Scarlett v. Office of Inspector Gen.

• Decision Date: 29 March 2023
• Docket Number: Civil Action 21-819 (RDM)
• Parties: CAROL SCARLETT, Plaintiff, v. OFFICE OF INSPECTOR GENERAL, Defendant.
• Court: U.S. District Court — District of Columbia

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CAROL SCARLETT, Plaintiff, v. OFFICE OF INSPECTOR GENERAL, Defendant.

Civil Action No. 21-819 (RDM)

United States District Court, District of Columbia

March 29, 2023

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE

Plaintiff Carol Scarlett brings this action against Defendant the Office of Inspector General (the “OIG”) of the National Science Foundation (the “NSF”), alleging that Defendant has not complied with its obligations under the Freedom of Information Act (“FOIA”), 5 U.S.C § 552, to disclose a complaint filed against her or her company, Axion Technologies, in or around April 2018. Dkt. 1. Before the Court are the parties' cross-motions for summary judgment, and an amended motion for summary judgment belatedly filed by Plaintiff. Dkt. 28; Dkt. 35; Dkt. 43. For the reasons set forth below, the Court will GRANT in part and DENY in part without prejudice Defendant's motion for summary judgment, Dkt. 28, and will DENY without prejudice Plaintiff's motion for summary judgment, Dkt 35, and her amended motion for summary judgment, Dkt. 43.

I. BACKGROUND

Pursuant to Local Civil Rule 7(h)(1) and this Court's Standing Order, Dkt. 3, the OIG's motion includes a statement of material facts as to which the agency contends there is no genuine dispute. See Dkt. 28-2 (Statement of Undisputed Material Facts (or “SUMF”)); see also Dkt. 3 at 4 (Standing Order) (“[E]ach motion for summary judgment . . . shall include a statement of facts with references to the administrative record.”). After Defendant filed its motion, the Court advised Plaintiff that “under Local Rule 7(h), your opposition must ‘be accompanied by a separate concise statement of genuine issues' that responds to Defendant's ‘statement of material facts as to which there is no genuine dispute.'” Dkt. 29 at 2 (Fox/Neal Order); see also Dkt. 3 at 5 (Standing Order) (“The party opposing the motion must, in turn, submit a statement enumerating all material facts which the party contends are genuinely disputed and thus require trial.”). Plaintiff has not complied with that requirement; although she included a section labeled “[r]esponse to [f]acts” in her opposition to Defendant's motion, that section includes, principally, legal analysis, and, more importantly, it does not rebut Defendant's factual assertions. Dkt. 32 at 4. The Court will, accordingly, treat Defendant's statement of material facts as admitted for purposes of recounting the factual background of Plaintiff's FOIA request. See Local Civ. R. 7(h)(1) (“In determining a motion for summary judgment, the Court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.”); see also Fed.R.Civ.P. 56(e) (indicating that a court can “consider [a] fact undisputed for purposes of the motion” where “a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact”).

On June 25, 2020, Plaintiff submitted a FOIA request by email to the NSF's OIG, requesting “copies of the complaint(s) filed in or around April of 2018 against Axion Technologies LLC or . . . [Principal Investigator (“PI”)] Dr. Carol Scarlett.” Dkt. 28-2 at 1 (SUMF ¶ 1); see Dkt. 28-4 at 11 (Def.'s Ex. 1) (June 25, 2020 Email). (On Plaintiff's telling, she was seeking information about why she and her small business, Axion Technologies, LLC, “were denied a SBIR Phase II grant” from the NSF in April 2018. Dkt. 1 at 2-3 (Compl. ¶¶ 9-10, 12)). The OIG FOIA office failed to respond to that original email, and Plaintiff followed up on August 10, 2020 with the same request, again in an email. Dkt. 28-2 at 1 (SUMF ¶ 2); see Dkt. 28-4 at 10 (Def.'s Ex. 1) (Aug. 10, 2020 Email). Defendant responded on August 11, 2020, requesting “clarif[ication]” on the meaning of “complaint” and explaining that “OIGs do not file civil or criminal complaints” and that, instead, the “NSF (the agency proper) files [suspension or debarment] actions.” Dkt. 28-4 at 9 (Def.'s Ex. 1). “If the word ‘complaint' refers to OIG Hotline complaints,” the agency wrote, “then please specify as much.” Id. The OIG further explained: “Once you have clarified your meaning, [the] OIG can either commence a search for responsive OIG records, or assist you in directing your focus to the appropriate entity.” Id. But because “[Plaintiff's] request [was] not yet sufficiently clear,” the agency concluded that the “statutory ‘clock' for processing the request” had not yet begun. Id.

