UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) JENNIFER GRAY, ) ) Plaintiff, ) ) v. ) Civ. Action No. 09-1310 (EGS) ) UNITED STATES ARMY CRIMINAL ) INVESTIGATION COMMAND, et al. ) ) Defendants. ) )

MEMORANDUM OPINION

Pending before the Court in this Freedom of Information Act

case is defendants’ motion for summary judgment. Upon

consideration of the motion, the response and reply thereto, the

applicable law, the entire record, and for the reasons set forth

below, the defendants’ motion for summary judgment is DENIED.

The Court orders defendants to supplement their responses to

plaintiff’s request as described below.

I. BACKGROUND

According to the allegations of the Complaint, plaintiff was

briefly employed by the U.S. Army as the Public Affairs Officer

for the Arlington National Cemetery (“ANC”). While plaintiff

was employed there, one or more of her supervisors accessed her

e-mail account without her consent. After plaintiff was

terminated, she filed a formal complaint on October 14, 2008 with

the U.S. Army Criminal Investigation Command (“CID”) regarding

the unauthorized access to her e-mail account. Am. Compl. ¶ 12. The CID investigation concluded that an unknown person committed

the offense of Unauthorized Access to a U.S. Government Computer

and Wire Fraud when he/she accessed plaintiff's ANC e-mail

account and sent a reply from her e-mail account purporting to be

from plaintiff. Pl.'s Opp'n Ex. 1. In addition, the

investigation concluded that one particular supervisor (Thurman

Higginbotham, the Assistant Superintendant of ANC) made false and

misleading statements to federal agents. Pl.'s Opp'n Ex. 1.

Beginning in May of 2009, plaintiff made three FOIA requests

in an attempt to gather additional information regarding the CID

investigation. These requests were each denied in its entirety

on the basis of the exemption contained in

(b)(7)(A) (“Exemption 7(A)”); the exemption contained in

(b)(7)(C) (“Exemption 7(C)”); and the exemption

contained in

(b)(6) (“Exemption 6").

Plaintiff filed suit in this Court on July 15, 2009 seeking

an order directing defendants to disclose the requested records

in their entirety and make electronic copies promptly available

to her, as well as reasonable costs and attorneys’ fees. In

addition she asks that the Court make a written finding pursuant

to § 552(a)(4)(F) that “the circumstances surrounding the

withholding raise questions whether agency personnel acted

arbitrarily or capriciously with respect to the withholding,” and

that the Court “refer this matter to the Office of the Special

2 Counsel for a proceeding to determine whether disciplinary action

is warranted against the appropriate officer or employee who was

primarily responsible for the withholding.” Am. Compl. at 11.

On November 24, 2009, defendants filed their motion for summary

judgment, relying on the same exemptions identified in their

earlier response to plaintiff’s request. The motion is now ripe

for review by the Court.

II. STANDARD OF REVIEW

The Court may grant a motion for summary judgment if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with affidavits or declarations,

show that there is no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(c). The moving party bears the burden of

demonstrating the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett,

(1986). Factual

assertions in the moving party’s affidavits or declarations may

be accepted as true unless the opposing party submits his own

affidavits or declarations or documentary evidence to the

contrary. Neal v. Kelly,

(D.C. Cir. 1992).

In a FOIA case, the Court may grant summary judgment based

on the information provided by the agency in affidavits or

declarations when the affidavits or declarations describe “the

documents and the justifications for nondisclosure with

3 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,

(D.C. Cir. 1981); see also SafeCard Services,

Inc. v. SEC,

(D.C. Cir. 1991) (agency

affidavits must be “relatively detailed and non-conclusory”).

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 Services, Inc.,

(D.C. Cir.

1991) (quoting Ground Saucer Watch, Inc. v. Central Intelligence

Agency,

(D.C. Cir. 1981)).

III. ANALYSIS

For the reasons discussed more fully below, the Court

concludes that the affidavits submitted by defendants fail to

provide adequate support for any of the claimed exemptions, and

therefore fail to support their motion for summary judgment.

Accordingly, defendants’ motion for summary judgment is DENIED.

A. FOIA

Congress enacted FOIA to “open up the workings of government

to public scrutiny through the disclosure of government records.”

Stern v. FBI,

(D.C. Cir. 1984)(quotation

omitted). Although FOIA is aimed toward “open[ness] . . . of

4 government,”

Congress acknowledged that “legitimate

governmental and private interests could be harmed by release of

certain types of information.” Critical Mass Energy Project v.

