Swick v. US Department of the Army ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NANCY J. SWICK,
Plaintiff,
v. Civil Action No. 18-1658 (JDB)
UNITED STATES DEPARTMENT OF THE
ARMY,
Defendant.
MEMORANDUM OPINION
Pro se plaintiff Nancy Swick brought this action under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, against defendant U.S. Department of the Army to obtain a psychiatric
evaluation report and personnel records from her former employment at Fort Belvoir Community
Hospital (“FBCH”). Mem. Op., Nov. 9, 2020 [ECF No. 42] (“Nov. 2020 Mem. Op.”) at 1. The
Army sent Swick her personnel records on December 4, 2020, Pl.’s Statement of Material Facts
Not in Genuine Dispute [ECF No. 60] (“Swick’s Statement of Undisputed Facts”) ¶ 26, and her
psychiatric evaluation report on February 21, 2021, id. ¶¶ 34–35. These records were located and
produced only after diligent efforts by plaintiff and the Court to prompt the Army to respond to
Swick’s FOIA requests. Swick disputes that the Army’s production of these documents fully
satisfies its FOIA obligations, and both parties have moved for summary judgment. See generally
Def.’s Second Renewed Mot. for Summ. J. [ECF No. 57] (“Army’s Mot.”); Pl.’s Second Renewed
Cross Mot. for Summ. J. [ECF No. 60] (“Swick’s Cross-Mot.”). Because the Army has met its
FOIA obligations, the Court will grant the Army’s motion for summary judgment and deny
Swick’s cross-motion.
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Background
From 2011 to 2013, Swick was employed as an OB/GYN nurse practitioner at FBCH in
Fort Belvoir, Virginia. Swick’s Statement of Undisputed Facts ¶¶ 1–2; accord Nov. 2020 Mem.
Op. at 2. In 2017, Swick submitted two FOIA requests to FBCH seeking: (1) a “[p]sychiatric
[e]xamination [r]eport” from an evaluation she underwent in 2012 and (2) “any and all documents
with [her] name, social security number, [and] date of birth” that were stored either in her Office
of Personnel Management (“OPM”) personnel file or “that are being maintained/filed separately
due to privacy laws and regulation[s].” Exs. to Compl. [ECF No. 1-1] at 1, 14; accord Swick’s
Statement of Undisputed Facts ¶¶ 3, 5. FBCH denied both requests. Swick’s Statement of
Undisputed Facts ¶¶ 6–7; accord Nov. 2020 Mem. Op. at 2.
Swick initiated litigation in this Court in 2018. Swick’s Statement of Undisputed Facts
¶ 15; Compl. [ECF No. 1] at 1. She later filed an amended complaint in 2019. Swick’s Statement
of Undisputed Facts ¶ 15; Am. Compl. [ECF No. 12] at 1. That amended complaint has been the
subject of two separate rounds of summary judgment briefing. The Court denied both Swick’s
and the Army’s original motions for summary judgment in their entirety, Mem. Op., July 2, 2020
[ECF No. 31] at 1, and then granted the Army’s renewed motion for summary judgment in part,
Nov. 2020 Mem. Op. at 1. The Court determined that the Army had adequately searched for
Swick’s psychiatric evaluation report but that more information was needed to judge the adequacy
of the Army’s search for Swick’s personnel records. Nov. 2020 Mem. Op. at 5, 7–8.
The parties then informed the Court that the Army sent Swick 229 pages of her personnel
records—which included her official personnel folder, employee medical folder, and occupational
health file—on December 4, 2020. Swick’s Statement of Undisputed Facts ¶ 26; accord Def.’s
Mot. to Stay [ECF No. 43] at 2. The Army located these documents after conducting several
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searches. First, the Army’s Civilian Human Resources Agency’s FOIA Officer, Aubrey Jones,
physically searched the Civilian Human Resources Agency’s file cabinets and records holding
areas for the name “Swick.” Swick’s Statement of Undisputed Facts ¶¶ 22–24; Decl. of Aubrey
Jones [ECF No. 20-3] ¶¶ 4–6. Jones also electronically searched the Civilian Human Resources
Agency’s computer network. Swick’s Statement of Undisputed Facts ¶ 24; accord Decl. of Aubrey
Jones ¶ 6. Jones’s searches did not produce any results. Swick’s Statement of Undisputed Facts
¶ 24; accord Decl. of Aubrey Jones ¶ 6. Second, a clinic nurse unsuccessfully searched “Swick’s
medical records, FBCH Occupational Health records, and queries to the FBCH Occupational
Health Clinic.” Decl. of Debbie Davis, Sept. 6, 2019 [ECF No. 20-6] (“Davis Sept. 2019 Decl.”)
