United States District Court, W.D. Texas, San Antonio Division
C. Lamberth, United States District Judge
the Court are plaintiffs Motion for Summary Judgment, filed
January 24, 2017, and defendant's Cross-Motion for
Summary Judgment, filed June 1, 2017. Having considered the
motion, responses, replies, exhibits, filings, and applicable
law, the Court will deny the defendant's Cross-Motion for
Summary Judgment. The Court will also grant the plaintiffs
Motion for Summary Judgment in-part, and deny it in-part.
Finally, the Court will grant the defendant's Motion in
the Alternative for an Open America Stay.
case is a follow-up to a 2010 FOIA case. Plaintiff John Eakin
previously submitted FOIA requests to the Department of
Defense (DoD) regarding documents and personnel files for
unidentified American service members and civil employees who
were held in Japanese POW camps in the Philippines during
World War II. Eakin v. United States Department of
Defense et al, Cause No. 5:10-cv-784-FB (W.D. Tex. Jan.
23, 2012). Eakin specifically requested Individual Deceased
Personnel Files (IDPF's) for all American service members
or civilian employees whose remains were not recovered or
identified, as well as "X-Files" pertaining to
unidentified remains at specific POW camps and cemeteries in
the Philippines. In that case, the government argued that
Eakin's request was not entitled to a fee waiver or
expedited processing, and also that the request imposed an
unreasonable burden and that the government should be excused
from responding. Cause No. 10-cv-784, ECF No. 25. Magistrate
Judge Nancy Nowak found that Eakin was not entitled to a fee
waiver or expedited processing but did not reach the
unreasonableness argument because it was not raised in the
underlying administrative proceeding. Cause No.
5:10-cv-784-FB, 2011 WL 5925570, at * 8 (W.D. Tex. Nov. 28,
2011). Judge Biery adopted the Report and Recommendation and
granted the government's motion for summary judgment. ECF
No. 46. The case was dismissed in 2012.
later, on May 10, 2016, Eakin filed the relevant FOIA request
here. He sought "Electronic (digital) copies of all
World War II era Individual Deceased Personnel Files (IDPFs)
a/k/a 293 files and/or 'X-files' which exist in any
digital or electronic format, " as well as accompanying
indices or documents necessary to access the IDPFs. Compl. 8,
ECF No. 1. The next day, May 11, 2016, Eakin filed a second
FOIA request, seeking "All contracts, contract
amendments/modifications, and similar documents pertaining to
contracts for digital scanning of U.S. Army [IDPFs]
previously stored at National Archives and Records
Administration (NARA), " as well as documents which
identify the users/agencies which have access to IDPFs.
Id. at 10. DoD notified plaintiff that each request
had been received and that DoD would be unable to respond to
the requests within the statutorily allotted 20-day period.
Id. at 7, 12. According to DoD, Eakin's
"unusual circumstances" of the requests affected
the ability to process the request quickly. Id.
"These unusual circumstances are: (a) the need to search
for and collect records from a facility geographically
separated from this Office; (b) the potential volume of
records responsive to your request; and (c) the need for
consultation with one or more other agencies or DoD
components having a substantial interest in either the
determination or the subject matter of the records."
Id. DoD placed Eakin's requests in a
"complex processing queue" to be worked in the
order the request was received. Id. The queue
apparently included over 1, 600 other open requests.
Id. Both letters included instructions on
Eakin's right to appeal the decision to DoD's Office
of the Deputy Chief Management Officer Directorate for
Oversight and Compliance, which is responsible for DoD's
FOIA policy. Id.
23, 2016, Eakin submitted his appeal regarding DoD's
decision not to comply with the 20-day response time. Compl.
14. According to Eakin, DoD failed to respond and his appeal
was constructively denied. Id. at 3 On September 30,
2016, plaintiff Eakin filed this action alleging that
DoD's failure to respond to the appeal or produce the
records or demonstrate an exemption is a violation of FOIA, 5
U.S.C. § 552. Id. at 3-4. DoD filed its answer
on November 1, 2016. ECF No. 8. In its answer, DoD claimed
"some" documents were exempt under one of the
enumerated FOIA exemptions and that DoD is entitled to a stay
under the Open America doctrine based on the volume
of FOIA requests from Eakin. Id.
January 24, 2017, Eakin filed a Motion for Summary Judgment,
ECF No. 16, arguing that because the requested documents are
not exempt that the Court should compel their production. On
June 1, 2017, DoD filed a joint Response and Cross-Motion for
Summary Judgment. ECF No. 22. In its cross-motion, DoD claimed
that after receiving Eakin's request, the Defense POW/MIA
Accounting Agency (DPAA) and the Army Human Resources Command
(AHRC) FOIA Office had been coordinating a response, but that
the review of the responsive documents was not yet complete.
Specifically, DoD submitted affidavit testimony from the
Chief of AHRC that three of AHRC's eight FOIA Action
Officers were assigned to work one hour per day to remove
recently-created documents from the IDPF's, such as other
FOIA requests, correspondence, and medical information such
as DNA data on related individuals. Ex. 1, ECF No. 22-2.
