Pulliam v. EPA, No. 15-1405, 2018 WL 852367 (D.D.C. Feb. 13, 2018) (Jackson, J.)

Pulliam v. EPA, No. 15-1405, 2018 WL 852367 (D.D.C. Feb. 13, 2018) (Jackson, J.)

Re: Request for records concerning toxic contamination at former Army base, Fort McClellan

Disposition: Granting in part and denying in part defendants' renewed motion for summary judgment; denying plaintiff's renewed motion for summary judgment as moot; granting plaintiff limited discovery

• Litigation Considerations, Adequacy of Search & Litigation Considerations, Discovery:  The court holds that "summary judgment in favor of DOD is inappropriate at this time."  The court credits "Plaintiff['s] conten[tion] that 'there remains a factual dispute as to whether the agency actually performed a search for all electronic records, as [defendant] now claim[s], [or] if the agency's prior sworn testimony evidence, indicating that [it] only searched for email records, was true and accurate.'"  The court finds that "[w]hile there is a presumption of good faith that attaches to agency declarations, and the fourth declaration is supported by the fact that three electronic records that are not emails were produced, . . . the discrepancy gives rise to a question of fact that is best resolved by discovery."  Therefore, "the Court will grant plaintiff's request to take a limited telephonic deposition of a DOD witness[.]"  The court finds similarly regarding DOD's search for paper records, holding that "[defendant] fails to provide the 'rationale for searching certain locations and not others,'" and "[t]herefore, [its] description of a search for paper records is too cursory to enable the Court to determine whether the search was adequate."
   
• Litigation Considerations, Adequacy of Search:  First, "[t]he Court concludes that the EPA has now conducted an adequate search for records with the exception [of one search]."  The court finds that "EPA's supporting declaration, particularly in combination with the information provided in the original declaration, explains in reasonable detail the scope and method of the searches for responsive documents, and absent 'countervailing evidence or apparent inconsistency of proof,' these declarations 'suffice to demonstrate compliance with the obligations imposed by the FOIA.'"  Responding to plaintiff's objection, the court finds that "[b]ecause an 'agency's failure to turn up a particular document, or mere speculation that as yet uncovered documents might exist, does not undermine the determination that the agency conducted an adequate search[.]'"  The court finds similarly regarding several components of EPA.  However, regarding one component's search, the court does find that "although [defendant']s declaration does contain some descriptive information about the files maintained by that office, it falls short in describing the search methodology used."  "The declaration simply states that [defendant] 'requested that [that office] search for potentially responsive . . . records . . .' and that the administrative officer determined that no responsive files were located."  "But he does not provide any description of how the search was actually conducted."
  
  Second, the court holds that DOJ's "declarations are still insufficient."  Specifically, the court finds that "the fact that [defendant] used no search terms other than the names mentioned in the FOIA request renders the search incomplete."  The court explains that "[defendant] could have and should have identified additional search terms.'"  Additionally, the court finds that defendant's "entirely conclusory, and 'generalized claims of destruction or non-preservation cannot sustain summary judgment.'"  "Since the representative of the office involved was only 'pretty sure' the paper mail logs had been destroyed, the agency should have made additional inquiries to determine whether the logs had in fact been destroyed."
   
• Exemption 6:  The court notes that "Plaintiff does not challenge [EPA's "redaction of three names contained within the produced documents"]" and, "[t]herefore, the Court will grant summary judgment for defendant EPA with respect to all records redacted under this exemption."