Nuclear Regulatory Comm’n,

(D.C. Cir. 1992)

(citations and quotations omitted). As such, pursuant to FOIA’s

nine exemptions, an agency may withhold requested information.

(a)(4)(B);

(b)(1)-(9). However,

“[b]ecause FOIA establishes a strong presumption in favor of

disclosure, requested material must be disclosed unless it falls

squarely within one of the nine exemptions carved out in the

Act.” Burka v. U.S. Dep’t of Health and Human Servs.,

(D.C. Cir. 1996) (citations omitted).

B. Exemption 7(A)

In their motion for summary judgment, defendants primarily

rely on Exemption 7(A) as the basis for withholding the requested

materials. Exemption 7(A) permits an agency to withhold “records

or information compiled for law enforcement purposes, but only to

the extent that the production of such law enforcement records or

information . . . could reasonably be expected to interfere with

enforcement proceedings.”

(b)(7)(A). In analyzing

whether documents were properly withheld under Exemption 7(A),

the courts of this Circuit have held that “an agency must show

that they were compiled for law enforcement purposes and that

their disclosure (1) could reasonably be expected to interfere

5 with (2) enforcement proceedings that are (3) pending or

reasonably anticipated.” Mapother v. Dep’t of Justice,

(D.C. Cir. 1993); see also Kay v. FCC,

(D.D.C. 1997) (“The applicability of Exemption 7(A)

involves a two-step analysis: (1) whether a law enforcement

proceeding is pending or prospective; and (2) whether release of

information about it could reasonably be expected to cause some

articulable harm.”)

Plaintiff opposes the application of Exemption 7(A), arguing

that an allegedly pending administrative disciplinary action is

not a law enforcement proceeding within the meaning of the

exemption, that defendants have failed to show that the

administrative disciplinary action is in fact pending, and that

defendants have failed to demonstrate that the disclosure of

these records would interfere with any enforcement proceeding.

As is explained below, the Court concludes that although

defendants have adequately demonstrated that there is a pending

administrative proceeding and that such a proceeding does qualify

as a law enforcement proceeding within the meaning of Exemption

7(A), the defendants have failed to provide sufficient support

for their assertion that the release of the requested records

would interfere with a pending proceeding. Each argument is

discussed in turn.

6 i. The Application of Exemption 7(A) to an Administrative Disciplinary Proceeding

Plaintiff contests the applicability of Exemption 7(A) on

the grounds that defendants have, at most, alleged a “pending

administrative and/or disciplinary action,” rather than a pending

law enforcement proceeding. Pl.’s Opp’n at 9. Plaintiff

concedes that she “does not dispute that the record(s) in

question, to the degree they have thus far been identified, were

initially created for a law enforcement purpose and therefore are

potentially subject to Exemption 7 protection.” Pl.’s Opp’n at 8

n.3. However, with respect to Exemption 7(A) in particular,

plaintiff accuses defendants of “trying to bootstrap the

existence of an alleged ‘administrative and/or disciplinary

action’ into the gambit of a law enforcement proceeding.” Pl.’s

Opp’n at 9.

The Court disagrees and concludes that records compiled for

a pending administrative disciplinary action may fall within

Exemption 7(A). As plaintiff herself notes, courts have applied

Exemption 7(A) to various types of proceedings. See Tax Analysts

v. IRS,

(D.C. Cir. 2002) (“‘law enforcement purposes’

under Exemption 7 includes both civil and criminal matters within

its scope. . . . FOIA makes no distinction between agencies

whose principal function is criminal law enforcement and agencies

with both law enforcement and administrative functions.”) (citing

Pratt v. Webster,

(D.C. Cir. 1982)); Rural

7 Housing Alliance v. U.S. Dep’t of Agriculture,

(D.C. Cir. 1974) (“the law enforcement purposes protected by

exemption 7 include both civil and criminal purposes”); Judicial

Watch, Inc. v. Rossotti,

(D.D.C. 2003)

(“The documents in question relate to an on-going civil

investigation by IRS and are exempt under Exemption 7(A).”) Nor,

contrary to plaintiff’s assertions, will this Court be the first

District Court to conclude that Exemption 7(A) applies to a

pending administrative disciplinary proceeding. See Envtl. Prot.

Servs. v. EPA,

(N.D. W. Va. 2005) (“[T]he

documents withheld by the EPA pursuant to Exemption 7(A) were

compiled for law enforcement purposes. . . . The disclosure of

these withheld documents would prematurely reveal the EPA’s case

against the plaintiff in the administrative proceeding that is

currently pending.”)

