Case Detail

FOIA Project Annotation: Judge Royce Lamberth has ruled that the Department of the Air Force conducted an adequate search for records concerning the termination for convenience of a contract with Virginia Dominion Power pertaining to a utility privatization contract that included Fort Monroe, which was scheduled to close in 2011, and that most of the remaining redactions made under Exemption 5 (deliberative process privilege) were appropriate. The law firm of Blank Rome made a multi-part request for records concerning the termination of the contract. The agency assigned the request to Technical Sergeant Bradley Benedictus, who had handled the contract. Benedictus searched his records and identified five other employees who were involved and whose email accounts should be searched. Several of those employees were no longer with the Air Force and their accounts were no longer accessible. The request was also referred to the Department of the Army and GAO. After Blank Rome appealed the agency's failure to respond, the agency disclosed 82 documents with redactions under Exemption 5. Blank Rome appealed that decision and then filed suit. The agency disclosed another 200 documents, some with redactions made under Exemption 5. Six months later, the agency produced a Rule 4 file, concerning an appeal of the agency's decision to terminate the contract, which contained 128 documents responsive to Blank Rome's request, although most of them had already been disclosed. By the time Lamberth decided the case, only three documents redacted under Exemption 5 remained in dispute. Blank Rome argued the search was inadequate because the agency had failed to uncover several types of records, had improperly delayed in referring the request to other agencies, and had failed to search the records of other agency employees Blank Rome contended were involved with the contract termination. As to Blank Rome's claim that the search did not uncover certain categories of documents, Lamberth indicated the law firm had provided nothing but speculation. He added that "plaintiff appears to be seeking documents that may be in the possession of the four agencies named, not the Air Force. The Air Force, as the recipient of the FOIA request, was under an obligation to search its own records or records in its possession for responsive documents. It was under no obligation to search for documents within the custody of other agencies. If plaintiff seeks records in the possession of other agencies, its remedy lies with them." As to the records uncovered as a result of the Rule 4 file, Lamberth explained that "if an agency uncovers previously unreleased responsive documents, and then releases them, the search is not deemed inadequate." Lamberth expressed sympathy with Blank Rome over their allegations of delay in referring their request, but noted that "because defendant has demonstrated that it conducted a reasonable search and produced responsive documents, it is irrelevant that it delayed in referring the search to other agencies and in producing documents." Lamberth reviewed the three documents in camera, finding three improper redactions, but approving the rest. Describing the improper redactions, he noted that "although they were generated before the Air Force's final decision regarding the Fort Monroe termination settlement proposal. . .and were therefore predecisional at that time, the material in these redactions lost their predecisional status when they were adopted in the Air Force's final memorandum." Upholding other redactions, he explained that "changes to wording that give insight into the agency's decisionmaking process and discourage candid discussion may be deliberative in nature." He also found that cost calculations could be withheld. He pointed out that "not only was this information not included in the final agency letter, any calculations or estimates were used in the Air Force's decision regarding whether to accept DVP's settlement proposal and its own calculation of settlement amount owed to DVP."
Issues: Adequacy - Search, Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Date Filed	Doc #	Docket Text
2015-07-24	1	COMPLAINT FOR INJUNCTIVE RELIEF AND APPOINTMENT OF SPECIAL COUNSEL FOR DISCIPLINARY ACTION against DEPARTMENT OF THE AIR FORCE ( Filing fee $ 400 receipt number 0090-4187065) filed by BLANK ROME LLP. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Civil Cover Sheet, # 18 Summons, # 19 Summons, # 20 Summons)(Honigberg, Paul) (Entered: 07/24/2015)
