UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

REBA ABRAHAM PEARCE,

Plaintiff, Civil Action No. 24- 520 (SLS) v. Judge Sparkle L. Sooknanan

DEPARTMENT OF THE ARMY,

Defendant.

MEMORANDUM OPINION

Reba Abraham Pearce is a former attorney in the Office of General Counsel at the United

States Department of the Army. After the Army fired her, she commenced administrative

proceedings before the Equal Employment Opportunity Commission (EEOC) to challenge her

termination. With the EEOC litigation still pending, Ms. Pearce brought this lawsuit under the

Freedom of Information Act (FOIA) and the Privacy Act seeking records from those proceedings

already in her possession, including summary judgment briefing, deposition transcripts,

and exhibits. The Army released some of the records in response to the FOIA and Privacy Act

requests, and it relied on certain exemptions in those statutes to partially redact and withhold

others. The Army now moves for summary judgment under Federal Rule of Civil Procedure 56.

For the following reasons, the Court grants its motion.

BACKGROUND

A. Statutory Background

“Both FOIA and the Privacy Act evidence Congressional concern with open government,

and especially[ ] accessibility to government records.” Greentree v. U.S. Customs Serv.,

(D.C. Cir. 1982). “Congress enacted FOIA in 1966 to grant a right of public access to governmental information ‘long shielded unnecessarily from public view[.]’” Martin v. Dep’t of

Just.,

(D.C. Cir. 2007) (quoting EPA v. Mink,

(1973),

superseded by statute, Freedom of Information Act, Pub. L. No. 93–502, § 2(a),

(1973)). “FOIA requires that records and material in the possession of federal agencies be made

available on demand to any member of the general public.” NLRB v. Robbins Tire & Rubber Co.,

(1978); see also

. It allows the public to “pierce the veil of

administrative secrecy and to open agency action to the light of public scrutiny.” ACLU v.

U.S. Dep’t of Just.,

(D.C. Cir. 2011) (quoting Dep’t of the Air Force v. Rose,

(1976) (cleaned up)). Even though the Act was “broadly conceived,”

EPA,

, it includes nine “carefully structured . . . exemptions,” NLRB,

. These exemptions demonstrate that the public’s right to information is “not absolute and

that disclosure of certain information ‘may harm legitimate governmental or private interests.’”

Martin,

(quoting Summers v. Dep’t of Just.,

(D.C. Cir. 1998)).

Almost ten years later, Congress enacted the Privacy Act to “protect the privacy of

individuals identified in information systems maintained by Federal agencies[.]” Doe v. Chao,

(2004) (cleaned up). The Act requires federal agencies to maintain records used

in making determinations about any individual “with such accuracy, relevance, timeliness, and

completeness as is reasonably necessary to assure fairness to the individual in the determination[.]”

5 U.S.C. § 552a(e)(5). In enacting the Privacy Act, Congress was concerned with “safeguard[ing]

the public from unwarranted collection, maintenance, use and dissemination of personal

information contained in agency records.” Bartel v. Fed. Aviation Admin.,

(D.C. Cir. 1984). Subject to certain exemptions, the Act provides for certain forms of disclosure

so that individuals can “ensure[ ] that [their] records are accurate and properly used.”

2 Individuals who are “wrongly denied access to records pertaining to them[,] may bring a civil

action to compel the agency to disclose the records.” Kearns v. Federal Aviation Administration,

(D.D.C. 2018) (citing 5 U.S.C. § 552a(g)(1)(B); id., § 552a(g)(3)(A)–

(B)).

B. Factual Background

In December 2020, the Jacksonville District of the U.S. Army Corps of Engineers fired

Ms. Pearce from her position as an attorney in its Office of General Counsel. See Def.’s Statement

of Material Facts ¶¶ 1–3 (Def.’s Facts), ECF No. 17-2; Pl.’s Statement of Materials Facts at 1

(Pl.’s Facts), ECF No. 23-1. Three days after her termination, Ms. Pearce filed an administrative

Equal Employment Opportunity (EEO) complaint against the Army. See Def.’s Facts ¶ 3.

An administrative judge entered a protective order permitting the Army to designate certain

discovery material as “confidential,” thus restricting those documents from disclosure “for any

purpose whatsoever other than to prepare for and to conduct discovery and hearing in [the] action,

including any appeal thereof and any subsequent litigation in federal court of the same claims

raised in the above-captioned complaint.” Protective Order, ECF No. 1-1; see also Def.’s Facts

¶ 5. During those EEOC proceedings, Ms. Pearce deposed seven Army employees and obtained

the transcripts of their deposition testimony. See Def.’s Facts ¶ 6; see also Compl. ¶ 14, ECF No. 1.

On April 8, 2023, Ms. Pearce submitted two FOIA and Privacy Act requests to the Army’s

Humphreys Engineer Center Support Activity office. See Compl., Ex. 3 at 1 (FOIA Request 1),

ECF No. 1-1; Compl., Ex. 4 at 1 (FOIA Request 2), ECF No. 1-1; see also Pl.’s Facts ¶ 10. She

sought certain documents from the EEOC proceedings, including (1) her own motion for summary

judgment, (2) the agency’s response to her motion for summary judgment, (3) her reply brief,

(4) the Agency’s correction of Exhibit 7, (5) her objection to an exhibit attached to the agency’s

3 motion, and (6) the transcripts of the seven depositions she conducted. See Compl., Ex. 3 at 1;

Compl., Ex. 4 at 1, Def.’s Facts ¶¶ 11–12. Through the pending EEOC proceedings, Ms. Pearce

already had access to these documents in full. See Compl., Ex. 5 at 2, ECF No. 1-1 (explaining

Ms. Pearce has access to these documents); see also Pl.’s Facts ¶ 14. On April 21, 2023, the Army

advised that it had “received and reviewed the requested information and [that it was] withholding

the documents in their entirety pursuant to the [EEOC] protective order” and Exemptions 6 and 7

of FOIA. Ex. 5 at 1–2; see also Pl.’s Facts ¶ 13. On February 6, 2024, the Army denied an

administrative appeal on the same bases. Ex. 7 at 1–2, ECF No. 1-1; see also Debelle Decl. ¶ 13.

C. Procedural Background

On February 20, 2024, Ms. Pearce brought the instant lawsuit against the Army under

FOIA, the Privacy Act, and the Declaratory Judgment Act. See Compl. ¶¶ 34–54. The Army agreed

to revisit its withholdings, after which it partially released 1,125 pages of responsive records.

See Debelle Decl. ¶ 16, ECF No. 17-4. The Army produced a Vaughn index describing responsive

documents and invoking various FOIA exemptions to justify the redaction and withholding of

certain of those documents. See Vaughn Index (Vaughn), ECF No. 17-5; see also Vaughn v. Rosen,

, 826–28 (D.C. Cir. 1973). On January 21, 2025, the Army filed the instant motion

for summary judgment to defend its decision to partially redact and withhold the remaining

records. Def.’s Mot., ECF No. 17. The motion is fully briefed and ripe for review. See Pl.’s Opp’n,

ECF No. 23; Def.’s Reply, ECF No. 25; Pl.’s Sur-Reply, ECF No. 27.

LEGAL STANDARD

A court shall grant summary judgment if “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). “The burden

is on the movant to make the initial showing of the absence of any genuine issues of material fact.”

Ehrman v. United States,

(D.D.C. 2006) (citations omitted). “The evidence

4 of the non-movant is to be believed, and all justifiable inferences are to be drawn in [its] favor.”

Estate of Parsons v. Palestinian Auth.,

(D.C. Cir. 2011) (cleaned up).

FOIA requires federal agencies to conduct an adequate search for responsive records upon

a request from a member of the public. See Rodriguez v. Dep’t of Def.,

(D.D.C. 2017). And “an agency is entitled to summary judgment if no material facts are in dispute

and if it demonstrates that each document that falls within the class requested either has been

produced . . . or is wholly exempt from the Act’s inspection requirements.” Students Against

Genocide v. Dep’t of State,

(D.C. Cir. 2001) (cleaned up). “[T]he agency can

make this showing through the submission of an index of documents, known as a Vaughn index,

sufficiently detailed affidavits or declarations, or both.” Sarras v. U.S. Dep’t of Just.,

No. 19-cv-861,

, at *6 (D.D.C. Sept. 27, 2023) (cleaned up). A court will accord

an agency’s declarations “a presumption of good faith, which cannot be rebutted by purely

speculative claims about the existence and discoverability of other documents.” Shapiro v.

