Opinion
No. CV 14-01493-PHX-DGC (DMF)
08-22-2016
Jose Adalberto Zaldivar, Sr., Plaintiff, v. United States Department of Veterans Affairs, et al., Defendants.
ORDER
Plaintiff Jose Adalberto Zaldivar, who is currently confined in the Arizona State Prison Complex-Eyman, brought this case pursuant to the Freedom of Information Act (FOIA) and the Privacy Act (PA). (Doc. 1.) Pending before the Court is a Motion for Summary Judgment filed by the Department of Veterans Affairs Regional Office—Phoenix (VARO) and the Department of Veterans Affairs Office of General Counsel (OGC). (Doc. 49.) The Court will grant the Motion and terminate this action. I. Background
The Court provided notice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc), regarding the requirements of a response. (Doc. 52.)
The full background of this action is set forth in the Court's October 27, 2015 Order. (Doc. 34.)
In his Complaint, Plaintiff alleged that he submitted six FOIA/PA requests to the VARO between 2002 and 2013, but that VARO failed to provide proper responses to these requests and the OGC denied an appeal filed by Plaintiff. (Doc. 1.) Plaintiff also alleged that the Veterans Affairs Office of Inspector General (OIG) failed to respond to his request for an appeals handbook. (Id.) On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated a claim and directed the OIG, the VARO, and the OGC to answer the claims in Counts One and Two of the Complaint, and dismissed the remaining claims and Defendants. (Doc. 9.) Subsequently, the OIG filed a Motion to Dismiss the claim against it for lack of jurisdiction (Doc. 20), and the VARO and the OGC filed a Partial Motion to Dismiss three claims based on the statute of limitations (Doc. 21).
On October 27, 2015, the Court granted both Motions to Dismiss, leaving only two remaining claims against the VARO and the OGC: (1) Plaintiff's April 26, 2012 FOIA/PA request in Count One, and (2) Plaintiff's May 20, 2013 FOIA/PA request in Count Two. (Doc. 34.) The VARO and the OGC now move for summary judgment on the two remaining requests.
II. Summary Judgment
A court "shall grant summary judgment if the movant 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323. If the moving party meets its initial responsibility, the burden then shifts to the opposing party who must demonstrate the existence of a material factual dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
III. Discussion
Defendants argue that (1) Plaintiff did not exhaust his administrative remedies with respect to the April 26, 2012 request, (2) the agency's searches in response to both requests were adequate, and (3) any redactions of the personal information of Plaintiff's former spouse in response to the May 30, 2013 request were proper. (Doc. 49.)
A. April 26, 2012 Request
1. Relevant Facts
By letter dated April 26, 2012, Plaintiff filed a FOIA/PA request with the VARO seeking the following information:
(1) The application for VA compensation for Plaintiff's "dependent spouse," referred to as an "application for apportionment";
(2) A VA letter by Ms. LaCenia dated April 3, 2012;
(3) Correspondence in response to the application for apportionment;
(4) The address of the OIG;
(5) Notes, telephone calls, and inquiries regarding the application for apportionment;
(6) All documentation, applications, inquiries or requests made by letter or telephone regarding Plaintiff's VA compensation claim, including the names, addresses and phone numbers of the requesting part(ies);
(7) The names, addresses, and phone numbers of spouses and children entitled to dependency and indemnity compensation. (Doc. 51 (Defs.' Statement of Facts ("DSOF")) ¶ 1; Doc. 51-2 at 2-8.)
The citation refers to the document and page number generated by the Court's Case Management/Electronic Case Filing system.
The VARO received Plaintiff's request on May 4, 2012 and responded on May 30, 2012 by sending Plaintiff a copy of his entire claims file. The VARO explained that it did not include Plaintiff's military service treatment records (STR) because those had been provided to him on November 10, 2011 in response to a previous request. (Doc. 51 ¶¶ 1, 2; Doc. 51-2 at 10.) The entire claims file and STR is over 3,000 pages, and, according to the VARO's FOIA/PA Officer, Marcelle Jeanisse, the VARO is the only location at the VA where "one would reasonably expect to find documents responsive to Plaintiff's April 26, 2012 request." (Doc. 51 ¶¶ 2-3; Doc. 51-3 at 3 ¶ 11.) Plaintiff received the VARO's response, totaling 2,476 pages, on June 21, 2012. (Doc. 66 ¶ 2; Doc. 65 ¶ 30.)