¶ 7. Finally, Major Robert Wald—an attorney with the General Litigation Branch at Fort
Belvoir—coordinated with attorneys at the National Archives and Records Administration and
obtained Swick’s official personnel folder and employee medical folder. Decl. of Major Robert
E. Wald, Dec. 4. 2020 [ECF No. 43-1] (“Wald Dec. 2020 Decl.”) ¶¶ 1–3. Wald also obtained
Swick’s occupational health file from Debra Davis, the FOIA Officer at FBCH. Id. ¶ 4. When
considering this evidence previously, the Court concluded that “the Army appear[ed] to have
satisfied its FOIA obligations with respect to Swick’s personnel records.” Order, Jan. 25, 2021
[ECF No. 45] (“Jan. 2021 Order”) at 2.
In that same Order, however, the Court also expressed doubt about its prior grant of
summary judgment to the Army regarding Swick’s psychiatric report. Jan. 2021 Order at 2. Davis
had previously filed a declaration swearing that she had searched Swick’s medical records
repeatedly but failed to locate a psychiatric evaluation. Decl. of Debbie Davis, July 19, 2020 [ECF
No. 32-7] ¶ 6. Davis also explained that FBCH did not search other records for the psychiatric
evaluation because the evaluation would not have been labeled as something other than a medical
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record. Id. ¶¶ 7–8. An encounter note within Swick’s occupational health file, however, indicated
that FBCH did classify Swick’s psychiatric evaluation as something other than a medical record.
Jan. 2021 Order at 2–3. The Court accordingly ordered the Army to show cause why the Court
should not reconsider its prior grant of summary judgment and to provide supplemental
submissions detailing the search for the psychiatric evaluation report. Id. at 6–7.
The Army responded by informing the Court that it sent Swick her psychiatric evaluation
report on February 21, 2021. Resp. to Order [ECF No. 46] at 1. The Army obtained this report
after Wald contacted the Assistant General Counsel to the Defense Counterintelligence and
Security Agency and learned that Swick’s psychiatric report was maintained with U.S. Army
Intelligence and Security Command (“INSCOM”). Decl. of Major Robert E. Wald, Feb. 22, 2021
[ECF No. 46-1] ¶¶ 7–8. Wald then contacted an official at INSCOM to retrieve the psychiatric
report and confirmed that the report he received was the complete record in INSCOM’s possession
regarding Swick. Id. ¶¶ 9–10.
The parties subsequently filed a joint status report “identif[ying] one remaining issue to
address”—the psychiatric report the Army produced omitted test results from Swick’s evaluation.
