UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LORI GILBERT,

Plaintiff

v. Civil Action No. 1: 21-cv-00318 (CJN)

UNITED STATES AIR FORCE,

Defendant.

MEMORANDUM OPINION

Major Lori Gilbert submitted a FOIA request to the United States Air Force seeking various

records relating to an investigation regarding her command of a unit at Joint Base San Antonio-

Lackland. Following various rounds of productions and motions practice, two issues remain: Whether

the Air Force conducted its search for responsive documents in good faith, and whether the Air Force

properly withheld documents in reliance on the Inspector General Act, 5 U.S.C. App’x 3 § 7(b). For

the reasons that follow, the Court concludes that the Air Force’s search was adequate and that its

withholdings are proper—and accordingly grants Defendant’s Motion for Summary Judgment while

denying Plaintiff’s.

I. Background

Lori Gilbert holds the rank of Major in the United States Air Force, a role in which she has

served on active duty since 2006. ECF 14 at 1. On July 16, 2018, she became the Director of

Operation for the 625th Air Communications Squadron at Joint Base San Antonio-Lackland in Texas.

Id. In October of that year, the Squadron released a “Unit Climate Assessment,” which revealed a

“pattern of dissatisfaction among some unit personnel with” Gilbert. ECF 12-1 at 2. According to

Gilbert, she learned that Meredith Costey, a civilian employee who served as a flight director, had 1 solicited members of the unit for comments regarding Gilbert’s leadership. ECF 13-2 at 2. Gilbert

also attests that she was told by Costey in January 2019 that, acting on behalf of Gibert’s superior

Colonel Micheal Cote, Costey had collected comments about Gilbert from other members of the unit

and had forwarded those comments to Cote by email. Id. Two months later, an investigating officer

notified Gilbert that she was the subject of a Commander Directed Investigation into her role in the

dissatisfaction. ECF 13 at 1.

An investigation report followed, alleging that “several personnel [had] approached the

ACOMS Commander… in person and via email over the course of months, outlining concerns with

[Gilbert’s] leadership.” ECF 13-5 at 2. The report also alluded to deeper tensions—namely, Gilbert’s

allegations that criticisms of her leadership style were brought “solely on racial grounds.” Id. That

investigation report ultimately resulted in a Letter of Reprimand against Gilbert, a two-year

Unfavorable Information File, a negative Officer Performance Report, and a black mark on her

Officer Selection Record. ECF 14 at 1–2. Gilbert claims that the effects of these repercussions are

permanent and detrimental. Id.

Gilbert wanted more information on what had led to such an indicting report. She therefore

submitted a FOIA request to the Air Force seeking, among other things: the appointment and tasking

letter from Cote that had instigated the investigation; the background statement leading to the

investigation; the complete report of the investigation, including all exhibits, attachments, and notes

of witness interviews; any/all historical information on Gilbert’s squadron; “Inspector General

recommendations” concerning the investigation; the “EO recommendation concerning the

investigation”; and all emails/correspondences to and from various persons—including Meredith

Costey and Colonel Cote—from July 2018 through December 2019. Id. at 2–3; ECF 30-3 at 1–2.

Two days after it received her FOIA request, the Air Force contacted Gilbert and asked her

to amend part 16—that is, the part seeking all pertinent communications from Colonel Cote during

2 the relevant timeframe. ECF 30-5 at 1. Gilbert declined to do so. Id. Two days later, the Air Force

sent Gilbert a final response letter containing 1,808 pages of responsive documents, but it also

withheld certain records on three grounds: (1) that the Inspector General Act, 5 U.S.C. App’x 3 §

7(b) (via

(b)(3)) protected certain complaints brought against Gilbert; (2) that an

internal legal review of the investigation was protected under §552(b)(5) as intra-agency legal work

product; and (3) that employees’ names, duty titles, phone numbers, email addresses and contact

information in certain documents were protected under §552(b)(6) as personnel files “the disclosure

of which would constitute a clearly unwarranted invasion of personal privacy.”

Gilbert appealed those withholdings—and further alleged that the agency had not conducted

an adequate search. Id. When the Air Force delayed in resolving that internal appeal, Gilbert filed

this action (and the Air Force terminated the appeal). Id. at 4; ECF 30-1 at 8. For the next several

months here the Air Force made additional productions while the parties submitted joint status

reports. See ECF 27, 28, 29. Some of those additional productions came even after the parties had

filed summary judgment briefs, as a result of which the Court ordered the Air Force to file a final

Vaughn index and supporting declaration to make clear what issues remained in dispute. ECF 30-1.

As noted above, two issues remain live: Whether the Air Force conducted its search for

relevant documents in good faith, and whether the Air Force properly relied on the Inspector General

Act as the basis for its §552(b)(3) withholdings. ECF 32 at 2, 6.

