# Walston v. United States Department of Defense

> District Court, District of Columbia · February 28, 2017 · 238 F. Supp. 3d 57

URL: https://www.frixlaw.com/law-library/cases/4149196

## Case

- **Full name:** Linda P. WALSTON, Plaintiff, v. UNITED STATES DEPARTMENT OF DEFENSE, Defendant
- **Court:** District Court, District of Columbia
- **Decided:** February 28, 2017
- **Citations:** 238 F. Supp. 3d 57; 2017 U.S. Dist. LEXIS 27749; 2017 WL 782878
- **Precedential status:** Published
- **Opinion:** Opinion by Sullivan
- **Judges:** Judge Emmet G. Sullivan
- **Nature of suit:** Civil
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4149196

## How later opinions describe it (automated extraction)

- explaining that Exemption 6 “permits exemption of not just files but bits on personal information, such as names and addresses, the release of which would create a palpable threat to privacy”
- noting that “[i]t is ‘necessary’ that the declaration that [the agency] relies upon aver that ‘all files likely to contain 11 responsive materials . . . were searched.’” (quoting Oglesby, 920 F.2d at 68 )(emphasis in original)
- finding “cognizable privacy interest” in names of low-level federal employees who conducted inquiry related to plaintiff’s investigatory complaint

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
LINDA P. WALSTON, )
)
Plaintiff, )
)
v. ) Civil Action No. 15-2202 (EGS)
)
UNITED STATES DEPARTMENT OF )
DEFENSE, )
)
Defendant. )
________________________________)

MEMORANDUM OPINION

The plaintiff, Linda P. Walston, filed this civil case

against the defendant, the United States Department of Defense

(“DOD”), alleging violations of the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552. See Compl., ECF No. 1 ¶¶ 1-2, 19-20.

Currently pending before the Court is DOD’s motion for summary

judgment. Upon consideration of the motion, the response and

reply thereto, the applicable law, and the entire record, DOD’s

motion for summary judgment is GRANTED IN PART and DENIED IN

PART.

I. Background

Ms. Walston discovered that someone hacked her personal

computer on various occasions between 2010 and 2014 and, in the

course of that hacking activity, altered, deleted, or destroyed

certain of her computer files and operating systems. Def.’s

Statement of Material Facts (“Def.’s SMF”), ECF No. 12-1 ¶ 2;

1
Pl.’s Opp. to Def.’s Mot. for Summ. J. (“Pl.’s Opp.”), ECF No.

13 at 3; Pl.’s Statement of Material Facts (“Pl.’s SMF”), ECF

No. 13-1 ¶ 7. One of the computer forensics specialists that Ms.

Walston hired to identify the hacker suggested to her that the

hacker might have been an employee of the Defense Information

Systems Agency (“DISA”). Def.’s SMF ¶ 2; Pl.’s Opp. at 3; Pl.’s

SMF ¶ 7. DISA is a component of DOD. Compl. ¶ 3. Accordingly,

Ms. Walston filed a complaint with DOD’s Office of Inspector

General (“DOD OIG”) on September 2, 2014. Pl.’s SMF ¶ 7; Def.’s

Resp. to Pl.’s SMF, ECF No. 14-1 ¶ 7. The complaint alleged that

a DISA employee had hacked her computer, altered or deleted

files, and reported Ms. Walston’s activities to a third party.

Def.’s SMF ¶ 2. The complaint was delegated to DISA’s Office of

the Inspector General (“DISA OIG”) and assigned the case number

2014-0193. Pl.’s SMF ¶ 7; Def.’s Resp. to Pl.’s SMF ¶ 7.

On April 21, 2015, Ms. Walston filed a FOIA request with

DISA for “all documents, reports, records, statements, and files

that refer or relate to the DISA OIG complaint #2014-0193.”

