United States District Court, S.D. California
DENNIS M. BUCKOVETZ, Plaintiff,
U.S. DEPARTMENT OF THE NAVY, Defendant.
ORDER GRANTING RENEWED MOTION FOR SUMMARY JUDGMENT
[ECF NO. 16]
Roger T. Benitez United States District Judge.
this Court is Defendant's Renewed Motion for Summary
Judgment. (Mot., ECF No. 16.) Plaintiff seeks documents
relating to a sexual harassment complaint. Plaintiff was not
the complainant or the subject of the complaint, but was
reprimanded as a result of the investigation of the
complaint. For the reasons discussed below, the Court
GRANTS Defendant's motion for summary
September 12, 2014, Plaintiff submitted a Freedom of
Information Act (“FOIA”) request, seeking all
documents relating to and associated with a sexual harassment
complaint. Plaintiff requested the complaint itself, email
correspondence, and related records resulting from the
complaint. Defendant denied Plaintiff's request in full
pursuant to an attorney-client privilege exemption, citing 5
U.S.C. § 552(b)(5). Plaintiff appealed the denial on
January 7, 2015. Even after following up in March 2015,
Plaintiff's appeal went unanswered. Plaintiff then
initiated this action on April 16, 2015, challenging the
denial of his FOIA request.
Plaintiff filed the instant lawsuit, Defendant subsequently
released eighteen (18) pages of responsive documents subject
to redactions under Exemption 6. On March 1, 2016, Defendant
filed a motion for summary judgment. This Court denied
Defendant's motion, holding that the record was
insufficient to find that Defendant conducted an adequate
search for the requested documents and that the responsive
documents are subject to any exemptions. (MSJ Order at 6, ECF
No. 15.) Defendant then renewed its motion for summary
judgment, which is before the Court now. It argues that the
Department properly withheld documents and portions thereof
pursuant to Exemptions 6 and 7(C). In support of its motion,
Defendant filed the Declaration of Cinthia Christopher, the
FOIA Coordinator for the Marine Corps Recruit Depot
(“MCRD”), and a Vaughn index.
November 11, 2016, this Court issued an order holding the
renewed motion for summary judgment in abeyance until the
record was supplemented again. (MSJ Abeyance Order, ECF No.
22.) The Court found that although Ms. Christopher's
declaration indicated that she “searched the three
offices most likely to have records-the MCRD NAF HRO, the
MCRD CS HRO, and the Camp Pendleton HRO-her declaration fails
to explain adequately how those searches were
conducted.” (Id. at 5.) The Court could not
rule on the adequacy of Defendant's search and ordered
Defendant to supplement the record on this issue. The Court
also concluded that the 18 pages of responsive documents from
the EEO file are subject to the protections of FOIA
exemptions 6 and 7(C). Thus, the Court held that if
“Defendant can demonstrate the adequacy of its search,
then this Court will grant its motion for summary
judgment.” (Id. at 8.)
Defendant filed supplemental declarations from Tina
Broadaway, Jennifer Gazzo, and Jalynn Peterson regarding the
adequacy of its search. (ECF No. 23.) Plaintiff responded.
(ECF No. 27.) Defendant then replied to Plaintiff's
response. (ECF No. 30.) Plaintiff responded to
Defendant's reply. (ECF No. 34.)
judgment is appropriate when “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. 56(a);
see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). In considering a summary judgment motion,
the evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in his or her favor.
Anderson, 477 U.S. at 255.
moving party bears the initial burden of showing there are no
genuine issues of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). It can do so by
negating an essential element of the non-moving party's
case, or by showing that the non-moving party failed to make
a showing sufficient to establish an element essential to
that party's case, and on which the party will bear the
burden of proof at trial. Id. The burden then shifts
to the non-moving party to show that there is a genuine issue
for trial. Id.
action brought under the FOIA, the withholding agency bears
the burden of proving it may withhold documents under one of
the exemptions. 5 U.S.C. § 552(a)(4)(B); U.S.
Dep't of State v. Ray, 502 U.S. 164, 173 (1991).
Part of satisfying this burden includes demonstrating that it
“conducted a search reasonably calculated to uncover
all relevant documents.” Zemansky v. EPA, 767
F.2d 569, 571 (9th Cir. 1985) (citation and internal
quotation marks omitted). “[T]he issue to be resolved
is not whether there might exist any other documents possibly
responsive to the request, but whether the search
for those documents was adequate.”
Id. (emphasis in original). In demonstrating the
adequacy of the search, the agency may rely on
“reasonably detailed, nonconclusory affidavits
submitted in good faith.” Id. The purpose of
this requirement is to “afford a FOIA requester an
opportunity to challenge the adequacy of the search and to
allow the district court to determine if the search was
adequate in order to grant summary judgment.”
Id. (citing Oglesby v. U.S. Dep't of
Army, 920 F.2d 57, 68 (D.C. Cir. 1990)).
only question before the Court is whether the agency
conducted an adequate search. The Court concludes that it