Naumes v. Dep't of the Army
| Docket Number | Civil Action No. 21-1670 (JEB) |
| Decision Date | 28 February 2022 |
| Citation | 588 F.Supp.3d 23 |
| Parties | Sarah Katherine NAUMES, Plaintiff, v. DEPARTMENT OF THE ARMY, Defendant. |
| Court | U.S. District Court — District of Columbia |
C. Peter Sorenson, Sorenson Law Office, Eugene, OR, for Plaintiff.
Jessica B. Colsia, John Haberland, DOJ-USAO, Civil Division, Washington, DC, for Defendant.
Students embarking on a PhD brace themselves for years of study and research; few, however, anticipate contending with a multi-year Freedom of Information Act saga. But that is precisely what Plaintiff Sarah Naumes has encountered. Naumes sought copies of a survey that the Army routinely administers to assess the physical and psychological well-being of civilian employees, soldiers, and their families, as well as other documents associated with the survey's administration. After vainly waiting several years to receive her requested records from Defendant Department of the Army, she filed this suit to compel their production. In response, the Army turned over some of the documents sought, but withheld a number of the survey questions on the basis that they came from copyrighted sources. It then moved for summary judgment, contending that it had adequately searched for records, relied on the appropriate exemption, and identified foreseeable harm. Disagreeing, Plaintiff cross-moved for summary judgment, asserting that the Army had failed on each of those fronts and should also be penalized for its unreasonable delay in producing records. This Opinion offers something of a FOIA basic training, as it presents a number of issues that commonly arise under the statute. Like a company of cadets that finishes the course with mixed results, the Court grants the Motions in part and denies them in part.
Because the Court ultimately focuses on Defendant's Motion for Summary Judgment, it will construe the facts in the light most favorable to Plaintiff. See Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011). Naumes is a PhD student in the Department of Politics at York University in Toronto and an Academic Coordinator with the University of California, Merced. See ECF No. 10-1 (Declaration of Sarah Katherine Naumes), ¶ 2. She submitted a FOIA request to the Army through the Defense Freedom of Information Division on February 28, 2019, seeking three categories of documents. See ECF Nos. 7-1 (Def. Stmt. of Material Facts), ¶ 1; 10-19 (Pl. Stmt. of Material Facts), ¶ 1. These were:
ECF No. 1-5 (FOIA Request Letter) at 2; Def. SMF, ¶ 3.
The Global Assessment Tool is an online survey hosted on Defendant's ArmyFit portal "that combines objective health and fitness metrics ... with survey-based questions" and provides the user with "a variety of scores and metrics" for "personalized self-development training in a variety of formats." Naumes Decl., ¶ 3 (quoting AR 350-53). Naumes planned to use these documents for her dissertation research and not for any commercial purpose. See FOIA Request Letter at 2. In the months following submission of her request, Plaintiff inquired numerous times into its status. See Naumes Decl., ¶¶ 17–19. The Court will not belabor every detail here and instead highlights only the most relevant events. On May 28, 2019, she received a letter from Defendant acknowledging receipt of her request and stating that it was assigned the case number: # FA 19-0568/FP 19-013777. Id., ¶ 20; see also ECF No. 10-8 (Exh. 107) at 2. Plaintiff heard nothing further in the ensuing months until, in response to her outreach, she received a call on December 4, 2019, from a new FOIA officer, who stated that the delay had resulted from the FOIA officer position sitting empty for a period. She then resubmitted the May letter and her original request and received a "FINAL response" on December 11, 2019, which contained a different tracking number # FA-20-0007. See Naumes Decl., ¶¶ 23, 27; Def. SMF ¶ 6; ECF No. 10-9 (Exh. 108) at 2. This response revealed some confusion over the status of Naumes's case since the Army stated that it had received her request on December 4, 2019, even though it had in fact been filed earlier. In a call shortly thereafter, Defendant informed Plaintiff that she would receive a response to her request by January 10, 2020. See Exh. 108 at 2; Naumes Decl., ¶ 28. Readers who have followed the tale thus far will be unsurprised to learn that Naumes did not in fact receive her documents by that date but instead received an indication a month later that her request was in process. Another ten months passed and eventually on December 9, 2020, she was told by the officer assigned to her request, "I thought this was closed and sent to you." Naumes Decl., ¶ 35. If only. Thereafter, Naumes continued to follow up to receive an estimated completion date for the production but did not receive any documents. Id., ¶¶ 36–49.
Having waited fruitlessly for two-and-a-half years to receive her requested documents, Plaintiff filed this suit on June 22, 2021. See ECF No. 1 (Compl.). Finally spurred to action, on August 6, 2021, the Army released a first set of documents to Naumes. See Def. SMF, ¶¶ 12–13; ECF No. 10-16 (Exh. 115) at 2. This response addressed the first two categories of requested documents — the GAT survey questions and informed-consent forms — and told Naumes that 773 of the questions on the GAT would be released, but 534 would be withheld under FOIA Exemption 4, which protects privileged and confidential commercial information. See Exh. 115 at 2; ECF No. 7-3 (Declaration of Kathleen Vaughn-Burford), ¶ 8. All informed-consent forms were produced since those forms are included with the surveys themselves. See Vaughn-Burford Decl., ¶ 5. Another set of records responsive to the third category of Naumes's request — the list of recommendations from ArmyFit — was produced on October 23, 2021. See ECF No. 9-5 (Exh. 104) at 2. These records were described as "sample[s]" of the recommendations and presented in a "file [that] included five pages, each containing a single screenshot of information, derived from [the] ArmyFit" portal. See Naumes Decl., ¶ 54; Vaughn-Burford Decl., ¶ 10. Such recommendations relate to advice on how individuals can improve their mental and physical wellness — e.g., through practicing mindfulness, calmly working out problems with their families, maintain coping skills, and more. See Exh. 104.
Summary judgment must be granted if "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) ; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is "material" if it can affect the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505 ; Holcomb, 433 F.3d at 895. A dispute is "genuine" "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505 ; see also Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; Holcomb, 433 F.3d at 895. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion" by "citing to particular parts of materials in the record" or "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
"FOIA cases typically and appropriately are decided on motions for summary judgment." Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) ; Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case, a court may grant summary judgment based solely on information provided in an agency's affidavits or declarations when they "describe 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." Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citation 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." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation and internal quotation marks omitted). "Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter de novo.’ " Dep't of Just. v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (quoting 5 U.S.C. § 552(a)(4)(B) ). Summary judgment is only proper when the court is assured that the record justifies the result. See Ctr. For Investigative Reporting v. Customs & Border Prot., 436 F. Supp. 3d 90, 100 (D.D.C. 2019).
Under FOIA, "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in...
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