UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) JACK A. SCHWANER, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-0476 (EGS) ) DEPARTMENT OF THE ARMY, ) ) Defendant. ) )

MEMORANDUM OPINION

This matter is before the Court on defendant’s motion to

dismiss or, in the alternative, for summary judgment. For the

reasons discussed below, the Court denies the former and grants

the latter.

I. BACKGROUND

In November 2008, plaintiff submitted a request under the

Freedom of Information Act (“FOIA”), see

, to the

Department of the Army (“the Army”), to the attention of the

Commander of Fort Eustis, an Army facility in Newport News,

Virginia. See Compl. at 1. He sought the following information:

(1) - List of all Ait Students in regular Army status. (2) - in Ranks of E-2 through E-4. (3) - Names of Ait Student personnel. (4) - Full Military addresses of Ait Student personnel, by Company if possible. (5)- This FOIA request pertains to Ait student personnel who are presently in a “non- deployable status[.]”

1

Ex. A (November 7, 2008 FOIA Request). The Army

acknowledged receipt of plaintiff’s request, and notified him

that it referred his request to the Initial Denial Authority for

a release determination.

Ex. B (December 19, 2008 letter

from N.K. Donnelly, Director, Information Management, Freedom of

Information Office, Fort Eustis, Virginia). The Commander,

United States Human Resources Command, “serves as the Initial

Denial Authority for all FOIA/Privacy Act requests relating to

active duty personnel records.” Mem. in Supp. of Def.’s Mot. to

Dismiss or, in the Alternative, Mot. for Summ. J. (“Def.’s

Mem.”), Decl. of Kathleen Vaughn-Burford (“Vaughn-Burford Decl.”)

¶ 2.

The Army denied plaintiff’s request in full, Vaughn-Burford

Decl. ¶¶ 8-11, and explained its rationale as follows:

At this time, lists of military personnel cannot be released. Recent guidance from the Department of Defense (DOD) has advised this Command to withhold from public release the names and other personal identifiers of active duty personnel. Increased security awareness demanded in times of national emergency concurrent with the heightened interest in the personal privacy of Army personnel has required that restrictions be imposed on the release of information. Therefore, the information requested is exempt from disclosure under Exemption 6 of the FOIA.

Attach. 3 (February 25, 2009 letter from C. Eldon Mullis,

Colonel, U.S. Army, Chief of Staff). Although “[t]he letter

informed plaintiff of his right to appeal and the method by which

2 he could do so,” plaintiff has not submitted an appeal either to

the Freedom of Information Office at Fort Eustis or to the Army’s

Office of General Counsel within the 60-day period allotted.1

Vaughn-Burford Decl. ¶ 12; see

Attach. 3.

Plaintiff filed this civil action on March 2, 2009.2 See

Compl. at 1. Noting defendant’s failure to respond to his FOIA

request within the requisite time limits, see

(a)(6), plaintiff “ask[ed] this Court to grant a motion

[directing the Army] to immediately supply the documentation [he]

requested[.]”

.

II. DISCUSSION

A. Summary Judgment in a FOIA Case

The Court may grant a motion for summary judgment “if the

pleadings, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c). The moving party bears

1 Plaintiff could have challenged defendant’s initial determination by sending an appeal “through: Commander, U.S. Army Human Resources Command; Attention: AHRC-FOIA, 200 Stovall Street, Alexandria, VA 22332-0400, to the Secretary of the Army, Attention: Office of the General Counsel.” Vaughn-Burford Decl., Attach. 3. 2 The Clerk of Court received plaintiff’s original complaint and application to proceed in forma pauperis on March 2, 2009. The Court granted his application on March 11, 2009, and the Clerk officially entered these items on the electronic docket on March 12, 2009.

3 the burden of demonstrating an absence of a genuine issue of

material fact. Celotex Corp. v. Catrett,

(1986). Factual assertions in the moving party’s affidavits may

be accepted as true unless the opposing party submits his own

affidavits, declarations or documentary evidence to the contrary.

