Carmody & Torrance v. Defense Contract Mgmt Agency et al

Filing 90

Ruling granting in part and denying in part 50 Cross Motion for Summary Judgment; granting in part and denying in part 79 Cross Motion for Summary Judgment; granting in part and denying in part 23 Partial Motion for Summary Judgment. DCMA i s hereby ORDERED to disclose to Carmody within fourteen (14) days of this Ruling: (1) the middle section of the SF 1437, see Pl.s Ex. C at 11; and (2) all tabular information on the Bridgeport II Connecticut Facility Move-Out Budgetary Cost Matrix, id. at 71-78. The Clerk is directed to close this case. Signed by Judge Janet C. Hall on 3/13/2014. (Malone, P.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CARMODY & TORRANCE,
Plaintiff,
v.
DEFENSE CONTRACT MANAGEMENT
AGENCY and UNITED STATES
DEPARTMENT OF DEFENSE,
Defendants.
and
SIKORSKY AIRCRAFT CORPORATION,
Intervenor

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CIVIL ACTION NO.
3:11-CV-1738 (JCH)

MARCH 13, 2014

RULING RE: PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT (Doc.
No. 23), DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Doc. No. 50), AND
INTERVENOR’S MOTION FOR SUMMARY JUDGMENT (Doc. No. 79)
I.

INTRODUCTION
Plaintiff Carmody & Torrance LLP (“Carmody”) brings this action against

defendants Defense Contract Management Agency (“DCMA”) and the United States
Department of Defense (“DOD”) (collectively, the “DOD defendants”), alleging violations
of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, in connection with
Carmody‟s May 2010 request to DCMA (the “FOIA Request”). On October 1, 2013,
Sikorsky Aircraft Corporation (“Sikorksy”) moved to intervene as a defendant, which
Motion (Doc. No. 34) the court granted. See Doc. No. 73.
Carmody moves for summary judgment on the inadequacy of DCMA‟s search
and disclosures in response to the FOIA Request. The DOD Defendants and Sikorsky
cross-move for summary judgment on these issues. For the reasons set forth below,
Carmody‟s Motion (Doc. No. 23) as well as the DOD defendants‟ and Sikorsky‟s CrossMotions (Doc. Nos. 50 & 79) are each granted in part and denied in part.
1

II.

FACTUAL AND PROCEDURAL BACKGROUND
Carmody is a law firm organized under Connecticut‟s limited liability partnership

laws; it does business in Connecticut and has its principal office in Waterbury. See Pl.‟s
Local Rule 56(a)(1) Statement (“Pl.‟s L.R. 56(a)(1)”) (Doc. No. 25) ¶ 1. As relates to the
instant action, Carmody represents DiNardo Seaside Tower, Ltd. (“DiNardo”), which
owned an industrial property in Bridgeport (the “Bridgeport II Facility”) formerly leased
by Sikorsky. See Pl.‟s Mem. in Supp. of Pl.‟s Mot. for Partial Summ. J. (“Pl.‟s Mem.”)
(Doc. No. 24) at 8; Pl.‟s Ex. A to Pl.‟s Mem. (Doc. No. 24-1), Piantek Decl. ¶¶ 2, 4-7.
DiNardo brought an action in state court against Sikorsky (the “State Court Action”),
alleging, inter alia, breach of a commercial lease agreement. See Pl.‟s Ex. A to Piantek
Decl. (Doc. No. 24-2), DiNardo Seaside Tower. Ltd. v. Sikorsky Aircraft Corp., No.
UWY-CV-09-6002398-S, Compl. ¶¶ 1-22.
DCMA is a U.S. government agency within DOD that oversees and manages
defense contracts entered into by DOD. See Pl.‟s L.R. 56(a)(2) ¶ 2. DCMA does not
solicit or award contracts except as directed by the procuring agency. See Defs.‟ Local
Rule 56(a)(1) Statement (“Defs.‟ L.R. 56(a)(1)”) (Doc. No. 60) ¶ 2. After consulting with
the procuring agency, DCMA may terminate a contract for default or for the
convenience of the government. Id. ¶ 3. The procuring agency, however, retains
authority to terminate its contracts unilaterally and to conduct termination settlement
negotiations itself, without the involvement of DCMA. Id.
A.

Comanche Helicopter Contract

In June 2000, the U.S. Army awarded a contract jointly to Boeing and Sikorsky
for the production of Comanche helicopters (the “Contract” or “Comanche Project”). Id.
¶ 4. In light of anticipated work on the Comanche Project, in March 2002, Sikorsky and
2

DiNardo agreed to reinstate a lease for the Bridgeport II Facility that Sikorsky had
previously terminated. See Piantek Decl. ¶ 7. Under the terms of the reinstated lease
(the “Amended Lease”), Sikorsky agreed to convert part of the Bridgeport II Facility from
manufacturing space into office space to accommodate engineers and technicians
needed for the Comanche Project. Id. The Amended Lease required these
improvements to remain part of the Bridgeport II Facility. See Ex. C to Piantek Decl.
(Doc. No. 24-4) ¶ 6.
DCMA administered the Contract. See Defs.‟ L.R. 56(a)(1) ¶ 8. Sikorsky‟s costs
for the Comanche Project were submitted to DCMA, which, together with the Defense
Contract Audit Agency (“DCAA”), would perform evaluations and audits. Id. ¶ 11.
In February 2004, the U.S. Army terminated the Contract. See Defs.‟ L.R.
56(a)(1) ¶ 4. DCMA was not involved in the termination settlement negotiations. Id. ¶
5. As part of the settlement, the Contract was modified to cover payment of $7,301,543
in costs associated with the Bridgeport II Facility. See Intervenor‟s Local Rule 56(a)(1)
Statement (“Intervenor‟s L.R. 56(a)(1)”) (Doc. No. 79-3) ¶ 2; Pl.‟s Ex. D to Pl.‟s Mem.
(Doc. No. 24-9) at 4.1
B.