U.S. Dep’t of Just.,

(D.C. Cir. 2022) (quoting Bartko v. Dep’t of Just.,

(D.C. Cir. 2018) (cleaned up)). A court may likewise rely on agency declarations to support

exemptions under the Privacy Act. See Chambers v. U.S. Dep’t of the Interior,

(D.C. Cir. 2009).

When a plaintiff requests documents under both FOIA and the Privacy Act, the agency

“must demonstrate that the documents fall within some exemption under each Act.” Martin v. Off.

of Special Couns., Merit Sys. Prot. Bd.,

(D.C. Cir. 1987). In other words,

“[i]f a FOIA exemption covers the documents, but a Privacy Act exemption does not,

the documents must be released under the Privacy Act; if a Privacy Act exemption but not a FOIA

exemption applies, the documents must be released under FOIA.”

5 DISCUSSION

The Army moves for summary judgment to defend its partial redactions and withholdings

of three categories of documents originating from the EEOC administrative proceedings. See

Def.’s Mot. The first is briefing by the parties in the EEOC litigation, including Ms. Pearce’s own

motion for summary judgment, the agency’s response to that motion, and Ms. Pearce’s reply. See

Compl. Ex. 3, ECF No. 1-1. The second is a corrected exhibit attached to the Army’s response

brief (Exhibit 7) and Ms. Pearce’s objection to an exhibit attached to the agency’s motion. See id.;

Def.’s Mot. at 2. And the third category includes the transcripts of seven depositions Ms. Pearce

conducted in the EEOC proceedings and 43 exhibits used in those depositions. See Compl. Ex. 4,

ECF No. 1-1; Def.’s Facts ¶ 12. Except for three records withheld in full, the Army has released

all of these documents with partial redactions. See Debelle Decl. ¶¶ 9, 44. Its declarations and

Vaughn index detail various FOIA and Privacy Act exemptions. And the Army maintains that it

has made a good faith effort to segregate all non-exempt material from material that is exempt, as

required under FOIA. See Debelle Decl. ¶ 17. Having carefully reviewed the record in this case,

the Court agrees that the challenged material is exempt from disclosure under both statutes and

grants the Army’s motion for summary judgment.

A. FOIA

FOIA requires federal agencies to conduct an adequate search for responsive records.

See Rodriguez,

. This requires “a good faith effort to conduct a search for the

requested records, using methods which can be reasonably expected to produce the information

requested.” Montgomery v. IRS,

(D.C. Cir. 2022) (cleaned up). Here, the Army

asserts that it properly searched for documents responsive to Ms. Pearce’s requests. See Debelle

Decl. ¶ 9. And Ms. Pearce does not contest the adequacy of the Army’s search. See Pl.’s Opp’n at

6 4 (“[T]he parties agree that the adequacy of the agency’s search for the requested records is not an

issue.”). So the Court will focus on the Army’s partial redactions and withholdings.

The Army argues that it properly redacted and withheld documents under FOIA’s

Exemption 5 (attorney-client privilege, work product, and deliberative-process privilege),

Exemption 6 (personnel information), and Exemption 7(C) and 7(D) (invasion of personal privacy

in law enforcement records). See Debelle Decl. ¶ 21. The Court agrees.

1. Exemption 5

FOIA Exemption 5 covers “inter-agency or intra-agency memorandums or letters that

would not be available by law . . . in litigation with the agency,” with an exception not relevant

here.

(b)(5). This exemption “permits an agency to withhold materials normally

privileged from discovery in civil litigation against the agency.” Tax Analysts v. IRS,

(D.C. Cir. 1997) (citations omitted). Exemption 5 thus incorporates the attorney-client

privilege, the attorney work-product privilege, and the deliberative process privilege. See United

States Fish and Wildlife Service v. Sierra Club, Inc.,

, 263 (2021). The Army has

invoked all three privileges as to various documents.

a. Attorney-Client Privilege

“The attorney-client privilege protects confidential communications from clients to their

attorneys made for the purpose of securing legal advice or services” and “communications from

attorneys to their clients if the communications rest on confidential information obtained from the

client.” Tax Analysts,

(cleaned up). A “fundamental prerequisite to [the] assertion

of the privilege” is “confidentiality both at the time of the communication and maintained since.”

Coastal States Gas Corp. v. Dep’t of Energy,

(D.C. Cir. 1980). “In the

governmental context, the ‘client’ may be the agency and the attorney may be an agency lawyer.”

7 Tax Analysts,

; see also Coastal States,

(The attorney-client

privilege applies when “the Government is dealing with its attorneys as would any private party

seeking advice to protect personal interests, and needs the same assurance of confidentiality so it

will not be deterred from full and frank communications with its counselors.”).

Here, the Army invokes the attorney-client privilege to partially redact portions of the

EEOC summary judgment briefing, deposition transcripts, and exhibits. See Debelle Decl. ¶ 25;

see generally Vaughn. It redacted material regarding consultations with its Office of Counsel;

communications about legal conclusions; recommendations between attorneys and agency clients

on issues such as government ethics, employment litigation, and personnel matters; ongoing

procurement litigation; and Ms. Pearce’s assignment tracker while she was an agency attorney.

See Debelle Decl. ¶¶ 23–24; Vaughn Index at 8 (partially redacting portions of Ms. Pearce’s reply

brief in support of her motion for summary judgment referencing “the communication of legal

conclusions and recommendations to the Agency official from the agency related to an ethics

opinion request[]”), 15 (partially redacting Exhibit 1 used in Witness 1’s deposition because

sections of an “assignment tracker” “went into attorney-client . . . privilege”), 16 (partially

redacting portions of Exhibit 2 used in Witness 1’s deposition involving “[d]etails of an ongoing

procurement litigation”), 17 (partially redacting information from Exhibit 2.1 used in Witness 1’s

deposition including “details [about an] ongoing procurement litigation, fiscal law and government

ethics advice to management, and details [regarding] personnel and employment litigation”), 18

(partially redacting information from Exhibit 5 used in Witness 1’s deposition including an

“[e]mail between [the] Plaintiff and other [a]gency employees and [the] EEO witness” and

“[d]escription of work assignments related to government ethics”), 21 (partially redacting Exhibit

1 used in Witness 2’s deposition to remove “notes [that] detail [the] Plaintiff’s advice to clients

8 and discussions between members of office of counsel” from the exhibit), 29 (partially redacting

Witness 4’s deposition transcript to remove “[d]etails of an ongoing procurement litigation which

included identifying information of the deponent, [a]gency employees, and the names of other

witnesses”), 35–36 (partially redacting Witness 5’s deposition transcript involving the “details

[about] employment litigation, investigations, and [a] personnel matter”), 37–38 (partially

redacting information from Exhibit 4 used in Witness 5’s deposition involving “details [about]

employment litigation, investigations, and [a] personnel matter”), 39 (same for Exhibit 6 used in

Witness 5’s deposition), 40 (same for Exhibit 8 used in Witness 5’s deposition), 45 (partially

redacting from Part 2 of Witness 6’s deposition transcript the details of “an ongoing procurement

litigation,” a “description of an ethics issue and briefing to client,” and a “fiscal law issue and

briefing to client”), 60 (partially redacting Exhibit 7 from Witness 7’s deposition because it

referenced communications from the Plaintiff during her time as an attorney with the Army and

“[t]hese communications were given in confidence” and “[r]elease of this information would

reveal privileged legal advice regarding a matter which was in active litigation”), 60–61 (partially

redacting Exhibit 5 from Witness 8’s deposition, a gift guidance document, because it “involve[d]

the communication of legal conclusions and recommendations to the Agency official from the

attorney related to an ethics opinion request[]” and releasing this communication “would reveal

privileged legal advice regarding government ethics”). These partially redacted documents include

advice that Ms. Pearce provided to the Army (i.e., her client) while employed as an agency

attorney, as well as other communications between agency attorneys and agency clients. See Pl.’s

Facts ¶ 1, Debelle Decl. ¶¶ 22–24. These are quintessential attorney-client communications

shielded from disclosure under FOIA’s Exemption 5.