Before he received the VARO's response, Plaintiff, by letter dated June 4, 2012, filed an appeal with the VARO, asserting that he had not received any documents in response to his April 26, 2012 request. (Doc. 51 ¶ 4; Doc. 51-2 at 12-24.) The VARO noted on Plaintiff's appeal letter that the FOIA request had already been completed and took no further action on the appeal. (Id. ¶ 6.) Plaintiff does not dispute that this notation was made on his appeal but he denies "the validity of those reasons." (Doc. 66 ¶ 6.)
By letter dated June 13, 2012, the Disabled American Veterans, acting as Plaintiff's designated representative, requested Plaintiff's claims file "to include STR's and Apportionments." (Doc. 51 ¶ 7; Doc. 51-2 at 26.) The VARO "Triage Team" that processes incoming mail noted on the letter, "FOIA Request Complete 5/30/2012 Already!!," and the VARO took no further action regarding the request. (Doc. 51 ¶ 8; Doc. 51-2 at 26.)
2. Exhaustion
a) Legal Standard
FOIA requires that, upon receipt of a FOIA request, an administrative agency shall "determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) . . . whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination. . . ." 5 U.S.C. § 552(a)(6)(A)(i). Likewise, an agency must make a determination within 20 days of receipt of an appeal. 5 U.S.C. § 552(a)(6)(A)(ii). If an agency does not respond to a FOIA request within the applicable time period, the requester may file a lawsuit, but "this option lasts only up to the point that an agency actually responds. Once the agency has responded to the request, the petitioner may no longer exercise his option to go to court immediately. Rather, the requester can seek judicial review only after he has unsuccessfully appealed to the head of the agency as to any denial and thereby exhausted his administrative remedies." Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 61 (D.C. Cir. 1990).
"Exhaustion of administrative remedies is generally required before filing suit in federal court so that the agency has an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision." Oglesby, 920 F.2d at 61 (citing McKart v. United States, 395 U.S. 185, 194 (1969)). When administrative remedies have not been exhausted prior to suit, a FOIA claim is subject to dismissal. See Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003) (noting that an appeal made before an agency has acted on a FOIA request deprives the agency of the "opportunity to consider the very issues that [the plaintiff] has raised in court").
b) Analysis
Defendants argue that Plaintiff did not comply with VA regulations by filing a proper appeal with the OGC within 60 days of an adverse determination, as required by 38 C.F.R. § 1.559(b) and (d). (Doc. 49 at 6.) Rather, Plaintiff filed a "premature appeal" with the VARO, and he never filed a proper appeal with the OGC after receiving VARO's timely response to the April 26, 2012 request. (Id. at 6-7.)
Plaintiff responds that he constructively exhausted his administrative remedies by filing a timely appeal to the VARO to the attention of "FOIA/Privacy Act Appeals Officer" by letter dated June 4, 2012. (Doc. 64 at 10.) Plaintiff asserts that he was unaware of 38 C.F.R. § 1.559 "due to circumstances beyond [his] control as to access to a meaningful adequate law library," and that he was using a 2008 version of the regulations. (Id.; Doc. 65 at 7 ¶ 43(d).) As to VARO's contention that it timely responded to Plaintiff's FOIA request on May 30, 2012, Plaintiff says the agency responded by "flooding [him] with excessive documents without having to provide specific documents requested in the April 26, 2012 FOIA/Privacy Act Request, especially not having to answer to the phone conversation contact with VA Rep. Ms. LaCenia on April 26, 2012." (Id.)
There is no dispute that the VARO received Plaintiff's FOIA request on May 4, 2012, and responded by letter dated May 30, 2012, less than 20 business days after receiving the request, by providing Plaintiff with his entire claims file, minus the SRTs. Thus, the VARO timely responded to Plaintiff's FOIA request. Plaintiff's attempted appeal, claiming he did not receive a response, was filed before he received the VARO's response on June 21, 2012. (Doc. 51-2 at 12-14; Doc. 66 ¶ 2.) Plaintiff does not claim that he filed any appeal challenging the adequacy of the VARO's response after he received it. By not filing an appeal on the VARO's actual response, Plaintiff deprived the agency of "an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision." Oglesby, 920 F.2d at 61.
