Eakin v. United States Department of Defense
Filing
29
MEMORANDUM OPINION. Signed by Judge Royce C. Lamberth. (ad)
UNITED ST ATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
John Eakin,
Plaintiff,
v.
United States Department of Defense,
Defendant.
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Civil Case No. 5:16-cv-00972-RCL
MEMORANDUM OPINION
Before the Court are plaintiffs Motion for Summary Judgment, filed January 24, 2017,
and defendant's Cross-Motion for Summary Judgment, filed June 1, 2017. Having considered the
motion, responses, replies, exhibits, filings, and applicable law, the Court will deny the defendant's
Cross-Motion for Summary Judgment.
The Court will also grant the plaintiffs Motion for
Summary Judgment in-part, and deny it in-part. Finally, the Court will grant the defendant's
Motion in the Alternative for an Open America Stay.
I.
BACKGROUND
This case is a follow-up to a 2010 FOIA case. Plaintiff John Eakin previously submitted
FOIA requests to the Department of Defense (DoD) regarding documents and personnel files for
unidentified American service members and civil employees who were held in Japanese POW
camps in the Philippines during World War II. Eakin v. United States Department of Defense et
al., Cause No. 5:10-cv-784-FB (W.D. Tex. Jan. 23, 2012). Eakin specifically requested Individual
Deceased Personnel Files (IDPF's) for all American service members or civilian employees whose
remains were not recovered or identified, as well as "X-Files" pertaining to unidentified remains
1
at specific POW camps and cemeteries in the Philippines. 1 In that case, the government argued
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that Eakin's request was not entitled to a fee waiver or expedited processing, and also that the
request imposed an unreasonable burden and that the government should be excused from
responding. Cause No. 1O-cv-784, ECF No. 25. Magistrate Judge Nancy Nowak found that Eakin
was not entitled to a fee waiver or expedited processing but did not reach the unreasonableness
argument because it was not raised in the underlying administrative proceeding. Cause No. 5: 10cv-784-FB, 2011 WL 5925570, at* 8 (W.D. Tex. Nov. 28, 2011 ). Judge Biery adopted the Report
and Recommendation and granted the government's motion for summary judgment. ECF No. 46.
The case was dismissed in 2012.
Years later, on May 10, 2016, Eakin filed the relevant FOIA request here. He sought
"Electronic (digital) copies of all World War II era Individual Deceased Personnel Files (IDPFs)
a/k/a 293 files and/or 'X-files' which exist in any digital or electronic format," as well as
accompanying indices or documents necessary to access the IDPFs. Compl. 8, ECF No. 1. The
next day, May 11, 2016, Eakin filed a second FOIA request, seeking "All contracts, contract
amendments/modifications, and similar documents pertaining to contracts for digital scanning of
U.S. Army [IDPFs] previously stored at National Archives and Records Administration (NARA),"
as well as documents which identify the users/agencies which have access to IDPFs. Id at 10.
DoD notified plaintiff that each request had been received and that DoD would be unable to
respond to the requests within the statutorily allotted 20-day period. Id. at 7, 12. According to
DoD, Eakin's "unusual circumstances" of the requests affected the ability to process the request
quickly. Id. "These unusual circumstances are: (a) the need to search for and collect records from
1
"X-Files" refers to documents created by the American Graves Registration Service regarding unidentified remains,
including the condition and location of the remains, personal effects found with remains, wreckage or hardware found
near the remains, and details about the burial, re-burial, and recovery of the remains.
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a facility geographically separated from this Office; (b) the potential volume ofrecords responsive
to your request; and (c) the need for consultation with one or more other agencies or DoD
components having a substantial interest in either the determination or the subject matter of the
records." Id DoD placed Eakin's requests in a "complex processing queue" to be worked in the
order the request was received. Id The queue apparently included over 1,600 other open requests.