Def.’s SMF ¶ 1. Eventually, on November 3, 2015, DISA responded

to Ms. Walston’s request by providing her with two redacted

documents: (1) a December 24, 2014 memorandum from DISA OIG to

DOD OIG concluding that Ms. Walston’s allegations that a DISA

employee had hacked her computer were unfounded and (2) the

report that provided the analysis undergirding the determination

2
that the allegations were unfounded. Def.’s SMF ¶ 3; Pl.’s SMF ¶

11. Finding DISA’s records production inadequate, on November

13, 2015 Ms. Walston filed an administrative FOIA appeal, Def.’s

SMF ¶ 4; Pl.’s SMF ¶ 12, and ultimately filed this action

against DOD on December 18, 2015. Def.’s SMF ¶ 4; Pl.’s SMF ¶

13.

On March 7, 2016, DISA provided Ms. Walston with 13 pages

of emails among DISA analysts discussing their analyses of her

complaint that a DISA employee had hacked her computer. Def.’s

SMF ¶ 5; Pl.’s SMF ¶ 17. Ms. Walston, in turn, sent an email

through counsel asserting that DISA still had not provided all

of the documents and records that she had requested. Def.’s SMF

¶ 6; Pl.’s SMF ¶ 18. On March 23, 2016, DISA produced an

additional 32 pages of internal administrative documents and

documents that Ms. Walston had submitted to DISA. Def.’s SMF ¶

7; Pl.’s SMF ¶ 19.

On June 6, 2016, DOD filed its motion for summary judgment.

See Def.’s Mot. for Summ. J., ECF No. 12. DOD asserts that

summary judgment is warranted because it conducted an adequate

search for records in response to Ms. Walston’s FOIA request;

properly redacted its productions pursuant to the applicable

FOIA exemptions; and complied with FOIA’s segregability

requirement. See generally Def.’s Mem. in Supp. of Mot. for

Summ. J. (“Def.’s Mem. Supp.”), ECF No. 12. In her opposition,

3
filed on July 11, 2016, Ms. Walston does not challenge the

propriety of DOD’s assertion of FOIA exemptions or its

compliance with FOIA’s segregability requirement. See Pl.’s Opp.

at 6. Instead, her only argument is that genuine issues of

material fact concerning the adequacy of DISA OIG’s document

search foreclose a grant of summary judgment as to that issue.

See id. at 7-11. On August 11, 2016, DOD filed its reply brief,

maintaining that an adequate search was conducted. See generally

Def.’s Reply, ECF No. 14. DOD’s motion is ripe for adjudication.

II. Standard of Review

Summary judgment is granted when there is no genuine issue

of material fact and the movant is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56; Waterhouse v. District of

Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining

whether a genuine issue of fact exists, the court must view all

facts in the light most favorable to the non-moving party. See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986). After the underlying facts and inferences drawn from

them are analyzed in the light most favorable to the FOIA

requester, summary judgment is appropriate when the agency

proves that it has fully discharged its FOIA obligations. Moore

v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citing Weisberg v.

U.S. Dep’t of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)).

“FOIA cases typically and appropriately are decided on motions

4
for summary judgment.” Gold Anti-Trust Action Comm., Inc. v. Bd.

of Governors of the Fed. Reserve Sys., 762 F. Supp. 2d 123, 130

(D.D.C. 2011) (internal quotation marks omitted).

When considering a motion for summary judgment under FOIA,

the court must conduct a de novo review of the record. See 5

U.S.C. § 552(a)(4)(B). The court may award summary judgment on

the basis of information provided by the agency in affidavits or

declarations. See Military Audit Project v. Casey, 656 F.2d 724,

738 (D.C. Cir. 1981); Vaughn v. Rosen, 484 F.2d 820, 826-28

(D.C. Cir. 1973). Agency affidavits or declarations must be

“relatively detailed and non-conclusory.” SafeCard Servs., Inc.

v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation

marks omitted). Such affidavits or declarations are “accorded a

presumption of good faith, which cannot be rebutted by purely

speculative claims about the existence and discoverability of

other documents.” Id. (internal quotation marks omitted).

