIA acknowledge that, in the case of electronic data, "the issue of
whether records are actually created or merely extracted from an existing database is not always
readily apparent." 32 C.F.R. § 286.4(g)(2). Agencies should "apply a standard of reasonableness.
In other words, if the capability exists to respond to the request, and the effort would be a
business as usual approach, then the request should be processed." Id. However, "the request
need not be processed where the capability to respond does not exist without a significant
expenditure of resources . . . in both time and manpower, that would cause a significant
interference with the operation of the [agency's] automated information system." Id.
Equally problematically, Mr. Squires stated that his staff "has the capability to create
reports using information contained in an electronic database," but did not do so because "the
creation of reports from an electronic database [is not] our normal 'business as usual' approach to
FOIA requests." Squires Decl. [doc. # 35-14] ¶ 14. However, under 32 C.F.R. § 286.4(g)(2), the
question is not whether the creation of a record from an electronic database is business as usual,
but rather whether the creation of the record would require "a significant expenditure of
resources . . . that would cause a significant interference" with the agency's information system.
Id. Because Mr. Squires does not elaborate on whether the creation of a record from a search of
the database would result in a significant interference, the Court finds that his declaration is not
sufficient to support the agency's burden of demonstrating that it conducted a reasonable search.
For all of the above reasons, summary judgment is not warranted.

33

3.
Plaintiffs' argument that it has countervailing evidence with regard to Mr. Evans's
declaration fails. Mr. Evans states that the Sexual Assault Data Management System (SADMS)
contains "demographic information about the victim(s) [of sexual assault] and alleged offenders
[and] procedural information regarding the status of the report to include the law enforcement
investigation, and disposition data," Evans Decl. [doc. # 35-12] ¶ 10, but that the Army decided
not to search it on the basis that "all information contained in the SADMS that is likely to be
responsive to the FOIA request is contained in the [Sexual Harassment/Assault Response and
Prevention ("SHARP")] annual reports sent to DoD," id. ¶ 11 (emphasis added). Plaintiffs argue
that because the SAPRO reports do not include gender or race breakdowns, if the SADMS
demographic information does include such information, Mr. Evans's reasoning fails. Plaintiffs'
claim is purely speculative; Mr. Evans affirmed that the two databases contain the same
information, and in the absence of evidence of bad faith, the Court presumes Mr. Evans's
statement was accurate. Carney, 19 F.3d at 812 (noting that agency declarations enjoy a
presumption of good faith).

E.
The declaration of the Commandant of the Marine Corps, submitted by Theresa Ross, the
Head of the FOIA/Privacy Act Section at the U.S. Marine Corps Headquarters, is sufficient and
summary judgment is warranted. Ms. Ross supervised Genevieve Best, the individual tasked
with coordinating the relevant FOIA search.
Plaintiffs argue that Ms. Ross did not adequately describe the Marine Corps's filing
system or search because she describes only where Plaintiffs' FOIA request was sent—not where
it could have been sent within the Marine Corps's file system. However, Ms. Ross describes Ms.
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Best's process for determining which file systems would be relevant in great detail, see Ross
Decl. [doc. # 35-20] ¶¶ 6-23, and summarizes that "[b]ased on research inquiry responses and
personal expertise and knowledge of the records kept by HQMC components, Ms. Best
concluded that [four components] would be the only USMC components that would maintain
documents or data responsive to the Plaintiff's FOIA request," id. ¶ 24; see also id. ¶ 25 (noting
Ms. Best's reasoning for determining that an additional component might also have relevant
records); id. ¶ 26 (noting that Ms. Best also determined that Code 20 would have relevant
information, but not requesting anything from them as they already had Plaintiffs' FOIA request).
The Court finds the description of how Ms. Best reached her conclusions as to where to send
requests for records sufficient.
Plaintiffs next argue that, because they can offer countervailing evidence, there is a
question of material fact as to whether the Marine Corps conducted a search reasonably
calculated to produce all relevant records.11 They note that Ms. Ross admitted that the Marine
Corps Headquarters has the ability to search FOIA logs in response to Item 3, but did not do so
because the logs are not "centrally maintained" and may "not have captured sufficient
information to specifically identify and retrieve those FOIA request case files where the FOIA
requester was seeking records relating to MST or DV." Id. Ex. S (Response to Item 3). Plaintiffs
argue that neither of these excuses constitutes a reason the Marines may avoid its FOIA
obligation. Defendants' general response is that no DoD component tracks this information,
11

