McMichael v. U.S. Dep't of Def.

• Decision Date: 18 December 2012
• Docket Number: Civil Action No. 11–2119 (RMC).
• Parties: William McMICHAEL, Plaintiff, v. UNITED STATES DEPARTMENT OF DEFENSE, Defendant.
• Court: U.S. District Court — District of Columbia

910 F.Supp.2d 47

William McMICHAEL, Plaintiff,

v.UNITED STATES DEPARTMENT OF DEFENSE, Defendant.

Civil Action No. 11–2119 (RMC).

United States District Court, District of Columbia.

Dec. 18, 2012.

Lee Levine, Chad R. Bowman, Levine Sullivan Koch & Schulz, LLP, Washington, DC, for Plaintiff.

Tricia D. Francis, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, District Judge.

William McMichael, a journalist, complains that the United States Department of Defense improperly responded to his requests for information from the United States Strategic Command. The initial request asked for records from a specific Inspector General investigation into misconduct allegations concerning a specific Navy captain. To each of three requests, USSTRATCOM neither confirmed nor denied that any records existed. The Court finds that DOD's response was improper and remands for reconsideration.

I. FACTS

The following facts are not in dispute. On March 27, 2011, Mr. McMichael, on behalf of Navy Times,¹ submitted a request under the Freedom of Information Act, 5 U.S.C. § 552, to United States Strategic Command (“USSTRATCOM”) ² for access to and a copy of the “Inspector General investigation into a complaint of an allegedly abusive command climate within the command's J4 created by Captain William Powers [sic] from October 2008 to March 2010.” Exs. to McMichael Decl., Ex. F. Captain Power served as USSTRATCOM's Director of Logistics (J4) during this time.³See Exs. to McMichaelDecl., Ex. C (formal complaint). In a letter issued on April 4, 2011, by Vice Admiral Cecil D. Haney, USSTRATCOM denied Mr. McMichael's request pursuant to 5 U.S.C. § 552(b)(7)(C) (“Exemption 7(C)”) neither confirming nor denying the existence of “such records.” ⁴See id., Ex. G.

Mr. McMichael filed an administrative appeal on April 11, 2011, to the Defense Freedom of Information Policy Office. See Def. Mot. [Dkt. 10], Statement of Material Facts [Dkt. 10–1] (“DOD Facts”) ¶ 3. By letter dated May 13, 2011, the FOIA Appellate Authority for the Office of the Secretary of Defense, William E. Brazis, Deputy Director of Administration and Management, affirmed the denial of his request. See id. ¶ 4; Exs. to McMichael Decl., Ex. H.

Mr. McMichael submitted two additional FOIA requests on April 11, 2011, again on behalf of Navy Times. The first requested “access to and a copy of the U.S. Strategic Command Inspector General investigation into a complaint of an abusive command climate in the command's J4 from October 2008 to March 2010.” Exs. to McMichael Decl., Ex. I. The second FOIA request asked for:

access to and a copy of the record of payment or payments made to an unknown private firm for the transcription of interviews made during a U.S. Strategic Command Inspector General investigation into a complaint of an abusive command climate in the command's J4 from October 2008 to March 2010. Such expenditures are not classified and are a matter of public record. Please include all relevant information including the amount or amounts of such payments; the dates the payments were made; the specific reason for each payment, such as the number of hours of transcription each payment covered; and for what specific purpose the [sic] were made.

Id., Ex. J. Vice Admiral Haney denied these requests with Glomar responses, by separate letters issued on May 23, 2011. Id., Exs. K & L. Mr. McMichael appealed on May 24, 2011, and Deputy Director Brazis affirmed Vice Admiral Haney's determination by individual letters dated July 12, 2011. Id., Exs. M & N; DOD Facts ¶¶ 7–8. Mr. McMichael filed suit on November 29, 2011. See Compl. [Dkt. 1].

While admitting these facts, Mr. McMichael adds the following additional background information, which is uncontested. A number of USSTRATCOM employees knew that the IG conducted an investigation into allegations of an abusive environment in the J4 command under Captain Power. See McMichael Decl. ¶¶ 2–9; Exs. to McMichael Decl., Exs. A–E. A USSTRATCOM employee reported that the investigation generated over 1,000 pages of testimony and more than $6,000 in transcription fees. See Exs. to McMichael Decl., Exs. A & B. That same employee provided Navy Times with a copy of a formal complaint sent to USSTRATCOM. See id., Ex. C. A different USSTRATCOM employee informed Mr. McMichael that the investigation included an estimated 30 witnesses and lasted more than eight months but closed with no action taken. See McMichael Decl. ¶ 5. Still two additional employees of USSTRATCOM confirmed that a formal investigation occurred and that the nature and existence of the investigation were well known within the command. See id. ¶¶ 8–9. After completing his tour as J4 Director at USSTRATCOM, Captain Power became the Commanding Officer at the United States Naval Supply Systems Command's Fleet Logistics Center Puget Sound. See Exs. to McMichael Decl., Ex. S. As a reporter, Mr. McMichael previously has used FOIA to receive redacted reports into alleged misconduct by high-ranking Navy personnel. See, e.g., id., Ex. O.

II. LEGAL STANDARDS

A. Motion to Dismiss

A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face. Fed.R.Civ.P. 12(b)(6). A complaint must be sufficient to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks and citation omitted). Although a complaint does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is “plausible on its face.” Id. at 570, 127 S.Ct. 1955.

A court must treat the complaint's factual allegations as true, “even if doubtful in fact.” Id. at 555, 127 S.Ct. 1955. But a court need not accept as true legal conclusions set forth in a complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits or incorporated by reference, and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C.Cir.2007).

B. Motion for Summary Judgment

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when “the movant 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. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Moreover, summary judgment is properly granted against a party who “after adequate time for discovery and upon motion ... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than “[t]he mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505.

FOIA cases are typically and appropriately decided on motions for summary judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir.1993); Rushford v. Civiletti, 485 F.Supp. 477, 481 n. 13 (D.D.C.1980). In a FOIA case, the Court may award summary judgment solely on the basis of information provided by the department or agency in affidavits or declarations when the affidavits or declarations describe “the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981); see also Vaughn v. Rosen, 484 F.2d 820, 826–28 (D.C.Cir.1973). An agency must demonstrate that “each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt from the Act's inspection requirements.” Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir.1978) (internal quotation mark and citation omitted).

III. ANALYSIS

FOIA requires public disclosure of government records, subject to nine listed exceptions. See5 U.S.C. § 552(b); Wolf v. CIA, 473 F.3d 370, 374 (D.C.Cir.2007). USSTRATCOM answered each of Mr. McMichael's three FOIA requests with a Glomar response, neither admitting nor denying the existence of responsive records regarding an IG investigation into Captain Power, an IG investigation of the same allegations against an unspecified person, and records of payment for transcription of related investigative interviews. A Glomar response is appropriate when “to answer the FOIA inquiry would cause harm cognizable under a[ ] FOIA exception—in other words, in cases in which the existence or nonexistence of a record is a fact exempt from disclosure under a FOIA exception.” Int'l Counsel Bureau v. CIA, 774 F.Supp.2d 262, 266 (D.D.C.2011) (alteration in original) (internal quotation mark and citation omitted); see also Wolf, 473 F.3d at 374. In invoking its Glomar response, USSTRATCOM relied on FOIA Exemption 7(C), which allows an agency to withhold from disclosure information “compiled for law enforcement purposes” that ...