Stevens v. Broad. Bd. of Governors
| Decision Date | 09 March 2023 |
| Docket Number | 18-CV-5391 |
| Parties | JACQUELINE STEVENS, Plaintiff, v. BROADCASTING BOARD OF GOVERNORS, ET AL., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Plaintiff Jacqueline Stevens filed a lawsuit under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking to compel disclosure of records relating to various FOIA requests she submitted to a number of federal agencies. This Court previously addressed the adequacy of the agencies' searches in a prior summary judgment opinion, finding that some agencies did not conduct an adequate search or failed to explain their search processes. [72]. Defendants believe they have cured those deficiencies and thus now renew their motion for summary judgment, arguing that they have performed legally adequate searches and that they properly withheld information under certain FOIA exemptions. [84]. For the reasons explained below, this Court grants Defendants' motion.
Summary judgment is proper where “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 Celotex Corp. v Catrett, 477 U.S. 317, 322 (1986).
A genuine dispute as to any material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The substantive law controls which facts are material. Id. After a “properly supported motion for summary judgment is made, the adverse party ‘must set forth specific facts showing that there is a genuine issue for trial.'” Id. at 250 (quoting Fed.R.Civ.P. 56(e)).
The Court “consider[s] all of the evidence in the record in the light most favorable to the non-moving party, and [ ] draw[s] all reasonable inferences from that evidence in favor of the party opposing summary judgment.” Logan v City of Chicago, 4 F.4th 529, 536 (7th Cir. 2021) (quotation omitted). The Court “must refrain from making credibility determinations or weighing evidence.” Viamedia, Inc. v. Comcast Corp. 951 F.3d 429, 467 (7th Cir. 2020) (citing Anderson 477 U.S. at 255). In ruling on summary judgment, the Court gives the non-moving party “the benefit of reasonable inferences from the evidence, but not speculative inferences in [its] favor.” White v. City of Chicago, 829 F.3d 837, 841 (7th Cir. 2016) (internal citations omitted). “The controlling question is whether a reasonable trier of fact could find in favor of the non-moving party on the evidence submitted in support of and opposition to the motion for summary judgment.” Id.
This Court takes the following facts from Defendants' statement of facts (DSOF) [86], Plaintiff's response to Defendants' statement (PRSOF) [89-1]. This Court also reviewed Plaintiff's statement of additional facts [89-1], and Defendants' response to Plaintiff's statement [92], but did not find that they contained any material facts pertinent to the analysis. This Court presumes familiarity with, and incorporates by reference, its prior summary judgment ruling [72].
Plaintiff Jacqueline Stevens is a professor at Northwestern University. DSOF ¶ 3. Defendant Broadcasting Board of Governors (BBG) is a federal agency from which Plaintiff has sought information via FOIA. Id. ¶ 4. In 2018, BBG changed its name to U.S. Agency for Global Media (USAGM). Id. Defendant Department of Health and Human Services (HHS) is an executive branch department from which Stevens has sought information through FOIA. Id. ¶ 5. Defendants U.S. Citizenship and Immigration Services (USCIS), U.S. Geological Survey (USGS), U.S. Agency for International Development (USAID), and Immigration and Customs Enforcement (ICE) are also federal agencies from which Stevens has served FOIA requests. Id. ¶¶ 6-9.
Plaintiff submitted a FOIA request to USAGM in June 2016, seeking:
D3 Systems, Inc. contracts (including addenda) and work products associated with these contracts produced since January 1, 2003. This includes but is not limited to background information and work status updates shared with or received from D3 Systems, Inc. and its employees or subcontractors, email, system records, reports, draft reports, and notes.
Id. ¶ 10. According to James McLaren, Acting Deputy General Counsel of USAGM, the FOIA office sent Plaintiff's request to employees Carol Prahl and Bill Bell, and also to Cherlynn Peters of USAGM's Contracts Office. [86] at 20. The FOIA Office sent a total of 123 responsive pages to Plaintiff. Id. McLaren attests that, based on his knowledge of how USAGM retains contracts and conducts searches for FOIA requests, there is only one methodology the employees could have used: they searched for “D3 Systems” by vendor code within “Momentum,” a search database available to the Agency since 2010. Id. The same search conducted today, according to McLaren, yields all D3 Systems contract actions. Id.