Plaintiffs originally argued that Ms. Ross's declaration states that the decision not to search the
Law Enforcement Corrections Plan (PSL) of the Plans, Policy & Operations Department
stemmed from a determination that "while PSL has the ability to capture Corrections data, it
appears that a majority, if not all of, the requested items would not necessarily fall into" PSL's
data. Ross Decl. [doc. # 35-20] ¶ 20. Plaintiffs argue that this is actually a reason to search, as
only by searching could the agency ascertain how many responsive records would actually be
found. Defendants have subsequently conducted a search of the PSL. See Franks Decl. [doc.
# 50-5] ¶¶ 4-5. The Court finds this subsequent search sufficient to satisfy Plaintiffs' concerns.
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although Mr. Kammer's declaration is less clear on this point than it might be. See Second
Kammer Decl. [doc. # 50-1] ¶ 3 (stating the DoD systems that track FOIA requests track only
information required by FOIA, and that FOIA does not require agencies to track and maintain
data on requests received by service members).
As before, while the Court finds that the Marine Corps's original reasoning would not
have excused its failure to conduct a search, Mr. Kammer's supplemental declaration provides a
sufficient reason for why this failure is harmless: as the Marine Corps did not have the requested
information, it could not provide it.
Furthermore, Plaintiffs note that Ms. Ross claimed that some race and gender
breakdowns are not available because finding such data would involve manual searches. Citing 5
U.S.C. § 552(a)(3)(D) ("[T]he term 'search' means to review, manually or by automated means,
agency records for the purpose of locating those records which are responsive to a request."),
Plaintiffs argue that this is not a sufficient justification for not conducting a search for responsive
documents. Defendants reply that responding to this request would require going through
individual cases and creating a new record, which it is not required to do. See Scraff-Martinez,
770 F. Supp. 2d at 22-23. The Court agrees with Defendants.

F.
The Office of Freedom of Information's declaration, submitted by William T. Kammer,
Chief of the Office of Freedom of Information Division, 12 is not sufficient and summary
judgment with regard to this agency is not warranted.
Mr. Kammer is responsible for implementation of the DoD FOIA Program and the
issuance of agency-wide policy guidance and instructions on FOIA matters. He also supervises
12

Plaintiffs contend that Mr. Kammer was not Chief during the relevant time period, but his
declaration states that he has been Chief since August 2005.
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the processing of initial FOIA requests for documents within the Office of the Secretary of
Defense and the Office of the Chairman of the Joint Chiefs of Staff. His declaration states that
his office "tasked" two components to search for relevant records, but it is not clear who
requested, conducted, or even supervised the individuals conducting those searches.
Furthermore, Mr. Kammer's declaration contains conclusory statements and overly broad
descriptions of the searches conducted, which indicates that he may not have sufficient personal
knowledge to adequately describe the searches. See, e.g., Blunt-Bey, 612 F. Supp. 2d at 74; see
also Grand Cent. P'ship, 166 F.3d at 478 (requiring an agency affidavit to provide reasonably
specific details in its description of a search).
Either Mr. Kammer or other individuals should submit supplemental declarations
regarding the Office of Freedom of Information's searches. See N.Y. Times, 499 F. Supp. 2d at
518. The Court strongly recommends that the agency's representative take Plaintiffs' critiques
into account when drafting the supplemental declaration. Although an all-encompassing
overview of the agency's system is not necessary, the Court is particularly troubled by the lack of
description of the searches that resulted in the release of numerous records from the Defense
Freedom of Information and Policy Office, as it is unclear whether these releases are the results
of search undertaken by various individual departments or the result of a search conducted by the
Policy Office.

G.
The VBA's declaration, submitted by Frances Victoria Hudzik, the FOIA Officer and
Alternate Privacy Officer at the VBA, is not sufficient and summary judgment with regard to this
agency is not warranted.