9 In response, Ms. Pearce points out that the partially redacted documents were “filed in the

EEOC litigation and ones which [she] now has the ability to review and use in support of her case

pending in the Middle District of Florida.” Pl.’s Opp’n at 11. To the extent she is arguing that the

Army waived attorney-client privilege by providing her with these documents in the EEOC

administrative proceedings, she is incorrect. “[A] plaintiff asserting a claim of prior disclosure

must bear the initial burden of pointing to specific information in the public domain that appears

to duplicate that being withheld.” Davis v. U.S. Dep’t of Just.,

(D.C. Cir. 1992) (cleaned up). Here, the requested information was made available to Ms. Pearce

in discovery in her EEOC administrative proceedings. That falls far short of what is required to

waive privilege. See Fitzgibbon v. CIA,

(D.C. Cir. 1990) (saying an agency

waives FOIA Exemption 5 only if it previously released and made “public through an official and

documented disclosure” information that “match[es]” and is “as specific” as the information

requested by the plaintiff). The fact that Ms. Pearce already has access to the relevant material in

her ongoing EEOC litigation does not mean that the agency is required to disclose it publicly under

FOIA. After all, “[t]he release of documents through formal discovery procedures pursuant to the

Federal Rules of Civil Procedure differs substantially from the FOIA procedures governing the

disclosure of documents.” Kay v. F.C.C.,

(D.D.C. 1997) (noting that “[t]he

mere fact that [the] plaintiff has acquired the documents through formal discovery in an unrelated

litigation does not imply that the [defendant] improperly withheld documents from plaintiff in

violation of the FOIA.”); Stonehill v. IRS,

, 538–39 (D.C. Cir. 2009) (“[W]hile

information disclosed during discovery is limited to the parties and can be subject to protective

orders against further disclosure, when a document must be disclosed under FOIA, it must be

disclosed to the general public.”).

10 b. Attorney Work Product

The attorney work-product doctrine protects “documents prepared in contemplation of

litigation” and “provides a working attorney with a ‘zone of privacy’ within which to think, plan,

weigh facts and evidence, . . . and prepare legal theories.” Coastal States,

.

It protects the adversary trial process by “encourag[ing] effective legal representation within the

framework of the adversary system,” thereby “removing counsel’s fears that his thoughts and

information will be invaded by his adversary.”

(cleaned up). As a result, the “work-product rule

does not extend to every written document generated by an attorney” or “shield from disclosure

everything that a lawyer does.”

(cleaned up). Rather, it applies only to “materials prepared in

anticipation of litigation for trial.”

(cleaned up).

Here, the Army partially redacted and withheld documents as work product, including

deposition transcripts and exhibits that referenced “legal strategies and details regarding ongoing

litigation or potential personnel matters that may result in litigation,” “work on ongoing

procurement litigation, fiscal law and government ethics advice, and particular cases of personnel

and employment litigation.” Debelle Decl. ¶ 25; see, e.g.,

(partially redacting portions

of Ms. Pearce’s motion for summary judgment to protect “potential settlement agreements and

litigation strategies”), 14–15 (partially redacting attorney work product from the deposition

transcript of Witness 1 because the deposition included the “[d]etails of an ongoing procurement

litigation”), 15 (partially redacting “details [of] ongoing procurement litigation, fiscal law and

government ethics advice to management, and details personnel and employment litigation” from

Exhibit 1 used in Witness 1’s deposition), 16 (partially redacting Exhibit 2 from Witness 1’s

deposition because it included the “[d]etails of an ongoing procurement litigation”), 17 (partially

redacting Exhibit 2.1 used in Witness 1’s deposition to remove the “details [of] ongoing

11 procurement litigation, fiscal law and government ethics advice to management, and details [of]

personnel and employment litigation”), 18 (partially redacting “[d]escription of work assignments

related to government ethics” from Exhibit 5 used in Witness 1’s deposition), 21 (partially

redacting Exhibit 1 used in Witness 2’s deposition because it included “notes detail[ing] [the]

Plaintiff’s advice to clients and discussions between members of office of counsel” and “[d]etails

[of an] ongoing procurement litigation”), 29 (partially redacting information in Witness 4’s

deposition discussing “[d]etails of an ongoing procurement litigation”), 35–36 (partially redacting

the deposition transcript of Witness 5 because it contained “details with employment litigation,

investigation, and personnel matter” and “attorney work product”), 37–38 (partially redacting

Exhibit 4 used in Witness 5’s deposition that referenced “details with employment litigation,

investigations, and personnel matter”), 39 (partially redacting Exhibit 6 used in Witness 5’s

deposition that referenced “details with employment litigation, investigations, and personnel

matter”), 40 (partially redacting Exhibit 8 used in Witness 5’s deposition that referenced “details

with employment litigation, investigations, and personnel matter”), 43 (partially redacting the

deposition transcript of Witness 6 referencing “details of an ongoing procurement litigation”); 45

(partially redacting a “description of an ethics issue and briefing to client” and “fiscal law issue

and briefing to client” in Part 2 of the deposition transcript of Witness 6), 60 (partially redacting

information from Exhibit 7 used in Witness 7’s deposition that “would reveal privileged legal

advice regarding a matter which was in active litigation”). As materials “prepared in anticipation

of litigation,” Coastal States,

(cleaned up), the Army properly redacted and

withheld them as attorney work product.

The Army also invoked the work-product doctrine to partially redact and withhold material

in Ms. Pearce’s summary judgment motion and certain deposition exhibits about a potential

12 settlement agreement that was never finalized. See Debelle Decl. ¶ 26; see, e.g., Vaughn at 4–5

(partially redacting portions of Ms. Pearce’s motion for summary judgement referencing a

potential settlement agreement), 45 (partially redacting Part 2 of the deposition transcript of

Witness 6 with a “[d]escription of [a] not executed settlement agreement”), 52 (partially redacting

Exhibit 13a used in Witness 6’s deposition referencing a “not executed settlement agreement”), 54

(similar for Exhibit 16 used in Witness 6’s deposition). The work-product privilege shields this

material from disclosure. See Cities Serv. Co. v. FTC,

(D.D.C. 1984)

(“[A]ny attorney’s notes or working papers which relate to litigation decisions or to possible

settlement discussions pertaining to foreseeable litigation are protected under the attorney work-

product privilege.” (citations omitted)).

Ms. Pearce offers nothing to counter the agency’s declarations and Vaughn index.

And “[t]he Court may grant summary judgment based solely on [an] agency’s declarations if they

are not contradicted by contrary record evidence or by evidence of the agency’s bad faith.”

Reps. Comm. for Freedom of the Press v. U.S. Customs & Border Prot.,

, 108

(D.D.C. 2021). In light of the Army’s detailed declaration and Vaughn index, and in the absence

of any contrary evidence in the record, the Court upholds the partial redactions and withholdings

for attorney work product.

c. Deliberative-Process Privilege

The deliberative-process privilege “shields documents ‘reflecting advisory opinions,

recommendations, and deliberations’ that agencies use to make decisions.” Emuwa v. U.S. Dep’t

of Homeland Sec.,

, 1013 (D.C. Cir. 2024) (quoting U.S. Fish & Wildlife Serv. v.

Sierra Club, Inc.,

, 267 (2021)). The privilege encourages “open and frank

discussion” among government officials, Dep’t of Interior v. Klamath Water Users Protective

13 Ass’n,

(2001), ensuring that “‘debate and candid consideration of alternatives within

an agency’ are not subject to public inspection,” Emuwa, 113 F.4th at 1013 (quoting Machado

Amadis v. Dep’t of State,

, 371 (D.C. Cir. 2020)). “[I]nformation must be both

‘predecisional’ and ‘deliberative’” to be protected. Petroleum Info. Corp. v. U.S. Dep’t of Interior,

(D.C. Cir. 1992) (citations omitted). A document is “predecisional” if it is

made “before the adoption of an agency policy[.]” Jud. Watch, Inc. v. FDA,

(D.C. Cir. 2006). And a document is “deliberative” if it makes “recommendations or express[es]

opinions on legal or policy matters.” Jud. Watch of Fla., Inc. v. U.S. Dep’t of Just.,

(D.D.C. 2000) (citing Vaughn v. Rosen,

(D.C. Cir. 1975)).

The government thus bears the burden of showing that the materials were “generated before the

adoption of an agency policy” and reflect “the give-and-take of the consultative process.” Coastal

States,

.

The Army partially redacted Ms. Pearce’s summary judgment motion and certain

deposition exhibits to withhold information about a settlement proposal and draft settlement

agreement that it sent to Ms. Pearce while she was still employed at the agency. See Debelle Decl.

¶ 28; Vaughn at 4–5 (partially redacting portions of Ms. Pearce’s motion for summary judgment

referencing a potential settlement agreement), 52 (partially redacting Exhibit 13a used in Witness

6’s deposition to remove information referencing a “not executed settlement agreement”), 54

(similar for Exhibit 16 used in Witness 6’s deposition). The Army’s declarant explained that

“[b]ecause a final decision had not yet been made, the drafts and proposals contained information

that the [a]gency would deliberate on before potentially reaching an ultimate decision on

settlement and the terms of the [the] Plaintiff’s departure.” Debelle Decl. ¶ 28. The Army also

redacted one witness exhibit containing confidential information about litigation strategies.