Id Both letters included instructions on Eakin's right to appeal the decision to DoD's Office of
the Deputy Chief Management Officer Directorate for Oversight and Compliance, which is
responsible for DoD's FOIA policy. Id
On May 23, 2016, Eakin submitted his appeal regarding DoD's decision not to comply
with the 20-day response time. Compl. 14. According to Eakin, DoD failed to respond and his
appeal was constructively denied. Id at 3 On September 30, 2016, plaintiff Eakin filed this action
alleging that DoD's failure to respond to the appeal or produce the records or demonstrate an
exemption is a violation ofFOIA, 5 U.S.C. § 552. Id at 3-4. DoD filed its answer on November
1, 2016. ECF No. 8. In its answer, DoD claimed "some" documents were exempt under one of
the enumerated FOIA exemptions and that DoD is entitled to a stay under the Open America
doctrine based on the volume ofFOIA requests from Eakin. Id
On January 24, 2017, Eakin filed a Motion for Summary Judgment, ECF No. 16, arguing
that because the requested documents are not exempt that the Court should compel their
production.
On June 1, 2017, DoD filed a joint Response and Cross-Motion for Summary
Judgment. ECF No. 22. 2 In its cross-motion, DoD claimed that after receiving Eakin's request,
the Defense POW/MIA Accounting Agency (DPAA) and the Army Human Resources Command
(AHRC) FOIA Office had been coordinating a response, but that the review of the responsive
2
Defendant DoD had requested a 120-day extension of time to respond to the motion for summary judgment, ECF
No. 17, which this Court granted.
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documents was not yet complete. Specifically, DoD submitted affidavit testimony from the Chief
of AHRC that three of AHRC's eight FOIA Action Officers were assigned to work one hour per
day to remove recently-created documents from the IDPF's, such as other FOIA requests,
correspondence, and medical information such as DNA data on related individuals. Ex. 1, ECF
No. 22-2. According to DoD, this review involves three hard drives containing approximately
280,000 IDPF's and 4.2 terabytes of data. Id. Manual review is necessary to prevent possible
disclosure of Personally Identifiable Information, which is exempt from disclosure under
Exemptions 6 and 7(c) ofFOIA. 5 U.S.C. §§ 552(b)(6)-(7).
DoD argues that the time, expense, and effort required to process the IDPF's for a response
constitutes an unreasonable burden under FOIA. In the alternative, DoD requests that the Court
grant an Open America stay to extend the timeline over which FOIA compels the DoD to produce
responsive documents.
On June 7, 2017, Eakin filed a response to DoD's cross-motion reiterating that DoD had
failed to identify any exemption that would justify nondisclosure of the requested documents. ECF
No. 24. Further, Eakin argues that the request is not unreasonably burdensome because DoD
knows exactly where the records are and which records are being requested. Eakin also argues
that an Open America stay is not applicable because DoD has failed to show that "exceptional
circumstances" exist under 5 U.S.C. 552(a)(6)(C)(i)-(iii).
II.
LEGALSTANDARD
A.
Summary Judgment
Summary judgment is proper when the evidence shows "that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
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56(a). The main purpose of summary judgment is to dispose of factually unsupported claims and
defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
The moving party bears the initial burden of demonstrating the absence of any genuine
issue of material fact. Id at 323. If the moving party meets this burden, the non-moving party
must come forward with specific facts that establish the existence of a genuine issue for trial. ACE
Am. Ins. Co. v. Freeport Welding & Fabricating, Inc., 699 F.3d 832, 839 (5th Cir. 2012). The
function of summary judgment is to allow for parties to preempt litigation by demonstrating that
"one or more of the essential elements of a claim or defense before the court is not in doubt and
that, as aresult,judgment should be entered on the basis of purely legal considerations." Fontenot
v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). In deciding whether a fact issue exists, "the
court must draw all reasonable inferences in favor of the nonmoving party, and it may not make
credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000). "Where the record taken as a whole could not lead a rational trier of
fact to find for the non-moving part, there is no 'genuine issue for trial.'" Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat'! Bank of Ariz. v. Cities
Serv. Co., 391 U.S. 253, 389 (1968)).
B.
FOIA
"FOIA affords the public access to virtually any federal government record that FOIA itself
does not specifically exempt from disclosure." Jarvik v. CIA, 741 F. Supp. 2d 106, 113 (D.D.C.
2010) (citing 5 U.S.C. §552; Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973)). Under FOIA,
federal district courts have jurisdiction to order the release of improperly withheld or redacted
information. 5 U.S.C. § 552(a)(4)(B). Under the statute, agencies must respond within 20 days
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ofreceiving a FOIA request. 5 U.S.C. § 552(a)(6)(A). This 20-day deadline may be extended by
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up to 10 days under "unusual circumstances." 5 U.S.C. § 552(a)(6)(B)(i).