Joint Status Report, Mar. 15, 2021 [ECF No. 47] ¶ 9. The Army then contacted the Director of
FBCH’s Behavioral Health Department and learned that Swick underwent a computer test called
the Millon Clinical Multiaxial Inventory-III (“MCMI-III”) test. Joint Status Report, Apr. 14, 2021
[ECF No. 50] ¶ 10. According to the parties’ April joint status report, “[t]he data generated by this
test on the computer does not become a part of the medical record [and instead] is analyzed by the
clinician performing the psychiatric evaluation but not transcribed into or included in the medical
record.” Id.4
The Army nevertheless searched for the results from Swick’s MCMI-III test but did not
locate them. See Swick’s Statement of Undisputed Facts ¶¶ 37–38. The Army has filed two
declarations detailing its searches for these results. See generally Decl. of Terrance Branch [ECF
No. 57-2]; Decl. of Dr. Dulce Benavides [ECF No. 57-3]. The first declaration—from Terrance
Branch, Chief Information Officer at FBCH—states that there are three computers used for
psychological testing at FBCH, none of which are connected to the hospital’s network. Decl. of
Terrance Branch ¶ 3. Because the computers are not on the network, the only place they can store
data is on their hard drives. Id. ¶ 4. Only one of the computers had accessible data that could have
contained Swick’s test results, and a search of that computer’s data for Swick’s name, date of
appointment, date of birth, and provider’s name did not produce any results. Id. ¶¶ 6–8. The
second declaration—from Dr. Dulce Benavides, Licensed Clinical Psychologist in the Behavioral
Health Department at FBCH—corroborates the Army’s assertion that the raw data from
psychological tests does not become part of the patient’s medical record. Decl. of Dr. Dulce
Benavides ¶ 2. Benavides’ declaration also states that no data has ever been deleted from the
computers used for psychological testing and that these computers have never been connected to
the network and have no external data back-up. Id. ¶¶ 4, 7. Finally, Benavides reviewed Swick’s
record and stated that there is no indication she underwent any testing besides the MCMI-III test
as part of her psychological evaluation. Id. ¶ 8.
The Army moved for summary judgment a third time on September 27, 2021. See
generally Army’s Mot. The Army claims that summary judgment is warranted because it has
produced Swick’s personnel file and psychiatric evaluation report in their entirety. Mem. of P. &
A. in Supp. of Army’s Mot. [ECF No. 57-1] (“Mem. in Supp. of Army’s Mot.”) at 1. The Army
also argues that the results of Swick’s MCMI-III test are not part of her psychiatric evaluation
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report and are therefore beyond the scope of Swick’s FOIA request. Id. Regardless, even if the
test results were within the scope of Swick’s FOIA request, the Army claims its search for those
results was sufficient to satisfy its FOIA obligations. Id.The Court received Swick’s cross-motion for summary judgment on November 22, 2021.
See generally Swick’s Cross-Mot. 1 Swick claims that “a medical certificate stemming from [an]
occupational health/fitness exam completed October 4, 2012” is missing from the set of personnel
records she received. Mem. of P. & A. in Supp. of Swick’s Cross-Mot. [ECF No. 60-1] (“Mem.
in Supp. of Swick’s Cross-Mot.”) at 11. Swick also disputes that the results of her MCMI-III test
are beyond the scope of her FOIA request, id. at 12–13, and that the Army’s search for these test
results was adequate, id. at 16–17.
The Army filed its opposition to Swick’s cross-motion on December 9, 2021, see generally
Def.’s Opp’n to Swick’s Cross-Mot. [ECF No. 61] (“Army’s Opp’n to Swick’s Cross-Mot.”), and
the Court received Swick’s reply on January 4, 2022, see generally Pl.’s Opp’n to Army’s Mot.
[ECF No. 63] (“Swick’s Reply”). The two motions are now fully briefed and ripe for decision.
Legal Standards
FOIA requires federal agencies to release properly requested records unless an exemption
applies. See Milner v. Dep’t of the Navy, 562 U.S. 562, 564 (2011). “FOIA cases typically and
appropriately are decided on motions for summary judgment.” Defs. of Wildlife v. U.S. Border
Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). Summary judgment is appropriate when the
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Swick did not file any opposition to the Army’s summary judgment motion, but the Court will exercise its
discretion to treat Swick’s cross-motion for summary judgment as both an independent motion and opposition. See
Torres v. Oakland Scavenger Co., 487 U.S. 312, 316–17 (1988) (“[I]f a litigant files papers in a fashion that is
technically at variance with the letter of a procedural rule, a court may nonetheless find that the litigant has complied
with the rule if the litigant’s action is the functional equivalent of what the rule requires.”); see also Wye Oak Tech.,
Inc. v. Republic of Iraq, Civ. No. 1:10-cv-01182 (RCL), 2018 WL 5983385, at *2–3 (D.D.C. Nov. 14, 2018) (treating
untimely cross-motion for summary judgment as opposition to summary judgment motion).
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pleadings and evidence demonstrate 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).