Plaintiff asserts in his Complaint that the VARO's response is postmarked June 1, 2012, and he appears to allege that his delay in receiving the response was due to prison officials. (See Doc. 1 at 8-9.)
Because Plaintiff did not file an appeal with respect to the VARO's response to his April 26, 2012 FOIA request, he did not exhaust his administrative remedies. Accordingly, the Court will grant summary judgment to Defendants on Plaintiff's April 26, 2012 request in Count One for failure to exhaust administrative remedies.
3. Adequacy of the Search
Alternatively, the Court will grant summary judgment to Defendants on the adequacy of the VARO's search for records in response to Plaintiff's FOIA/PA request.
a) Legal Standard
FOIA requires that an agency responding to a request "demonstrate that it has conducted a search reasonably calculated to uncover all relevant documents." Lahr v. Nat'l Transp. Safety Bd, 569 F. 3d 964, 986 (9th Cir. 2009) (quoting Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985)). Such a showing can be made by "reasonably detailed, nonconclusory affidavits submitted in good faith." Zemansky, 767 F.2d at 571. Such affidavits or declarations are entitled to "a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." Lawyers' Comm. for Civil Rights of S.F. Bay Area v. U.S. Dep't of Treasury, 534 F. Supp. 2d 1126, 1131 (N.D. Cal. 2008). An agency "need not set forth with meticulous documentation the details of an epic search for the requested records." Id. (quotation omitted). "[T]he issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate." Citizens Comm'n on Human Rights v. FDA, 45 F.3d 1325, 1328 (9th Cir. 1995) (quotation omitted) (emphasis in original). In general, the sufficiency of a search is determined by the "appropriateness of the methods" used to carry it out, "not by the fruits of the search." Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). The failure of an agency "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 for the requested records." Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004).
Once a search has been conducted, FOIA requires disclosure unless the records fall within one of nine narrow exemptions. See 5 U.S.C. § 552(b); Minier v. CIA, 88 F.3d 796, 800 (9th Cir. 1996). These "limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act." Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001) (internal citation omitted). The exemptions "have been consistently given a narrow compass," and agency records that "do not fall within one of the exemptions are improperly withheld." Dep't of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989) (quotation omitted).
"To carry their summary judgment burden, agencies are typically required to submit an index and 'detailed public affidavits' that, together, 'identify [ ] the documents withheld, the FOIA exemptions claimed, and a particularized explanation of why each document falls within the claimed exemption.'" Yonemoto v. Dep't of Veterans Affairs, 686 F.3d 681, 688 (9th Cir. 2012). These submissions—commonly referred to as a Vaughn index—"must be from affiants who are knowledgeable about the information sought and detailed enough to allow the court to make an independent assessment of the government's claim of exemption." Id. (internal quotation omitted). Whether by Vaughn index or by affidavit or some combination of the two, the government must "provide enough information, presented with sufficient detail, clarity, and verification, so that the requester can fairly determine what has not been produced and why, and the court can decide whether the exemptions claimed justify the nondisclosure." Fiduccia v. U.S. Dep't. of Justice, 185 F.3d 1035, 1043 (9th Cir. 1999). "To justify withholding, the government must provide tailored reasons in response to a FOIA request. It may not respond with boilerplate or conclusory statements." Shannahan v. IRS, 672 F.3d 1142, 1148 (9th Cir. 2012).
Ultimately, the threshold issue on a motion for summary judgment is whether the agency's explanations are full and sufficiently specific to afford the FOIA requester a meaningful opportunity to contest, and the district court an adequate foundation to review, the soundness of the withholding. See Wiener v. FBI, 943 F.2d 972, 977-79 (9th Cir. 1991) (noting that specificity is the defining requirement of the Vaughn index).
b) Analysis
In his Declaration, FOIA/PA Officer Jeanisse explains that the VARO provided Plaintiff "the entirety of his claims folder minus his" STRs, which were provided to Plaintiff on November 20, 2011. (Doc. 51-3 at 3, ¶ 9.) Jeanisse avers that other than Plaintiff's claims file, "there is no other location in which one would reasonably expect to find documents responsive to Plaintiff's April 26, 2012 request." (Id.)