14 Vaughn at 60 (partially redacting Exhibit 7 used in Witness 7’s deposition to remove information

that would reveal “advisement to clients, commanders, and other management officials on

government ethics and fiscal law” and other “litigation strategies” while she was employed as a

lawyer with the Army).

The deliberative process privilege protects predecisional documents about personnel

actions. See Am. Fed’n of Gov’t Emps., Local 2782 v. U.S. Dep’t of Com.,

(D.C. Cir. 1990). And draft documents that do not “reflect[] a settled ‘agency position’” but

“record a dialogue within the agency” are “deliberative as well as pre-decisional” and thus are

“exempt from the disclosure requirement of the FOIA.” Id.; see also Exxon Corp. v. Dep’t of

Energy,

(D.D.C. 1983) (“Draft documents, by their very nature, are typically

predecisional and deliberative.”). The material in question is both predecisional and deliberative,

as it does not show the agency’s “ultimate decision on the terms of its non-continuation of

Plaintiff’s employment,” Debelle Decl. ¶ 28, see also supra, at 13, and it reflects “the give-and-

take of the consultative process,” Coastal States,

; see, e.g., Cities Serv. Co. v.

FTC,

(D.D.C. 1984) (finding settlement documents were properly withheld

under the deliberative process privilege).

In arguing that the deliberative-process privilege does not apply, Ms. Pearce recites the

general standard for invoking the privilege and notes that the government bears the burden of

establishing it. See Pl.’s Opp’n 10–11. But Ms. Pearce does not address the Army’s declarations

or Vaughn index defending its invocation of the privilege. On this record, the Court finds that the

redactions are within the scope of the deliberative-process privilege.

15 2. Exemption 6

FOIA’s Exemption 6 permits an agency to withhold “personnel and medical files and

similar files the disclosure of which would constitute a clearly unwarranted invasion of personal

privacy.”

(b)(6). This allows an agency “to protect the privacy of individuals

identified in certain agency records,” ACLU,

, by exempting “disclosures that would

constitute an invasion of privacy,” Dep’t of Just. v. Reps. Comm. for Freedom of Press,

(1989) (cleaned up).

A court reviewing whether Exemption 6 was properly applied must answer two questions.

First, a court must determine whether the records sought are “personnel,” “medical,” or “similar

files.”

(b)(6). The term “similar files” includes “[g]overnment records on an

individual which can be identified as applying to that individual.” Dep’t of State v. Wash. Post

Co.,

(1982); see also Jud. Watch, Inc., 449 F.3d at 152–53 (“We have . . . read

[Exemption 6] to exempt not just files, but also bits of personal information, such as names and

addresses, the release of which would create a palpable threat to privacy.” (cleaned up)). “The

information in the file need not be intimate for the file to satisfy the standard, and the threshold for

determining whether information applies to a particular individual is minimal.” Shapiro v. Dep’t

of Just.,

(D.D.C. 2014) (cleaned up).

Second, a court must “determine whether disclosure would compromise a substantial,

as opposed to a de minimis, privacy interest.” Prison Legal News v. Samuels,

(D.C. Cir. 2015) (cleaned up). “If a substantial privacy interest is at stake, then the court must

‘balance’ the individual’s right of privacy against the public interest in

disclosure.”

(quoting Horowitz v. Peace Corps.,

(D.C. Cir. 2005) (citation

omitted)). This public interest analysis requires a court to assess “the extent to which disclosure of

16 the information sought would ‘she[d] light on an agency’s performance of its statutory duties’

or otherwise let citizens know ‘what their government is up to.’” Lepelletier v. FDIC,

(D.C. Cir. 1999) (quoting U.S. Dep’t of Def. v. FLRA,

(1994)).

Thus, “[i]nformation that reveals little or nothing about an agency’s own conduct does not further

the statutory purpose[.]” Beck v. Dep’t of Justice,

(D.C. Cir. 1993); cf., e.g.,

Sinsheimer v. U.S. Dep’t of Homeland Sec.,

(D.D.C. 2006) (affirming the

application of a FOIA exemption to withhold names of witnesses and personnel implicated in a

civil rights investigation because “[d]isclosure would not significantly advance the public

knowledge of government operations”).

Here, the agency partially redacted and withheld various categories of personal information

in the EEOC summary judgment briefing, certain deposition transcripts, and certain exhibits,

including “names, gender pronouns, dates of birth, place[s] of birth, personal residences, telephone

number[s], work address[es], work location[s], email addresses, medical information, family

histories, marital status, leave schedules, employment history, school information, professional

titles, and details about work assignments.” Debelle Decl. ¶ 30; see also Vaughn at 5 (partially

redacting Ms. Pearce’s motion for summary judgement because it “contain[s] information which

would allow for the identification of a federal government employee or non-employee citizen” and

“these individuals have no actual relation to the underlying litigation matter for which the

declaration was provided,” such as “the Agency case identifier, witness or federal employee

names, gender pronouns, office location, details regarding work relationships, substance of

possible testimony, the last four of SSN, and job titles”), 6–7 (similar for agency’s response to

Ms. Pearce’s motion for summary judgment), 8–9 (similar for Ms. Pearce’s reply to agency’s

response), 10 (partially redacting the agency’s corrected Exhibit 7 to remove “witness names,

17 witness title, office location, role within the office, and experience with Plaintiff” since the

information “would allow for the identification of a federal government employee serving as a

witness to an agency investigation”), 11 (similar for Ms. Pearce’s objection to the agency’s

exhibit), 12–13 (redacting the deposition transcript of Witness 1 to remove “the name of the

deponent, the Agency investigation identifier, deponent’s work history, position title, GS-level,

work location, third-party names, details of other Agency investigations, names of other witnesses

to the underlying investigation, and other personal identifying information”), 19–20 (same for

deposition transcript of Witness 2), 22–23 (same for deposition transcript of Witness 3), 27–28

(same for deposition transcript of Witness 4), 33–34 (same for deposition transcript of Witness 5),

41–42 (same for Part 1 of the deposition transcript of Witness 6), 43–44 (same for Part 2 of the

deposition transcript of Witness 6), 56–57 (same for deposition transcript of Witness 7), 15

(partially redacting Exhibit 1 used in Witness 1’s deposition to remove the “names of clients,

[a]gency employees, EEO witnesses, deponents, and other third-party names and identifying

information,” including their “position title, work location, and work history”), 16 (partially

redacting Exhibit 2 used in Witness 1’s deposition to remove the “names of opposing counsel,

name of EEO witnesses, Agency employees, [and a] client name”), 17 (partially redacting Exhibit

2.1 used in Witness 1’s deposition to remove personal identifying information), 18 (same for email

used in Witness 1’s deposition), 18–19 (same for Exhibit 5 used in Witness 1’s deposition), 21–

22 (same for Exhibit 1 used in Witness 2’s deposition), 25–26 (same for Exhibit 6 used in Witness

3’s deposition), 30 (same for Exhibit 1 used in Witness 4’s deposition), 30–31 (same for Exhibit

2 used in Witness 4’s deposition), 31 (same for Exhibit 3 used in Witness 4’s deposition), 32 (same

for Exhibit 4.2 used in Witness 4’s deposition), 33 (same for Exhibit 12 used in Witness 4’s

deposition), 37 (same for Exhibit 3 used in Witness 5’s deposition), 37–38 (same for Exhibit 4

18 used in Witness 5’s deposition), 38 (same for Exhibit 5 used in Witness 5’s deposition), 39 (same

for Exhibit 6 used in Witness 5’s deposition), 40 (same for Exhibit 8 used in Witness 5’s

deposition), 45–46 (same for Exhibit 2 used in Witness 6’s deposition), 46 (same for Exhibit 4

used in Witness 6’s deposition), 47 (same for Exhibit 5 used in Witness 6’s deposition), 47–48

(same for Exhibit 7b used in Witness 6’s deposition ), 48 (same for Exhibit 8 used in Witness 6’s

deposition), 49 (same for Exhibit 9 used in Witness 6’s deposition), 49–50 (same for Exhibit 10

used in Witness 6’s deposition), 50–51 (same for Exhibit 11.5 used in Witness 6’s deposition), 52

(same for Exhibit 11 used in Witness 6’s deposition), 53 (same for Exhibit 13a used in Witness

6’s deposition), 54 (same for Exhibit 16 used in Witness 6’s deposition), 55 (same for Exhibit 18

used in Witness 6’s deposition), 56 (same for Exhibit 3 used in Witness 6’s deposition), 58–59

(same for Exhibit 3 used in Witness 7’s deposition), 59 (same for Exhibit 6 used in Witness 7’s

deposition), 60 (same for Exhibit 7 used in Witness 7’s deposition), 61 (partially redacting personal

identifying information from a gift guidance document). This information falls in the heartland of

Exemption 6. See Shapiro,

(“Information protected under Exemption 6

includes such items as a person’s name, address, place of birth, employment history, and telephone

number.” (citations omitted)); Niskanen Ctr. v. FERC,

(D.C. Cir. 2021) (noting

that this requirement “is not very demanding” (cleaned up)).