2015-07-24	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by BLANK ROME LLP (Honigberg, Paul) (Entered: 07/24/2015)
2015-07-24		Case Assigned to Judge Royce C. Lamberth. (rd) (Entered: 07/24/2015)
2015-07-24	3	SUMMONS (3) Issued Electronically as to DEPARTMENT OF THE AIR FORCE, U.S. Attorney and U.S. Attorney General (rd) (Entered: 07/24/2015)
2015-07-31	4	NOTICE of Appearance by William Mark Nebeker on behalf of DEPARTMENT OF THE AIR FORCE (Nebeker, William) (Entered: 07/31/2015)
2015-08-19	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 7/27/2015. Answer due for ALL FEDERAL DEFENDANTS by 8/26/2015. (Attachments: # 1 Certified Mail Return Receipt)(Honigberg, Paul) (Entered: 08/19/2015)
2015-08-19	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 07/27/2015. (Attachments: # 1 Certified Mail Return Receipt)(Honigberg, Paul) (Entered: 08/19/2015)
2015-08-19	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DEPARTMENT OF THE AIR FORCE served on 8/10/2015 (Attachments: # 1 Certified Mail Return Receipt)(Honigberg, Paul) (Entered: 08/19/2015)
2015-08-26	8	ANSWER to Complaint by DEPARTMENT OF THE AIR FORCE.(Nebeker, William) (Entered: 08/26/2015)
2015-09-16	9	ORDER; to produce a Vaughn Index, Signed by Judge Royce C. Lamberth on 9/14/2015. (hs) (Entered: 09/16/2015)
2015-10-07	10	Unopposed MOTION for Extension of Time to File Index and Dispositive Motion by DEPARTMENT OF THE AIR FORCE (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 10/07/2015)
2015-10-08	11	ORDER; granting 10 Motion for Extension of Time to File; Defendant's Dispositive Motions/Index due by 11/16/2015, Signed by Judge Royce C. Lamberth on 10/8/2015. (hs) (Entered: 10/08/2015)
2015-11-16	12	Unopposed MOTION for Extension of Time to File Vaughn Index and Dispositive Motion by DEPARTMENT OF THE AIR FORCE (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 11/16/2015)
2015-11-25	13	ORDER; granting 12 Motion for Extension of Time to File Index/Dispositive Motion. Dispositive Motions/Vaughn Index due by 12/16/2015, Signed by Judge Royce C. Lamberth on 11/25/2015. (hs) (Entered: 11/25/2015)
2015-12-15	14	MOTION for Extension of Time to File Index and Dispositive Motion by DEPARTMENT OF THE AIR FORCE (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 12/15/2015)
2015-12-17	15	Memorandum in opposition to re 14 MOTION for Extension of Time to File Index and Dispositive Motion filed by BLANK ROME LLP. (Attachments: # 1 Exhibit Exhibit A)(Honigberg, Paul) (Entered: 12/17/2015)
2015-12-21	16	ORDER granting 14 Motion for Extension of Time to File. Signed by Judge Royce C. Lamberth on December 21, 2015. (lcrcl2) (Entered: 12/21/2015)
2015-12-22		Set/Reset Deadlines: Dispositive Motions due by 12/23/2015. (hs) (Entered: 12/22/2015)
2015-12-23	17	MOTION to Dismiss Or, In The Alternative , MOTION for Summary Judgment by DEPARTMENT OF THE AIR FORCE (Attachments: # 1 Declaration Benedictus, # 2 Declaration Lyon, # 3 Text of Proposed Order)(Nebeker, William) (Entered: 12/23/2015)
2016-01-08	18	Unopposed MOTION for Extension of Time to File Response/Reply as to 17 MOTION to Dismiss Or, In The Alternative MOTION for Summary Judgment by BLANK ROME LLP (Attachments: # 1 Text of Proposed Order Granting Motion for Enlargement of Time)(Honigberg, Paul) (Entered: 01/08/2016)
2016-01-11	19	ORDER; granting 18 Motion for Extension of Time to File Response/Reply; Plaintiff's Response to Motion for Summary Judgment due by 1/19/2016. Plaintiff's Cross Motion for Summary Judgment due by 1/19/2016, Signed by Judge Royce C. Lamberth on 1/11/2016. (hs) (Entered: 01/11/2016)
2016-01-19	20	Memorandum in opposition to re 17 MOTION to Dismiss Or, In The Alternative MOTION for Summary Judgment and Br in Support of Cross-Motion for Partial Summary Judgment filed by BLANK ROME LLP. (Attachments: # 1 Statement of Facts Resp to Def.'s Statement of Facts, # 2 Declaration of P Matthews, # 3 Declaration of A Krachman, # 4 Exhibit Ex A to Krachman Decl, # 5 Exhibit Ex B to Krachman Decl, # 6 Exhibit Ex C to Krachman Decl, # 7 Exhibit Ex D to Krachman Decl, # 8 Exhibit Ex E to Krachman Decl, # 9 Exhibit Ex F to Krachman Decl, # 10 Exhibit Ex G to Krachman Decl, # 11 Exhibit Ex H to Krachman Decl, # 12 Exhibit Ex I to Krachman Decl, # 13 Exhibit Ex J to Krachman Decl, # 14 Exhibit Ex K to Krachman Decl, # 15 Exhibit Ex L to Krachman Decl, # 16 Exhibit Ex M to Krachman Decl, # 17 Exhibit Ex N to Krachman Decl, # 18 Exhibit Ex O to Krachman Decl, # 19 Exhibit Ex P to Krachman Decl, # 20 Text of Proposed Order Denying Def.'s Mot for SJ)(Honigberg, Paul) (Entered: 01/19/2016)