Plaintiff responds that the VARO "assumes that there is no requirement that an agency search all possible sources when it believes all responsive documents are likely to be located in one place—Plaintiff's 'entire claim file.'" (Doc. 65 at 12.) Plaintiff contends that his request was for specific documents, particularly a phone conversation with Ms. LaCenia, and that specific document "was not included in the 2476 pages Plaintiff was flooded with." (Id.) Because this and other documents he sought were not produced, Plaintiff argues that the VARO's response was inadequate. (Id.)
Defendants have met their burden of showing that they conducted a search for documents that was "reasonably calculated to uncover all relevant documents" by presenting Jeanisse's Declaration about where he conducted the search and that it is the most likely location for documents responsive to Plaintiff's request. See Lahr, 569 F. 3d at 986; Zemansky, 767 F.2d at 571. Jeanisse states that Plaintiff's entire claims file was sent to Plaintiff, except for his STRs, which had been provided to Plaintiff previously. (Doc. 51-3 at 3 ¶ 9.) Jeanisse does not assert that any documents were withheld from Plaintiff or that the VARO claimed any exemptions. Jeanisse's Declaration is entitled to a presumption of good faith, and Plaintiff has not rebutted that presumption. Plaintiff appears to speculate that other documents exist, but he has not shown how Jeanisse's search was inadequate or even that there were any other locations where responsive documents might be found. Therefore, the Court finds that the VARO's search for records was adequate. See Citizens Comm'n on Human Rights, 45 F.3d at 1328; Iturralde, 315 F.3d at 315; Wilbur, 355 F.3d at 678. Accordingly, the Court will grant summary judgment to Defendants on the adequacy of the search.
B. May 20, 2013 Request
Defendants argue that the search for records in response to Plaintiff's May 20, 2013 request was adequate and that any redactions made to the documents produced were permitted under FOIA and the PA.
1. Relevant Facts
By letter dated May 20, 2013, which the VARO date stamped as received on July 17, 2013, Plaintiff filed a FOIA/PA request seeking copies of the following:
(1) A VA letter awarding benefits to Mrs. Zaldivar dated sometime before June 27, 2002;
(2) A letter from Mrs. Zaldivar to the VA from around or before January 10, 2002 regarding the reopening of her case;
(3) A "Report of Contact," VA Form 119, from Mrs. Zaldivar to the VARO prior to April 19, 2002 regarding a letter from a bank;
Defendants explain that Reports of Contacts are internal VA forms in which VA employees summarize conversations. (Doc. 51 ¶ 9(c).)
(4) The "law providing VA benefits";
(5) Mrs. Zaldivar's Report of Contact to the VARO, attention "Chris," dated January 1, 2002, thanking someone for their "kind assistance on the phone today";
(6) A "financial status to re-open the request for apportionment that [Ms. Zaldivar] filed in April";
(7) A Report of Contact, VA Form 119, regarding Mrs. Zaldivar's letter to the VARO dated December 26, 2001 in which she said she had called and requested a form;
(8) A complete and unredacted copy of an e-mail provided on June 21, 2012 and "other e-mail and phone contact messages not previously released." (Doc. 51 ¶ 9; Doc. 51-2 at 28-33.)
When Plaintiff did not receive a response to his request, he filed an appeal with the VARO by letter dated July 15, 2013, asserting that he construed the failure to respond as "a denial of [his] good-faith effort to obtain the relevant documents." (Doc. 51-2 at 35-36.) The VARO did not respond to this appeal letter and decided to file it with Plaintiff's claim file because it was an "invalid NOD [Notice of Disagreement]" on a pending FOIA request and so no action was necessary. (Doc. 51 ¶ 11.) Plaintiff states that his request was "specifically written as an 'appeal,' not a Notice of Disagreement," and the VARO did not notify Plaintiff that they decided to take no action by filing it as a NOD letter. (Doc. 65 at 9 ¶ 51.)