III. Analysis

A. The Search for Records

In response to a challenge to the adequacy of its search

for requested records, an agency “must show beyond material

doubt . . . that it has conducted a search reasonably calculated

to uncover all relevant documents.” Weisberg, 705 F.2d at 1351.

Thus, the “‘issue is not whether any further documents might

conceivably exist but rather whether the government’s search for

5
responsive documents was adequate.’” Id. (quoting Perry v.

Block, 684 F.2d 121, 128 (D.C. Cir. 1982)). The adequacy of a

search is measured by the reasonableness of the agency’s effort

to find the responsive records in light of the specific request

that was made, Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir.

1986), and depends upon the circumstances of the case. Weisberg,

705 F.2d at 1351. To meet its burden, the agency may provide “‘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 . . . were searched.’”

Iturralde v. Comptroller of Currency, 315 F.3d 311, 313-14 (D.C.

Cir. 2003) (quoting Oglesby v. U.S. Dep’t of the Army, 920 F.2d

57, 68 (D.C. Cir. 1990)). Any factual assertions in such an

affidavit will be accepted as true unless the requesting party

submits affidavits or other documentary evidence contradicting

those assertions. Wilson v. U.S. Dep’t of Transp., 730 F. Supp.

2d 140, 148 (D.D.C. 2010) (citing Neal v. Kelly, 963 F.2d 453,

456-57 (D.C. Cir. 1992)).

Here, DOD initially offered a declaration of Mark H.

Herrington, an Associate Deputy General Counsel in the Office of

General Counsel of DOD responsible for overseeing DOD’s FOIA

litigation, that averred that “searches were completed using the

case number ‘2014-0193’”; that records pertaining to DISA OIG

investigations——including reports, letters, and emails——are

6
stored in an electronic database and in a shared drive and are

organized exclusively by case number; and that DISA OIG does not

keep paper files for its investigations. First Decl. of Mark H.

Herrington, ECF No. 12-2 ¶¶ 1, 8.

Ms. Walston challenges the sufficiency of this declaration.

She first argues that even though Mr. Herrington asserts that

the search was completed using the search term “2014-0193,” she

has emails between herself and DISA OIG that bear the subject

line “Case #2014-0193” and yet those emails were not part of the

records DISA OIG provided to her pursuant to her FOIA request.

Pl.’s Opp. at 8. Ms. Walston reasons that the fact that these

emails are missing from DISA OIG’s production indicates that its

search was inadequate. See id. at 8-9. She also argues that Mr.

Herrington’s declaration does not reveal who conducted the

search, what process those persons used, whether Mr. Herrington

was directly involved in the search, and whether the DISA OIG

electronic database where investigative materials are stored was

actually searched. Id. at 10. Further, because of these

shortcomings, she contends that there is a dispute of fact as to

whether all of the searches conducted actually used the search

term “2014-0193.” Pl.’s SMF ¶ 3. Additionally, she contends that

DISA OIG investigative records are retrievable by searching for

an individual’s name, id. ¶ 4 (citing Privacy Act of 1974;

System of Records, 79 Fed. Reg. 64,581, 64,582 (Oct. 30, 2014)),

7
but Mr. Herrington’s declaration asserts that the records “are

stored exclusively by case number.” First Decl. of Mark H.

Herrington ¶ 8. She also contends that DISA OIG investigative

records are stored in electronic and paper form, Pl.’s SMF ¶ 5

(citing 79 Fed. Reg. at 64,582), but Mr. Herrington’s

declaration asserts that DISA OIG “does not keep a paper file

for investigations.” First Decl. of Mark H. Herrington ¶ 8. She

also argues that Mr. Herrington’s declaration does not indicate

where the search took place——i.e., whether it was conducted at

the “primary location” for DISA OIG’s investigative materials in

Fort Meade, Maryland or at the “decentralized location” at Scott

Air Force Base in Illinois. Pl.’s Opp. at 11 (citing 79 Fed.

