                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 17-1686
                                      ___________

                                 DOM WADHWA, MD,
                                           Appellant

                                             v.

     SECRETARY UNITED STATES DEPARTMENT OF VETERANS AFFAIRS
                ____________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                         (D.C. Civil Action No. 1:15-cv-02777)
                      District Judge: Honorable Robert B. Kugler
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 September 11, 2017

              Before: RESTREPO, SCIRICA and FISHER, Circuit Judges

                           (Opinion filed: September 13, 2017)
                                       ___________

                                       OPINION*
                                      ___________

PER CURIAM

       Dom Wadhwa, M.D., appeals pro se from orders of the United States District

Court for the District of New Jersey, granting the defendant’s motions for summary


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
judgment in this action brought pursuant to the Freedom of Information Act (“FOIA”), 5

U.S.C. § 552. For the following reasons, we will affirm.

       In 2015, Wadhwa submitted a FOIA request to the Philadelphia Veterans Affairs

Medical Center (VA), seeking documents pertaining to complaints of employment

discrimination. For instance, Wadhwa’s requested documents pertaining to

discrimination complaints filed in the VA Office of Employment Discrimination

Complaint Adjudication (OEDCA). Notably, Wadhwa specifically requested documents

that OEDCA “reviewed” and “considered” in “support” of its conclusions. He also

sought material concerning individual VA employees who were disciplined for

discriminatory practices. After conducting a search for responsive records among various

agency components, the VA responded by disclosing in full a final agency decision,

releasing some documents with partial redactions under FOIA Exemption 6, withholding

other material in full citing FOIA Exemptions 5, 6, and 7(C), and refusing to confirm or

deny the existence of disciplinary records concerning specific employees.

       Unsatisfied with the VA’s responses, Wadhwa filed a complaint in the District

Court. The VA filed a motion for summary judgment, which the District Court granted

in part and denied in part. In particular, the District Court concluded that the VA had

demonstrated that its search for responsive documents was adequate, but held that it

failed to adequately justify its use of FOIA Exemptions and its refusal to confirm or deny

the existence of some employee disciplinary records. As to those records, the District

Court granted Wadhwa’s “Motion to Compel Discovery.” Thereafter, the VA filed
                                             2
another motion for summary judgment. The District Court granted that motion and

vacated its order granting the “Motion to Compel Discovery,” stating that new

declarations from agency personnel sufficiently justified the agency’s FOIA responses.

Wadhwa appealed.1

       We employ a two-tiered test in reviewing an order granting summary judgment in

proceedings seeking disclosure under the FOIA. First, we must “decide whether the

district court had an adequate factual basis for its determination[;]” and, second, we must

“decide whether that determination was clearly erroneous.” Abdelfattah v. U.S. Dep’t of

Homeland Sec., 488 F.3d 178, 182 (3d Cir. 2007) (quotations, citations omitted). We

will reverse only “if the findings are unsupported by substantial evidence, lack adequate

evidentiary support in the record, are against the clear weight of the evidence[,] or where

the district court has misapprehended the weight of the evidence.” Lame v. U.S. Dep’t of

Justice, 767 F.2d 66, 70 (3d Cir. 1985). Summary judgment may be granted on the basis

of agency declarations if they are specific and detailed, and if there is no contradictory

evidence on the record or evidence of agency bad faith. See Manna v. U.S. Dep’t of

Justice, 51 F.3d 1158, 1162-64 (3d Cir. 1995). We may affirm the District Court’s

judgment on any basis supported by the record. See Murray v. Bledsoe, 650 F.3d 246,

247 (3d Cir. 2011) (per curiam).


1
  Wadhwa also filed a timely motion for reconsideration, arguing that the VA’s FOIA
responses denied him “fundamental fairness of due process.” We conclude that the
District Court properly denied Wadhwa’s motion because his disagreement with the
District Court’s analysis did not provide a basis for reconsideration. See Max’s Seafood
                                              3
       Exemption 5 protects from disclosure “inter-agency or intra-agency

memorandums or letters that would not be available by law to a party ... in litigation with

the agency.” 5 U.S.C. § 552(b)(5). The Exemption encompasses the traditional

discovery privileges, including the deliberative process privilege, which “protects agency

documents that are both predecisional and deliberative.” Judicial Watch, Inc. v. FDA,

449 F.3d 141, 151 (D.C. Cir. 2006). Here, the VA explained that it used Exemption 5 to

withhold a draft final agency decision, as well as “e-mails, letters, and other documents

from and between staff members” of the OEDCA and the Office of Resolution

Management. According to the VA, this material was generated within the agency as

part of a “deliberative, pre-decisional process.” This description provided a sufficient

factual basis for the District Court’s determination that the agency properly invoked

Exemption 5, and we hold that the District Court’s conclusion was not clearly erroneous.

Indeed, draft reports and internal communications generated as part of agency

decisionmaking may be properly withheld pursuant to Exemption 5. See Abdelfattah,

488 F.3d at 183 (protecting draft ICE incident report); see also Dep’t of Interior v.

Klamath Water Users Protective Ass’n, 532 U.S. 1, 8-9 (2001) (“The deliberative process

privilege rests on the obvious realization that officials will not communicate candidly

among themselves if each remark is a potential item of discovery and front page news,

and its object is to enhance the quality of agency decisions by protecting open and frank



Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
                                            4
discussion among those who make them within the Government.” (internal quotation

marks and citations omitted)).