By letter dated December 18, 2014, Veterans Service Center Manager D. Luzi responded to Plaintiff's request. (Doc. 51-2 at 41-42.) According to Plaintiff, Luzi's response enclosed copies of the following:
(1) An unredacted three-page letter dated September 15, 2001 from the VARO to Plaintiff advising him that Mrs. Zaldivar had requested an apportionment;
(2) An unredacted three-page letter dated December 26, 2001 from Mrs. Zaldivar containing a "Notice of Disagreement";
(3) An unredacted one-page letter dated April 24, 2001 from Mrs. Zaldivar to the VARO "(Re: 345/Team 3)" requesting an application for apportionment;
(4) A two-page letter dated September 15, 2001 from the VARO to Mrs. Zaldivar, with her address redacted, requesting information and enclosing two forms;
(5) A two-page letter dated December 21, 2001 from the VARO to Mrs. Zaldivar, with her address redacted, denying a claim for apportionment;
(6) A one-page letter dated January 10, 2002 from Mrs. Zaldivar to the VARO, "Team 3/CM (Chris)," with her social security number redacted as well as information below her signature and name;
Defendants assert that the redacted information below Mrs. Zaldivar's signature cannot be described because only a redacted copy exists in the VA files. (Doc. 51 ¶ 12(f).) Plaintiff responds that this letter "in its entirety was disclosed in the VARO's May 30, 2012 release of records. (Doc. 65 at 10, citing Ex. R (Doc. 65-4 at 4).)
(7) A two-page "Financial Status Report" dated June 11, 2002 and signed by Mrs. Zaldivar with her social security number, address, telephone number, and names and addresses of current and former employers redacted;
Plaintiff asserts that this same document was released "in its entirety" with the May 30, 2012 disclosure from the VARO. (Doc. 65 at 10, citing Ex. S (Doc. 65-4 at 11-15.)
(8) An unredacted one-page letter dated April 4, 2002 from DM Federal Credit Union to VA regarding a "joint owner of account"; and
(9) One page of e-mails between Mrs. Zaldivar (with her e-mail address redacted) and VA personnel between June 28, 2002 and March 31, 2003. (Doc. 65 at 9-10; Doc. 65-4 at 21 to Doc. 65-5 at 8.)
The December 18, 2014 response stated that under the PA and FOIA Exemption (b)(6), the agency could not provide Rebecca J. Zaldivar's personal information such as her address, social security number, and telephone number because such disclosure "would be an unwarranted invasion of her personal privacy" and so the information was withheld. (Doc. 51-2 at 41.)
By letter dated January 20, 2015, Plaintiff filed an Appeal with the OGC. (Doc. 51 ¶ 19; Doc. 51-2 at 44-47.) Plaintiff's letter stated that he was appealing the response to his May 20, 2013 request and the "July 15, 2013 Appeal due to the untimely response." (Doc. 51-2 at 45.) Plaintiff also said he was appealing "the adverse determination in its entirety of December 18, 2014 from D. Luzi" because the documents VARO produced had been released previously and were not new or the ones he requested. (Id.) Plaintiff asserted that he "was very specific as to the documents being sought" and "since no specific documents requested nor the regulations talked about, in state civil proceedings by Ms. Rebecca Zaldivar and her attorney were provided, I will continue my request through the civil complaint filed with the U.S. District Courts." (Id. at 45-46.) Plaintiff said that one page of a two-page email was missing from the documents released, that Mrs. Zaldivar's letter does not satisfy his request for a Report of Contact, that her personal information such as her social security number and telephone number are a matter of public record and were "supplied by Ms. Rebecca Zaldivar as an adverse party to various court proceedings," and that the "disclosure of documents submitted by Rebecca Zaldivar are strictly for impeachment purposes as they relate to subject matter of any direct testimony given by her in civil court (state) proceedings." (Id. at 46-47.)