The relief a court can order in a FOIA case is limited. “FOIA is only directed at requiring
agencies to disclose those ‘agency records’ for which they have chosen to retain possession or
control.” Canning v. U.S. Dep’t of Def., 499 F. Supp. 2d 14, 23 (D.D.C. 2007) (quoting Kissinger
v. Reps. Comm. for Freedom of the Press, 445 U.S. 136, 151–52 (1980)). For that reason, FOIA
“only authorizes a court ‘to enjoin the agency from withholding agency records and to order the
production of any agency records improperly withheld.’” Harvey v. Lynch, 123 F. Supp. 3d 3, 7
(D.D.C. 2015) (quoting 5 U.S.C. § 552(a)(4)(B)). “FOIA does not impose a document retention
requirement on agencies,” Landmark Legal Found. v. EPA, 272 F. Supp. 2d 59, 66 (D.D.C. 2003);
accord Canning, 499 F. Supp. 2d at 23–24, and “[e]ven where the Government was obligated to
retain a document and failed to do so, that failure would create neither responsibility under FOIA
to reconstruct those documents nor liability for the lapse,” Canning, 499 F. Supp. 2d at 24(alteration in original) (quoting Piper v. U.S. Dep’t of Just., 294 F. Supp. 2d 16, 22 (D.D.C. 2003)).
Accordingly, “[o]nce the records are produced the substance of the controversy disappears and
becomes moot since the disclosure which the suit seeks has already been made.” Perry v. Block,
684 F.2d 121, 125 (D.C. Cir. 1982) (per curiam) (alteration in original) (quoting Crooker v. U.S.
State Dep’t, 628 F.2d 9, 10 (D.C. Cir. 1980) (per curiam)).
If a responding agency cannot show that it has turned over all requested nonexempt
material, the agency “must show beyond material doubt . . . that it has conducted a search
reasonably calculated to uncover all relevant documents.” Morley v. CIA, 508 F.3d 1108, 1114
(D.C. Cir. 2007) (quoting Weisberg v. U.S. Dep’t of Just., 705 F.2d 1344, 1351 (D.C. Cir. 1983)).
“The question is not ‘whether there might exist any other documents possibly responsive to the
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request, but rather whether the search for those documents was adequate.’” Steinberg v. U.S. Dep’t
of Just., 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg v. U.S. Dep’t of Just., 745 F.2d
1476, 1485 (D.C. Cir. 1984)); accord Iturralde v. Comptroller of Currency, 315 F.3d 311, 315
(D.C. Cir. 2003) (“[T]he failure of an agency to turn up one specific document in its search does
not alone render a search inadequate.”). “The court applies a ‘reasonableness’ test to determine
the ‘adequacy’ of a search methodology, consistent with congressional intent tilting the scale in
favor of disclosure.” Morley, 508 F.3d at 1114 (quoting Campbell v. U.S. Dep’t of Just., 164 F.3d
20, 27 (D.C. Cir. 1998)).
“It is the agency’s burden to prove that it has complied with its obligations under FOIA.”
Democracy Forward Found. v. Ctrs. for Medicare & Medicaid Servs., Civ. No. 18-635 (JDB),
2019 WL 6344935, at *1 (D.D.C. Nov. 27, 2019). An agency can meet this burden by submitting
affidavits or declarations. See Morley, 508 F.3d at 1116; accord Mil. Audit Project v. Casey, 656
F.2d 724, 738 (D.C. Cir. 1981). An agency’s affidavits and declarations must be “relatively
detailed and non-conclusory, and . . . submitted in good faith.” SafeCard Servs., Inc. v. SEC, 926
F.2d 1197, 1200 (D.C. Cir. 1991) (alteration in original) (quoting Ground Saucer Watch, Inc. v.
CIA, 692 F.2d 770, 771 (D.C. Cir. 1981) (per curiam)). “Agency affidavits are accorded a
presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the
existence and discoverability of other documents.’” Id. (quoting Ground Saucer Watch, Inc., 692
F.2d at 771).
Analysis
The Court will first consider the Army’s argument that its production of documents mooted
Swick’s FOIA claims. The Court will then decide whether the Army satisfied its FOIA obligations
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by conducting reasonable searches for Swick’s requested documents. Finally, the Court will
examine Swick’s remaining assertions.
