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Buckovetz v. U.S. Department of Navy

United States District Court, S.D. California

February 3, 2017



          Hon Roger T. Benitez United States District Judge.

         Before 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 judgment.


         On 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.

         After 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.

         On 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.)

         Subsequently, 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.)


         Summary 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.

         A 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.

         In an 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)).


         The only question before the Court is whether the agency conducted an adequate search. The Court concludes that it did.

         A. ...

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