Reg. at 64,581).

That certain emails between Ms. Walston and DISA OIG

bearing the subject line “Case #2014-0193” did not turn up in

DISA OIG’s search and, consequently, were not part of its

production to Ms. Walston does not support the conclusion that

DISA OIG’s search was inadequate because “the adequacy of a FOIA

search is generally determined not by the fruits of the search,

but by the appropriateness of the methods used to carry out the

search.” Iturralde, 315 F.3d at 315. In response to Ms.

Walston’s other challenges to the adequacy of the search, DOD

has provided a second declaration of Mr. Herrington. Second

Decl. of Mark H. Herrington, ECF No. 14-2 ¶ 2 (“The purpose of

8
th[is] declaration is to address issues raised by [Ms. Walston]

in her opposition to D[O]D’s motion for summary judgment.”).

Therein Mr. Herrington specifies that DISA OIG searched for

responsive records in its electronic database, its shared drive,

and its investigators’ individual emails files. Id. ¶ 5. He also

provides that investigators working for DISA OIG conducted the

search, and the search terms they used “included” the case

number “2014-0193” and the name “Walston.” Id. Mr. Herrington

also indicates that paper files are kept for DISA OIG

investigations in “rare cases,” like those involving original

wet signatures or documents having historical significance, but

Ms. Walston’s case was not one that would involve paper files.

Id. ¶ 6. Mr. Herrington concludes by averring that DISA OIG

“conducted a thorough and reasonable search.” Id. ¶ 7.

The Court can “rel[y] on supplemental declarations

submitted with an agency’s reply memorandum to cure deficiencies

in previously submitted declarations where, as here, the

[p]laintiff filed no motion for leave to file a surreply

challenging [the] defendant’s supplemental declarations.”

DeSilva v. U.S. Dep’t of Housing and Urban Dev., 36 F. Supp. 3d

65, 72 (D.D.C. 2014) (internal quotation marks omitted).

Accordingly, the Court can consider Mr. Herrington’s second

declaration when assessing the adequacy of DISA OIG’s search.

That supplemental declaration does go a long way toward

9
resolving concerns about the adequacy of the search.

Specifically, it makes clear that DISA OIG’s electronic database

for investigative materials——along with its shared drive and its

individual investigators’ email accounts——was actually searched;

that the search terms used “included” not just the case number

“2014-0193” but also the name “Walston”; that the search was

conducted by DISA OIG investigators; and that Ms. Walston’s

complaint was not the sort that would spawn paper records.

Second Decl. of Mark H. Herrington ¶¶ 5-6; see also Def.’s Resp.

to Pl.’s SMF ¶¶ 3-5. In short, through this supplemental

declaration, DOD has adequately responded to most of Ms.

Walston’s valid concerns about the adequacy of DISA OIG’s

search.

Even so, Mr. Herrington’s supplemental declaration still

does not permit DOD to carry its burden of demonstrating that

DISA OIG’s search was adequate. It is “necessary” that the

declaration that DOD relies upon aver that “all files likely to

contain responsive materials . . . were searched.” Oglesby, 920

F.2d at 68 (emphasis added). Here, Mr. Herrington’s supplemental

declaration makes clear that searches were conducted in DISA

OIG’s electronic database, in its shared drive, and in its

investigators’ email files, and his supplemental declaration

makes clear that there is no reason to think that there are

paper files connected to the investigation of Ms. Walston’s

10
complaint. See Second Decl. of Mark H. Herrington ¶¶ 5-6. But

nowhere does Mr. Herrington state that the electronic database,

the shared drive, and the investigators’ email files constitute

the entire universe of files likely to contain responsive

materials. The omission of this necessary statement is all the

more troubling because it appears that investigative materials

in the DISA OIG database might be located in the “primary

location” in Maryland or in the “decentralized location” in

Illinois. See Pl.’s Opp. at 11 (citing 79 Fed. Reg. at 64,581).

