Buckovetz v. The Dep't of the Navy
| Decision Date | 29 September 2022 |
| Docket Number | 21-cv-640-WQH-KSC |
| Parties | DENNIS M. BUCKOVETZ, an individual, Plaintiff, v. THE DEPARTMENT OF THE NAVY, Defendant. |
| Court | U.S. District Court — Southern District of California |
DENNIS M. BUCKOVETZ, an individual, Plaintiff,
v.
THE DEPARTMENT OF THE NAVY, Defendant.
No. 21-cv-640-WQH-KSC
United States District Court, S.D. California
September 29, 2022
ORDER
Hon. William Q. Hayes, United States District Court.
The matters before the Court are the Motion for Summary Judgment filed by Defendant Department of the Navy (ECF No. 30) and Motion for Discovery filed by Plaintiff Dennis M. Buckovetz (ECF No. 31).
I. PROCEDURAL BACKGROUND
On April 13, 2021, Plaintiff initiated this action by filing a Complaint. (ECF No. 1). The Complaint alleges that Plaintiff requested that Defendant produce emails concerning an unlawful scheme by officers at the Marine Corps Recruit Depot in San Diego (“MCRD”) to sell Marine Corps memorabilia, including commemorative coins, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. (See id. ¶ 14). The Complaint alleges that Defendant violated FOIA by “deliberately conceal[ing] or destroy[ing]” responsive emails “upon receipt of [the] FOIA request and before production.” (Id. ¶ 2).
The Complaint requests the following relief: (1) a declaration that Defendant violated FOIA; (2) an order requiring Defendant to produce responsive records; (3) an injunction against Defendant's continued withholding of any responsive records; (4) written findings concerning whether agency personnel acted arbitrarily or capriciously; (5) an award of Plaintiff's attorneys' fees and litigation costs; and (6) other such relief as the Court deems just and proper, including sanctions.
On May 9, 2022, Defendant filed the Motion for Summary Judgment. (ECF No. 30). On May 31, 2022, Plaintiff filed the Motion for Discovery. (ECF No. 31). On June 14, 2022, Defendant filed a Response in opposition to the Motion for Discovery. (ECF No. 32). On June 21, 2022, Plaintiff filed a Reply. (ECF No. 33).
II. FACTS
On December 18, 2014, Plaintiff “was carbon-copied on an email chain between Major General James W. Bierman and others” regarding the sale of commemorative coins that “caused [Plaintiff] concern because [Plaintiff] understood that the sales ... diverted revenue from Marine Corps Community Services (‘MCCS').” (ECF No. 31-2 ¶¶ 2-3). On January 23, 2015, Plaintiff submitted FOIA Request DON-USMC-2015-002772 to MCRD, requesting:
all email messages dated on or after 1 May 2014 that have any of the following email addresses Mart.Tull@usmc.mil Jim.Gruny@usmc.mil, Michael.Lee@usmc.mil James.Bierman@usmc.mil, Thomas.W.Spencer@sumc-mccs.org, and John.Ming@usmc.mil on the “From:” “To:”, “Cc:”, or “Bcc:” lines AND contain the words “coin” or “coins” on the subject line or within the body of the message.
(Ex. 1 to Camacho Decl., ECF No. 30-1 at 10). MCRD referred a portion of the FOIA request “pertaining to emails from [MCCS]” to Marine Corps Headquarters for processing because MCCS “emails are not maintained by MCRD.” (ECF No. 30-1 ¶ 4).
Michael Lee, MCRD's Chief of Staff and FOIA Initial Denial Authority, “instructed Cinthia Camacho, the FOIA Specialist for MCRD, to make sure [Plaintiff] received everything [Plaintiff] was requesting.” (ECF No. 30-2 ¶ 5). On February 4, 2015, Captain
Lisa Woo, the Deputy Staff Judge Advocate for MCRD, sent an email to the MCRD Information Technology (“IT”) department instructing the department to provide Camacho with the requested emails and “recommend[ing] that individuals who are named in the FOIA request [ ] not be involved in processing the FOIA request.” (Ex. 3 to Camacho Decl., ECF No. 30-1 at 15). Camacho “worked with the Staff Judge Advocate and the IT department to search for responsive emails” in the MCRD email accounts of the individuals named in the FOIA request. (ECF No. 30-1 ¶ 5). On February 20, 2015, Lee sent a letter to Plaintiff “acknowledging the receipt” of the FOIA request and notifying Plaintiff that a portion of the request had been referred to Marine Corps Headquarters. (ECF No. 30-2 ¶ 4).