"Unusual circumstances" are defined to encompass only "the need to search for and collect
the requested records" from separate locations; "the need to search for, collect, and appropriately
examine a voluminous amount" of documents; and "the need for consultation" with other agencies.
Id. § 552(a)(6)(B)(iii). In the event that more than 10 days are needed, the agency must notify the
requester in writing and provide an opportunity to limit the scope of the request so that it may be
processed within that time limit, or provide an opportunity to arrange for an alternative time frame
to process the request (or modified request). Id. § 552(a)(6)(B)(ii). Critically, however, "[t]he
statutory list of circumstances that permit an agency to extend the 20-working-day timeline to
make a 'determination,' including collecting and examining numerous or distant documents,
clearly contemplates that the agency must actually gather the responsive documents and determine
which it will produce and which it will withhold." Citizens for Responsibility and Ethics in
Washington v. Federal Election Commission, 711F.3d180, 188-89 (D.C. Cir. 2013). "The agency
cannot make the requisite 'determination' by simply stating its future intent to produce some nonexempt documents." Id.
In the case of adverse determinations, FOIA provides the right to appeal to the head of the
responding agency, and such agency shall make a determination within 20 days after receipt of the
appeal. 5 U.S.C § 552(a)(6)(A)(i)-(ii). In the event an appeal is denied, FOIA provides for judicial
review of the government's decisions to deny document production and allows district courts to
order the production of agency records improperly withheld. 5 U.S.C. § 552(a)(4)(B). FOIA
requires a plaintiff to exhaust his administrative remedies prior to filing a FOIA lawsuit.
Generally, a plaintiff has exhausted his administrative remedies by filing an appeal, but a person
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shall be deemed to have exhausted his administrative remedies if the agency fails to comply with
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the applicable time limit provisions. Id. § 552(a)(6)(C)(i).
"FOIA cases typically and appropriately are decided on motions for summary judgment."
Defenders of Wildlife v. US. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citing Bigwood
v. US. Agency for Int'! Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007)). In considering a motion for
summary judgment under FOIA, the court must conduct a de novo review of the record. 5 U.S.C.
§ 552(a)(4)(B). The defendant agency has the burden of justifying nondisclosure. Id.
1.
Unreasonable Burden
Under FOIA, requesters must "reasonably describe" the records they seek, 5 U.S.C.
552(a)(3)(A), and agencies must make "reasonable efforts" to search for such records, 5 U.S.C. §
552(a)(3)(C). "Any reasonably segregable portion of a record shall be provided to any person
requesting such record after deletion of the portions which are exempt [under FOIA]." 5 U.S.C. §
552(b). Thus, an agency must take reasonable steps to respond to a request, but FOIA does not
require a response where responding would unreasonably burden the agency. See Halpern v. FBI,
181F.3d279, 288 (2d Cir. 1999); Lead Industries Ass 'n v. OSHA, 610 F.2d 70, 86 (2d Cir. 1979).
The requester has a "responsibility to frame requests with sufficient particularity to ensure that
searches are not unreasonably burdensome." Judicial Watch, Inc. v. Export-Import Bank, 108 F.
Supp. 2d 19, 27 (D.D.C. 2000) (quoting Assassination Archives and Research Center, Inc. v. CIA,
720 F. Supp. 217, 219 (D.D.C. 1989)).
2.
Open America Stay
As noted, a government agency generally must respond to a FOIA request within 20 days.
"If the Government can show exceptional circumstances exist and that the agency is exercising
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due diligence in responding to the request, the court may retain jurisdiction and allow the agency
additional time to complete its review of the records." 5 U.S.C. § 552(a)(6)(C)(i).