Nowhere does the supplemental declaration specify where the

searches occurred or, if the searches took place in one

geographic location, whether those searches canvassed all of the

materials in both possible locations. Without the “necessary”

statement that the entire universe of files likely to contain

responsive records was searched, the Court is foreclosed from

granting summary judgment as to the adequacy of DISA OIG’s

search. See Oglesby, 920 F.2d at 68.

Additionally, for DOD to carry its burden of demonstrating

the adequacy of DISA OIG’s search, the declaration it relies

upon must set forth “the search terms” used in the search, not

some of the search terms used. Oglesby, 920 F.2d at 68 (emphasis

added). Mr. Herrington’s supplemental declaration avers that the

search terms “included” the case number “2014-0193” and the name

“Walston.” Second Decl. of Mark H. Herrington ¶ 5 (emphasis

11
added). Without a complete list of the search terms used in

response to Ms. Walston’s FOIA request, the Court is unable to

conclude that DISA OIG’s search was adequate.

For these reasons, DOD’s motion for summary judgment as to

the adequacy of the search is DENIED WITHOUT PREJUDICE. DOD must

either (1) conduct a new search for the requested records to

ensure that the search is adequate, consistent with governing

case law; or (2) provide the Court with an additional

declaration from which the Court can find that DISA OIG searched

all files likely to contain responsive materials and from which

the Court can assess all of the search terms used in DISA OIG’s

search. In either event, DOD will be required to file a renewed

motion for summary judgment with a sufficiently detailed

declaration.

B. Claimed Exemptions

FOIA requires that agencies release all documents requested

unless the information contained within such documents falls

within one of nine exemptions. 5 U.S.C. § 552(a), (b). These

statutory exemptions must be narrowly construed in favor of

disclosure. Dep’t of Air Force v. Rose, 425 U.S. 352, 361

(1976). The government bears the burden of justifying the

withholding of any requested documents. U.S. Dep’t of State v.

Ray, 502 U.S. 164, 173 (1991). Here, DOD partially withheld

responsive documents pursuant to FOIA Exemptions 5 and 6. Ms.

12
Walston does not challenge the propriety of these withholdings.

Pl.’s Opp. at 6.

1. Exemption 5

FOIA Exemption 5 exempts from disclosure “inter-agency or

intra-agency memorandums or letters that would not be available

by law to a party . . . in litigation with the agency.” 5 U.S.C.

§ 552(b)(5). Thus, “Exemption 5 permits an agency to withhold

materials normally privileged from discovery in civil litigation

against the agency.” Tax Analysts v. IRS, 117 F.3d 607, 616

(D.C. Cir. 1997). To qualify as exempt under Exemption 5, “a

document must meet two conditions: its source must be a

Government agency, and it must fall within the ambit of a

privilege against discovery under judicial standards that would

govern litigation against the agency that holds it.” Stolt-

Nielsen Transp. Grp. Ltd. v. United States, 534 F.3d 728, 733

(D.C. Cir. 2008) (internal quotation marks omitted). One of the

privileges against discovery that Exemption 5 encompasses is the

attorney-client privilege. Mead Data Central, Inc. v. U.S. Dep’t

of Air Force, 566 F.2d 242, 252-53 (D.C. Cir. 1977). “The

attorney-client privilege protects confidential communications

from clients to their attorneys made for the purpose of securing

legal advice or services.” Tax Analysts, 117 F.3d at 618. “The

privilege also protects communications from attorneys to their

clients if the communications rest on confidential information

13
obtained from the client.” Id. (internal quotation marks

omitted). “In the governmental context, the ‘client’ may be the

agency and the attorney may be an agency lawyer.” Id.