Accordingly, the Court finds that defendants have provided

sufficient evidence of a law enforcement proceeding within the

meaning of Exemption 7(A).

ii. Whether the Enforcement Proceeding is Pending or Reasonably Anticipated

Plaintiff next argues that the pending disciplinary

proceeding asserted by defendants is, at most, hypothetical.

Pl.’s Opp’n at 10. In particular, plaintiff claims that the

investigation into the unauthorized access of her email is over

and the U.S. Attorney’s Office has already declined to prosecute.

8 In support of her claims, she points to a two-page document

titled “CID Report of Investigation.” Pl.’s Opp’n Ex. 1. The

document provides a brief “investigative summary” stating that an

unknown person did access plaintiff’s email account but

ultimately concluding with the statement that “Mr. Jay Prabhu,

Assistant United States Attorney (AUSA), Eastern District of

Virginia, Alexandria, VA, declined prosecution of this

investigation.” Pl.’s Opp’n Ex. 1.

In support of their contention that a disciplinary action is

nonetheless pending, defendants submitted the declaration of

William Koon, the “Attorney-Advisor and Labor Counselor for

Commander of Joint Force Headquarters - National Capitol Region

and the Military District of Washington,” who “advises the

Commander . . . concerning issues with civilian employees.”

Declaration of William Koon (“Koon Decl.”) ¶ 1. Mr. Koon states

that “[t]he Commanding General is awaiting completion of two

other investigations into the conduct of some of the same

officials at Arlington National Cemetery before making a

determination as to whether disciplinary action against the

officials is proper.” Koon Decl. ¶ 3.

Plaintiff correctly asserts that Exemption 7(A) is only

applicable to a law enforcement proceeding that is “pending or

reasonably anticipated.” Mapother,

. However, the

CID Report of Investigation cited by plaintiff merely states that

9 the U.S. Attorney’s Office has declined prosecution. It does not

contradict the assertion by Mr. Koon that the U.S. Army is still

considering whether to take disciplinary action against the

subjects of the investigation. Koon Decl. ¶ 3. Although the

explanation provided by Mr. Koon is brief, it is “reasonably

detailed and non-conclusory.” SafeCard Services, Inc.,

. The Court concludes that defendants have satisfied

their burden of showing that the proceeding is pending or at

least reasonably anticipated.

iii. Whether the Disclosure Would Interfere with the Enforcement Proceeding

An agency invoking Exemption 7(A) must show that the

disclosure of the requested materials “could reasonably be

expected to interfere with enforcement proceedings.”

(b)(7)(A). Here, defendants fail to meet their burden.

This Circuit has held that an agency invoking Exemption 7(A)

“must show, by more than [a] conclusory statement, how the

particular kinds of investigatory records requested would

interfere with a pending enforcement proceeding.” Campbell v.

Dep’t of Health and Human Servs.,

(D.C. Cir.

1982). Although the agency is not required to submit a

“document-by-document” response to plaintiff’s FOIA request, the

submissions must at least “focus upon categories of records

encompassed by [plaintiff’s] request.”

. In

particular, the agency affidavits or declarations “must

10 demonstrate specifically how each document or category of

documents, if disclosed, would interfere with the investigation,

for example, how revelation of any particular record or record

category identified as responsive to [plaintiff’s] request would

reveal to particular targets actual or potential, the scope,

direction, or focus of the [agency’s] inquiry.” Id.; see also

Crooker v. Bureau of Alcohol, Tobacco & Firearms,

(D.C. Cir. 1986); Bevis v. Dep’t of State,

(D.C. Cir. 1986).

In support of their claim that disclosure of the report of

investigation would “interfere with enforcement proceedings,”

defendants rely on the following statements in the declaration of

Mr. Koon:

Releasing the report of investigation prior to a determination concerning administrative and/or disciplinary action would violate the privacy rights of the subjects of the investigation; reveal the scope, direction and limits of the investigation prematurely; reveal the identity of cooperating witnesses and/or informants; reveal physical or testimonial evidence; reveal the strengths and weaknesses in the case and reveal transactions being investigated. This information is key to enforcing any potential disciplinary action.

Releasing the report prior to any potential disciplinary action could result in destruction of evidence or intimidation of witnesses, which would make any disciplinary action more difficult, if not impossible, to take effectively.

Koon Decl. ¶¶ 4-5. However, these conclusory, boilerplate

statements, without reference to specific documents or even

11 categories of documents, fail to support the agency’s motion for

summary judgment on the basis of Exemption 7(A). The statements

by Mr. Koon appear designed to cover every scenario in which a

plaintiff seeks the disclosure of records related to a law

enforcement proceeding. The contention by Mr. Koon that the

disclosure of these records would “reveal the identity of

cooperating witnesses and/or informants” is particularly telling

- the agency has not bothered to determine what harm would result

if these particular records were released.