Turning to the second requirement, the burden shifts to Ms. Pearce to demonstrate that the

disclosure serves a public interest to overcome these privacy interests. See Salas v. Off. of Inspector

Gen.,

(D.D.C. 2008) (“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.” (citations omitted)). She argues in conclusory fashion that the public interest is

served “in disclosing the subject material showing the degree to which [the] [a]gency is

19 functioning, identifying those involved in the decision-making process, and demonstrating the

extent to which the [a]gency is complying with its statutory responsibilities.” Pl.’s Opp’n at 15.

But the names, gender pronouns, dates of birth, marital status, addresses, medical information, and

employment histories of third parties who were deposed or involved in Ms. Pearce’s EEOC

litigation does nothing to “shed light on [the] agency’s performance of its statutory duties” or “let

citizens know what their government is up to.” Lepelletier,

(cleaned up). With no

discernable public interest in disclosure of this highly personal information, the Court “need not

linger over the balance; something . . . outweighs nothing every time.” Beck,

(cleaned up).

But another fact tilts any balancing even further in the Army’s favor. The judge presiding

over Ms. Pearce’s administrative EEO proceedings entered a protective order permitting the

agency to designate specific discovery material as “confidential,” thus restricting it from disclosure

“for any purpose whatsoever other than to prepare for and to conduct discovery and hearing in

[that] action, including any appeal thereof and any subsequent litigation in federal court of the

same claims raised in [that] complaint.” Protective Order, ECF No. 1-1; see also Compl. ¶¶ 11–13;

Debelle Decl. ¶¶ 35, 41–42. And the Army’s declarant has explained that the witnesses fear that

disclosure “would allow individuals to harass or attempt to befriend” them and “seriously prejudice

their effectiveness in conducting legal representation of the Agency, advising Agency clients in

sensitive and confidential matters, and performing day-today work.” Debelle Decl. ¶ 32. In fact,

“[i]t was explicitly made clear to the witnesses that the protective order would apply to their

depositions and other statements made during the course of both [the] EEO investigation and later

discovery during the EEOC litigation.” Id. ¶ 41; see also id. ¶ 42. Exemption 6 has been used in

similar circumstances to protect personal information from public disclosure. See, e.g., Sarras,

20

, at *10 (upholding application of an exemption where “release of the

employees’ personal information could subject them to harassment and unwanted publicity”

(cleaned up)); Elec. Priv. Info. Ctr. v. Dep’t of Homeland Sec.,

(D.D.C.

2005) (same because federal employees had a “privacy interest . . . in avoiding the unwanted

contact or harassment that would result from the release of their names”). And the privacy interest

here is more substantial because the individuals are “members who are at the military rank of

Colonel or below and at the civilian rank of GS-15 or below,” Debelle Decl. ¶ 31, and “low-level

government employees . . . have a heightened privacy interest,” Insider, Inc. v. U.S. Gen. Servs.

Admin.,

, 4 (D.D.C. 2022) (citing Common Cause v. Nuclear Regul. Comm’n,

, 938 (D.C. Cir. 1982)); see also Wash. Post Co. v. Special Inspector Gen. for Afg.

Reconstruction, No. 18-cv-2622,

, at *15 (D.D.C. Sept. 30, 2021) (“[I]t is well-

established that lower-level government employees in general have a privacy interest in their

identities.”). Ms. Pearce has not overcome this significant privacy interest.

In arguing otherwise, Ms. Pearce cites three cases to argue that the Army improperly relied

on Exemption 6. See Pl.’s Opp’n at 12–15 (citing Hunton & Williams LLP v. U.S. EPA,

(D.D.C. 2017); Fortson v. Harvey,

, 17–18

(D.D.C. 2005); Hall v. U.S. Dep’t of Just.,

(D.D.C. 2008)). But those cases

do not help her cause. In Hunton, the court found a strong public interest in identifying the names

of employees involved in Clean Water Act and Rivers and Harbors Act compliance.

. The court reasoned that the agency had already named several of the individuals in

its briefings and had not provided any reason to believe they faced risks such as harassment.

. In Fortson, the court found that the individual privacy interests did not outweigh the

public interest in an EEO investigation because the “government ha[d] already released the names

21 of those persons who gave statements[.]” 407 F. Supp. at 17. And the harm articulated—

unfavorable personnel evaluations and workplace harassment—was “pure speculation.” Id. And

in Hall, the court declined to permit the government to redact names of witnesses already in the

public domain. See 552 F. Supp. 2d at 30–31.

Here, by contrast, there is no indication that the personal information the Army redacted is

already public. And the Army’s declarant explained that disclosure of the witnesses’ personal

information would result in harassment. See Debelle Decl. ¶ 32. These witnesses were also

informed that they would be protected by the protective order in place in the administrative

proceedings, strengthening their privacy interest. See Def.’s Mot. at 21–22; Debelle Decl. ¶¶ 41–

42. Ultimately, Ms. Pearce has not met her burden or overcoming the heightened privacy interests

of these third-party witnesses. On this record, the Court finds that the Army properly relied on

Exemption 6 to partially redact and withhold personal information.

3. Exemption 7

Next up is FOIA’s Exemption 7. The Army relies on Exemption 7(C) and Exemption 7(D),

which both protect information compiled for law enforcement purposes.

a. Exemption 7(C)

Exemption 7(C) protects from disclosure “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 constitute an unwarranted invasion of personal

privacy[.]”

(b)(7)(C). “Thus, if the investigation is for a possible violation of law,

then the inquiry is for law enforcement purposes, as distinct from customary surveillance of the

performance of duties by government employees.” Jefferson v. Dep’t. of Just., Off. of Pro. Resp.,

(D.C. Cir. 2002) (citation omitted). This exemption “recognizes the stigma

22 potentially associated with law enforcement investigations and affords [] privacy rights to suspects,

witnesses, and investigators.” Bast v. U.S. Dep’t of Just.,

(D.C. Cir. 1981).

“In determining whether this exemption applies to particular material, the Court must balance the

interest in privacy of individuals mentioned in the records against the public interest in disclosure.”

Shapiro,

. “The privacy interest at stake belongs to the individual, not to the

government agency.”

(cleaned up).

“[B]ecause Exemption 7(C) permits withholding of such records if disclosure would

constitute an ‘unwarranted’ invasion of personal privacy, while Exemption 6 requires a ‘clearly

unwarranted’ invasion to justify nondisclosure, Exemption 7(C) is more protective of privacy than

Exemption 6 and thus establishes a lower bar for withholding material.” ACLU,

(cleaned up). Having found that the Army properly redacted and withheld information under

Exemption 6, its burden is lower under Exemption 7(C).