Plaintiff timely appealed but did not contest the adequacy of the original searches conducted by the FOIA office. Id. at 21. On October 16, 2017, the agency's FOIA Access Appeal Committee granted Plaintiff's appeal, finding that the Contracts Office failed to search for all the background information and work status updates shared with and/or received from D3 Systems. Id. The Contracts Office completed a supplemental search on June 17, 2018, which produced 1,487 additional pages, of which USAGM withheld 1,195 pages under FOIA exemptions (b)(4), (b)(5), and (b)(6). Id.; DSOF ¶ 14. After this Court's 2021 summary judgment ruling, USAGM further searched its emails and found 65 pages that either mention D3 Systems, were shared with D3 Systems, or discuss internally any contract that D3 Systems was invited to bid on, even if D3 Systems were not ultimately awarded the contract. DSOF ¶ 15. McLaren used the following search parameters: “BBG59-C-10-0104,” “BBG50-P-15-0859,” “BBG50-P-16-0599,” “D3 Systems,” “Intermedia,” and matthew.warshaw@d3systems.com. USAGM produced 65 pages in July 2021. Id.
USAGM withheld 14 surveys under Exemption 4, and also withheld one of those surveys under Exemption 6. Id. ¶ 16. According to McLaren, the questions posed in a survey “are an important proprietary item,” and that if the surveys and methodology were published to the general public, that information “could be misused by foreign governments to thwart agency objectives” and “may distort the market.” [86] at 22-23.
USAGM also redacted portions of 65 pages of emails under Exemptions 4, 5, and 6. DSOF ¶ 19. Throughout the 65 pages, USAGM redacted phone numbers, names of subordinate agency personnel, and names and email addresses of individual third-party contractor personnel under Exemption 6. Id. ¶ 20. Additionally, USAGM redacted proprietary or confidential pricing data submitted by Gallup, a third-party entity, under Exemption 4. Id. ¶ 21.
Plaintiff submitted two FOIA requests to HHS in May 2018. Id. ¶ 24. The first request sought: (1) all material related to work requested of, performed by, or discussed with Professor David Senn or his representatives between January 1, 2016 and the date of production; and (2) all correspondence between HHS' refugee resettlement office and employees of ICE and CBP related to age assessments of individuals in the custody of HHS' refugee resettlement office or ICE. Id. The second request sought: (1) contracts and related materials produced or received by the refugee resettlement office related to age assessments of unaccompanied alien children by refugee resettlement office care provider Southwest Key; and (2) all invoices or other records maintained or submitted by Southwest Key documenting expenditures by HHS for conducting age assessments. Id. ¶ 25.
Celeste Smith, FOIA Director for HHS, provided a declaration in this matter. [86] at 50. In November 2018, she referred part 1 of Plaintiff's first FOIA request to the office of the Assistant Secretary for Public Affairs (ASPA). [86] at 50-51. ASPA concluded that no documents indicated that a contractual relationship existed between HHS and Professor David R. Senn during the time period listed in the FOIA request; thus, Smith determined no responsive documents would exist as correspondence with Professor Senn. Id. In explaining her process for making this determination, Smith states that she referred a portion of the request to ASPA and received a response from Garfield Daley, Government Information Specialist, who at the time, served as Acting FOIA Director at the HHS' Program Support Center (PSC) responsible for overseeing the operation of the PSC FOIA office. Id. at 51. Daley searched the PSC network drive for “David Senn,” “Senn,” and “Professor Senn” and found no responsive records to indicate that any contracts or correspondence existed relating to Professor Senn. Id. Daley advised Smith that no records existed for contracts with or work performed by Professor Senn for HHS. Id. Smith also contacted Mata Sebgoya, who works as a Policy Analyst in the Division of Policy and Procedures at the Office of Refugee Resettlement (ORR), who indicated that ORR did not have a contractual relationship with Professor Senn. Id.
To respond to part 2 of the first FOIA request, Smith explains that the HHS Information Technology (IT) group conducted a search to identify responsive emails from ORR's Federal Field Specialists. Id. at 51-52. The IT group searched emails for the following terms: “age assessment” or “age assessments”; “age” and “assess*” and “practice” or “protocol” or “policy.” Id. at 52.
In response to Plaintiff's...
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