I. The Army’s Production of Documents Has Mooted Only Part of This Case
The Army’s first argument in support of its summary judgment motion is that this case is
moot because the Army has complied with both of Swick’s FOIA requests. Mem. in Supp. of
Army’s Mot. at 7–8. The production of requested, nonexempt documents can moot a FOIA case.
Perry, 684 F.2d at 125 (“[I]f we are convinced that [the government] ha[s], however belatedly,
released all nonexempt material, we have no further judicial function to perform under the
FOIA.”). But the production must be total; partial production will not suffice. Nw. Univ. v.
USDA, 403 F. Supp. 2d 83, 86 (D.D.C. 2005) (noting that a court “retains jurisdiction of a FOIA
case if it is not convinced that the agency has released all nonexempt material”); accord Fraternal
Ord. of Police, Metro. Lab. Comm. v. Dist. of Columbia, 82 A.3d 803, 816–17 (D.C. 2014). For
the reasons explained below, while the Court agrees that the Army’s production has mooted
Swick’s request for her personnel records, the Court does not reach this conclusion regarding
Swick’s request for her psychiatric report.
First, regarding Swick’s request for “any and all documents in [her] OPM personnel file
[or that are being maintained separately] containing [her] name, social security number, date of
birth,” Exs. to Compl. at 14, it is uncontested that the Army has sent Swick over 200 pages of
personnel records, see Swick’s Statement of Undisputed Facts ¶ 26. These records include
Swick’s official personnel folder, employee medical folder, and occupational health file. See id.;
Wald Dec. 2020 Decl. ¶¶ 2–4. When considering this production previously, the Court noted that
“Swick has not identified, and the Court is not aware of, any other types of personnel records that
exist for a former federal employee like Swick.” Jan. 2021 Order at 2.
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Nevertheless, Swick disputes that the Army has produced her personnel records “in their
entirety.” Mem. in Supp. of Swick’s Cross-Mot. at 11–12 (citation omitted). Swick claims that
the Army’s production is missing “a medical certificate stemming from [an] occupational
health/fitness exam [she] completed October 4, 2012.” Id. at 11. In other circumstances, such an
allegation might preclude a finding of mootness. See Brustein & Manasevit, PLLC v. U.S. Dep’t
of Educ., 30 F. Supp. 3d 1, 7 (D.D.C. 2013) (“Given Plaintiff’s insistence that additional
responsive documents must exist . . . Plaintiff has a cognizable interest in having this Court
determine whether the Defendant’s search for records was adequate.”). In this case, however,
Swick’s assertion that the Army’s production is missing a medical certificate is more for
posterity’s sake than it is substantive. Swick explicitly states that she “is not attempting to widen
[the Army’s] search” for records responsive to her FOIA request. Mem. in Supp. of Swick’s Cross-
Mot. at 12. Instead, she appears to merely want it noted for the record that the Army’s production
did not include this document. See id. Regardless of whether this omission exists, because Swick
is otherwise satisfied with the Army’s production and “is not attempting to widen [the Army’s]
search,” id., the litigation surrounding Swick’s request for her personnel records is now moot, see
Perry, 684 F.2d at 125.
The Court does not reach the same conclusion regarding Swick’s request for her
“[p]sychiatric [e]xamination [r]eport.” Exs. to Compl. at 1. It is undisputed that the Army has not
turned over the data from Swick’s MCMI-III test. See Mem. in Supp. of Army’s Mot. at 8–9. The
Army argues, however, that this data is beyond the scope of Swick’s FOIA request, id. 9–10.
Acceptance of this argument could moot Swick’s claim regarding her request for her psychiatric
report since the non-production of this data is the “one remaining issue” associated with the
request. Swick’s Statement of Undisputed Facts ¶ 36.
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But the Court has doubts about whether Swick’s request for her “[p]sychiatric
[e]xamination [r]eport” is too narrow to cover the data from her MCMI-III test. Exs. to Compl. at
1. The data is certainly related to Swick’s psychiatric examination, and “an agency ‘has a duty to
construe a FOIA request liberally.’” Inst. for Just. v. IRS, 941 F.3d 567, 572 (D.C. Cir. 2019)
(quoting Nation Mag., Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)).