The Army partially redacted “names, addresses, personnel actions, and medical

information of witnesses and deponents” under Exemption 7(C) in the EEOC summary judgment

briefing, certain deposition transcripts, and certain exhibits, arguing that this “personal information

. . . would constitute an unwarranted invasion of personal privacy if disclosed[.]” Def.’s Mot. at 23;

see also Debelle Decl. ¶¶ 30–35; Vaughn at 5, (partially redacting summary judgement briefing

referencing “witness or federal employee names, gender pronouns, office location, details

regarding work relationships, substance of possible testimony, the last four of SSN, and job titles”),

7 (similar), 8 (similar), 10 (redacting an agency exhibit containing “witness names, witness title,

office location, role within the office, and experience with Plaintiff”), 11 (redacting Ms. Pearce’s

objection to the agency’s exhibit where the “information which would allow for the identification

of a federal government employee serving as a witness to an agency investigation as well as other

23 third-party individuals”), 12–13 (partially redacting deposition transcript of Witness 1 that

“contain[ed] the name of the deponent, the [a]gency investigation identifier, deponent’s work

history, position title, GS-level, work location, third-party names, details of other Agency

investigations, names of other witnesses to the underlying investigation, and other personal

identifying information” because “the disclosure of the name of the deponent could reasonably be

expected to constitute an unwarranted invasion of this individual’s personal privacy”), 19–20

(same for deposition transcript of Witness 2), 22–23 (same for deposition transcript of Witness 3),

27–28 (same for deposition transcript of Witness 4), 33–34 (same for deposition transcript of

Witness 5), 41–42 (same for Part 1 of the deposition transcript of Witness 6), 43–44 (same for Part

2 of the deposition transcript of Witness 6), 56–57 (same for deposition transcript of Witness 7),

17 (partially redacting an exhibit to remove personal identifying information), 18 (same for email

used in Witness 1’s deposition), 18–19 (same for Exhibit 5 used in Witness 1’s deposition), 21–

22 (same for Exhibit 1 used in Witness 2’s deposition), 25–26 (same for Exhibit 6 used in Witness

3’s deposition), 30 (same for Exhibit 1 used in Witness 4’s deposition), 30–31 (same for Exhibit

2 used in Witness 4’s deposition), 31 (same for Exhibit 3 used in Witness 4’s deposition), 32 (same

for Exhibit 4.2 used in Witness 4’s deposition), 33 (same for Exhibit 12 used in Witness 4’s

deposition), 37 (same for Exhibit 3 used in Witness 5’s deposition), 37–38 (same for Exhibit 4

used in Witness 5’s deposition), 38 (same for Exhibit 5 used in Witness 5’s deposition), 39 (same

for Exhibit 6 used in Witness 5’s deposition), 40 (same for Exhibit 8 used in Witness 5’s

deposition), 45–46 (same for Exhibit 2 used in Witness 6’s deposition), 46 (same for Exhibit 4

used in Witness 6’s deposition), 47 (same for Exhibit 5 used in Witness 6’s deposition), 47–48

(same for Exhibit 7b used in Witness 6’s deposition), 48 (same for Exhibit 8 used in Witness 6’s

deposition), 49 (same for Exhibit 9 used in Witness 6’s deposition), 49–50 (same for Exhibit 10

24 used in Witness 6’s deposition), 50–51 (same for Exhibit 11.5 used in Witness 6’s deposition), 52

(same for Exhibit 11 used in Witness 6’s deposition), 53 (same for Exhibit 13a used in Witness

6’s deposition), 54 (same for Exhibit 16 used in Witness 6’s deposition), 55 (same for Exhibit 18

used in Witness 6’s deposition), 56 (same for Exhibit 3 used in Witness 6’s deposition), 58 (same

for Exhibit 3 used in Witness 7’s deposition), 59 (same for Exhibit 6 used in Witness 7’s

deposition), 60 (same for Exhibit 7 used in Witness 7’s deposition), 61 (partially redacting personal

identifying information form a gift guidance document).

Ms. Pearce contests the Army’s redactions, arguing that “[n]o part of the subject materials

was compiled by the Agency for ‘law enforcement’ purposes.” Pl.’s Opp’n at 15–16.

But Ms. Pearce reads “law enforcement purposes” too narrowly. “It has been long established that

the phrase ‘law enforcement purposes’” in Exemption 7 “extends to both criminal and civil

proceedings.” Sinsheimer,

(D.D.C. 2006) (citation omitted).

The investigation in question “may arise in the course of carrying out an agency’s administrative

duties—as opposed to a duty tied directly to the substantive mission of the agency—if ‘the inquiry

departs from the routine and focuses with special intensity upon a particular party.’”

(quoting

Ctr. for Nat’l Pol’y Rev. on Race & Urban Issues v. Weinberger,

, 374 (D.C. Cir.

1974)). In other words, to fall within Exemption 7(C), “records must generally be generated during

the course of an investigation and involve the detection or punishment of violations of law.” Id.

Exemption 7 thus generally extends to agency administrative proceedings like the one at issue

here. See, e.g., Rural Hous. All. v. Dep’t of Agric.,

(D.C. Cir. 1974) (“What the

Government is required to show is that the investigatory files were compiled for adjudicative or

enforcement purposes.”); Mittleman v. Off. of Pers. Mgmt,

, 1243 (D.C. Cir. 1996)

(finding that federal employee background investigations satisfy Exemption 7’s threshold);

F.3d at 178–79 (holding that Exemption 7(C) “‘covers investigatory files related to

enforcement of all kinds of laws,’ including those involving ‘adjudicative proceedings’” such as

Office of Professional Responsibility conduct if such inquiries are for “violations of law” and not

for “oversight of the performance of duties”).

The investigation at issue here was carried out because of the EEO proceeding Ms. Pearce

commenced alleging that the Army engaged in discrimination and retaliation. See Pl.’s Facts ¶ 3

(citing to Compl. ¶ 10). The purpose was to determine whether the Army violated civil rights laws.

See

The Court thus finds that the investigation was carried out to enforce federal civil rights

laws and thus had a law enforcement purpose. See Jefferson,

(“[I]f the

investigation is for a possible violation of law, then the inquiry is for law enforcement purposes,

as distinct from customary surveillance of the performance of duties by government employees.”

(citation omitted)). “The fact that [the investigation] was not [a] criminal investigation[] does not

defeat the application of Exemption 7.” Sinsheimer,

(citation omitted). The

Army thus satisfies the threshold requirement of Exemption 7(C).

Next, as with Exemption 6, the privacy interest of those protected by Exemption 7(C) must

be balanced against the public interest that would be served by disclosure. See Shapiro,

. Again, the “central public interest in FOIA is shedding light on an agency’s performance

of its statutory duties.” Sinsheimer,

(citation omitted). And “the Supreme

Court has emphasized breadth of the privacy interests at stake, comprising all interests that

individuals have in controlling access to information about themselves.”

(citation omitted).

On one side of the ledger, the Army’s declarant has explained that “disclosing the names

of the individuals involved would cause foreseeable harm by subjecting such individuals to

annoyance or harassment in their private lives.” Debelle Decl. ¶ 31. And the information withheld

26 under Exemption 7(C) “would have a significant negative effect on the willingness of [a]gency

employees to participate or provide statements in future cases, negatively affecting the [a]gency’s

ability to fairly and justly investigate and adjudicate these cases.” Id. ¶ 32. On the other side,

Ms. Pearce appears to raise the same argument that she did under Exemption 6, arguing only that

“there is a public interest . . . to be served in disclosing the subject material showing the degree to

which [the] Agency is functioning, identifying those involved in the decision-making process, and

demonstrating the extent to which the Agency is complying with its statutory responsibilities.”

Pl.’s Opp’n at 15. On balance, the Court finds that the Army properly redacted this personal

identifying information under Exemption 7(C). See, e.g., Sinsheimer, 437 F. Supp. 2d at 54–56

(affirming the application of Exemption 7(C) to protect the names of “witnesses, [the] plaintiff’s

co-workers, investigators, and other personnel mentioned” because of the public interest in

encouraging cooperation and participation of agency employees in investigations of civil rights

violations).

b. Exemption 7(D)

Exemption 7(D) protects from disclosure “information compiled for law enforcement

purposes” if its release “could reasonably be expected to disclose the identity of a confidential

source” or could disclose “information furnished by a confidential source” in the course of a

criminal or national security intelligence investigation.

(b)(7)(D). “[A]n agency

must establish a source’s confidentiality on a case-by-case basis, either by showing that the source

‘provided information under an express assurance of confidentiality or in circumstances from

which such an assurance could be reasonably inferred.’” Shapiro v. CIA,

(D.D.C. 2017) (quoting Williams v. FBI,

(D.C. Cir. 1995) (per curiam)).

“The key question is not whether the requested information is of the type that the agency usually

27 treats as confidential, but whether the particular source spoke with an understanding that the

communication would remain confidential.” Wash. Post Co.,

, at *8

(cleaned up).

Here, the agency relied on Exemption 7(D) to withhold in full three records—declarations

from Army employees made during the EEOC investigation about Ms. Pearce’s termination. See

Vaughn at 25 (“The information [in Exhibit 4 used in Witness 3’s deposition] is also withheld

under 7(D) in its entirety to protect the witness pursuant to the implied confidentiality agreement

created between the EEOC and witnesses in the EEOC investigative process.”), 26–27 (same for

Exhibit 7 in Witness 3’s deposition), 36 (same for Exhibit 1 in Witness 5’s deposition).