Exceptional circumstances are said to exist under the following conditions:
[W]hen an agency ... is deluged with a volume of requests for
information vastly in excess of that anticipated by Congress, when
the existing resources are inadequate to deal with the volume of such
requests within the time limits of subsection (6)(A), and when the
agency can show that it "is exercising due diligence" in processing
the requests. In such situation, in the language of subsection (6)( c),
"the court may retain jurisdiction and allow the agency additional
time to complete its review of the records." Under the circumstances
defined above the time limits prescribed by Congress in subsection
(6)(A) become not mandatory but directory. The good faith effort
and due diligence of the agency to comply with all lawfully demands
under the Freedom of Information Act in as short a time as is
possible by assigning all requests on a first-in, first-out basis, except
those where exceptional need or urgency is shown, is compliance
with the Act.
Open America v. Watergate Special Prosecution Force, 547 F.2d 605, 616 (D.C. Cir. 1976).
Courts evaluate four conditions that must be satisfied to warrant granting an Open America
stay: (1) the agency must be burdened with an unanticipated number of FOIA requests; (2) the
agency's resources are inadequate to process the requests within the time limits set forth in the
statute; (3) the agency must show that it is exercising due diligence in processing the requests; and
(4) the agency must show reasonable progress in reducing its backlog of requests. See Elec.
Frontier Found v. Dept. ofJustice, 563 F. Supp. 2d 188, 193 (D.C. Cir.. 2008); Summers v. Dept.
of Justice, 925 F.2d 450, 452 n.2 (D.C. Cir. 1991) (noting the first three factors); 5 U.S.C. §
552(a)(6)(C)(ii) ("[T]he term 'exceptional circumstances' does not include a delay that results
from a predictable agency workload of requests under this section, unless the agency demonstrates
reasonable progress in reducing its backlog of pending requests.").
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Agency affidavits and declarations in support of an Open America Stay are evaluated under
"a presumption of good faith, which cannot be rebutted by purely speculative claims about the
existence and discoverability of other documents." Nat'! Sec. Archive v. S.E.C., 770 F. Supp.2d
6, 9 (D.D.C. 2011) (quoting Elec. Frontier Found. v. Dept. of Justice, 517 F. Supp. 2d 111, 117
(D.D.C. 2007)).
III.
ANALYSIS
At the outset, the Court notes that Eakin has exhausted his administrative remedies and has
standing to file suit here. It is undisputed that Eakin submitted, and DoD received, two FOIA
requests and that DoD failed to respond within the 20-day statutory deadline.
It is further
undisputed that Eakin filed an appeal pursuant to DoD's instructions and DoD failed to respond to
the appeal. Neither did DoD seek to extend the 20-day deadline under "unusual circumstances"
or provide an opportunity to limit the scope of the request or arrange an alternate time frame for
processing the request pursuant to 5 U.S.C. § 552(a)(6)(B)(i)-(ii). Since the agency here, DoD,
has failed to comply with applicable time limit provisions, Eakin is deemed to have exhausted his
administrative remedies under 5 U.S.C. § 552(a)(6)(C)(i).
The Court will consider plaintiff Eakin's motion for summary judgment and defendant
DoD's cross-motion for summary judgment separately.
A.
Defendant's Cross-Motion for Summary Judgment Will Be Denied
As stated above, the Court first addresses the DoD's Cross-Motion for Summary Judgment
on the grounds that reviewing responsive documents would place an unreasonable burden upon
the DoD.
In the government's own words, "the most problematic aspect ofEakin's request is not that
the DoD is totally unable to find the materials requested; it knows this information is within
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approximately 4.2 terabytes of data, but it is the broad scope of the request." Def. 's Cross-Mot for
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Summ. J. 6. Further, DoD is argues that the IDPFs are located "in approximately 4.2 terabytes of
data that include other sensitive documents," including sensitive information that is not responsive
to Eakin's FOIA request. Id. at 7. Under the current pace of processing, the DoD estimates that
it would take four years for the assigned FOIA Action Officers to complete Eakin's request. Def. 's
Cross-Mot. for Summ. J. 5. According to DoD, requiring these employees to spend considerable
time over the next four years reviewing those 4.2 terabytes of data to determine which documents
are exempt and which may be produced would be unreasonable. Id. at 8.