Neal v. Kelly,

(D.C. Cir. 1992).

“FOIA cases typically and appropriately are decided on

motions for summary judgment.” Defenders of Wildlife v. United

States Border Patrol,

(D.D.C. 2009)

(citations omitted). In a FOIA case, the Court may grant summary

judgment based on the information provided in an agency’s

supporting affidavits or declarations when they 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,

(D.C. Cir. 1981). 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. & Exch. Comm’n,

(D.C.

Cir. 1991) (quoting Ground Saucer Watch, Inc. v. Cent.

Intelligence Agency,

(D.C. Cir. 1981)).

4 B. Exhaustion of Administrative Remedies

“Exhaustion of administrative remedies is generally required

before seeking judicial review” under the FOIA. Wilbur v. Cent.

Intelligence Agency,

(D.C. Cir. 2004) (per

curiam); Pollack v. Dep’t of Justice,

(4th Cir.

1995) (stating that a plaintiff “may generally seek judicial

review of his FOIA request only after he has exhausted all

administrative remedies”). Exhaustion allows “the agency . . .

an opportunity to exercise its discretion and expertise on the

matter and to make a factual record to support its decision.”

Wilbur,

(quoting Oglesby v. United States Dep’t

of the Army,

(D.C. Cir. 1990)). Exhaustion under

the FOIA is not a jurisdictional requirement, Hidalgo v. Fed.

Bureau of Investigation,

(D.C. Cir. 2003),

but instead is a prudential consideration. Wilbur,

. If a requester has not exhausted his administrative

remedies prior to the filing of a civil action, his claim is

subject to dismissal. See Hidalgo,

.

The FOIA requires that an agency “determine within 20 days

(excepting Saturdays, Sundays, and legal public holidays) after

the receipt of any such request whether to comply with such

request[.]”

(a)(6)(A)(i). In “extraordinary

circumstances,” this time limit “may be extended by written

notice to the [requester] setting forth unusual circumstances for

5 such extension and the date on which a determination is expected

to be dispatched.”

(a)(6)(B)(i). If the agency

does not meet its deadline, “the requester can immediately sue to

obtain the requested records and he ‘shall be deemed to have

exhausted his administrative remedies’ because of the agency's

tardiness.” Judicial Watch v. Rossotti,

(D.D.C. 2003) (quoting

(a)(6)(C)); see Oglesby,

(“If the agency has not responded within the statutory

time limits, then, under

(a)(6)(C), the requester

may bring suit.”). However, this so-called “constructive

exhaustion ceases to offer a basis for judicial action once an

agency actually responds.” Smith v. Fed. Bureau of

Investigation,

(D.D.C. 2006) (citing

Oglesby,

). “If a requester actually

receives an agency's untimely response before filing suit under §

552(a)(6)(A)(i), he must utilize the administrative appeals

process – which includes, as a final step, the right to sue in

federal court – to resolve any FOIA disputes.” Judicial Watch,

.

Plaintiff represents that he “never received the Letter

dated Feb.25,09 [sic] listing [a

(b)(6)] exemption

making [it] impossible to respond.” Pl.’s Opp’n at 2.3 The

3 The Court construes plaintiff’s July 29, 2009 submission [Dkt. #11] as his opposition to defendant’s motion to dismiss or for summary judgment.

6 Army, he asserts, “failed miserably in responding to the

Plaintiff’s [FOIA] request,”

, and thus, apparently,

relieved him of any obligation to pursue an administrative appeal

of the Army’s initial determination. The Court is not persuaded

by plaintiff’s assertion, however, because he submits no

declaration or other evidence to support his contention that he

did not receive a response, whether timely or not, to his FOIA

request. See Keys v. Dep’t of Homeland Sec., No. 08-0726

(ESH/AK),

, at *5 (D.D.C. Mar. 10, 2009)

(“Plaintiff's unsupported argument that he cannot recall ever

receiving a response from the EOUSA . . . is unavailing in light

of the sworn declarations and documentary evidence demonstrating

that EOUSA responded to his FOIA request.”).