May 2010 FOIA Request

The FOIA Request at issue here was made by letter dated May 20, 2010 to
DCMA from Kurtis Piantek, an attorney at Carmody. See Pl.‟s L.R. 56(a)(1) ¶ 4. In that
letter, Attorney Piantek requested that DCMA disclose:
All documents related to, or concerning any payments, credits or other
benefit related to structured cost settlements received by Sikorsky Aircraft

1

Carmody first received summary information regarding the amount paid to Sikorsky for costs
associated with the Bridgeport II Facility in April 2010, in response to a prior FOIA request to the U.S.
Army. See Pl.‟s Mem. at 9; Defs.‟ Ex. C (Doc. No. 55), Howell Decl. ¶¶ 5, 10.

3

Corporation in connection with the set-up and shut down of its facility
located at 1010-1080 Atlantic Street, Bridgeport, CT 06606 which was
utilized as the Joint Program Office for part of the Comanche Helicopter
Program. Please note that this request does NOT seek proprietary or
technical information regarding the programs or manufacturing undertaken
at this facility. Rather, this request solely seeks documents regarding any
claim submitted or any compensation paid to Sikorsky Aircraft Corporation
concerning the cancelation of the Comanche Program and its financial
impact on overhead at the above referenced facility in Bridgeport. If
possible, please identify and/or break down costs with specific details
within all categories allowed and disallowed by the United States
Government.
Id. ¶ 5; Pl.‟s Ex. A to Pl.‟s L.R. 56(a)(1) (“FOIA Request”) (Doc. No. 25-1) at 2. In
addition, Attorney Piantek requested that DCMA disclose all information concerning the
calculation of the total termination cost. See FOIA Request at 2.
C.

DCMA‟s Disclosures

The FOIA Request was received by DCMA on or about May 28, 2010. See
Defs.‟ Ex. A (Doc. No. 61), Williamson Decl. ¶ 12. DCMA emailed Attorney Piantek on
July 22, 2010, notifying him that all Contract records would need to be ordered for a fee
from a National Archives Center to which they had been sent. Id. ¶ 13. He agreed to
pay the fee and requested the opportunity to review the records prior to having copies
made. Id. ¶ 14.
On December 1, 2010, DCMA informed Attorney Piantek that the records had
arrived at DCMA and were in the process of being reviewed by Carlo Tursi, who was
the lead DMCA Administrative Contracting Officer (“ACO”) responsible for the Contract
and the ACO assigned to Boeing in Philadelphia. Id. ¶ 16. Elio Meneo, the ACO
assigned to Sikorsky in Connecticut, retired from DCMA in December 2010, prior to
receipt of the FOIA Request. Id. ¶ 23. Upon Mr. Meneo‟s retirement, his email account
was deleted, and his hard drive was erased. Id.
4

On January 6, 2011, DCMA informed Attorney Piantek that Mr. Tursi had found
60 payment vouchers and that DCAA might also have responsive records. Id. ¶ 17.
Subsequently, on February 7, 2011, Attorney Piantek declined to pay for production of
the payment vouchers and requested referral of the FOIA Request to DCAA. Id. ¶ 18.
On February 18, 2011, DCAA referred the FOIA request back to DCMA with 23
potentially responsive audits totaling 241 pages, and on May 4, 2011, DCMA notified
Attorney Piantek of these audits. Id. ¶¶ 19-20.
In addition, DCMA searched its electronic databases by keyword and contract
number. See Williamson Decl. ¶ 24. These searches, however, yielded only the
Contract itself and two non-responsive records of Contract modifications. Id. The
DCMA Terminations Center, which handles terminations conducted by DCMA, also
searched for but was unable to locate responsive records, presumably because it was
not involved in the termination of the Contract. Id. ¶ 36.
After further exchanges between DCMA and Attorney Piantek, on November 18,
2011, DCMA counsel Jerome Brennan was served with a subpoena duces tecum
requiring a DCMA employee with knowledge of the payments made to Sikorsky in
connection with the Bridgeport II Facility to appear in the State Court Action. Id. ¶ 32.
That subpoena was forwarded to Bruce Metzger, the U.S. Army employee responsible
for terminating the Contract. Id. ¶ 32. In response, Mr. Metzger provided DCMA a copy
of a draft Price Negotiation Objectives Memorandum (the “Price Memorandum”), which
DCMA sent to Sikorsky for review, along with other files received from various DCMA
regional offices. Id. ¶ 36.

5

On April 20, 2012, following DCMA‟s own review of the documents and
Sikorsky‟s requested redactions, DCMA released to Carmody 75 pages of heavily
redacted documents, including the Price Memorandum. Id. ¶¶ 36-37; see Pl.‟s Ex. C to
Pl.‟s Mem. (“Pl.‟s Ex. C”) (Doc. No. 24-8). Altogether, DCMA‟s disclosures to date
include, inter alia:
(1)

DCAA Audit No. 2641-2005C17100002 dated April 13, 2006;

(2)

Price Memorandum, see Pl.‟s Ex. C at 5-10;

(3)

Substitute Form 1437 (the “SF 1437”) and Addendum with settlement
costs, id. at 11-12;

(4)

Termination Settlement Proposal, id. at 13-15;

(5)

incurred costs summaries, id. at 16-20;

(6)

a meeting attendance list, id. at 22;

(7)

Bridgeport II Facility-related summaries and UT Realty Memorandum, id.
at 21, 23-27;

(8)

a 21-page Contract Modification document as well as a stray page from a
similar document, id. at 28-48, 79;

(9)

two invoices and an email, id. at 49-51;

(10)

a letter from Boeing Sikorsky, id. at 52-69, with an attachment containing
Recent Treasury Bill Auction Results, id. at 70; and

(11)

an 8-page Bridgeport II Connecticut Facility Move-Out Budgetary Cost
Matrix, id. at 71-78

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DCMA provided a Vaughn index explaining its redactions to the above
materials.2 See Defs.‟ Ex. D (Doc. No. 54) (the “Vaughn Index”). At oral argument,
counsel for DCMA represented that there has been no further disclosures to Carmody
subsequent to the April 2012 disclosure.
D.