According to DoD, this review involves three hard drives
containing approximately 280, 000 IDPF's and 4.2
terabytes of data. Id. Manual review is necessary to
prevent possible disclosure of Personally Identifiable
Information, which is exempt from disclosure under Exemptions
6 and 7(c) of FOIA. 5 U.S.C. §§ 552(b)(6)-(7).
argues that the time, expense, and effort required to process
the IDPF's for a response constitutes an unreasonable
burden under FOIA. In the alternative, DoD requests that the
Court grant an Open America stay to extend the
timeline over which FOIA compels the DoD to produce
7, 2017, Eakin filed a response to DoD's cross-motion
reiterating that DoD had failed to identify any exemption
that would justify nondisclosure of the requested documents.
ECF No. 24. Further, Eakin argues that the request is not
unreasonably burdensome because DoD knows exactly where the
records are and which records are being requested. Eakin also
argues that an Open America stay is not applicable
because DoD has failed to show that "exceptional
circumstances" exist under 5 U.S.C.
judgment is proper when the evidence 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). The main purpose of summary judgment is
to dispose of factually unsupported claims and defenses.
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24
moving party bears the initial burden of demonstrating the
absence of any genuine issue of material fact. Id.
at 323. If the moving party meets this burden, the non-moving
party must come forward with specific facts that establish
the existence of a genuine issue for trial. ACE Am. Ins.
Co. v. Freeport Welding & Fabricating, Inc., 699
F.3d 832, 839 (5th Cir. 2012). The function of summary
judgment is to allow for parties to preempt litigation by
demonstrating that "one or more of the essential
elements of a claim or defense before the court is not in
doubt and that, as a result, judgment should be entered on
the basis of purely legal considerations." Fontenot
v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). In
deciding whether a fact issue exists, "the court must
draw all reasonable inferences in favor of the nonmoving
party, and it may not make credibility determinations or
weigh the evidence." Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000). "Where the
record taken as a whole could not lead a rational trier of
fact to find for the non-moving part, there is no
'genuine issue for trial.'" Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (quoting First Nat'l Bank of Ariz. v. Cities
Serv. Co., 391 U.S. 253, 389 (1968)).
affords the public access to virtually any federal government
record that FOIA itself does not specifically exempt from
disclosure." Jarvik v. CIA, 741 F.Supp.2d 106,
113 (D.D.C. 2010) (citing 5 U.S.C. §552; Vaughn v.
Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973)). Under FOIA,
federal district courts have jurisdiction to order the
release of improperly withheld or redacted information. 5
U.S.C. § 552(a)(4)(B). Under the statute, agencies must
respond within 20 days of receiving a FOIA request. 5 U.S.C.
§ 552(a)(6)(A). This 20-day deadline may be extended by
up to 10 days under "unusual circumstances." 5
U.S.C. § 552(a)(6)(B)(i).
circumstances" are defined to encompass only "the
need to search for and collect the requested records"
from separate locations; "the need to search for,
collect, and appropriately examine a voluminous amount"
of documents; and "the need for consultation" with
other agencies. Id. § 552(a)(6)(B)(iii). In the
event that more than 10 days are needed, the agency must
notify the requester in writing and provide an opportunity to
limit the scope of the request so that it may be processed
within that time limit, or provide an opportunity to arrange
for an alternative time frame to process the request (or
modified request). Id. § 552(a)(6)(B)(ii).
Critically, however, "[t]he statutory list of
circumstances that permit an agency to extend the
20-working-day timeline to make a 'determination, '
including collecting and examining numerous or distant
documents, clearly contemplates that the agency must actually
gather the responsive documents and determine which it will
produce and which it will withhold." Citizens for
Responsibility and Ethics in Washington v. Federal Election
Commission, 711 F.3d 180, 188-89 (D.C. Cir. 2013).
"The agency cannot make the requisite
'determination' by simply stating its future intent
to produce some non-exempt documents." Id.
case of adverse determinations, FOIA provides the right to
appeal to the head of the responding agency, and such agency
shall make a determination within 20 days after receipt of
the appeal. 5 U.S.C § 552(a)(6)(A)(i)-(ii). In the event
an appeal is denied, FOIA provides for judicial review of the
government's decisions to deny document production and
allows district courts to order the production of agency
records improperly withheld. 5 U.S.C. § 552(a)(4)(B).
FOIA requires a plaintiff to exhaust his administrative
remedies prior to filing a FOIA lawsuit. Generally, a
plaintiff has exhausted his administrative remedies by filing
an appeal, but a person shall be deemed to have exhausted his
administrative remedies if the agency fails to comply with
the applicable time limit provisions. Id. §
cases typically and appropriately are decided on motions for
summary judgment." Defenders of Wildlife v. U.S.
Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009)
(citing Bigwood v. U.S. Agency for Int'l Dev.,
484 F.Supp.2d 68, 73 (D.D.C. 2007)). In considering a motion
for summary judgment under FOIA, the court must conduct a
de novo review of the record. 5 U.S.C. §
552(a)(4)(B). The defendant agency has the burden of
justifying nondisclosure. Id.