UNITED STATES DISTRICT COURT
FOR THE DISTRICI` OF COLUMBIA

 

LINDA P. WALsToN, .

Plaintiff,

V' ` case No. 1:15-cv-02202 (TNM)

- N.i;i--2523Es
UNITE]) sTATEs DEPARTMENT oF Case 0 6 °V 0 ( G )

DEFENSE, et al.,

Defendants.

 

 

MEMORANDUM OPINION

Before the Court is a motion for summary judgment iiled by the Defendants, the
l)epartment of Justice and the Defense Information Systerns Agency. The Defendants argue that
they are entitled to summary judgment on Plaintift` Linda Walston’s Freedom of lnformation Act
claims because they have demonstrated the adequacy of their searches for records related to a
complaint that Ms. Waiston filed with the Department of Defense. Ms, Walston argues that '
some of her Freedom of Information Act requests seek a broader range of records that are
beyond thescope of the Defendants’ searches. Because Ms. Walston’s allegations about the
existence of further responsive records are speculative and the Defendants have adequately
demonstrated that their searches were reasonably calculated to_ identify any responsive records,
the Defendants’ motion for summary judgment Will be granted

I. BACKGROUND

The Freedom of Information Act (FOIA) requests at issue in the consolidated cases now
before me are related to a complaint thatMs. Walston made to the Departrnent of befense’s
Ofiice of the Inspector General (IG) upon her alleged discovery that her computer had been

backed by IP addresses registered to the Department of Defense’s Network Information Center

 

 

 

(NIC). Compl. 11 8.1 The Defense Information Systems Agency (DISA), which is a component
of the Department of Defense, assigned Ms. Walston’s Department of Defense complaint the
case number 2014-0193. Ia'. at 1[ 9. Ms. Walston then submitted a FOIA request to DISA for
“all documents that refer or relate to DlSA OIC Hotline Case No. 2014-0193.” Ia'. at ‘[[ 10; sea
also Declaration of Linda P. Walston Ex. 2, 1:16-cv-02523. Later, Ms. Walston submitted a
second set cf FOIA requests for “all responsive records pertaining to DISA lG case # 2014-
0193” to four DISA agencies-the NIC, the Security Operation Columbus Network Assurance
(COLSNA), the incident Response Branch DISA Field Security Operations (IRB), and DISA
ESD. Compl. ‘[[ 15, l:lo-cv-02523; see also Declaration of Linda P. Walston Exs. 3-6, 1:16-cv-
02523. Ms. Walston then sued the Defendants for failure to comply with her FOIA requests,
filing one case for her first request and another for her second set of requests Finding that the
cases involved common questions of law and fact, Judge Ernrnet G. Sullivan consolidated the
cases on March 27, 2017.

Shortiy before the cases Were consolidated, Judge Sullivan entered a Memorandum
Opinion and Order granting partial summary judgment to the Defendant in the case regarding
Ms. Walston’s first FOIA request Judge Sullivan determined that the Department of Defensc
was entitled to summary judgment as to its claimed exemptions and its arguments regarding the
segregability of the records produced, but was not entitled to summary judgment as to the
adequacy of DISA’s search for responsive records. Op. at 19. Judge Sullivan determined that
the Defendant’s declaration in support of summary judgment did not contain all the information

needed for the Court to determine that DISA’s search was adequate and instructed the

 

1 All citations to court filings in this opinion are to filings in case 1:15-cv-02202 unless
otherwise noted.

 

 

Department of Defense to file a renewed motion for summary judgment with'a sufficiently
detailed deciaration, after conductinga new search if necessary The Defendants in the
consolidated case filed the renewed motion for summary judgment that is now before me, and
the only question at issue is whether their declarations sufficiently demonstrate the adequacy of

their search for responsive records.