Sikorsky‟s Representations

As attested by Sikorsky‟s Vice President for Financial Planning and Analysis,
Graham Main, Sikorsky provided DCMA with the information sought here regarding the
Bridgeport II Facility as part of the Price Memorandum, which was drafted to facilitate
termination settlement negotiations with the government over the Contract, and as part
of DCAA‟s audit. See Main Aff. (Doc. No. 79-2) ¶ 6. The information was marked as
proprietary when disclosed by Sikorsky, and Sikorsky does not otherwise release such
information to the public. Id. ¶ 7. Indeed, Sikorsky has a Non-Disclosure Agreement
policy regarding distribution of this type of proprietary information to third parties. Id.
III.

LEGAL STANDARDS
A.

Summary Judgment

A motion for summary judgment is properly granted only if “there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law.”
O‟Hara v. Nat‟l Union Fire Ins. Co. of Pittsburgh, PA, 642 F.3d 110, 116 (2d Cir. 2011).
Thus, the role of the district court in deciding a summary judgment motion “is to
determine whether genuine issues of material fact exist for trial, not to make findings of
fact.” Id. In making this determination, the court must resolve all ambiguities and draw
2

Since Vaughn v. Rosen, 484 F.2d 82 (D.C. Cir. 1973), such indexes itemizing the non-disclosed
records, or portions of a record, and the applicable exemption have become a staple of the government
agency‟s submissions in FOIA cases. See Nat'l Day Laborer Org. Network v. U.S. Immigration &
Customs Enforcement Agency, 811 F. Supp. 2d 713, 733 (S.D.N.Y. 2011) (“In addition to affidavits,
agencies generally submit Vaughn indexes to sustain their burden.”).

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all inferences in favor of the party against whom summary judgment is sought. See
Garcia v. Hartford Police Dep‟t, 706 F.3d 120, 127 (2d Cir. 2013). Where, as here, the
parties cross-move for summary judgment, “each party's motion must be examined on
its own merits, and in each case all reasonable inferences must be drawn against the
party whose motion is under consideration.” Morales v. Quintel Entm't, Inc., 249 F.3d
115, 121 (2d Cir. 2001).
The moving party bears the burden of establishing the absence of genuine
issues of material fact. Zalaski v. City of Bridgeport Police Dep‟t, 613 F.3d 336, 340 (2d
Cir. 2010). Once that initial burden is met, to defeat the motion, the party opposing
summary judgment must set forth “specific facts” that demonstrate the existence of “a
genuine issue for trial.” Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (quoting Fed.
R. Civ. P. 56(e)). For summary judgment purposes, a genuine issue exists where the
evidence is such that a reasonable jury could decide in the non-moving party's favor.
See Rivera v. Rochester Genesee Reg'l Transp. Auth., 702 F.3d 685, 693 (2d Cir.
2012); see also Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 104 (2d
Cir. 2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)) (stating
that the non-moving party must point to more than a mere “scintilla” of evidence in its
favor). “However, reliance upon conclusory statements or mere allegations is not
sufficient to defeat a summary judgment motion.” Davis v. New York, 316 F.3d 93, 100
(2d Cir. 2002).
B.

FOIA

Although “[s]ummary judgment is the preferred procedural vehicle for resolving
FOIA disputes,” there are legal standards specific to the court‟s review of agency
decisions in the FOIA context. Nat'l Immigration Project of Nat'l Lawyers Guild v. U.S.
8

Dep't of Homeland Sec., 868 F. Supp. 2d 284, 290 (S.D.N.Y. 2012) (citation and internal
quotation marks omitted); see Unidad Latina en Accion v. U.S. Dep't of Justice, No.
3:09-CV-457 CFD, 2010 WL 7856573, at *2 (D. Conn. Oct. 20, 2010). “FOIA was
enacted in order to promote honest and open government and to assure the existence
of an informed citizenry in order to hold the governors accountable to the governed.
FOIA strongly favors a policy of disclosure and requires the government to disclose its
records unless its documents fall within one of the specific, enumerated exemptions set
forth in the Act.” Nat'l Council of La Raza v. Dep't of Justice, 411 F.3d 350, 355 (2d Cir.
2005) (citations, alterations, and internal quotation marks omitted); see also Bloomberg,
L.P. v. Bd. of Governors of the Fed. Reserve Sys., 601 F.3d 143, 147 (2d Cir. 2010)
(“The basic purpose of FOIA reflected a general philosophy of full agency disclosure
unless information is exempted under clearly delineated statutory language.” (citation,
alterations, and internal quotation marks omitted).
FOIA exempts from the government‟s disclosure obligations nine categories of
information. “Consistent with FOIA's purposes, these statutory exemptions are narrowly
construed.” La Raza, 411 F.3d at 356; see also Bloomberg, 601 F.3d at 147 (“To
implement this presumption for disclosure, FOIA exemptions have been consistently
given a narrow compass.” (citation and internal quotation marks omitted)). “All doubts
are resolved in favor of disclosure.” Bloomberg, 601 F.3d at 147 (citation, alterations,
and internal quotation marks omitted).
Whether the movant or non-movant for Rule 56 purposes, the defendant agency
in a FOIA action bears the burden of showing that it conducted an adequate search and
that documents withheld fall within a specified FOIA exemption. See Long v. Office of

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Pers. Mgmt., 692 F.3d 185, 190 (2d Cir. 2012); Carney v. U.S. Dep't of Justice, 19 F.3d
807, 812 (2d Cir. 1994). The strong presumption favoring disclosure and the burden on
the government to justify non-disclosure apply equally to any redaction of information in
the documents released by the agency. See U.S. Dep't of State v. Ray, 502 U.S. 164,
174 (1991); Associated Press v. U.S. Dep't of Def., 554 F.3d 274, 283-84 (2d Cir. 2009).
“The agency's decision that the information is exempt from disclosure receives no
deference; accordingly, the district court decides de novo whether the agency has
sustained its burden.” Bloomberg, 601 F.3d at 147.
Typically, FOIA cases proceed “primarily by affidavits in lieu of other
documentary or testimonial evidence.” Long, 692 F.3d at 190. “Affidavits submitted by
an agency are „accorded a presumption of good faith.‟” Carney, 19 F.3d at 812 (quoting
SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C. Cir. 1991)). Hence, where
the agency submits “affidavits or declarations supplying facts indicating that the agency
has conducted a thorough search and giving reasonably detailed explanations why any
withheld documents fall within an exemption,” the agency‟s burden is met, and summary
judgment is proper, even without any discovery in the case. Id. Indeed, “to justify
discovery once the agency has satisfied its burden, the 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.” Id.
IV.