2016-01-19	21	Cross MOTION for Summary Judgment for Partial Summary Judgment on Count I and Mem in Support by BLANK ROME LLP (Attachments: # 1 Statement of Facts in support of cross-motion for partial summ. j., # 2 Text of Proposed Order granting cross-motion for partial summ. j.)(Honigberg, Paul) (Entered: 01/19/2016)
2016-02-05	22	REPLY to opposition to motion re 17 MOTION to Dismiss Or, In The Alternative MOTION for Summary Judgment filed by DEPARTMENT OF THE AIR FORCE. (Attachments: # 1 Declaration 2d Benedictus, # 2 Declaration 2d Lyon, # 3 Declaration Nebeker, # 4 Text of Proposed Order)(Nebeker, William) Modified on 2/8/2016 (zrdj). (Entered: 02/05/2016)
2016-02-05	23	Memorandum in opposition to re 21 Cross MOTION for Summary Judgment for Partial Summary Judgment on Count I and Mem in Support filed by DEPARTMENT OF THE AIR FORCE. (See docket entry 22 to view document)(zrdj) (Entered: 02/08/2016)
2016-02-08		NOTICE OF ERROR re 22 Reply to opposition to Motion; emailed to mark.nebeker@usdoj.gov, cc'd 4 associated attorneys -- The PDF file you docketed contained errors: 1. Two-part docket entry, 2. (Counsel is reminded that a combined document must be filed using EACH event respectively. NO ACTION NEEDED (zrdj, ) (Entered: 02/08/2016)
2016-02-09	24	Unopposed MOTION for Extension of Time to File Response/Reply as to 21 Cross MOTION for Summary Judgment for Partial Summary Judgment on Count I and Mem in Support by BLANK ROME LLP (Attachments: # 1 Text of Proposed Order Granting Motion for Enlargement of Time)(Honigberg, Paul) (Entered: 02/09/2016)
2016-02-11	25	ORDER granting 24 Motion for Extension of Time to File Response/Reply. Signed by Judge Royce C. Lamberth on February 10, 2016. (lcrcl2) (Entered: 02/11/2016)
2016-02-16		Set/Reset Deadlines: Plaintiff's Reply due by 2/23/2016. (hs) (Entered: 02/16/2016)
2016-02-23	26	REPLY to opposition to motion re 21 Cross MOTION for Summary Judgment for Partial Summary Judgment on Count I and Mem in Support filed by BLANK ROME LLP. (Attachments: # 1 Exhibit Reply Ex. 1, # 2 Exhibit Reply Ex. 2, # 3 Exhibit Reply Ex. 3)(Honigberg, Paul) (Entered: 02/23/2016)
2016-06-01	27	Unopposed MOTION for Leave to File Supp Brief in Opp to Def's Mot to Dismiss or for Summary Judgment, etc. by BLANK ROME LLP (Attachments: # 1 Supplement Lodged Supp Brief, # 2 Exhibit Ex 1 to Supp Brief, # 3 Exhibit Ex 1A to Supp Brief, # 4 Exhibit Ex 1B to Supp Brief, # 5 Exhibit Ex 2 to Supp Brief, # 6 Text of Proposed Order Prop Order)(Honigberg, Paul) (Entered: 06/01/2016)
2016-06-09	28	ORDER granting 27 Motion for Leave to File a Supplemental Brief in Opposition to Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment. The Court having considered the matter, hereby ORDERS that the Supplemental Brief lodged with Plaintiff's motion shall be deemed filed this date. Any further reply shall be due in 7 days. Signed by Judge Royce C. Lamberth on 6/8/2016. (tg) (Entered: 06/09/2016)
2016-06-09	29	SUPPLEMENTAL MEMORANDUM to re 21 Cross MOTION for Summary Judgment for Partial Summary Judgment on Count I and Mem in Support , 17 MOTION to Dismiss Or, In The Alternative MOTION for Summary Judgment filed by BLANK ROME LLP. (Attachments: # 1 Exhibit 1 to Supp Brief, # 2 Exhibit 1A to Supp Brief, # 3 Exhibit 1B to Supp Brief, # 4 Exhibit 2 to Supp Brief)(zrdj) (Entered: 06/09/2016)
2016-06-15	30	REPLY re 17 MOTION to Dismiss Or, In The Alternative MOTION for Summary Judgment filed by DEPARTMENT OF THE AIR FORCE. (Attachments: # 1 Declaration Lyon (Third), # 2 Declaration Benedictus (Third))(Nebeker, William) (Entered: 06/15/2016)
2016-08-12	31	NOTICE of Change of Address by Paul Mark Honigberg (Honigberg, Paul) (Entered: 08/12/2016)
2016-09-14	32	NOTICE Of Ex Parte, in Camera Filing by DEPARTMENT OF THE AIR FORCE re 17 MOTION to Dismiss Or, In The Alternative MOTION for Summary Judgment (Attachments: # 1 Exhibit Attachments 3 - 5)(Nebeker, William) (Entered: 09/14/2016)
2016-09-20	33	MEMORANDUM OPINION. Signed by Judge Royce C. Lamberth on 9/20/2016. (tg) (Entered: 09/20/2016)
2016-09-20	34	ORDER granting 17 Defendant's Motion to Dismiss; granting in part and denying in part 17 Defendant's Motion for Summary Judgment; granting in part and denying in part 21 Plaintiff's Motion for Summary Judgment. Accordingly, defendant is hereby ORDERED to produce to plaintiff the material improperly redacted from Vaughn Index Items 3, 27 and 28, as identified in the accompanying Memorandum Opinion. Signed by Judge Royce C. Lamberth on 9/20/2016. (tg) (Entered: 09/20/2016)
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