Although defendant responded to plaintiff’s FOIA request

beyond the time limits set forth by statute, its declarant

demonstrates that the Army responded before plaintiff filed this

civil action. At that point, plaintiff was obligated to exhaust

his administrative remedies, and he fails to establish that he

did so. Accordingly, defendant’s motion for summary judgment on

this ground will be granted.

C. Exemption 6

Even if plaintiff had exhausted his administrative remedies

prior to filing this action, the Court concludes that defendant

would have prevailed on the alternative ground: that the relevant

7 records properly were withheld under Exemption 6.

Exemption 6 protects from disclosure “personnel and medical

files and similar files the disclosure of which would constitute

a clearly unwarranted invasion of personal privacy.”

(b)(6). The term “similar files” is construed broadly and is

“intended to cover detailed Government records on an individual

which can be identified as applying to that individual.” United

States Dep’t of State v. Washington Post Co.,

(1982) (citation omitted). The threshold is “fairly minimal,”

such that “[a]ll information which applies to a particular

individual is covered by Exemption 6, regardless of the type of

file in which it is contained.” Washington Post Co. v. United

States Dep’t of Health & Human Servs.,

(D.C.

Cir. 1982) (quoting Washington Post,

) (internal

quotation marks omitted). In this way, the “FOIA’s protection of

personal privacy is not affected by the happenstance of the type

of agency record in which personal information is stored.” Id.;

see New York Times Co. v. Nat’l Aeronautics & Space Admin.,

(D.C. Cir. 1990) (en banc) (concluding that

Exemption 6 protected disclosure of a tape of voice

communications aboard the Challenger space shuttle because “it

applies to particular individuals”).

Exemption 6 requires “a balancing of the individual’s right

of privacy against the preservation of the basic purpose of the

8 Freedom of Information Act to open agency action to the light of

public scrutiny.” Dep’t of the Air Force v. Rose,

(1976) (internal quotation marks and citation omitted); see

United States Dep’t of Justice v. Reporters Comm. for Freedom of

the Press,

(1989). The privacy interest at

stake belongs to the individual, not the agency. Reporters Comm.

for Freedom of the Press,

; Nat’l Ass’n of

Retired Fed. Employees v. Horner,

(D.C. Cir.

1989) (acknowledging an individual’s significant privacy interest

“in avoiding the unlimited disclosure of his or her name and

address”), cert. denied,

(1990). It is the

requester’s obligation to articulate a public interest sufficient

to outweigh an individual’s privacy interest, and the public

interest must be significant. See Nat’l Archives and Records

Admin. v. Favish,

(2004).

There is no dispute that the information plaintiff has

requested, that is, lists of certain Army personnel, their ranks,

companies, and addresses, are “personnel and medical files and

similar files,”

(b)(6), such that they fall within

the scope of Exemption 6. Having determined that the Army makes

its threshold showing, the Court next must determine whether the

disclosure of such records would constitute a clearly unwarranted

invasion of these individuals’ personal privacy.

Defendant’s declarant explains that, in 2001, “the

9 Department of Defense issued guidance and a determination

regarding release of personally identifying personal information

under the [FOIA],” and [i]n accordance with this guidance, “it is

the practice of [the Army’s Human Resources Command] not to

release names of military members in response to FOIA requests.”

Vaughn-Burford Decl. ¶ 9. The memorandum on which defendant

relies, see

Attach. 2 (November 9, 2001 Memorandum Regarding

the Withholding of Personally Identifying Information under the

Freedom of Information Act), begins by stating that “[t]he

President has declared a national emergency by reason of the

terrorist attacks on the United States.”

. For this

reason, “[a]ll Department of Defense personnel should have a

heightened security awareness concerning their day-to-day duties

and recognition that the increased security posture will remain a

fact of life for an indefinite period of time.”

In light of

“the heightened interest in personal privacy of [Department of

Defense (“DoD”)] personnel that is concurrent with the increased

security awareness demanded in times of national emergency,”

DoD components “shall ordinarily withhold lists of names and

other identifying information of personnel currently or recently

assigned within a particular component, unit, organization or

office with the [DoD] in response to requests under the FOIA.”