DISCUSSION
In their respective Motion and Cross-Motions, the parties raise three issues: (1)

whether the untimeliness of DCMA‟s response to the FOIA Request constitutes a per se
violation of DCMA‟s statutory obligations; (2) whether DCMA has conducted an
10

adequate search; and (3) whether, in cases of non-disclosure, DCMA has given
reasons sufficient to justify application of one or more of the FOIA exemptions.
Based on the court‟s review of the pertinent law and the parties‟ submissions,
including the ex parte submission of an unredacted copy of DCMA‟s disclosures to date,
the court concludes as follows. First, DCMA‟s repeated lengthy delays in handling this
FOIA Request, while worrisome, do not entitle Carmody to summary judgment.
Second, DCMA‟s search was adequate. Third, while DCMA has sufficiently justified the
bulk of its redactions, its proffered reasons are insufficient to justify redaction of: (i) the
middle section of the SF 1437, see Pl.‟s Ex. C at 11; (ii) the tabular information on the
Bridgeport II Connecticut Facility Move-Out Budgetary Cost Matrix, id. 71-78; and (iii)
the data contained on the Recent Treasury Bill Auction Results, the attachment to the
Boeing Sikorsky letter, id. at 70. DCMA claims to have erroneously redacted the latter
data and to have subsequently disclosed this document in its entirety to Carmody. See
Vaughn Index at 27. Assuming that Carmody now has (iii) in its possession, Carmody
is entitled to a further disclosure of (i) and (ii), consistent with this court‟s Ruling.
A.

Timeliness

DCMA concedes that “this particular FOIA request regrettably took much longer
than it should have to process.” Defs.‟ Mem. in Opp‟n to Pl.‟s Mot. for Summ. J. and in
Supp. of Defs.‟ Cross-Mot. for Summ. J. (“Defs.‟ Mem.”) (Doc. No. 62) at 2. Under the
statute, an agency has twenty (20) working days from receipt of a request to determine
whether to comply; thereafter, it is obligated to “immediately notify” the requester of its
determination and “the reasons therefor, and of the right . . . to appeal to the head of the

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agency any adverse determination.” 5 U.S.C. § 552(a)(6)(A)(i).3 In “unusual
circumstances,” including where the agency “need[s] to search for and collect the
requested records from field facilities or other establishments that are separate from the
office processing the request,” the statutory period for communicating the agency‟s
determination may be extended up to ten (10) working days. Id. § 552(a)(6)(B).4
As evidenced by the1996 amendments to FOIA, which provide for expedited
processing, see 5 U.S.C. § 552(a)(6)(E), Congress has shown “an increasing concern
over the timeliness of disclosure, recognizing that delay in complying with FOIA
requests may be tantamount to denial.” Am. Civil Liberties Union v. Dep't of Def., 339
F. Supp. 2d 501, 504 (S.D.N.Y. 2004) (citation and internal quotation marks omitted).
Contrary to Carmody‟s assertion, however, untimeliness is not a per se statutory
violation entitling the requester to any specific remedy. See, e.g., Elec. Privacy Info.
Ctr. v. Dep't of Justice, No. 13-CV-1961 (KBJ), 2014 WL 521544, at *5 (D.D.C. Feb. 11,
2014) (“[N]othing in the FOIA statute establishes that an agency's failure to comply with

3

DOD regulations also set an expectation that DOD Components will comply with the 20-day
statutory limit. See 32 C.F.R. § 286.4(d)(1) (“Generally, . . . DoD Components shall endeavor to provide a
final response determination within the statutory 20 working days. If a significant number of requests, or
the complexity of the requests prevent a final response determination within the statutory time period,
DoD Components shall advise the requester of this fact, and explain how the request will be responded to
within its multitrack processing system.”).
4

The D.C. Circuit has recently summarized FOIA‟s “comprehensive scheme” as follows:

An agency usually has 20 working days to make a “determination” with adequate specificity, such
that any withholding can be appealed administratively. An agency can extend that 20-workingday timeline to 30 working days if unusual circumstances delay the agency's ability to search for,
collect, examine, and consult about the responsive documents. Beyond those 30 working days,
an agency may still need more time to respond to a particularly burdensome request. If so, the
administrative exhaustion requirement will not apply. But in such exceptional circumstances, the
agency may continue to process the request, and the court (if suit has been filed) will supervise
the agency's ongoing progress, ensuring that the agency continues to exercise due diligence in
processing the request.
Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm'n, 711 F.3d 180, 189 (D.C. Cir.
2013) (“CREW”).

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this 20-day deadline automatically results in the agency's having to produce the
requested documents without continued processing.”). Where the agency fails to reply
within the statutorily allotted 20 days or, in unusual circumstances, 30 days, the
recourse under FOIA is litigation in federal court. That is, the requester is “deemed to
have exhausted his administrative remedies” and, hence, may sue immediately to
compel disclosure. 5 U.S.C. § 552(a)(6)(C)(i); Citizens for Responsibility & Ethics in
Washington v. Fed. Election Comm'n, 711 F.3d 180, 189 (D.C. Cir. 2013) (“CREW”)
(“Beyond those 30 working days, an agency may still need more time to respond to a
particularly burdensome request. If so, the administrative exhaustion requirement will
not apply.”).
The affidavits submitted by DCMA indicate that “unusual circumstances” apply
here, because the agency had to search for materials from 2004 that were already
archived or housed outside its central office. See Williamson Decl. ¶ 13. Nevertheless,
DCMA‟s first email to Attorney Piantek fell outside even the extended 30-day statutory
period permitted in such circumstances. 5 U.S.C. § 552(a)(6)(B).5 DCMA‟s time to
supply a response sufficient to trigger FOIA‟s administrative exhaustion requirement
lapsed in mid-July 2010, at the latest.6 Carmody was free to file the present FOIA
action anytime thereafter.