On April 20, 2015, the OGC issued its Final Agency Decision in response to Plaintiff's appeal. (Doc. 51-2 at 59-63.) The OGC Decision noted that the FOIA Officer who conducted the search did not locate any Reports of Contact with the subject matters described by Plaintiff, but "in an attempt to be as responsive as possible, the FOIA Officer located the above-referenced documents disclosed to you which disclosures of information were closely related to the subjects of your requests." (Id. at 61.) The Decision described the FOIA Officer's search of "thousands of pages of records" in Plaintiff's file, including a page-by-page search that took long hours to conduct, but still no Reports of Contacts as described by Plaintiff were located. (Id. at 62.) The Decision affirmed the determination that "there are no other records located within the Phoenix VARO responsive to your request." (Id.)
As to the exemptions claimed by the VARO, the Decision states that Mrs. Zaldivar's social security number was properly withheld under FOIA Exemptions (b)(3) and (b)(6) and 38 U.S.C. § 5701, and that her physical and email addresses, telephone number, and names and locations of her current and former employe[r]s" were properly withheld under FOIA Exemption (b)(6). (Id. at 62.) The OGC also found that the information withheld under the PA was "about Mrs. Zaldivar and pertains only to her," and that an agency "cannot disclose any record which is contained in a Privacy Act-protected file to any person except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless one of twelve exceptions applies (5 U.S.C. 552a(b)(1)-(1))." (Id. at 63.)
As to Plaintiff's July 15, 2013 appeal letter to VARO, OGC advised Plaintiff that "pursuant to VA regulations, the [OGC] is the only appellate authority for FOIA and Privacy Act appeals (38 C.F.R. 1.559(b))." (Id. at 60.)
2. Adequacy of the Search
In his Declaration, Jeanisse describes the search he conducted in response to Plaintiff's May 20, 2013 FOIA request, the documents sent to Plaintiff, and the information redacted. (Doc. 51-3 at 1-7.) Jeanisse states that he did "a page-by-page review of Plaintiff's entire claims file with the VA, which encompassed thousands of pages of records" and took many hours. (Id. at 6 ¶ 22.) Jeanisse further avers that "other than [Plaintiff's] claims file, there is no other location in which one would reasonably expect to find documents responsive to Plaintiff's May 20, 2013 request." (Id.) Jeanisse asserts that he was not able to locate all of the specific documents Plaintiff requested but tried to be as responsive as possible, and so disclosed several documents that "were closely related to the specific documents requested." (Id.) Jeanisse also prepared a two-page Vaughn Index describing the information redacted and the FOIA and Privacy Act exemptions that allow the withholding of that information. (Id. ¶ 23; Doc. 51-4 at 1-2.) According to Jeanisse, "[t]hese were the only matters withheld from Plaintiff in response to this request." (Doc. 51-3 ¶ 23.)
Defendants argue that the search for documents in this case "was diligent and was conducted using the only location that could reasonably be expected to contain the requested documents." (Doc. 49 at 10.) Although Plaintiff asserted in his appeal to the OGC that documents exist that were not found during the VARO's search, Defendants argue that the standard is whether the search conducted was adequate, "'not whether responsive documents might possibly exist.'" (Id., quoting Citizens Against UFO Secrecy, Inc. v. DOD, 21 Fed. App'x 774, 775 (9th Cir. 2001).)
Plaintiff responds that his request "stems from a divorce hearing based on Plaintiff['s] ex-spouse attempting to force funds from Plaintiff (Exhibit Z) after his conviction but before he was sentenced." (Doc. 65 at 12.) Plaintiff asserts that the "closely related documents" provided by the VARO do not fulfill his FOIA/Privacy Act request and that the VARO's search for responsive records "remain[s] elusive." (Doc. 64 at 12.) Plaintiff contends that the "VARO's release of documents dated May 30, 2013 revealed three contact notes" from June 7, 2001, June 30, 2001 and April 24, 2002, yet the "VARO claims none exist." (Doc. 64 at 12-13, citing Doc. 65-6 at 23, 25 and 27.) Plaintiff states that he "merely seeks the disclosure of information and documents relevant to the testimony of Ms. Zaldivar in civil and criminal trial hearings." (Id. at 13, citing Vaughn v. Rosen, 484 F.2d 82, n.23 (D.C. Cir. 1973).)