Eakin counters that a broad or burdensome request does not automatically render it
unreasonably burdensome. Resp. 7, ECF No. 24. "It is the requester's responsibility to frame
requests with sufficient particularity to ensure that searches are not unreasonably burdensome, and
to
enable
the
searching
agency
to
determine
precisely
what
records
are
being
requested." Assassination Archives and Research Ctr. v. CIA, 720 F. Supp. 217, 219 (D.D.C. 1989)
(citing Yeager v. DEA, 678 F.2d 315 (D.C. Cir. 1982)). "The rationale for this rule is that FOIA
was not intended to reduce government agencies to full-time investigators on behalf of requesters."
Id. "The linchpin inquiry is whether the agency is able to determine 'precisely what records [are]
being requested."' Yeager v. DEA, 678 F.2d 315, 326 (D.C. Cir. 1982). Thus, according to Eakin,
the key factor is the ability of DoD's staff here to ascertain exactly which records he is requesting
and locate them. Resp. 7. Because DoD has already ascertained and located the files, and merely
needs to review them to omit exempt information, Eakin argues his request is not unreasonably
burdensome.
This Court agrees. While plaintiffs FOIA request is broad, the broad nature of the request
is warranted given the necessarily broad nature of information that the plaintiff is seeking. The
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FOIA request here is particularized to electronic IDPF's or X-Files from World War II, the defense
contracts for digital scanning ofIDPF's, and the users/agencies with access to those files. Not only
that, but DoD has apparently already built a separate drive to contain the IDPF files, downloaded
them to a shared drive, and granted security permissions to FOIA Action Officers to review the
documents.
According to DoD's affidavit testimony, those officers have already processed
approximately 32,000 files. Ex. 1, ECF No. 22-2. It appears the most burdensome work is
removing recently-created, nonresponsive materials from the files in accordance with FOIA
exemptions, rather than ascertaining or locating the responsive documents themselves. That DoD
has already identified the cache of data in which the universe of responsive documents is located,
segregated it, and begun cataloging documents for release, indicates that the plaintiffs FOIA
request is sufficiently particular to enable the DoD to determine precisely what records are being
requested.
The DoD notes that Eakin has failed to limit his request to a narrower date range, a set of
individuals, or a specific event. Respectfully, Eakin's initial request was limited to a narrow event
and date range: he requested World War II-era IDPF's. Eakin's request is also necessarily limited
to set of individuals: those who were killed during World War IL Further, he limited the request
to electronic documents. The Court also notes that FOIA imposes an obligation on the governrnent
to reach out to a requester to "provide the person an opportunity to limit the scope of the request
so that it may be processed within that time limit or an opportunity to arrange with the agency an
alternative time frame for processing the request" if the request cannot be processed within 20
days. 5 U.S.C. § 552(a)(6)(B)(ii). Based on the record before the Court, it seems apparent that
plaintiff assumed this would be a relatively simple task, particularly since the request was limited
to electronic documents. While the Court understands the need for the government to review the
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documents before sending 4.2 terabytes of personnel files to a requester, the fact that the DoD
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utterly failed to even make an attempt to communicate these realities to Eakin is disappointing and
frustrating. The Court will not fault the plaintiff here for failing to limit or modify his request
when the government could not even be bothered to satisfy its relatively simple obligations under
§ 552(a)(6)(B)(ii).
Defendant DoD also argues that the length of time required to comply with this request too
great. Cross-Mot. for Summ. J. 7-8 (citing American Federation ofGovernment Employees v. US.
Department of Commerce, 907 F.2d 203 (D.C. Cir. 1990) and Solar Sources v. United States, 142
F.3d 1033, 1039 (7th Cir. 1998)). In American Federation, the D.C. Circuit held that a request for
"every chronological office file and correspondent file, internal and external, for every branch
office, staff office [etc.]" was unreasonably burdensome because it would require the agency to
"locate, review, redact, and arrange for inspection a vast quantity of material" that was unnecessary
for the appellant's purpose. 907 F.2d at 209. Similarly, in Solar Sources, the Seventh Circuit
found that a request which would require eight years to segregate exempt portions from nonexempt portions was unreasonable and unpractical. 142 F.3d at 1039.