Neither the defendant’s supporting declaration nor the

10 memorandum on which it relies directly address the personal

privacy interests of enlisted military personnel. It is easy to

conclude, however, that such personnel, like any individuals,

have a recognized privacy interest in avoiding disclosure of

personal information. See, e.g., Judicial Watch, Inc. v. Food &

Drug Admin.,

(D.C. Cir. 2006) (recognizing

privacy interests of agency personnel, private individuals, and

companies who worked on the approval of the controversial drug

mifepristone); Horner,

. As the District of

Columbia Circuit instructs, “[a] substantial privacy interest is

anything greater than a de minimis privacy interest.” Multi Ag

Media LLC v. Dep’t of Agric.,

(D.C. Cir.

2008) (citing Horner,

). The privacy interests of

military personnel for reasons similar to those the Army asserts

in this case have been considered and accepted in this district.

See Schoenman v. Fed. Bureau of Investigation,

(D.D.C. 2008) (commenting that “the Air Force members

whose names and other identifying information was redacted from

the Intelligence Information Reports have a significant – i.e.,

more than de minimis – privacy interest in that information,

particularly in light of a Department of Defense policy change

after the terrorist attacks of September 11, 2001”); Kimmel v.

United States Dep’t of Defense, Civ. A. No. 04-1551(HHK),

, at *3 (D.D.C. Mar. 31, 2006) (“DoD acted out of concern

11 that employees of DoD could become targets of terrorist assaults,

and the court has no reason to question this determination.”).

Lastly, the Court considers whether the public interest in

disclosure of the withheld information outweighs the military

personnel’s personal privacy interests. Plaintiff’s sole attempt

at opposing defendant’s motion reads as follows:

Prior [to] Oct. 12, 01 was the day one of our most precious freedoms died, the Justice Department and Federal Judges let it slipped [sic] beneath the radar and without fanfare[.] [Former Attorney [General] John Ashcroft quashed most [of] the [FOIA][, and] all that hard work by the Defendant in their many unrelated cases failed to respond to the Plaintiff[’s] Civil Action (a), (b) and (c) listed in No. 09-0476 making Civ. No. 09-0476 (EGS) against the Dept. Of the Army stand on its own merits.

Pl.’s Opp’n at 3. The argument is unintelligible, and cannot

withstand defendant’s showing. Plaintiff does not argue, nor

does the Court find, that release of the withheld information

would shed any light on the Amy's performance of its duties.

“Having already concluded that the privacy interest at issue

here is more than de minimis, the Court ‘need not linger over the

balance; something, even a modest privacy interest outweighs

nothing every time.’” Schoenmann,

(quoting Horner,

). Absent a showing of a public

interest of such magnitude as to outweigh the recognized privacy

interests of military personnel, the Court concludes that the

Army’s decision to withhold records responsive to plaintiff’s

12 FOIA request under Exemption 6 was proper. See, e.g., Kimmel,

, at *3; Voinche v. Fed. Bureau of Investigation,

(D.D.C. 1996) (concluding that the

release of names and identifying features of individuals would

serve no articulable public interest, and that the agency

properly invoked Exemption 6 to protect the individuals’ privacy

interests), aff’d, No. 96-5304,

(D.C. Cir. June

19, 1997), cert. denied,

(1997).

III. CONCLUSION

The Army shows both that plaintiff did not exhaust his

administrative remedies prior to the filing of this civil action

and that the records plaintiff requested properly were withheld

in full under Exemption 6. The Army thus demonstrates that there

are no genuine issues of fact in dispute as to its compliance

with the FOIA and that it is entitlement to judgment as a matter

of law. Accordingly, the Court will grant its motion for summary

judgment, and will deny its motion to dismiss as moot. An Order

is issued separately.

Signed: EMMET G. SULLIVAN United States District Judge

Dated: March 17, 2010

13