DOD relies on the attorney-client privilege prong of

Exemption 5 to partially withhold one record. That record is an

email exchange between a DISA investigative analyst and an

attorney in DISA’s Office of General Counsel. First Decl. of

Mark H. Herrington ¶ 10. In the email exchange, the analyst asks

the attorney a legal question and the attorney responds, in

turn, with his legal opinion. Id. The analyst and the attorney

intended to communicate in confidence. Id. Because this email

exchange involved a “request[ ] for and the provision of legal

advice in the context of an attorney-client relationship,” the

partial exemption pursuant to the attorney-client privilege was

proper. See Reliant Energy Power Generation, Inc. v. FERC, 520

F. Supp. 2d 194, 207 (D.D.C. 2007); see also Elec. Privacy Info.

Ctr. v. U.S. Dep’t of Homeland Sec., 117 F. Supp. 3d 46, 65

(D.D.C. 2015) (explaining that there is “no question” that

exemption pursuant to the attorney-client privilege is proper

when the exempted material “contains a communication between

a[n] [agency] employee and a[n] [agency] attorney seeking legal

review and advice.”). Accordingly, DOD’s motion for summary

judgment on this issue is GRANTED.

14
2. Exemption 6

FOIA Exemption 6 exempts from disclosure “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). Exemption 6 permits withholding of

information when two requirements have been met. See U.S. Dep’t

of State v. Washington Post Co., 456 U.S. 595, 598 (1982). The

first requirement is that “the information must be contained in

personnel, medical or ‘similar’ files.” Id. The statutory

formulation “similar files” is understood broadly to include any

“[g]overnment records on an individual which can be identified

as applying to that individual.” Id. at 602 (internal quotation

marks omitted). Thus, Exemption 6 permits exemption of “not just

files, but also bits of personal information, such as names and

addresses, the release of which would create[ ] a palpable

threat to privacy.” Judicial Watch, Inc. v. FDA, 449 F.3d 141,

152 (D.C. Cir. 2006) (internal quotation marks omitted). The

second Exemption 6 requirement is that “the information must be

of such a nature that its disclosure would constitute a clearly

unwarranted invasion of personal privacy.” See Washington Post

Co., 456 U.S. at 598. This second requirement demands that a

court “weigh the privacy interest in non-disclosure against the

public interest in the release of the records in order to

determine whether, on balance, the disclosure would work a

15
clearly unwarranted invasion of privacy.” Lepelletier v. FDIC,

164 F.3d 37, 46 (D.C. Cir. 1999) (internal quotation marks

omitted); see also Multi Ag Media LLC v. Dep’t of Agric., 515

F.3d 1224, 1228 (D.C. Cir. 2008). The only relevant public

interest in this balancing analysis is “the extent to which

disclosure of the information sought would she[d] light on an

agency’s performance of its statutory duties or otherwise let

citizens know what their government is up to.” Lepelletier, 164

F.3d at 46 (internal quotation marks omitted).

Here, pursuant to Exemption 6, in 13 documents produced to

Ms. Walston DOD withheld the names, email addresses, phone

numbers, signature blocks, and office locations of the low-level

DISA employees who conducted the investigation related to her

complaint. Def.’s Mem. Supp. at 16; First Decl. of Mark H.