II. Analysis

Summary judgment is appropriate when “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). A dispute is “genuine” only if “the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,

(1986). “In the

FOIA context, summary judgment may be granted on the basis of agency affidavits if they contain

3 reasonable specificity of detail rather than merely conclusory statements, and if they are not called

into question by contradictory evidence in the record or by evidence of agency bad faith.” Evans v.

Fed. Bureau of Prisons,

, 584 (D.C. Cir. 2020) (internal alteration and quotation marks

omitted).

A. Adequacy of Search

As noted above, Gilbert contends that the Air Force’s search for responsive records was

conducted in bad faith, and therefore was inadequate. The crux of this contention is a September 2018

email that Gilbert believes was sent from Costey to Cote (the sender’s name and email address is

redacted in the eversion produced to Gilbert). It is undisputed that the Air Force did not produce this

email in its initial production, but did produce it later after conducting additional searches. Gilbert

asks a reasonable question: “Why was the September 2018 email, which led to a formal investigation

of plaintiff… not located until an electronic search was conducted, as a result of this litigation, in May

2021?” ECF 32 at 4. The Air Force’s answer is that the “email account that the [September 18]

email[] w[as] considered protected under the ‘Protected Communications’” category. “This category

includes any communication between supervisor and employee.” ECF 19-1 at 3.

Gilbert argues that this position suggests a bad faith investigation; she claims that, because the

September 18 email was so central to her request, the Air Force could have withheld it from the initial

production only out of malice. The Air Force’s original position as to this document appears to have

been that it was covered by FOIA exemption (b)(3) as a communication between supervisor and

employee. Whatever the merits of that position, the Air Force later changed it, and ultimately

produced the document in redacted form.

The Air Force’s initial position does not appear to be so outlandish that it can only be explained

by malice. But in any event, it’s unclear why that should matter much now. After all, the Air Force

produced the document to Gilbert long ago (subject to the redactions discussed below). Perhaps as

4 important, even if Gilbert were right that the Air Force acted in bad faith in withholding a document

it had located in its early search efforts, she has failed to demonstrate how that decision also reflects

bad faith in how the Air Force conducted its searches for responsive records. Put differently, Gilbert

fails to link the Air Force’s alleged bad faith in not producing one document it did locate to a claimed

deficiency in its efforts to locate other responsive records.

To be sure, Gilbert does contest how the Air Force conducted its search—in particular, she

challenges how the initial search of email records in 2020 was done by the email custodians

themselves, rather than through a centralized search of the electronic records. ECF 32 at 4. But since

its original search and production, the Air Force has conducted a full electronic search of the

custodians’ email accounts. ECF 30-1 at 15–16. And it has explained why such a search wasn’t

feasible the first time: The “Electronically Stored Information” process used during the later search

was “not an approved FOIA process for searching emails” in 2020.

. In the Court’s view, the

custodian-dependent searches followed up by the ESI process was adequate here.

B. The Inspector General Act

The second remaining dispute is whether the Air Force has appropriately relied on the

Inspector General Act in withholding information that might disclose the identity of the complainant

in the September 18 email. Gilbert does not dispute that the Act might apply in appropriate

circumstances as a qualifying statute under FOIA exemption 3; instead, she argues, it cannot apply

here because she claims to already know the identity of the complainant: Meredith Costey. ECF 32

at 6.

To be sure, Gilbert has some information to suggest that Costey was the complainant. But is

that enough? In Cottone v. Reno.

(D.C. Cir. 1999), the Court of Appeals laid out a three-

part test for determining whether non-public information has been confirmed through public

disclosures. Under that test, the non-public information must be “as specific as the information

5 previously released,”

; the non-public information must “match the information previously

disclosed,” id.; and the non-public information must have “already . . . been made public through an

official and documented disclosure,”

These requirements ensure that the “information sought is

truly public and that the requester receive[s] no more than what is publicly available.”

The problem for Gilbert is that she does not make a serious effort to satisfy the last part of this

test. In particular, Gilbert fails to establish that the Air Force has ever made public, “through an

official and documented disclosure,” the identity of the complainant—let alone that it was Costey.

And the record does not otherwise demonstrate that the Air Force has confirmed the identify as

required by Cottone. Accordingly, while Gilbert surely believes (and has reason to believe) that the

September 18 email was sent by Costey, that is not enough to demonstrate that the identity of the

complainant has been disclosed. As a result, the Air Force properly withheld this information under

exemption 3.

III. Conclusion

For the foregoing reasons, Defendant’s Motion for Summary Judgment, ECF 12, is

GRANTED and Plaintiff’s Cross-Motion for Summary Judgment, ECF 14, is DENIED. A separate

order will accompany this opinion.

DATE: August 14, 2025 13 J. NICHOLS United States District Judge

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