5

Even assuming timeliness, DCMA‟s July 22, 2010 email does not qualify as a “determination”
within the meaning of FOIA. See CREW, 711 F.3d at 186 (“The statute requires that, within the relevant
time period, an agency must determine whether to comply with a request—that is, whether a requester
will receive all the documents the requester seeks. It is not enough that, within the relevant time period,
the agency simply decide to later decide. Therefore, within the relevant time period, the agency must at
least inform the requester of the scope of the documents that the agency will produce, as well as the
scope of the documents that the agency plans to withhold under any FOIA exemptions.”).
6

By the court‟s calculation, 30 working days from receipt of the FOIA Request on May 28, 2010
would have been roughly July 13, 2010.

13

That Carmody waited until November 2011 to institute this action was its choice.
While the long unexplained delays present here dismay this court, Carmody‟s statutory
remedy is the instant suit.7 The decision not to file suit immediately following the lapse
of any exhaustion requirement—perhaps in the hope of catching more flies with honey
than vinegar—cannot transform repeated delays on the agency‟s part prior to filing suit
into a basis to order discovery. Rather, the court must determine: (1) whether DCMA
has conducted an adequate search; and (2) whether DCMA has adequately justified its
redactions based on specified exemptions to FOIA‟s strong presumption favoring
disclosure.
B.

Adequacy of DCMA‟s Search

Where a plaintiff challenges the adequacy of an agency‟s search of its records,
“the factual question . . . is whether the search was reasonably calculated to discover
the requested documents, not whether it actually uncovered every document extant.”
Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 489 (2d Cir. 1999) (quoting SafeCard,
926 F.2d at 1201). “An agency is not obliged to conduct a search of records outside its
possession or control.” Jones-Edwards v. Appeal Bd. of Nat. Sec. Agency, 196 F. App'x
36, 38 (2d Cir. 2006). The agency is thus responsible for devising a search reasonably
calculated to locate requested materials that the agency itself created or obtained and
over which it retains possession or control at the time of the FOIA request. Grand Cent.
P'ship, 166 F.3d at 489; see also Kissinger v. Reporters Comm. for Freedom of the
Press, 445 U.S. 136, 152 (1980) (“[P]ossession or control is a prerequisite to FOIA

7

The court notes that, while there is no excuse for the delay in providing an initial determination
long after the statutorily prescribed period, there were periods in which DCMA was awaiting responses
from Carmody. See, e.g., Defs.‟ L.R. 56(a)(1) ¶ 57.

14

disclosure duties . . . . [FOIA] does not obligate agencies to create or retain documents;
it only obligates them to provide access to those which it in fact has created and
retained.”).
The declarations of Ms. Williamson and Mr. Tursi establish that DCMA‟s search
was adequate. DCMA conducted keyword and Contract-specific searches of the
available electronic databases. See Williamson Decl. ¶¶ 9, 24. It examined records
retrieved from a National Archives Center. Id. ¶¶ 13, 16. At Attorney Piantek‟s request,
it also referred the FOIA Request to DCAA, which disclosed audits that were then
examined by DCMA. Id. ¶¶ 17-20. Together, these methods were reasonably
calculated to discover materials responsive to the FOIA Request.
The paucity of responsive materials disclosed to Carmody is not surprising under
the circumstances, nor does it undermine the adequacy of DCMA‟s search. The U.S.
Army terminated the Contract in 2004, and DCMA was not involved in the termination
settlement negotiations. Id. ¶¶ 35.8 Carmody‟s assertion that, given the settlement
amount, DCMA must have in its possession more responsive documents pertaining to
the Bridgeport II Facility is mere speculation and is insufficient to rebut the presumption
of good faith to which agency affidavits are entitled. See Safecard, 926 F.2d at 1200
(“Agency affidavits . . . cannot be rebutted by purely speculative claims about the
existence and discoverability of other documents.” (citation and internal quotation marks
omitted)); Jones-Edwards, 196 F. App'x at 38 (“Mere speculation is not sufficient to
withstand a motion for summary judgment.”).

8

In this regard, the court notes that the Price Memorandum released by DCMA to Carmody was
not, in fact, in DCMA‟s possession at the time of the FOIA Request and was only produced to DCMA later
by Mr. Metzger of the U.S. Army. Id. ¶¶ 6, 32.

15

Likewise, the fact that the materials received by Carmody refer to a broader
background of documents not produced does not indicate that DCMA has withheld
responsive documents and that the declarations of DCMA employees to the contrary
are in bad faith. It is true that a requester like Carmody will rarely, if ever, be in a
position to prove the existence of other responsive records in the agency‟s possession.
Mere reference, however, to documents not produced is insufficient to undermine the
adequacy of DCMA‟s search, where, as here, that adequacy is supported by reasonably
detailed, nonconclusory declarations by responsible agency personnel. See
Adamowicz v. I.R.S., 402 F. App'x 648, 651 (2d Cir. 2010). While an agency must
follow through on obvious leads, the agency cannot be expected to scour every
document for clues as to additional locations of responsive documents. See, e.g.,
Canning v. U.S. Dep't of Justice, 919 F. Supp. 451, 460 (D.D.C. 1994); Shurtleff v.
United States Envtl. Prot. Agency, CV 10-2030, 2013 WL 5423963, at *6 (D.D.C. Sept.
30, 2013).
Indeed, Carmody does not argue that the references at issue point to specific
responsive documents. Rather, by Carmody‟s own account, these references indicate
only a broader universe of documents relating to the Contract. While it may be difficult
to piece together what exists from what has been disclosed, Carmody declined other
disclosures on the basis of cost. See Defs.‟ L.R. 56(a)(1) ¶¶ 32 & 49.
In sum, the declarations of responsible DCMA employees establish that the
agency‟s search was adequate. Carmody points to no “obvious leads” in the present
disclosures that would require DCMA to perform an additional reasonable good-faith

16

search for the missing items. See Hall v. C.I.A., 881 F. Supp. 2d 38, 61-62 (D.D.C.
2012).
C.