Herrington ¶¶ 11-13. This information is the sort that satisfies

Exemption 6’s first requirement, as the DISA OIG investigators,

working in a component of DOD, are employed in a “sensitive

agenc[y]” and have “sensitive occupations.” See Long v. Office

of Pers. Mgmt., 692 F.3d 185, 192 (2d Cir. 2012). Accordingly,

they “have a cognizable privacy interest in keeping their names

from being disclosed.” See id.; see also Ctr. for Pub. Integrity

v. U.S. Office of Pers. Mgmt., No. 04-1274, 2006 WL 3498089, at

*3-4 (D.D.C. Dec. 4, 2006) (accepting a plaintiff’s concession

that personal information about DOD employees constitutes the

16
type of information that satisfies Exemption 6’s first

requirement); O’Keefe v. U.S. Dep’t of Defense, 463 F. Supp. 2d

317, 326 (E.D.N.Y. 2006) (holding that names and telephone

numbers of DOD personnel who conducted or reviewed an

investigation constitute the type of information that satisfies

Exemption 6’s first requirement). Thus the information withheld

in this case was the sort of personal information “the release

of which would create[ ] a palpable threat to privacy.” Judicial

Watch, 449 F.3d at 152 (internal quotation marks omitted).

The privacy interest that exists here is not outweighed by

the public interest in the release of the redacted information.

“In this balancing analysis, [Ms. Walston] bears the burden of

establishing a legitimate public interest supporting disclosure

which is in line with the core purpose of FOIA, to contribute to

greater general understanding of agency practice and procedure.”

Clemmons v. U.S. Army Crime Records Ctr., No. 05-2353, 2007 WL

1020827, at *5 (D.D.C. Mar. 30, 2007) (citing U.S. Dep’t of

Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 495

(1994)). Ms. Walston has not attempted to demonstrate a

legitimate public interest supporting the disclosure of the

investigative employees’ names, phone numbers, email address,

and office addresses. See Pl.’s Opp. at 6. In its own analysis,

the Court does not see how disclosure of that information would

“she[d] light on an agency’s performance of its statutory duties

17
or otherwise let citizens know what their government is up to.”

Lepelletier, 164 F.3d at 46 (internal quotation marks omitted).

Accordingly, DOD’s motion for summary judgment on this issue is

GRANTED.

C. Segregability

If a record contains some information that is exempt from

disclosure, any reasonable segregable information not exempt

from disclosure must be released after deleting the exempt

portions, unless the non-exempt portions are inextricably

intertwined with exempt portions. 5 U.S.C. § 552(b); see Trans-

Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022,

1027 (D.C. Cir. 1999). The Court has an “affirmative duty to

consider the segregability issue.” Trans-Pac. Policing

Agreement, 177 F.3d at 1028. The reviewing court may rely on the

agency’s description of the withheld records and its declaration

that it has released all segregable information to conclude that

the agency has fulfilled its obligation to show with reasonable

specificity why documents cannot be further segregated. See

Loving v. Dep’t of Defense, 550 F.3d 32, 41 (D.C. Cir. 2008).

Here, Mr. Herrington avers that “[a]ll of the documents

addressed herein have been carefully reviewed for reasonable

segregation of non-exempt information, and it has been

determined that no further segregation of meaningful information

in the withheld documents can be made without disclosing

18
information warranting protection under the law,” First Decl. of

Mark H. Herrington ¶ 15, and he describes in some detail the

portions of the documents that have been withheld pursuant to

Exemptions 5 and 6. Id. ¶¶ 10, 13. Based on Mr. Herrington’s

averment that no further segregation is possible and his

explanation of the basis for the redactions that were made, it

appears that DISA OIG has redacted only what was necessary to

protect the exempt information. Thus, DOD’s “affidavit[ ]

provided here show[s] with ‘reasonable specificity’ why the

documents cannot be further segregated.” Armstrong v. Exec.

Office of the President, 97 F.3d 575, 578 (D.C. Cir. 1996).

Accordingly, the Court concludes that DISA OIG has released all

reasonably segregable information and, thus, DOD’s motion for

summary judgment as to this issue is GRANTED.

IV. Conclusion

For the reasons stated above, DOD’s motion for summary

judgment is GRANTED IN PART and DENIED IN PART WITHOUT

PREJUDICE. As to its claimed exemptions and the segregability of

the records it has produced, DOD’s motion is granted. As to its

search for records, DOD’s motion is denied without prejudice. An

appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
February 28, 2017

19

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4149196. Public record. Not legal advice.