II. LEGAL STANDARD

To prevail on a motion for summary judgment, a movant must show 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986);
Celotex Corp v. Catrett, 477 U.S. 317,.322 (1986). The FOIA requires federal agencies to
“disclose information to the public upon reasonable request unless the records at issue fall within
specifically delineated exemptions.” Judicial Watch, Inc. v. FBI, 522 F.3d 364, 365-66 (D.C.
Cir. 2008); see also 5 U.S.C. § 552(a)(3)(A) (records sought must be “reasonably describe[d]”).
Thus, a FOIA defendant is entitled to summary judgment if it demonstrates that there is no
genuine dispute as to whether “each document that fails within the class requested either has
been produced, is unidentifiable or is wholly enempt from the Act’s inspection requirements.”
See Wez`sberg v. Dep ’t of Justice, 627 F.2d 365_, 368 (D.C. Cir. 1980). The “vast majority” of
FOIA cases are decided on motions for summary judgment See Brayton v. Ojj‘ice of U.S. Trade
Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). j

To show that any unproduced documents cannot be identified, aldefendant must ~
demonstrate “a good faith effort to [] search for the requested reco_rds, using methods which can
be reasonably expected to produce the information requested.” Oglesby v. Dep ’t of the Arrny,
920 F.2d 57, 68 (D.C. Cir. 1990). ln other words, the defendant must “demonstrate beyond

material doubt that its search was reasonably calculated to uncover all relevant documents.”

3

 

k Nation Magazine v. Cusroms Serv., 71 F.3d 885, 890 (D.C. Cir. 1995). However, the touchstone
of the analysis is the reasonableness of the search, not the records produced See Hoa'ge v. FBI,
703 F.3d 575,- 580 (D.C. Cir. 2013) (“[T]he adequacy of a search is determined not by the fruits
of the search, but by the appropriateness of [its] methods.”); Mobley v. CIA, 806 F.3d 568, 583
(D.C. Cir. 2015) (“[A] search, under FOIA, is not unreasonable simply because it fails to
produce all relevant material.”).

An agency has discretion to craft its search to meet this standard, and does not have to
search every system if additional searches are unlikely to produce any marginal retum. See
Campbell v. Dep ’t ofJustice, 164 F.3d 20, 28 (D.C. Cir. 1998). Searching for records requires
“both systemic and case-specific exercises of discretion and administrative judgment and
expertise,” and is “hardly an area in which the courts should attempt to micro-manage the
executive branch.” Schrecker v. Dep ’t of Justice, 349 F.3d 657, 662 (D.C. Cir. 2003). To _
demonstrate the reasonableness of its search, an agency can submit a “reasonably detailed
aflidavit, setting forth the search terms and the type of search perfonned, and averring that all
files likely to contain responsive materials (if such records exist) were searched.” Oglesby? 920
F.2d at 68.` Agency declarations are given “a presumption of good faith, which cannot be
rebutted by ‘purely speculative claims about the existence and discoverability of other
documents.”’ Saj%Card Servs. Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991).

n III. ANALYSIS
' Judge Sullivan found that the declaration supporting the original motion for summary
judgment lacked sufficient detail in two respects First, it did not aver that all- files likely to
contain responsive materials were searched, which Judge Sullivan found particularly troubling in

light of the fact that it appeared materials in the DISA IG database might be located in two

 

separate locations and it Was not clear whether both had been searched. Op. at 10~1l (citing
Oglesby, 920 F.2d at 68). Second, it did not specify all of the search terms used in responding to
Ms. Walston’s_FOlA request Op. at 11-12 (citing Oglesby,.920 F.2d_at 68). » n

The Defendants have remedied the inadequacies of their original affidavit, providing
additional affidavits that supply the search details Judge Sullivan found lacking In response to
Ms. Walston’s first FOlA request to DISA, DISA determined that any responsive records would
be under the purview of the IG’s office. Berger Decl. 11 5. The IG then used the search terms
“Walston,” “Linda Walston,” “Linda,_” and “20l4-0193” to search “all electronic records on the
DISA lG share drive, DIGit database, and individual investigator computers.” Christy Decl.- 11 4.
This search was conducted in the DISA lG offices in Fort Meade, Maryland, and covered “the
entire universe of files” likely to contain responsive records. Id.2 Ms. Walston does not dispute
that these affidavits demonstrate the adequacy of the search conducted in response to her first
7 FOIA request.

However, Ms. Walston challenges the adequacy of the searches conducted in response to
her second set of FOIA requests, which specifically asked that the records of four agencies
within DISA be searched: lNIC, COLSNA, IRB, and DISA ESD. The Defendants have
submitted an affidavit explaining that DISA’s FOIA officer confirmed NIC had no involvement
with the investigation and determined that no further search'of` NIC records was necessary.4
Berger Decl. 11 12. The affidavit also explains that Ms. Walston’s requests for searches of

'COLSNA and DISA ESD records were duplicative because DISA ESD has been incorporated

 

2 Although DISA IG investigators will sometimes create paper files when a physical file is

necessary_for example, when physical evidence must be retained as part of the official record_

the affidavit explains that the investigation of Ms. Walston’s complaint would'not have produced
~ any records necessitating a physical file. Id. at 1[ 3.

