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Erwin v. United States Department of State

United States District Court, Seventh Circuit

December 9, 2013

JOHN ERWIN, Plaintiff,


GARY FEINERMAN, District Judge.

John Erwin brought this suit under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to compel the United States Department of State to turn over documents in response to his FOIA request. The Department filed a summary judgment motion, Doc. 33, which was denied, 2013 WL 842601 (N.D. Ill. Mar. 6, 2013). Now before the court are the Department's renewed summary judgment motion and Erwin's cross-motion for summary judgment. Docs. 73, 86. The Department's motion is granted and Erwin's motion is denied.


The relevant background is set forth in the court's earlier opinion. 2013 WL 842601, at *1-3. By way of review, the Department located 151 documents responsive to Erwin's request. Doc. 83 at p. 5, ¶ 10. Of those documents, 89 were released in full (including Erwin's entire personnel, medical, and original security background files), 43 were withheld in part, and 17 were originally withheld in full; portions of six of the 17 documents originally withheld in full will be produced to Erwin as a result of the review the Department conducted after its first summary judgment motion was denied. Ibid.

The court denied the Department's summary judgment motion because the search affidavit prepared by Office of Information Programs and Services ("IPS") Director Sheryl Walter lacked sufficient detail regarding the search conducted within the Department's Bureau of Diplomatic Security. 2013 WL 842601, at *4-5. Additionally, while not ruling on the validity of the Department's asserted exemptions, the court pointed out two flaws in the Department's Vaughn index. Id. at *5-6. The court invited the Department to file a renewed summary judgment motion, provided that it "fill the... gaps in its search affidavit and Vaughn index." Ibid.

On the Department's renewed motion, Erwin's Local Rule 56.1(b)(3)(B) response (Doc. 83 at pp. 2-7) takes issue with some assertions in the Department's Local Rule 56.1(a)(3) statement (Doc. 75). However, most of Erwin's objections fail to cite specific record material (Doc. 83 at p. 7, ¶ 15), concern matters immaterial to the cross-motions for summary judgment ( id. at p. 2, ¶ 14), or present argument inappropriate for a Local Rule 56.1 submission ( id. at pp. 5-7, ¶¶ 9, 11, 13-14). See Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817-18 (7th Cir. 2004) ("[W]here a non-moving party denies a factual allegation by the party moving for summary judgment, that denial must include a specific reference to the affidavit or other part of the record that supports such a denial. Citations to an entire transcript of a deposition or to a lengthy exhibit are not specific and are accordingly, inappropriate. A court should not be expected to review a lengthy record for facts that a party could have easily identified with greater particularity."); Sys. Dev. Integration, LLC v. Computer Scis. Corp., 739 F.Supp.2d 1063, 1068 (N.D. Ill. 2010) ("the purpose of Rule 56.1 statements is to identify the relevant evidence supporting the material facts, not to make factual or legal arguments, and thus the Court will not address the parties' arguments made in their Rule 56.1 statements and responses") (citation omitted). Erwin's Local Rule 56.1(b)(3)(C) statement of additional facts (Doc. 83 at pp. 7-13) is disregarded for the same reasons, as its assertions address matters immaterial to this FOIA case, like Erwin's proceedings before the Foreign Service Grievance Board ( id. at pp. 8-10, ¶¶ 3-4), fail to make specific references to the record ( id. at pp. 7-8, ¶ 2), or present legal argument inappropriate for a Local Rule 56.1 submission ( id. at pp. 7-8, 10-13, ¶¶ 1-2, 5-7).

Erwin asks the court to conduct an in camera review if the withheld materials. Doc. 86 at 11-14. Precedent holds that a district court may "deny[] in camera review of records when affidavits submitted by the Government (1) describe the withheld documents and the justifications for non-disclosure with reasonably specific detail, (2) demonstrate that the information withheld falls logically within the claimed exemption, and (3) are not controverted by either contrary evidence in the record or by evidence of bad faith." Silets v. Dep't of Justice, 945 F.2d 227, 229 (7th Cir. 1991) (en banc) (internal quotation marks omitted). As shown below in the Discussion section, the Department has satisfied the first two requirements. The court here will consider Erwin's argument, relevant to the third requirement, that the Department engaged in bad faith in responding to his FOIA request. Doc. 88 at pp. 11-13, ¶ 7.