In Camera Review

In response to this court‟s Order on February 18, 2014, see Doc. No. 89, DCMA
submitted an unredacted copy of its disclosures for in camera review. FOIA provides
for such review by the court “to determine whether [agency] records or any part thereof
shall be withheld under any of the exemptions.” 5 U.S.C. § 552(a)(4)(B). While in
camera review is the exception, not the rule, “the propriety of such review is a matter
entrusted to the district court's discretion.” Local 3, Int'l Bhd. of Elec. Workers, AFL-CIO
v. N.L.R.B., 845 F.2d 1177, 1180 (2d Cir. 1988) (citations omitted). Factors favoring in
camera review include: (1) judicial economy; (2) the conclusory nature of the agency
affidavits; (3) bad faith on the part of the agency; (4) disputes concerning the contents of
the documents; (5) whether the agency requests an in camera inspection; and (6) the
strong public interest in disclosure. See Allen v. Cent. Intelligence Agency, 636 F.2d
1287, 1298-99 (D.C. Cir. 1980), overruled on other grounds by Founding Church of
Scientology of Washington, D.C., Inc. v. Smith, 721 F.2d 828, 829 (D.C. Cir. 1983);
Ferguson v. F.B.I., 752 F. Supp. 634, 636 (S.D.N.Y. 1990). That the number of
documents to be reviewed is relatively small may also weigh in favor of the court‟s
conducting an in camera review. See New York Times Co. v. U.S. Dep't of Justice, 872
F. Supp. 2d 309, 315 (S.D.N.Y. 2012).

17

In the instant case, DCMA did not request review in camera,9 nor did the agency
initially submit to the court ex parte an unredacted copy of its disclosures to accompany
the Vaughn Index. However, upon the court‟s preliminary review of the redacted
records and Vaughn Index, the court determined that DCMA‟s submissions did not
contain information “specific enough to obviate the need for an in camera review.”
Halpern v. F.B.I., 181 F.3d 279, 294 (2d Cir. 1999). The number of documents at issue
is relatively small, and the contents are heavily redacted and sharply disputed—in
particular, as to the presence of confidential commercial information.
Thus, in connection with the pending Motion and Cross-Motions, the court
ordered DCMA to submit ex parte an unredacted copy of the disclosures to date. See
Doc. No. 89. Having reviewed this submission in camera, the court held oral argument
on March 3, 2014, addressing some of its questions to DCMA and Sikorsky in an ex
parte session. The court is mindful, however, that its “inspection prerogative is not a
substitute for the government's burden of proof.” Id. at 295.
D.

FOIA Exemptions

According to DCMA, no responsive records have been withheld in full. See
Williamson Decl. ¶ 36. However, the materials released to Carmody contain extensive
redactions, all of which DCMA has justified on the basis of one or both of two statutory
exemptions: (1) “trade secrets and commercial or financial information obtained from a
person and privileged or confidential,” 5 U.S.C. § 552(b)(4) (“Exemption 4”); and (2)
“personnel and medical files and similar files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy,” id. § 552(b)(6) (“Exemption 6”).

9

While not requesting review in camera, DCMA did propose such review in the alternative, were
the court to find the agency‟s submissions insufficient. See Defs.‟ Reply (Doc. No. 76) at 5 n.1.

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1.

Exemption 4: Confidential Commercial Information

As detailed in the Vaughn Index, DCMA has redacted virtually all cost-related
and accounting information from its disclosures under Exemption 4. Although
Exemption 4 encompasses both trade secrets and other business information, neither
Sikorsky nor DCMA claims that any redacted information qualifies as a trade secret.
Thus, for Exemption 4 to apply, the information must be: (1) “commercial or financial in
character,” (2) “obtained from a person,” and (3) “privileged or confidential.” Nadler v.
F.D.I.C., 92 F.3d 93, 95 (2d Cir. 1996) (citations and internal quotation marks omitted).
Carmody does not dispute that the redacted information is commercial and was
obtained from Sikorsky. The sole issue is the confidentiality of this information.
In determining whether information is “privileged or confidential” for purposes of
Exemption 4, courts in this Circuit ask whether release of the information is likely either:
“(1) to impair the Government's ability to obtain necessary information in the future; or
(2) to cause substantial harm to the competitive position of the person from whom the
information was obtained.” Nat'l Parks & Conservation Ass'n v. Morton, 498 F.2d 765,
770 (D.C. Cir. 1974); see Cont'l Stock Transfer & Trust Co. v. S.E.C., 566 F.2d 373, 375
(2d Cir. 1977) (adopting the National Parks test). DCMA does not argue that release of
the redacted information would diminish the government‟s ability to obtain critical
information. Hence, the court considers only the second of the two prongs under
National Parks—that is, whether release would likely cause substantial harm to
Sikorsky‟s competitive position.
Under this second prong, “the court need not conduct a sophisticated economic
analysis of the likely effects of disclosure.” Pub. Citizen Health Research Group v. Food
& Drug Admin., 704 F.2d 1280, 1291 (D.C.Cir.1983). Nor is it necessary for DCMA and
19

Sikorsky to “show actual competitive harm.” Id. (quoting Gulf & W. Indus., Inc. v. U. S.,
615 F.2d 527, 530 (D.C. Cir. 1979)). Evidence revealing that Sikorsky (1) faces actual
competition and (2) would likely suffer substantial competitive injury from release of this
information “is sufficient to bring commercial information within the realm of
confidentiality.” Id.
DCMA has met this burden with respect to the bulk of redactions. However,
DCMA has not met its burden with respect to the redactions detailed in Section IV.D.1.c,
infra. Disclosure of the latter information is unlikely to harm Sikorsky and is, therefore,
required by FOIA.
a.