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Ms. Hudzik's personal duties and responsibilities are to review FOIA requests to
determine if they reasonably describe the records sought, in order to be able to locate the records,
and to determine if they are in accordance with implementing regulations. She personally
reviewed Plaintiffs' request and determined it was proper. Searches, however, were assigned to
others; Ms. Hudzik does not state that she either conducted the searches, supervised those who
did conduct the searches, or had any involvement after her initial processing of the request.
As Ms. Hudzik's declaration is insufficient, the VBA should submit a supplemental
declaration, either from an individual who did supervise the search or from Ms. Hudzik
clarifying her supervisory role with regard to the search. See N.Y. Times, 499 F. Supp. 2d at 518.
While the Court need not address Plaintiffs' arguments that the initial declaration fails to
adequately describe the agency's file system or search, the Court strongly recommends that the
agency's representative takes Plaintiffs' critiques into account when drafting a supplemental
declaration. That being said, the Court also notes that Defendants' explanation for why the Office
of Field Operations ("OFO") was consulted but not searched—namely, because it didn't maintain
relevant data—seems reasonable. See Hudzik Decl. [doc. # 35-21] ¶ 59 (stating that the OFO "is
responsible for directing the operations of field offices under the jurisdiction of the [VBA]. All
corporate data used by the field in day-to-day operations is not managed by OFO.").

H.
The BVA's declaration, submitted by Richard C. Thrasher, the Chief Counsel for Policy
& Procedure for the BVA, is sufficient and summary judgment with regard to this agency is
warranted.
Mr. Thrasher supervises Margaret L. Peak, who in turn is responsible for overseeing
FOIA requests within BVA. It does not appear from his declaration that Mr. Thrasher ever
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personally took any action in this matter, either as a searcher or supervisor; instead, everything
related to BVA's search appears to have been coordinated or overseen by Ms. Peak. While Ms.
Peak would likely be the more appropriate declarant in this matter, the Court does not find that
Mr. Thrasher's declaration is therefore insufficient. See Adamowicz, 672 F. Supp. 2d at 463.
Plaintiffs argue that summary judgment is inappropriate on the basis that, although the
Veterans Appeals Control and Locator System (VACOLS)—the BVA's tracking database and
the source of responsive documents the BVA has provided—tracks gender, BVA's production
did not include gender information as to each request. One of the disclosed documents did not
include gender information, and no reason was given for this omission. Defendants respond that
the BVA did not need to provide gender information because it did not need to provide the list of
PTSD decisions—which are published online—at all. The BVA maintains that it provided this
information solely to facilitate Plaintiffs' online searches. See Defs.' Reply [doc. # 50] at 19. As
an agency need not disclose materials it has previously released, see Tax Analysts, 492 U.S. at
152, the Court finds that Plaintiffs' proffered countervailing evidence is not sufficient to raise a
genuine issue of material fact as to the reasonableness of BVA's search.
Plaintiffs then argue that a document tracking PTSD appeals does not include a field for
"issues." The analogous document for non-PTSD appeals with sexual harassment contention did
contain an "issues" field with information relating to service members, a category of interest to
Plaintiffs, suggesting that the data is captured by VACOLS but was not produced. Defendants
respond that the BVA does not track the factual bases of its decisions in a manner responsive to
Requests 6-8. The "issues" column refers simply to issues in an appeal and does not explain
whether the rejection of an appeal was based on the lack of direct services (Request 6) nor does it
list what the evidentiary basis for the direct service connection consisted of (Requests 7-8).

39

Defendants conclude that the BVA therefore had no obligation to provide an "issues" column
that would be non-responsive. The Court finds BVA's explanation reasonable, and again
concludes that Plaintiffs have not established a genuine issue of material fact sufficient to defeat
summary judgment.

VI.
Defendants' Motion for Summary Judgment [doc. # 35] is GRANTED IN PART and
DENIED IN PART. The Court finds that Defendants appropriately did not respond to the first
two requests made of all DoD agencies and that there is a question of fact as to whether
Plaintiffs' eleventh request of DoD agencies was unduly burdensome. The Court further finds
that the Patterson, Tidewelll, Espinal, Miliano, Squires, Kardellis, Sanders, Kammer, and Hudzik
declarations are insufficient and that the Harrison, Crane, Evans, Ross, and Thrasher declarations
are sufficient. Where useful to demonstrate that an adequate search was conducted, Defendants
should submit supplemental affidavits. See N.Y. Times, 499 F. Supp. 2d at 518. Supplemental
affidavits are due May 15, 2012. The parties shall also submit a joint status report within 30 days
of the entry of this decision describing their preferences for how this case should proceed.

IT IS SO ORDERED.

/s/

Mark R. Kravitz
United States District Judge

Dated at New Haven, Connecticut: March 30, 2012.

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