The Army also redacted portions of certain deposition transcripts and exhibits on the same

basis. See Debelle Decl. ¶¶ 39–43, 41 (“It was explicitly made clear to the witnesses that the

protective order would apply to their depositions and other statements made during the course of

both [the] EEO investigation and later discovery during the EEOC litigation.”); see also Vaughn

at 5–6 (partially withholding information in summary judgment briefing because “[u]nder

exemption 7D the release of this document could reveal the identity of confidential witnesses to

an investigation”), 7 (same), 10–11 (partially withholding in the agency’s Exhibit 7 the “details

regarding the witness’ experiences with Complainant and details relating to their job duties, title,

location, and other related matters have been redacted to prevent their identification by a

knowledgeable reader”), 11–12 (partially withholding the name of the declarant from Ms. Pearce’s

objection to the agency’s exhibit because it is “non-segregable information [that] was utilized as

part of an investigation and litigation” and falls under the 7(D) exemption), 12–13 (partially

redacting the deposition transcript for Witness 1 under the 7(D) exemption because “the deponent

was given express assurance of confidentiality thanks to a protective order that was in place at the

28 time of the deposition throughout the course of the EEOC litigation”), 19–21 (same for the

deposition transcript for Witness 2), 22–24 (same for the deposition transcript for Witness 3),

27–29 (same for the deposition transcript for Witness 4), 33–35 (same for the deposition transcript

for Witness 5), 41–42 (same for Part 1 for the deposition transcript for Witness 6), 43–45 (same

for Part 2 for the deposition transcript for Witness 6), 56–58 (same for the deposition transcript for

Witness 7), 17–18 (partially redacting an exhibit to remove information that could be used to

identify the witness), 18 (same for email used in Witness 1’s deposition), 18–19 (same for

Exhibit 5 used in Witness 1’s deposition), 21–22 (same for Exhibit 1 used in Witness 2’s

deposition), 25–26 (same for Exhibit 6 used in Witness 3’s deposition), 30 (same for Exhibit 1

used in Witness 4’s deposition), 30–31 (same for Exhibit 2 used in Witness 4’s deposition), 31–32

(same for Exhibit 3 used in Witness 4’s deposition), 32 (same for Exhibit 4.2 used in Witness 4’s

deposition), 33 (same for Exhibit 12 used in Witness 4’s deposition), 37 (same for Exhibit 3 used

in Witness 5’s deposition), 37–38 (same for Exhibit 4 used in Witness 5’s deposition), 38 (same

for Exhibit 5 used in Witness 5’s deposition), 39–40 (same for Exhibit 6 used in Witness 5’s

deposition), 40 (same for Exhibit 8 used in Witness 5’s deposition), 45–46 (same for Exhibit 2

used in Witness 6’s deposition), 46–47 (same for Exhibit 4 used in Witness 6’s deposition), 47

(same for Exhibit 5 used in Witness 6’s deposition), 47–48 (same for Exhibit 7b used in Witness

6’s deposition ), 48 (same for Exhibit 8 used in Witness 6’s deposition), 48–49 (same for Exhibit

9 used in Witness 6’s deposition), 49–50 (same for Exhibit 10 used in Witness 6’s deposition),

50–51 (same for Exhibit 11.5 used in Witness 6’s deposition), 51–52 (same for Exhibit 11 used in

Witness 6’s deposition), 52–53 (same for Exhibit 13a used in Witness 6’s deposition), 54–55 (same

for Exhibit 16 used in Witness 6’s deposition), 55 (same for Exhibit 18 used in Witness 6’s

deposition), 56 (same for Exhibit 3 used in Witness 6’s deposition), 58–59 (same for Exhibit 3

29 used in Witness 7’s deposition), 59–60 (same for Exhibit 6 used in Witness 7’s deposition), 60

(same for Exhibit 7 used in Witness 7’s deposition).

According to the Army’s declarant, it obtained declarations and deposition testimony from

these individuals by providing specific assurances of confidentiality: In order “to successfully

obtain the desired information through an interview” and allay concerns of the witnesses “that

[their] identit[ies] will possibly be associated with said investigation,” the witnesses “were assured

that their names and personal identifying information would be held in confidence.” Debelle Decl.

¶ 42; see also Vaughn at 25, 26, 36. And “the information provided by individuals during an EEO

investigation into discrimination is a key tool to uncover potentially inappropriate and

discriminatory or retaliatory actions within a federal agency.” Vaughn at 25. On these facts,

the Army has adequately justified its Exemption 7(D) withholdings. See, e.g., Martinez v.

E.E.O.C., No. SA04CA0391XR,

, at *5 (W.D. Tex. Oct. 19, 2004)

(“[W]hile not determinative, the release of the identity and statements of the witnesses would

undoubtedly hamper the ability of the EEOC to investigate valid claims of discrimination in the

future. The Court finds, therefore, that there was an implied confidentiality agreement between the

witnesses and the EEOC.”).

In any event, Ms. Pearce does not appear to challenge the Army’s application of Exemption

7(D) in opposing the instant motion. See Pl.’s Opp’n. And “[w]here [a] FOIA requester responds

to the government’s motion for summary judgment without taking issue with the government’s

decision to withhold or to redact specific documents, the Court can reasonably infer that the FOIA

requester does not seek those specific records or information and that, as to those records or

information, there is no case or controversy sufficient to sustain the Court’s jurisdiction.” Shapiro

30 v. U.S. Dep’t of Just.,

, 106 n.1 (D.D.C. 2017) (citing Lujan v. Defs. of Wildlife,

(1992)).

4. Segregability

Under FOIA, an agency must provide “[a]ny reasonably segregable portion of a

record . . . after deletion of the portions which are exempt,”

(b), “unless the exempt

portions are inextricably intertwined with exempt portions,” Johnson v. Exec. Off. for U.S. Att’ys,

, 776 (D.C. Cir. 2002) (cleaned up). The agency is entitled “to a presumption that [it]

complied with the obligation to disclose reasonably segregable material, which can be overcome

only with some quantum of evidence.” Citizens United v. U.S. Dep’t of State, No. 18-cv-1862,

, at *8 (D.D.C. July 29, 2021) (cleaned up). Such evidence can include

“[a]ffidavits attesting to the agency’s ‘line-by-line review of each document withheld in full’ and

the agency’s determination ‘that no documents contained releasable information which could be

reasonably segregated from the nonreleasable portions,’ in conjunction with a Vaughn index

describing the withheld record[.]” Inst. for Energy Rsch. v. FERC, No. 22-cv-3420,

, at *13 (D.D.C. Feb. 12, 2024) (quoting Johnson, 310 F.3d at 776). While an agency “must

specifically and thoughtfully” consider whether otherwise exempt information can be released

without foreseeable harm, Leopold v. Dep’t of Just.,

(D.C. Cir. 2024), an attestation

“that ‘no further segregation’ [is] possible without disclosing such [exempt] information” fulfills

the agency’s duty to segregate non-exempt material and to establish foreseeable harm, Emuwa,

113 F.4th at 1017 (citations omitted).

The Army has met its burden by providing a Vaughn index and “a declaration attesting that

the agency released all segregable material.” Jud. Watch, Inc. v. U.S. Dep’t of Just.,

(D.D.C. 2014). The Army’s declarant explained that she “ensured that the [a]gency

31 reviewed the documents line by line and confirm[ed] that the non-exempt portions were segregated

from the exempt portions and the non-exempt portions were produced.” Debelle Decl. ¶ 43.

And she “considered whether exempt portions could be released and determined that they could

not be further released without incurring reasonably foreseeable harm[.]”

In total, the Army

“fully withheld only three documents”—“the declarations of three [a]gency witnesses.” Id. ¶ 44.

Having produced a detailed Vaughn index and declarations, the Army is “entitled to a presumption

that [it] complied with the obligation to disclose reasonably segregable material.” Sussman v. U.S.

Marshals Serv.,

(D.C. Cir. 2007).

To rebut this presumption, a plaintiff must produce a “quantum of evidence,” at which

point “the burden lies with the government to demonstrate that no segregable, nonexempt portions

were withheld.”

Here, Ms. Pearce questions the “foreseeable harm” of many of the redactions

given that her “civil rights claims are in litigation in a federal district court.” Pl.’s Opp’n at 16. But

because the release of documents in discovery and under FOIA are not coextensive, see supra, at

10–11, this argument does not provide the “quantum of evidence” needed at this stage, Sussman,

. Otherwise, Ms. Peace provides nothing more than a bald assertion that the

agency has not met its burden because “[t]he disclosures include blocks of information that have

been largely redacted.” Pl.’s Opp’n at 16. Without more, there is no basis to disturb the

presumption that the Army met its obligation to disclose reasonably segregable material.