         The VA also properly withheld material under Exemption 6.2 Exemption 6

protects from disclosure “personnel and medical files and similar files the disclosure of

which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C.

§ 552(b)(6). Here, the VA withheld names, phone numbers, email addresses, and other

identifying information concerning individuals, including complainants and witnesses,

who were involved in adjudications of discrimination complaints.3 In addition, the VA

cited Exemption 6 in withholding individuals’ financial information, such as bank

account numbers, deposit slips, copies of cleared checks, and pay statements. This

information implicates more than de minimis privacy interests, see Nat’l Ass’n of Retired

Fed. Emps. v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989), and Wadhwa has failed to

identify any public interest in disclosure, see Sheet Metal Workers Int’l Ass’n, Local

Union No. 19 v. U.S. Dep’t of Veterans Affairs, 135 F.3d 891, 897 (3d Cir. 1998)

(recognizing that the only relevant public interest in disclosure is the extent to which


2
  The VA also relied on Exemption 7(C), which permits the withholding of “records or
information compiled for law enforcement purposes, but only to the extent that the
production of such law enforcement records ... could reasonably be expected to constitute
an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). We need not
address whether the responsive documents were compiled for law enforcement purposes
because, as explained below, the VA properly withheld personally identifying
information even under the narrower withholding standard of Exemption 6. See
McDonnell v. United States, 4 F.3d 1227, 1254 (3d Cir. 1993).
3
    We note that the VA disclosed the identities of “top leadership of the medical center,”
                                               5
disclosure would serve the core purpose of the FOIA, which is contributing significantly

to public understanding of the operations or activities of the government); Carpenter v.

U.S. Dep’t of Justice, 470 F.3d 434, 441 (1st Cir. 2006) (stating that there “is no public

interest in supplementing an individual’s request for discovery.”). Therefore, in the

absence of any public interest in disclosure, the District Court properly held that the VA’s

invocation of Exemption 6 was proper. See Horner, 879 F.2d at 879 (observing that

“something, even a modest privacy interest, outweighs nothing every time.”).

       The VA also properly refused to confirm or deny the existence of employee

disciplinary records. This so-called “Glomar response” is an “exception to the general

rule that agencies must acknowledge the existence of information responsive to a FOIA

request and provide specific, non-conclusory justifications for withholding that

information[.]” Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1178 (D.C. Cir. 2011).

The response is permitted only when “to answer the FOIA inquiry would cause harm

cognizable under” an applicable statutory exemption. Wolf v. CIA, 473 F.3d 370, 374

(D.C. Cir. 2007). The agency must demonstrate that acknowledging the mere existence

of responsive records would disclose exempt information. Id. Here, Wadhwa requested

records concerning the “removal” of two VA doctors. He also sought “documents used

as evidence in … any … disciplinary action cited as Title VII violation … that resulted in

posting of ‘Notice to employees’ by Mr. Devansky, on December 2, 2014[,]” as well as

records “of all the steps taken by management officials … to remedy the discrimination


such as the director, acting directors, acting associate
                                               6         directors, and chief of staff.
….”4 Given Wadhwa’s failure to identify any public interest in disclosure, even

acknowledging the existence of misconduct or disciplinary records here would cause an

unwarranted invasion of personal privacy. See Beck v. Dep’t of Justice, 997 F.2d 1489,

1492-94 (D.C. Cir. 1993) (affirming Glomar response to request for records concerning

misconduct by DEA agents).

       In his brief, Wadhwa complains that the VA did not prepare a Vaughn index5 and

that the District Court did not conduct an in camera inspection of the withheld records.

Although the VA did not submit a document labeled a Vaughn index, it did provide

detailed declarations from agency employees that described the withheld information and

the statutory basis for nondisclosure. The declarations were sufficiently detailed, and

Wadhwa has not adequately demonstrated why in camera review was required. See

Hinton v. Dep’t of Justice, 844 F.2d 126, 129 (3d Cir. 1988) (stating that there “is no set

formula for a Vaughn Index”); Loving v. Dep’t of Def., 550 F.3d 32, 41 (D.C. Cir. 2008)




4
 Although this request appears to broadly seek documents used in employee disciplinary
proceedings, the VA explained that it necessarily refers to a specific employee.
According to the VA, the “Notice of employees” “is not merely a general notice … of
Agency policy … [but] is a notice required in response to a finding of discrimination on a
specific case, pertaining to a specific individual.” That individual can be identified by
name and date included in the request.
5
 A Vaughn index is a document prepared by the agency that identifies each document
withheld, the statutory exemption claimed, and a particularized description of how each
document withheld falls within a statutory exemption. Coastal States Gas Corp. v. Dep’t
of Energy, 644 F.2d 969, 984 (3d Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820
(D.C. Cir. 1973).
                                            7
(noting that district courts have broad discretion to decide if in camera review is

necessary).

       For the reasons given, we will affirm the judgment of the District Court.




                                              8