Accordingly, despite the Court’s conclusion that the

affidavit of Mr. Koon is sufficient to demonstrate that a pending

or reasonably anticipated administrative disciplinary proceeding

exists, the defendants ultimately fail to provide sufficient

support for their invocation of Exemption 7(A).

iv. Segregable Material

The defendants have also failed to satisfy their burden of

demonstrating that there is no reasonably segregable material.

An agency claiming an exemption is required to provide “any

reasonably segregable portion of a record . . . after deletion of

the portions which are exempt[.]”

(b); see also

Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force,

(D.C. Cir. 1977) (“an agency cannot justify withholding

an entire document simply by showing that it contains some exempt

material. It has long been a rule in this Circuit that non-exempt

12 portions of a document must be disclosed unless they are

inextricably intertwined with exempt portions.”)

An agency asserting that there is no segregable information

in a document “must provide a more detailed justification

than . . . conclusory statements.”

; see also

Krikorian v. Dep’t of State,

(D.C. Cir. 1993)

(holding that the Vaughn index and the affidavits provided by an

agency “must supply ‘a relatively detailed justification,

specifically identifying the reasons why a particular exemption

is relevant and correlating those claims with the particular part

of a withheld document to which they apply.’”) (quoting Schiller

v. NLRB,

(D.C. Cir. 1992)).

Defendants have provided a Vaughn Index containing a list of

the withheld documents. Defs.’ Mot. Summ. J., Ex. A Declaration

of Phillip J. McGuire (“McGuire Decl.”) Tab 13. Although the

Index provides some identifying information, giving labels to the

documents such as “crime scene sketch” or an “agent’s

investigation report”, it contains little else. McGuire Decl.

Tab 13. Every single one of the roughly 40 documents in the

index is accompanied by a statement that the document is withheld

“in its entirety under Exemptions (b)(6); (b)(7)(A) and

(b)(7)(C)[.]” McGuire Decl. Tab 13. Defendants argue that

“[a]ll records were compiled in the course of an ongoing

investigation and disciplinary action. Therefore none of the

13 materials were segregable.” Defs.’ Mem. at 12-13.

Defendants’ blanket assertion of non-segregability is

contrary to the case law requiring that defendants indicate for

each document “which portions of the document are disclosable and

which are allegedly exempt.” Defenders of Wildlife v. U.S.

Border Patrol,

(D.D.C. 2009) (quoting

Wilderness Soc’y v. Dep’t of Interior,

(D.D.C. 2004). Accordingly, the Court concludes that defendants

have failed to establish that there are no segregable portions of

the withheld documents.

C. Whether Exemption 6 or Exemption 7(C) Apply in the Alternative

Having concluded that defendants failed to provide

sufficient evidence for the application of Exemption 7(A), the

Court now turns to the two other exemptions relied upon by

defendants. Exemption 6 provides that an agency may withhold

“personnel and medical files and similar files the disclosure of

which would constitute a clearly unwarranted invasion of personal

privacy.”

(b)(6). Exemption 7(C) also guards the

privacy interests of individuals, providing that an agency may

withhold “records or information compiled for law enforcement

purposes . . . to the extent that the production of such law

enforcement records or information . . . could reasonably be

expected to constitute an unwarranted invasion of personal

privacy.”

(b)(7)(C).

14 With respect to both Exemptions 6 and 7(C), the Court is

unable to evaluate whether either exemption was properly applied

in light of defendants’ statement in their reply brief that they

“did not assert that Exemptions 6 and 7(C) justify withholding

the Report of Investigation in its entirety.” Defs.’ Reply at 6.

Defendants have, however, indeed withheld the entire

investigatory file. Defendants claim that “once enforcement

proceedings are complete, and Exemption 7(A) no longer applies,

some information would still be protected under Exemptions 6 and

7(A).” In light of the failure by defendants to sufficiently

demonstrate non-segregability, and in light of the defendants’

own assertion that it is not relying on these exemptions for the

withholding of the entire file, the Court concludes that these

exemptions cannot be properly applied at this time.

IV. CONCLUSION

For the foregoing reasons, it is hereby ordered that

defendants’ motion for summary judgment is DENIED. An

appropriate Order accompanies this Memorandum Opinion.

SIGNED: Emmet G. Sullivan United States District Court Judge September 30, 2010

15