With these cases, DoD suggests that the unreasonableness of the burden imposed by a
broad search is related to the purpose for which a broad search is made. But that argument cuts
against the government here and distinguishes the cases cited above. The records sought here,
though broad, are vital to Eakin's stated purpose: to identify the remains of military personnel who
perished in World War II POW camps and assist families in arranging for the return of their loved
ones for interment in the United States. Plaintiff, and in turn the public, has an interest in the
identification of the World War II service members whose deaths may be catalogued by the IDPFs
and X-Files contained within the admittedly voluminous (4.2 terabytes) data already identified by
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the government. Though plaintiff's request for documents related to missing and unidentified
veterans from World War II is broad, it is not unreasonably so. Such a determination keeps with
the central purpose of FOIA-"to pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny"-and the statute's strong presumption towards the disclosure
ofresponsive government documents. Dep 't ofAir Force v. Rose, 425 U.S. 352, 361 (1976). The
Court can think of few other government programs more solemn and worthy of public scrutiny
than those tasked with ensuring that Americans who gave the last full measure of devotion in
service to their nation are identified, returned home to their families or communities, and buried
with honors.
In short, the Court finds that Eakin's request is sufficiently particular for the government
to ascertain and locate the requested documents, and, though broad, the request is not unreasonably
burdensome to the DoD. Therefore, defendant's Cross-Motion for Summary Judgment will be
denied.
B.
Plaintiff's Motion for Summary Judgment Will Be Granted In-Part and
Denied In-Part
The Court next considers plaintiff's motion for summary judgment. ECF No. 16. The
plaintiffs substantive requests are that the Court (1) order the defendant to search for any and all
responsive documents related to his FOIA request; (2) order the defendant to produce, by a date
certain, any and all non-exempt responsive documents and a Vaughn index of any responsive
records withheld under claim of exemption; and (3) enjoin the defendant from continuing to
withhold any and all non-exempt responsive documents. Compl. 5, ECF No. 1.
As noted above, defendant has already conducted-and partially completed-the search
for documents responsive to plaintiff's FOIA request and has consolidated them onto three hard
drives. The issue is now whether the DoD must review the considerable volume of documents
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identified in that search for both exempt and non-responsive material contained within those
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documents. It would not be in the interest of justice, nor would it help the plaintiffs desire to
expediently receive these documents, for the Court to order the Government to conduct the search
again. Therefore, plaintiffs Motion for Summary Judgment will be denied insofar as it asks the
Court to compel the Government to execute another search.
Plaintiffs request for this order to compel production of the documents is premature. DoD
has not yet completed its review of the responsive documents, nor has it articulated any exemptions
which would excuse nondisclosure here. But DoD has alluded to the existence of "Personally
Identifiable Information" contained within the IDPF's. This suggests the presence of documents
exempted from FOIA under Exemptions 6 and 7(c). 5 U.S.C. §§ 552(b)(6)-(7). While production
of the entire contents of the hard drives would be relatively simple, this Court declines to order the
production of potentially exempt information at this time. This Court will err on the side of
protecting the privacy interests of individuals whose private information, such as medical records
or home addresses, is potentially contained in those files.
Further, an affidavit from the Chief of AHRC confirms that the agency is still reviewing
the files for responsive and nonresponsive documents. The plaintiffs request for the production
of a Vaughn index explaining every single redaction or withholding for 4.2 terabytes of responsive
documents is therefore also premature. However, the Court recognizes the utility of a Vaughn
index for the plaintiff and public to identify potentially incorrect applications of FOIA exemptions,
and therefore will compel the DoD to produce a sample Vaughn index for the documents that have
already been marked for release. This sample Vaughn index will be comprised of the full list of
redactions or withholdings from 100-150 documents of the plaintiffs choosing.
Therefore,
plaintiffs Motion for Summary Judgment will be denied insofar as it asks the Court to compel the
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DoD to produce a comprehensive Vaughn index or enjoin the government from continuing to
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withhold the documents, but granted insofar as it asks the Court to compel the DoD to produce a
Vaughn index generally.
Plaintiff also requests that the Court set a date by which the DoD will be required to
produce all non-exempt responsive documents will be granted. A timeline for the schedule of
production will be discussed and established in Section D below.
C.
Defendant's Motion for an Open America Stay Will Be Granted
Finally, the DoD argued in the alternative that exceptional circumstances exist justifying
additional time to process records under FOIA request. 5 U.S.C. § 552(a)(6)(C)(i).
