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Eakin v. United States Department of Defense

United States District Court, W.D. Texas, San Antonio Division

August 2, 2017

John Eakin, Plaintiff,
United States Department of Defense, Defendant.


          Royce C. Lamberth, United States District Judge

         Before 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.

         I. BACKGROUND

         This 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.[1] 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.

         Years 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.

         On May 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.

         On 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.[2] 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).

         DoD 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 responsive documents.

         On June 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. 552(a)(6)(C)(i)-(iii).


         A. Summary Judgment

         Summary 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 (1986).

         The 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)).

         B. FOIA

         "FOIA 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).

         "Unusual 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.

         In the 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. § 552(a)(6)(C)(i).

         "FOIA 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.

         1. ...

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