5

 

into COLSNA.. Id. 1[ 11. Accordingly, the Defendants responded to Ms. Walston’s second set of
FOIA requests by searching for responsive ¢OLSNA and IRB records

The`Defendants searched COLSNA’s paper files, a computer hard drive, shareddrives,
and emails using the search terms “Walston” and “2014-0193.” Ball Decl; 1]'6. `The search was

l conducted in Columbus, Ohio, and included “the entire universe of locations where records

responsive to Plaintiff’ s FOIA [request] would existat COLSNA.” Id. The Defendants
determined that the IRB investigator who worked on Ms. Walston’s complaint did not create or
maintain any documents or records'related to the complaint other than emails, and they searched
his emails from his office in “Chambesburg [sic], Pennsylvania” using the search terms
“Walston,” “20l4-0l93,” “Corey,” and “Ball.” Shuhart Decl. 11 5. ’l`he Defendants aver that
their searches for responsive COLSNA and lRB records produced no new records that were not
already located in the search of DISA IG and that “n`o other organizations within DISA would
have any records responsive to plaintiff s FOlA request.” Berger Decl. at 1111 ll-13.

Ms. Walston argues that these searches were inadequate in response to her second set of
FOIA requests because the Defendants should have searched NIC forresponsive records and
should have used as search terms four NIC IP addresses that she believes are associated with the
backing of her computer. Id. Although agencies have discretion in crafting their searches,
Schrecker, 349 F.3d at 662, Ms. Walston takes the view that any adequate search in response to
“a FOIArequest for records of computer analyses and queries regarding logs that include four

3

NIC IP addresses” Would have to include the NIC and use the lP addresses as search terms.

7Pl.’s Opp. to Mot. Summary J'. 6.

 

3 To the extent that this characterization of Ms. Walston’s second set of FOIA requests makes it
distinct from her first, it is in tension with her complaint’s description of the request as seeking
records “pertaining to DISA IG case # 2014-0193.” Compl. 1[ 15,11:1_6-cv-02523. Consistent

6

 

l cannot agree with Ms. Walston’s contention, which amounts to “purely speculative
claims about the existence and discoverability of other documents.” SafeCard Servs. lnc. v.
SEC, 926 F.2d 1l97, 1201 (D.C. Cir. 1991). The Defendants have submitted an affidavit stating
that NIC files were not likely to contain responsive materials because NIC had no involvement in
theinvestigation of Ms. Walston’s claims and explaining that the registration of IP addresses to
NIC is not an indication to the contrary. Berger Decl. 11 12. Ms. Walston’s speculation that NIC
possesses responsive records is insufficient to rebut this affidavit The Defendants have also
submitted an affidavit stating that DISA completed its investigation into Ms. Walston’s backing
complaint by reviewing the records she provided and conducting CENTAUR queries of network
traffic history that determined “there was no communication between any DoD IP address
[including any NIC IP address] and the complaintants [sic] commercial ISP lP addresses.”
Shuhart Decl. 11 3.. 7The Defendants aver that such queries do not create any records and that the
7 results of the queries were documented in emails that have been identified and produced after
searching for records containing Ms. Walston’s last name and case number. Ball Decl. 11 4; see
7 also id. at 11 6. Ms. Walston’s speculation that other queries may have taken place and might
have produced records that would be identified if the Defendants used certain IP addresses as
search terms is insufficient to rebut the Defendants’ explanation of the sufficiency of their

searches.

 

with Ms. Walston’s complaint, the Defendants understood Ms. Walston’s request for various
types of “information that pertains to DISA lG case#2014-0193 [sic} or was derived from data
obtained from DISA case#20l4-0193 [sic]” as “essentially duplicating” her May 12, 20l 5
request, although it added specificity as to where she wished DISA to search and indicated her
interest in certain specific items, such as any queries of the CENTAUR system for information
related to certain lP addresses.. Berger Decl. 11 9; see also Declaration of Linda P. Walston Exs.
3-6, 1:16-cv-02523. 7

 

IV. CONCLUSION
F or the reasons explained above, the Defendants’ motion for summary judgment will be

granted. A separate order will issue.

       

Dated: March 8, 2018 TRE‘l/OR N; MCFADD EN
United States Distn`ct Judge