Plaintiff appears to challenge the adequacy of the search for documents responsive to his May 20, 2013 request, but only obliquely. Plaintiff argues that the "closely related documents" do not fulfill his request, but that does not demonstrate that the VARO's search for records was inadequate. Plaintiff cites to three Reports of Contact that he says VARO disclosed to him "by letter dated May 30, 2013," but he does not explain why these three documents are significant. Plaintiff's May 20, 2013 request sought three Reports of Contact with Mrs. Zaldivar dated December 26, 2001, January 1, 2002 and sometime prior to April 19, 2002, but VARO did not locate those documents. The three Reports of Contact Plaintiff says were previously disclosed are dated June 7, 2001, June 30, 2001, and April 24, 2002, and do not appear to be the documents he sought in his May 20, 2013 request. Therefore, it is not clear if Plaintiff is arguing that because three Reports of Contact were released to him, there must be others, or if he is arguing something else altogether. Nevertheless, the prior release of Reports of Contacts does not support that VARO's search was inadequate.
There is no VARO letter dated May 30, 2013 in the record, and it is possible Plaintiff meant that VARO provided these documents in its May 30, 2012 response to his April 26, 2012 request. --------
Defendants have met their burden of showing that they conducted a search for documents that was "reasonably calculated to uncover all relevant documents" by presenting Jeanisse's Declaration about where he conducted the search and the methods he used. See Lahr, 569 F. 3d at 986; Zemansky, 767 F.2d at 571. Jeanisse's Declaration is entitled to a presumption of good faith, and Plaintiff has not rebutted that presumption. Plaintiff appears to speculate that other documents exist, but he has not shown or even argued how Jeanisse's search was inadequate. Therefore, the Court finds that VARO's search for records was adequate. See Citizens Comm'n on Human Rights, 45 F.3d at 1328; Iturralde, 315 F.3d at 315; Wilbur, 355 F.3d at 678. Accordingly, the Court will grant summary judgment to Defendants on the adequacy of the search.
3. Exemptions
VARO argues that it properly redacted certain information about Plaintiff's former wife pursuant to FOIA Exemption (b)(6) and the PA. (Doc. 49 at 10-11.)
a) FOIA Exemption (b)(6)
(1) Legal Standard
FOIA Exemption (b)(6) exempts "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). To determine whether a record is properly withheld under Exemption (b)(6), the court "must balance the privacy interest protected by the exemptions against the public interest in government openness that would be served by disclosure." Lahr, 569 F.3d at 973. Exemption (b)(6) "requires that the invasion of privacy be 'clearly unwarranted'" and that disclosing the information "'would constitute' an unwarranted invasion of privacy." Id. (quoting U.S. Dept. of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755-56 (1989)). When the government "has identified a cognizable privacy interest, 'the only relevant public interest in the FOIA balancing analysis is the extent to which disclosure of the information sought would shed light on an agency's performance of its statutory duties or otherwise let citizens know what their government is up to.'" Id. (quoting Bibles v. Or. Natural Desert Ass'n, 519 U.S. 355, 355-56 (1997)).
(2) Analysis
Defendants assert that the only information redacted by the VARO under Exemption (b)(6) is the "private contact information of Plaintiff's ex-spouse and her social security number." (Doc. 59 at 13, citing Vaughn Index.) They argue that "this is wholly private information and sheds no light on the VA's conduct." (Id.)
Plaintiff responds that "any redaction of the personal information of Plaintiff's ex-spouse has been waived." (Doc. 64 at 13.) Plaintiff asserts that the "VARO voluntarily surrendered documents in its May 30, 2012 disclosure in its entirety, without redactions, as clean copies" and that Mrs. Zaldivar "has also released documents on her own behalf as exhibits when the need arises." (Id. at 13-14, citing Doc. 65 ¶¶ 30, 52 and Exs. H, P-S.) Plaintiff does not say specifically what information has previously been released, but argues that Mrs. Zaldivar "has never exercised her right to privacy or confidentiality nor has VARO produced such document on record," and so Mrs. Zaldivar "has waived her right to non-disclosure under the Privacy Act." (Id. at 14.)