Actual Competition

The court accepts DCMA‟s and Sikorsky‟s representations that Sikorsky and
Boeing, the two private companies involved in the Contract, do not represent the entire
aerospace industry. See Defs.‟ Mem. at 16; Intervenor‟s Opp‟n to Pl.‟s Mot. for Summ.
J. (“Intervenor‟s Mem.”) (Doc. No. 80) at 6-7; Main Aff. ¶ 10. DCMA and Sikorsky have
identified several domestic and international competitors of Sikorsky in addition to
Boeing, including Helibras, Lockheed, Northrup-Grumman, Russian Helicopters,
DynCorp, BAE Systems, and L3 MAS. See Defs.‟ Mem. at 16; Main Aff. ¶ 10. By
Sikorsky‟s own representation, the company currently faces actual competition in a bid
for another U.S. government contract to build helicopters. See Main Aff. ¶ 10.
Carmody‟s contrary claim that Boeing and Sikorsky‟s partnership in the Comanche
Project removes the need to keep the information at issue here confidential lacks any
evidentiary support. See Pl.‟s Mem. at 18-19.

20

b.

Likelihood of Substantial Competitive Injury

The bulk of information withheld consists of General & Administrative (“G&A”),
overhead, and profits as well as related cost information. Sikorsky has credibly
represented, and Carmody does not dispute, that what differentiates competitors in this
industry is cost data and pricing structures, both of which are key to Sikorsky‟s bidding
strategies. See Invervenor‟s Mem. at 7; Main Aff. ¶¶ 8, 10. While the information in the
instant case is scarcely recent, it does not appear to be obsolete or valueless to
Sikorsky‟s competitors. See Main Aff. ¶ 9. Disclosure of such information would likely
give competitors advantages in future bids against Sikorsky. See Main Aff. ¶¶ 8, 10.
And Sikorsky does not disclose such information to the public. Id. ¶ 8. Indeed, the
information was marked as proprietary when disclosed to the government, and
disclosure to third parties would normally be subject to Sikorsky‟s Non-Disclosure
Agreement policy. Id. ¶ 7.
Thus, with respect to the bulk of withheld information—which either directly
reveals G&A, overhead, profits, and related costs—DCMA has adequately justified nondisclosure on the basis of Exemption 4.
c.

Required Disclosure of Non-Confidential Commercial
Information

Although the majority of information withheld is warranted under Exemption 4,
DCMA has not met its burden of showing a likelihood of substantial competitive injury
with respect to certain redactions. Having reviewed the unredacted documents in
camera, the court concludes that disclosure of the information specified below is
unlikely to harm Sikorksy in future bidding and is, therefore, required by FOIA.

21

i.

Middle Section of SF 1437. DCMA has redacted virtually the entire SF 1437.

See Pl.‟s Ex. C at 11. While both the tabular information at the top (rows 1 through 18,
columns a through d) and the names at the bottom may be withheld under Exemptions
4 and 6, respectively, see Section IV.D.2 infra (discussing non-disclosure of names), the
middle section entitled “Certificate” does not contain commercial data and is subject to
FOIA‟s presumption favoring disclosure.
ii. Bridgeport II Connecticut Facility Move-Out Budgetary Cost Matrix. DCMA
has redacted everything but the headings of the tables contained on the Bridgeport II
Connecticut Facility Move-Out Budgetary Cost Matrix. See Pl.‟s Ex. C at 71-78. While
labeling this denial “partial,” Vaughn Index at 27, DCMA has denied Carmody any
information of value. In an ex parte session at oral argument, counsel for Sikorsky
conceded that, along the spectrum of potential competitive injury, the information
withheld on this document falls at the low end. This information consists principally of
descriptions of equipment removal, locations, and corresponding costs—all of which
relate to a single building, the Bridgeport II Facility.
In his Affidavit, Mr. Main argues, in conclusory fashion, that disclosure of
renovation costs for a single facility would reveal “Sikorsky‟s manufacturing strategies.”
Main Aff. ¶ 8. The court accepts that G&A, overhead, and profits are essential
components of Sikorsky‟s bidding strategies. The court cannot, however, credit the
large leaps in logic from the move-out costs for a single office building to manufacturing
strategies to overall bidding strategies. In the court‟s view, the competitive injury from
disclosing such information, if any, does not rise to the level of “substantial” and,
therefore, does not justify redaction under Exemption 4.

22

iii. Recent Treasury Bill Auction Results. Third, DCMA has redacted all data
contained on the Recent Treasury Bill Auction Results, the attachment to the Boeing
Sikorsky letter. See Pl.‟s Ex. C at 70. Yet, in its Vaughn Index, DCMA has also
represented that this information was erroneously redacted and that an unredacted
version has been provided to Carmody. See Vaughn Index at 27.
Assuming that Carmody is already in possession of iii, the court notes the
erroneous redaction under Exemption 4 and requires no further action by DCMA. With
respect to i and ii, the court concludes that Carmody is entitled to production of
unredacted copies, because these redactions are unwarranted under Exemption 4.
2.

Exemption 6: Private Personnel Information

DOD has directed that the names and contact information of federal employees
be routinely redacted. See Vaughn Index at 2. Upon careful review of the applicable
case law and the parties‟ submissions, including the unredacted documents, the court
determines that DCMA has adequately justified the application of Exemption 6 to
withhold the names and contact information of DOD and Sikorsky employees who were
involved in termination settlement negotiations.
Exemption 6 covers “personnel and medical files and similar files the disclosure
of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(6); see Defs.‟ Mem. at 31; Sikorsky Mem. in Supp. of Sikorsky‟s Cross-Mot. for
Summ. J. (Doc. No. 79-1) at 9-10. The purpose is to “protect individuals from the injury
and embarrassment that can result from the unnecessary disclosure of personal
information.” U.S. Dep't of State v. Washington Post Co., 456 U.S. 595, 599 (1982).