B. Privacy Act

The Army also defends its partial redactions and withholdings under the Privacy Act,

which provides that “[e]ach agency that maintains a system of records shall . . . upon request by

any individual to gain access to his record or to any information pertaining to him which is

contained in the system, permit him . . . to review the record and have a copy made of all or any

32 portion thereof in a form comprehensible to him[.]” 5 U.S.C. § 552a(d)(1). But the Act’s disclosure

requirements are not absolute. The government may not disclose information about third parties

without their consent. See id. § 552a(b). And the Privacy Act prohibits the release of “any

information compiled in reasonable anticipation of a civil action or proceeding.” Id. § 552a(d)(5);

see Mobley v. CIA,

(D.D.C. 2013). “[I]n determining whether records are

properly classified a court must give ‘substantial weight’ to agency declarations and affidavits,

so long as they ‘contain reasonable specificity detail,’ even while it conducts a de novo review of

the decision to withhold.” Blazy v. Tenet,

(D.D.C. 1997) (quoting Halperin v.

CIA,

(D.C. Cir. 1980)) (citations omitted). The record before the Court

establishes that the Army properly redacted and withheld information under the Privacy Act.

First, the Army argues that information about third parties “withheld under FOIA

Exemptions 6 and 7(C)” is also “non-releasable under the Privacy Act because the information is

not about [the] Plaintiff, and its release would invade the privacy of the third-party employees.”

Def.’s Mot. at 9 (citation omitted); see also Debelle Decl. ¶ 20 (“The Privacy Act’s access

provision simply permits an individual to gain access to their own record or any information

pertaining to the individual that is contained in a system of records and retrieved by name or

personal identifier. 5 U.S.C. § 552a(d)(1). The Agency processed Plaintiff’s request under both

the Privacy Act and the FOIA. Therefore, third-party privacy information was redacted or withheld

under the appropriate FOIA exemptions.”). It explains that “[s]ome portions of the [requested]

records were not about [Ms. Pearce], and included private information regarding other individuals;

thus the [a]gency appropriately shifted its analysis to whether those records were required to be

disclosed under FOIA.” Id. (citations omitted). The Court agrees.

33 “[T]he Privacy Act prohibits [agencies] from disclosing information about a living third

party without a written privacy waiver, unless FOIA requires disclosure.” Burke v. U.S. Dep’t of

Just., No. 96-cv-1739,

at *10 (D.D.C. Sept. 30, 1999) (emphasis

omitted); see also 5 U.S.C. § 552a(b) (“No agency shall disclose any record which is contained in

a system of records by any means of communication to any person, or to another agency, except

pursuant to a written request by, or with the prior written consent of, the individual to whom the

record pertains, unless disclosure of the record would be . . . required under section 552 of this title

[i.e., FOIA].”). Nothing in the record suggests that Ms. Pearce provided privacy waivers from the

relevant third parties. And without the consent of those individuals, the statute mandated the

Army’s redactions and withholdings. This outcome makes sense because Section 552a(b)

“prohibits [the] nonconsensual disclosure of any information that has been retrieved from a

protected record.” Bartel,

(cleaned up).

Ms. Pearce counters that she has a right to these records in full because they “were stored

in the Agency’s electronic files under folders and file names pertaining to [her] and [her]

administrative EEO complaint, investigation, and EEOC proceedings.” Pl.’s Opp’n at 7 (citation

omitted). And the Privacy Act does require agencies that “maintain[] a system of records” to permit

“any individual to gain access to his record” and to “review the record and have a copy made[.]”

5 U.S.C. § 552a(d)(1). But Ms. Pearce ignores that Section 552a(b) limits that general disclosure

obligation when the material involves other individuals. See Sussman,

n.9

(“If certain materials pertain to both [the plaintiff] and other individuals, from whom the

[defendant] has received no written consent permitting disclosure, the Privacy Act would both

require (5 U.S.C. § 552a(d)(1)) and forbid (id. § 552a(b)) their disclosure . . . . [T]he prohibition

must take precedence.” (citation omitted)).

34 Second, the Army redacted and withheld material under Privacy Act Exemption (d)(5).

See Debelle Decl. ¶¶ 23, 25, 28; see also supra, at 8–9, 11–13, 14–15. Exemption (d)(5) prohibits

the release of “information compiled in reasonable anticipation of a civil action or proceeding,”

5 U.S.C. § 552a(d)(5), and it “protects documents prepared in anticipation of quasi-judicial

administrative hearings” as well as “actions in the district courts,” Martin,

.

The exemption extends to “investigatory documents” originally “premised on the possibility that

prohibited practices will be uncovered, thereby warranting further action,” even if no proceedings

are in fact initiated. Gov’t Accountability Project v. Off. of Special Couns., No. 87-cv-235,

, at *4 (D.D.C. Feb. 22, 1988).

Relying on this exemption, the Army withheld “information concerning [the] attorneys’

internal discussions and impressions regarding ongoing procurement litigation and details or drafts

of a potential settlement agreement, as well as legal opinions and advice to clients concerning

government ethics, employment litigation and personnel matters, and ongoing litigation.”

Def.’s Mot. at 19 (citing Debelle Decl. ¶¶ 23, 25, 28). The Army’s declarant explained that material

redacted and withheld under FOIA Exemption 5 was also redacted and withheld under Privacy

Act Exemption (d)(5). See Debelle Decl. ¶¶ 23, 25, 28. This makes sense given that “FOIA

Exemption 5 and Privacy Act Exemption (d)(5) permit the agency to withhold information that

qualifies as attorney work product or falls under the attorney-client or deliberative process

privilege.” Blazy,

(citing

(b)(5) (protecting privileged

materials); 5 U.S.C. § 552a(d)(5) (protecting information compiled in reasonable anticipation of a

civil proceeding)). Having concluded that the Army’s redactions and withholdings under FOIA

Exemption 5 were proper, see supra, at 6–16, the Court also upholds the Army’s reliance on

Privacy Act Exemption (d)(5). The relevant material falls squarely within Exemption (d)(5).

35 Ms. Pearce appears to argue that the Army has not done enough to support this exemption.

Pl.’s Opp’n at 6–7. But the Army justified its redactions and withholdings in great detail. Its

declarant explained that it “withheld certain information pursuant to the attorney-client privilege

that reflects consultation undertaken in confidence within Office of Counsel, as well as between

the attorneys and Agency clients,” Debelle Decl. ¶ 23; “withheld certain information pursuant to

the attorney work product doctrine,” id. ¶ 25; and “withheld certain information pursuant to the

deliberative process privilege,” id. ¶ 28 (addressing both FOIA Exemption 5 and Privacy Act

Exemption (d)(5)). And the Army’s Vaughn Index provided details for each document redacted or

withheld for attorney-client privilege, attorney work product, and deliberative-process privilege.

See generally Vaughn. The redactions and withholdings are proper under the Privacy Act.

See Smiertka v. U.S. Dep’t. of Treasury, IRS,

(D.D.C. 1978) (documents

exempt from disclosure as records compiled in reasonable anticipation of a civil action or

proceeding because Section 552a(d)(5) “was meant to afford the broad protection its broad terms

apply”), remanded on other grounds,

(D.C. Cir. 1979); see also Mobley,

(saying the defendant was “correct to point out that a contrary rule would make attorneys

fear that they should not record their candid thoughts, advice, or impressions until they first

determined that any feared lawsuit would be meritorious.” (cleaned up)).

C. Declaratory Judgment Act

Finally, Ms. Pearce brings a claim under the Declaratory Judgment Act,

.

See Compl. ¶¶ 49–54. But the Declaratory Judgment Act is not an independent source of federal

jurisdiction. See Ali v. Rumsfeld,

(D.C. Cir. 2011). It is not cognizable where a

plaintiff has not demonstrated a clear right to relief under another statute. See, e.g., Kenney v.

U.S. Dep’t of Just.,

, 118 n.3 (D.D.C. 2010) (“[B]ecause the Court finds that

36 the FBI has not violated the FOIA, plaintiff has no basis for obtaining a declaratory judgment

[under the Declaratory Judgment Act.]” (citation omitted)). Because Ms. Pearce’s FOIA and

Privacy Act claims fail, see supra, at 6–37, so does her Declaratory Judgment Act claim.

CONCLUSION

For the foregoing reasons, the Court grants the Defendant’s Motion for Summary

Judgment, ECF No. 17.

A separate order will issue.

SPARKLE L. SOOKNANAN United States District Judge

Date: July 10, 2025

37