After a series of emails between Plaintiff and the OIG-in which Plaintiff clarified that she was seeking “records related to information presented to the ‘OIG Hotline' or that may have been presented to a specific investigator at [the] OIG,” id. at 8-the agency concluded on August 14, 2020 that Plaintiff had perfected her request and that she was seeking “copies of records filed with the OIG during the period from April 1 to August 31st of 2018 against either Axion Technologies LLC or PI Dr. Carol Scarlett,” id. at 2. The OIG then identified one responsive record (totaling four pages in length), Dkt. 28-2 at 3 (SUMF ¶ 12), which apparently “relate[d] to an open OIG investigation” and which was “maintained in the Privacy Act system of records entitled . . . Office of Inspector General Investigative Files.” Dkt. 28-5 at 2 (Def.'s Ex. 2). The record “consists of e-mail correspondence between [an] OIG complainant and the OIG Office of Investigations, as well as an internal OIG exchange between Office of Investigations' employees.” Dkt. 28-2 at 3 (SUMF ¶ 12).

After review, the agency concluded that the record was “totally exempt from the access provision of the Privacy Act . . . pursuant to 5 U.S.C. § 552a(j)(2), (k)(2).” Dkt. 28-5 at 2 (Def.'s Ex. 2). But the OIG also “processed [the record] under the FOIA to ensure the greatest possibility of access,” id.; see also Dkt. 28-2 at 4 (SUMF ¶¶ 14-15), and, pursuant to the FOIA processing, disclosed one page of the document in part, with redactions, and withheld the remaining pages in full. Dkt. 28-5 at 2 (Def.'s Ex. 2). In support of these withholdings, the OIG invoked FOIA Exemptions 6, 7(A), and 7(C). Id. Plaintiff timely filed an administrative appeal, Dkt. 28-6 at 2 (Def.'s Ex. 3); Dkt. 28-2 at 2 (SUMF ¶ 5), and the Deputy General Counsel to the NSF OIG affirmed the OIG's decision on appeal, Dkt. 28-7 at 2-3 (Def.'s Ex. 4). The OIG subsequently reaffirmed its decision on reconsideration. Dkt. 28-10 at 2 (Def.'s Ex. 7).

Plaintiff filed this suit on March 23, 2021, alleging that the OIG “is unlawfully withholding records . . . requested by Plaintiff.” Dkt. 1 at 5 (Compl. ¶ 26). The OIG, in turn, has moved for summary judgment, arguing that its withholdings and redactions are proper under both FOIA and the Privacy Act and that it conducted an adequate search of potentially responsive records. Dkt. 28. Plaintiff opposes that motion and has cross-moved for summary judgment. Dkt. 35. She has also filed a supplementary “amended” motion for summary judgment, Dkt. 43, and, more recently, has filed a motion “to add details”-specifically that, according to Plaintiff, the NSF's Office of Diversity and Inclusion tried to “suppress” her claim that she was denied an NSF grant in a discriminatory fashion, Dkt. 50 at 2.

II. LEGAL STANDARD

FOIA cases are typically resolved on motions for summary judgment under Federal Rule of Civil Procedure 56. Beltranena v. U.S. Dep't of State, 821 F.Supp.2d 167, 175 (D.D.C. 2011). To prevail on a summary judgment motion, the moving party must demonstrate that there are no genuine issues of material fact and that she is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). A fact is “material” if it is capable of affecting the outcome of a dispute, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and a dispute is “genuine” if the evidence is such that a reasonable factfinder could find in favor of the nonmoving party, Scott v. Harris, 550 U.S. 372, 380 (2007). For a FOIA case in particular, summary judgment may be granted on the basis of agency affidavits if 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.” Elec. Frontier Found. v. U.S. Dep't of Just., 739 F.3d 1, 7 (D.C. Cir. 2014) (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)).

Congress enacted FOIA “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Bartko v. Dep't of Just., 898 F.3d 51, 61 (D.C. Cir. 2018) (internal quotation marks omitted). The Act is premised on the notion that “an informed citizenry [is] vital to the functioning of a democratic society [and] needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 242 (1978). Although FOIA “does not pursue transparency at all costs,” it “protects the basic right of the public to be informed about what their government is up to,” Hall & Assocs. v. Env'l Prot. Agency, 956 F.3d 621, 624 (D.C. Cir. 2020) (internal quotation marks omitted), and embraces “a general philosophy of full agency disclosure,” U.S. Dep't of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 494 (1994) (internal quotation marks omitted). In recognition that “legitimate governmental and private interests could be harmed by release of certain types of information,” however, AquAlliance v. U.S. Bureau of Reclamation, 856...