Camacho “received the responsive emails directly from the IT department” and “personally applied redactions based on FOIA's exemptions.” (ECF No. 30-1 ¶ 6). Camacho “did not remove or delete any emails from the production.” (Id.). Lee “reviewed the production and relied upon the work of [Camacho and Woo] in determining the appropriateness of the proposed redactions.” (ECF No. 30-2 ¶ 6). Lee “did not remove any emails” or “at any point in time, intentionally delete any emails ... for the purpose of keeping those emails from being produced.” (Id. ¶¶ 5-6). On March 5, 2015, Lee sent Plaintiff a letter responding to the FOIA request and providing 384 responsive emails. The production “did not contain” the email chain on which Plaintiff had been copied on December 18, 2014. (ECF No. 31-2 ¶ 5).
Following the March 5, 2015 production, Plaintiff “raised concerns about whether all emails were searched and [ ] questioned the use of Exemption (b)(7).” (ECF No. 30-1 ¶ 8). In response to these concerns, an MCRD IT employee conducted a further search of emails saved as .pst files and Camacho “corrected MCRD's use of the FOIA Exemption (b)(7).” (Id. ¶ 9). Lee “was not involved in the processing and production of materials from this additional search.” (ECF No. 30-2 ¶ 7). On May 22, 2015, MCRD sent Plaintiff a second response to his FOIA request that did not contain the December 18, 2014, email chain on which Plaintiff had been copied.
On November 23, 2015, Marine Corps Headquarters responded to the portion of Plaintiff's FOIA request that had been referred from MCRD. Marine Corps Headquarters produced responsive emails, including the email chain on which Plaintiff had been copied on December 18, 2014. The five emails in the email chain included multiple MCRD email addresses named in Plaintiff's FOIA request.
On September 3, 2018, Plaintiff “submitted another FOIA request that used the same language as Request DON-USMC-2015-002772.” (ECF No. 30-1 ¶ 11). “MCRD administratively closed [Plaintiff's] 2018 FOIA request as a duplicate of the 2015 request.” (Id. ¶ 13). “The Marine Corps and MCRD have received several other FOIA requests that either duplicate or overlap with [Plaintiff's] 2015 and 2018 FOIA requests.” (Id. ¶ 16). In response to an October 19, 2018, FOIA request from an individual with the same mailing address as Plaintiff, “MCRD identified 106 pages of records in formats not previously produced to [Plaintiff].” (Id. ¶ 17). On June 14, 2019, MCRD produced the 106 pages of records to Plaintiff. Plaintiff submitted additional FOIA requests on September 25, 2019, November 4, 2019, and November 11, 2019, that were closed as duplicative.
During the course of litigation, Camacho “learned that [Plaintiff] believed he received five email messages as part of Marine Corps Headquarters production that should have been, but were not, included in MCRD's production.” (ECF No. 30-1 ¶ 18). Camacho “spent many hours reviewing [MCRD's] search efforts, reviewing [MCRD's] productions, and conferring with IT staff at headquarters about why this would have occurred.” (Id.). IT staff performed additional “targeted searches focused solely on the days the ‘missing' emails were sent.” (Id.). “IT staff at headquarters identified several reasons the emails might have been missing from MCRD's search results, but [ ] were unable to definitively determine what the cause was in this instance” and found no additional responsive documents. (Id.).
III. CONTENTIONS
Defendant contends that summary judgment is appropriate because “Defendant conducted thorough searches in response to [Plaintiff's] 2015 and 2018 FOIA requests ...
reasonably calculated to uncover all relevant records.” (ECF No. 30 at 9). Defendant contends that Plaintiff actually received the five emails in the December 18, 2014, email chain that were missing from the MCRD production through the referral of Plaintiff's FOIA request to Marine Corps Headquarters. Defendant...
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