23

The files at issue here are not medical or personnel files. The DOD defendants‟
claim to exempt these as “similar files” is, therefore, subject to the two-part balancing
test described by the Second Circuit in Wood v. F.B.I., 432 F.3d 78 (2d Cir. 2005):
First, we must determine whether the personal information is contained in
a file similar to a medical or personnel file. In considering whether the
information is contained in a “similar” file, we ask whether the records at
issue are likely to contain the type of personal information that would be in
a medical or personnel file. At the second step of the analysis under
Exemption 6, we balance the public's need for the information against the
individual's privacy interest to determine whether the disclosure of the
names would constitute a “clearly unwarranted invasion of personal
privacy.”
Id. at 86.
The names and contact information sought by Carmody qualify as “similar files.”
This is true regardless of whether the individuals are employed by DOD or Sikorsky,
because Exemption 6 covers the privacy interests not only of federal employees but
also of employees of government contractors like Sikorsky. See Hopkins v. U.S. Dep't
of Hous. & Urban Dev., 929 F.2d 81, 87 (2d Cir. 1991). Although names and business
phone numbers do not, at first blush, resemble intimate information typical of medical
and personnel files, the names of persons involved in defense contracts implicate
privacy interests that both the Supreme Court and the Second Circuit have held to be
“similar” for purposes of Exemption 6. See, e.g., U.S. Dep't of Justice v. Reporters
Comm. For Freedom of Press, 489 U.S. 749, 763 (1989); Long v. Office of Pers. Mgmt.,
692 F.3d 185, 191 (2d Cir. 2012). Indeed, as the Second Circuit explained in Long, “the
bar is low: „FOIA requires only a measurable interest in privacy to trigger the application
of the disclosure balancing tests.‟” 692 F.3d at 192 (quoting Fed. Labor Relations Auth.
v. U.S. Dep't of Veterans Affairs, 958 F.2d 503, 510 (2d Cir. 1992)).

24

Sikorsky and DOD employees‟ interest in not having their names disclosed in
connection with the Comanche Project is clearly more than de minimis. Under the low
bar set by the Second Circuit, that interest is covered by Exemption 6 and qualifies as
“similar” at the first of Wood‟s two steps.
In determining whether disclosure is nevertheless justified at the second step, the
court balances this privacy interest against the public interest in disclosure. See Fed.
Labor Relations Auth. v. U.S. Dep't of Veterans Affairs, 958 F.2d 503, 510 (2d Cir.
1992). Where the agency has demonstrated a privacy interest sufficient to implicate
Exemption 6, the burden falls to the requesting party to establish that disclosure “would
serve a public interest cognizable under FOIA.” Associated Press, 549 F.3d at 66. In
the court‟s balancing analysis, the focus is not the specific purpose for which the
requester seeks the information but, rather, the purpose of FOIA itself—namely, to
protect “the citizens' right to know „what their government is up to.‟” Horowitz v. Peace
Corps, 428 F.3d 271, 278 (D.C. Cir. 2005) (quoting Reporters Comm., 489 U.S. at 773).
The public interest in this case is negligible or nonexistent. Carmody‟s own need
for the information in connection with the State Court Action is immaterial to the public‟s
interest in government accountability under FOIA. Id. at 278-79. “In many contexts,
federal courts have observed that disclosure of individual employee names tells nothing
about „what the government is up to.‟” Long, 692 F.3d at 193 (citations omitted).
Moreover, as counsel for DCMA represented at oral argument, the names and contact
information sought in the present litigation are all of low-level Sikorsky or DOD
employees. Their identities, unlike those of department or agency heads, are of little or
no public consequence here. See Stern v. F.B.I., 737 F.2d 84, 92 (D.C. Cir. 1984).

25

Indeed, while there is a public interest in ferreting out potential fraud or waste in DOD
contracts, disclosure of the instant information does not directly advance that interest.
Even if this information could be of indirect use, the Second Circuit has cautioned courts
to focus their public interest analysis on the value of the information itself that is
revealed, not the speculative results to which use of that information might lead. See
Long, 692 F.3d at 194 (citations omitted).
Given the measurable privacy interest and the absence of a cognizable public
interest, the court determines that DCMA has adequately justified its redaction of names
and contact information under Exemption 6.
3.

Release of Reasonably Segregable Portions

“Any reasonably segregable portion of a record shall be provided to any person
requesting such record after deletion of the portions which are exempt.” 5 U.S.C. §
552(b). DCMA is entitled to a presumption of compliance with its “obligation to disclose
reasonably segregable material.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106,
1117 (D.C. Cir. 2007). Because Carmody has not “specifically rebut[ted] this
presumption,” DCMA bears no further burden in this regard. Id.
As attested by responsible agency personnel, DCMA has reviewed all requested
records to determine which portions, if any, are reasonably segregable from exempt
information and has released all such reasonably segregable information to Carmody.
See Williamson Decl. ¶¶ 39-40. Furthermore, having reviewed the unredacted
documents in camera, the court likewise finds that all reasonably segregable
information has been provided to Carmody with the exception of the items identified in
Section IV.D.I.c, supra, whose redaction the court has determined to be unwarranted.
The court‟s finding that all reasonably segregable information has been released to
26

Carmody in no way alters the court‟s conclusion above that Carmody is entitled to
disclosure of these items.
V.

CONCLUSION
For the reasons set forth above, the court GRANTS in part and DENIES in part

Carmody‟s Motion (Doc. No. 23) and GRANTS in part and DENIES in part the DOD
defendants‟ and Sikorsky‟s Cross-Motions (Doc. Nos. 50 & 79).
The court GRANTS the DOD defendants‟ and Sikorksy‟s Cross-Motions for
Summary Judgment as to the adequacy of DCMA‟s search, the redaction of most of the
commercial information claimed under Exemption 4, and the redaction of all names and
contact information under Exemption 6. The court, however, DENIES these CrossMotions with respect to the redacted commercial information specified in Section
IV.D.1.c, supra.
Accordingly, the court GRANTS Carmody‟s Motion with respect to the latter
redactions and otherwise DENIES its Motion.
DCMA is hereby ORDERED to disclose to Carmody within fourteen (14) days of
this Ruling: (1) the middle section of the SF 1437, see Pl.‟s Ex. C at 11; and (2) all
tabular information on the Bridgeport II Connecticut Facility Move-Out Budgetary Cost
Matrix, id. at 71-78.
The Clerk is directed to close this case.
SO ORDERED.
Dated at New Haven, Connecticut this 13th day of March, 2014.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge
27