Plaintiff has not identified what public interest would be served by the disclosure of Mrs. Zaldivar's contact information and social security number. Even assuming Mrs. Zaldivar had disclosed the information in some other proceeding or the agency did not assert the exemption in a prior release of records, such disclosure still fails to shed light on how the agency performed its statutory duties in Plaintiff's case. See, e.g., Fiduccia, 185 F.3d at 1047 (holding that the privacy interests of the individuals involved outweighed the FOIA purpose of disclosure even though the information may have been disclosed in "various courthouses"). Nor does Plaintiff's citation to an Eighth Circuit case discussing FOIA Exemption (b)(5) compel disclosure of the information withheld by VARO under Exemption (b)(6). See North Dakota v. Andrus, 581 F.2d 177 (8th Cir. 1978) (holding that the government waived its right to assert Exemption (b)(5), which exempts from disclosure certain "inter-agency or intra-agency memorandums or letters," because the government had previously disclosed the documents to counsel in a separate litigation). The Andrus case involved the government's waiver of its own right to assert Exemption (b)(5), whereas here the government is asserting Exemption (b)(6) as to the disclosure of Mrs. Zaldivar's information. Moreover, to the extent Plaintiff claims he has already received the documents he is complaining were not disclosed in their entirety, his request for records would be moot.
Accordingly, the Court will grant summary judgment to Defendants on claimed FOIA Exemption (b)(6).
b) Privacy Act Exemption
(1) Legal Standard
The Privacy Act governs the disclosure of, access to, and amendment of records on individuals that are maintained by federal agencies." Lane v. Dep't of Interior, 523 F.3d 1128, 1138-39 (9th Cir. 2008) (citing 5 U.S.C. § 552a). Thus, "an individual may 'gain access to his [or her] record' upon request, id. § 552a(d)(1), and a cause of action arises if an agency refuses to comply with a request, id. § 552a(g)(1)(B)." Id. at 1139. On the other hand, the PA prohibits disclosure of "any record" to any person or agency unless there is a written request by or written consent of the individual to whom the record pertains," subject to certain exceptions. Id. The government "need not show that it produced every responsive document, but only that the search for those documents was adequate." Id. (quoting Zemansky, 767 F.2d at 571) (emphasis in original). The government may show that its search was adequate by providing "reasonably detailed, nonconclusory affidavits submitted in good faith." Zemansky, 767 F.2d at 571 (quoting Weisberg v. United States Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)).
(2) Analysis
Defendants argue that the information Plaintiff claims he should have access to—the redacted contact information and social security number of his ex-spouse—"are not records pertaining to [Plaintiff]," even if the information can be found in his claim file. (Doc. 49 at 14.) They assert that Plaintiff's "filings alone demonstrates his desire to retaliate against his ex-spouse since being convicted of numerous counts of sexual abuse and sexual contact with a minor in a proceeding where his ex-spouse was the 'key prosecution witness.'" (Id., citing Doc. 51 ¶ 21, Doc. 51-2 at 65-66, Doc. 1 ¶ 20.) Defendants argue that Plaintiff's situation "is on all fours" with the situation in DePlanche v. Califano, 549 F. Supp. 685, 693-98 (W.D. Mich. 1982), a case in which a father sought access to a social security benefits file accessible by the father's social security number that contained the address of his minor children. The court in DePlanche denied access to the address, finding that the information was not the father's record within subsection (a)(4) or information pertaining to him under subsection (d)(1) of the Privacy Act. Id. at 694-96.
Plaintiff responds generally that his former wife "has waived right to nondisclosure under the Privacy Act and VARO's release of documents surrendered documents as clean copies makes VARO's rights waived as well in protecting the information." (Doc. 64 at 13-14.) Plaintiff does not argue that the information withheld under the PA pertains to him and not to his wife, or that she has consented to such disclosure. The Court accordingly will grant summary judgment to Defendants on the withholding of the information relating to Plaintiff's former spouse under the Privacy Act. / / /
IT IS ORDERED:
(1) The reference to the Magistrate Judge is withdrawn as to Defendants' Motion for Summary Judgment (Doc. 49).
(2) Defendants' Motion for Summary Judgment (Doc. 49) is granted, and this action is terminated with prejudice. The Clerk of Court must enter judgment accordingly.
Dated this 22nd day of August, 2016.
/s/_________
David G. Campbell
United States District Judge