Courts evaluate four conditions that must be satisfied to warrant granting an Open America
stay: (1) the agency must be burdened with an unanticipated number of FOIA requests; (2) the
agency's resources are inadequate to process the requests within the time limits set forth in the
statute; (3) the agency must show that it is exercising due diligence in processing the requests; and
(4) the agency must show reasonable progress in reducing its backlog of requests.
Given the sheer volume of plaintiffs request, and the large number of other requests the
office must process, the Court finds that the first condition necessary to qualify for an Open
America Stay is satisfied.
Based on the current estimated rate of 63,000 requests processed per year by three FOIA
Action Officers working one hour per day, the Government estimates that it will take
approximately 3,132 man-hours to complete this FOIA request. 3 If the DoD were to redirect all
eight FOIA Action Officers to work only on this request full-time, it would still take the office
nearly ten weeks to process this request (to the detriment of all other FOIA requests). It is clear,
3
This calculation is based on the typical year containing 261 federal workdays.
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that the DoD's resources are inadequate to process the request within the time limits set forth in
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'
'
statute. Therefore, the Court finds that the second condition necessary to grant an Open America
Stay is satisfied.
Further, based on the affidavit testimony provided regarding the FOIA Action Officers
working on this request, the Court finds that DoD is exercising due diligence in responding to the
request. The fact that the DoD has already processed over 30,000 IDPFs is evidence in itself of
good faith in the review of these documents. Plaintiff has offered no rebuttal to the presumption
of good faith other than purely speculative claims about the Government's sinister intent in
reviewing these documents and not simply releasing them to him en masse. The Court does not
find this claim to be supported by evidence to an extent that rebuts the presumption of good faith.
Therefore, the Court finds that the third ·condition necessary to grant an Open America Stay is
satisfied.
Finally, the defendant has shown that they are making reasonable progress in reviewing
these documents. To order the FOIA Action Officers to increase the rate of review of plaintiffs
request would necessarily have an adverse effect on many of the office's 6,000 other FOIA
requests. While four years is a significant period of time, plaintiffs FOIA request has an equally
significant number of responsive documents. Therefore, the Court finds that the fourth condition
necessary to grant an Open America Stay is satisfied. Accordingly, the DoD is entitled to
additional time to respond to Eakin's request.
However, plaintiff here will not be ordered to sit on his hands for four years only to be
forced to come back to court and argue over DoD's application of the FOIA exemptions. As noted
above, this case would have been largely avoided had the parties communicated regularly.
Therefore, in addition to the sample Vaughn index described above, the DoD will be required to
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provide a semi-annual production to Eakin, as outlined in their Motion for an Open America Stay.
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Such semi-annual production will be accompanied with its own respective Vaughn index. The
Court will order the parties meet and confer regarding the production schedule. The Government
will be required to submit updated estimates of the amount of time it will take to complete the
review of the 4.2 terabytes of data along with each semi-annual production.
In sum, the Court finds that the four conditions necessary to grant an Open America Stay
are satisfied. Therefore, defendant's Motion in the Alternative for an Open America Stay will be
granted.
D.
Release Schedule
As stated above, the Government will be required to comply with a semi-annual production
of documents. The first date of release will be 90 days from the filing of the Order accompanying
this Memorandum Opinion, unless the parties agree to a separate schedule following their
conference.
Semi-annual production will follow until the final release date.
Given the
Government's estimates and progress thus far, the final release date will be February 1, 2021. In
addition to the semi-annual production, the DoD will be ordered to produce all previously withheld
non-exempt responsive documents within 90 days from the filing of the Order accompanying this
Memorandum Opinion.
IV.
CONCLUSION
Plaintiffs Motion for Summary Judgment will be granted insofar as the Government must
produce any and all non-exempt responsive documents by the dates outlined above, release any
previously withheld non-exempt responsive documents by the dates outlined above, and create a
sample Vaughn index as described above. Defendant's Cross-Motion for Summary Judgment will
17
be denied insofar as it compels the Government to execute a second search, and that it compels the
.
.
.
.
Government to produce a full Vaughn index.
Defendant's Cross-Motion for Summary Judgment will be denied.
Defendant's Motion in the Alternative for an Open America Stay will be granted.
A separate Order shall issue.
~c.~
Royce C. Lamberth
United States District Judge
DATE:
18
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