Erwin's argument is that the Department produced too many documents-in particular, documents other than those that concern the identity of the person who accused him of sexual assault. Ibid. ; Doc. 86 at 5-7. Erwin provides no legal authority for the proposition that over-production qualifies as bad faith for purposes of obtaining in camera review in a FOIA case. In any event, the Department did not over-produce. Although the FOIA request states at one point that Erwin was "looking for one specific piece of information, ... namely, who made the allegation of sexual assault, " it also states that he was "requesting, in short, my employment records, including but not limited to: records regarding my background check, any investigations of me performed by the DOS, and any information located in the Office of Diplomatic Security." Doc. 35-4 at 1-2. Thus, Erwin's FOIA request plainly requests more than just documents concerning the identity of the person who accused him of sexual assault. For these reasons, and even taking into account the factual assertions in his Local Rule 56.1 submissions regarding the Department's alleged bad faith, Erwin has failed to establish that an in camera review is warranted due to bad faith on the Department's part. See Silets, 945 F.2d at 231 ("[T]he mere allegation of bad faith does not undermine the sufficiency of agency submissions. There must be tangible evidence of bad faith; without it the court should not question the veracity of agency submissions.") (internal quotation marks omitted, alterations in original).

Given all this, and because Erwin's Local Rule 56.1 submissions and legal briefs do not undermine any of the factual averments set forth in the Department's affidavit and Vaughn index, the disposition of the cross-motions for summary judgment turns on the supplemental affidavit and Vaughn index attached to the Department's renewed motion and on the parties' legal arguments. See ACLU v. Dep't of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011) ("If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone."); Carney v. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994) ("Affidavits or declarations supplying facts indicating that the agency has conducted a thorough search and giving reasonably detailed explanations why any withheld documents fall within an exemption are sufficient to sustain the agency's burden [on summary judgment]."); Matter of Wade, 969 F.2d 241, 249 n.11 (7th Cir. 1992) ("In the summary judgment posture... the question is whether the agency conducted a search reasonably calculated to uncover all relevant documents in response to the FOIA request.... The agency may rely on reasonably detailed nonconclusory affidavits submitted in good faith to support their claims of compliance."); Kimberlin v. Dep't of Treasury, 774 F.2d 204, 210 (7th Cir. 1985) (affirming summary judgment for the agency where "[t]he [agency] affidavit describes the requested documents and the justifications for nondisclosure with reasonable specificity, the withheld information logically falls within the exemptions, and there is no evidence contrary to the affidavits or of bad faith by the [agency]").


"FOIA requires a federal agency upon request to disclose records in its possession, subject to nine exemptions." Enviro Tech Int'l v. EPA, 371 F.3d 370, 374 (7th Cir. 2004); see 5 U.S.C. § 552(a)-(b). The Privacy Act generally "provides an individual with the right to access his records upon request, " also subject to certain exemptions. Bassiouni v. FBI, 436 F.3d 712, 714-15 (7th Cir. 2006); see 5 U.S.C. § 552a(d)(1), (j)-(k). Because of the "asymmetrical distribution of knowledge" in FOIA and Privacy Act cases, "where the agency alone possesses, reviews, discloses, and withholds the subject matter of the request, " Judicial Watch, Inc. v. FDA, 449 F.3d 141, 146 (D.C. Cir. 2006) (internal quotation marks omitted), the agency bears the burden of establishing that the search was adequate and that the asserted exemptions are proper. See Chambers v. Dep't of Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009); Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007); Patterson v. IRS, 56 F.3d 832, 835-36, 840 (7th Cir. 1995).

I. The Adequacy of the Department's Search for Documents in the Bureau of Diplomatic Security

When evaluating the adequacy of the Department's search, "[t]he issue is not whether other documents may exist, but rather whether the search for undisclosed documents was adequate." Becker v. IRS, 34 F.3d 398, 406 (7th Cir. 1994) (internal quotation marks omitted); see also Morley, 508 F.3d at 1120 ("failure of an agency to turn up one specific document in its search does not alone render a search inadequate") (internal quotation marks omitted). "The adequacy of the document search is judged under a reasonableness standard. The agency may rely on reasonably detailed nonconclusory affidavits submitted in good faith to support their claims of compliance." Becker, 34 F.3d at 406 (internal quotation marks omitted); see also Patterson, 56 F.3d at 840-41. "A satisfactory agency affidavit should, at a minimum, describe in reasonable detail the scope and method by which the search was conducted." Maynard v. CIA, 986 F.2d 547, 559 (1st Cir. 1993) (citing Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)); see also Chambers, 568 F.3d at 1003; Morley, 508 F.3d at 1122 (finding an affidavit inadequate for not "identify[ing] the terms searched or explain[ing] how the search was conducted in each component" and not providing "any indication of what each directorate's search specifically yielded") (internal quotation marks omitted, alterations in original).

In holding that Walter's first attempt to explain the Department's search was insufficient, the court explained that while "Walter adequately described the searches conducted within [the Department's Bureau of] Human Resources and Medical Services, " "[t]he same cannot be said for Walter's description of the search conducted within [the Bureau of] Diplomatic Security." Id. at *4. In particular, the court faulted the affidavit for "fail[ing] to describe with any level of specificity what searches were conducted within [Diplomatic Security's] components and which documents were found." Ibid. Accompanying the Department's renewed summary ...

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