At the same time, however, the Army has submitted evidence that the data is not considered part
of Swick’s medical record, e.g., Decl. of Dr. Dulce Benavides ¶ 2, and an “agency is not obligated
to rewrite the request to ask for more than the requester did,” Canning v. U.S. Dep’t of State, 134
F. Supp. 3d 490, 517 (D.D.C. 2015); see also Am. Chemistry Council, Inc. v. U.S. Dep’t of Health
& Hum. Servs., 922 F. Supp. 2d 56, 62–63 (D.D.C. 2013) (concluding that a plaintiff’s request for
“records” did not reasonably describe a request for “research data” related to those records in part
due to facts not applicable here). Ultimately, the Court need not resolve this issue because, as
explained below, even if Swick’s FOIA request does encompass her MCMI-III data, the Army
satisfied its FOIA obligations by conducting a reasonable search for this information.
II. The Army Satisfied Its FOIA Obligations Regarding Swick’s Psychiatric Report
“To win summary judgment on the adequacy of a search, the agency must demonstrate
beyond material doubt that its search was ‘reasonably calculated to uncover all relevant
documents.’” Nation Mag., 71 F.3d at 890 (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542
(D.C. Cir. 1990)). “The agency must make ‘a good faith effort to conduct a search for the requested
records, using methods which can be reasonably expected to produce the information requested.’”
Id. (quoting Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). The Court is
satisfied that the Army has done so here.
As an initial matter, the only unproduced record that Swick claims she is entitled to is the
data from her MCMI-III test. See Swick’s Statement of Undisputed Facts ¶ 36; see also Decl. of
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Dr. Dulce Benavides ¶ 8 (noting Benavides’ conclusion that Swick did not take any other test
besides the MCMI-III). The Army’s declarations demonstrate Swick’s data could have been stored
on only three, or possibly even two, computers. See Decl. of Dr. Dulce Benavides ¶ 3; Decl. of
Terrance Branch ¶ 3. The Army’s declarations also contain sworn statements, made under threat
of perjury, that these computers have never been connected to the network and have no external
data back-up, meaning Swick’s data could be located only on these computers’ hard drives. Decl.
of Dr. Dulce Benavides ¶ 4; Decl. of Terrance Branch ¶ 4. Only one of these three computers
contained records that could have contained Swick’s data, Decl. of Terrance Branch ¶¶ 6–8, and
the Army searched that computer for Swick’s name, date of birth, date of appointment, and
provider’s name, id. at ¶ 6. These extensive steps satisfy the Army’s obligation to “make ‘a good
faith effort [to locate Swick’s records] using methods which can be reasonably expected to”
succeed. Nation Mag., 71 F.3d at 890 (quoting Oglesby, 920 F.2d at 68).
Swick makes two main arguments in opposition to this conclusion, neither of which is
persuasive. She first appears to suggest that the Army’s failure to locate her record indicates that
the Army’s search was inadequate. Swick’s Reply at 6. But “the adequacy of a FOIA search is
generally determined not by the fruits of the search, but by the appropriateness of the methods
used to carry out the search.” Iturralde, 315 F.3d at 315. Swick never challenges the
appropriateness of the Army’s methods or suggests alternative methods that could have been
successful. And it is the Court’s conclusion that the Army’s methods were sufficient.
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Second, Swick argues that the Army’s declarations are not sufficiently detailed. 2 Swick’s
Reply at 3–4. An agency’s supporting declarations and explanation of its searches must be
“relatively detailed and non-conclusory.” SafeCard Servs., Inc., 926 F.2d at 1200 (quoting Ground
Saucer Watch, Inc., 692 F.2d at 771). Swick claims the Army failed to meet this standard because
it never “explain[ed] specifically what method/technical method was used to” conclude that no
data has been deleted from the FBCH’s computers. Swick’s Reply at 3. But whether data has
been deleted from the pertinent computers is irrelevant to the question before the Court—whether
the Army has conducted a reasonable search for Swick’s records. 3 See Iturralde, 315 F.3d at 315(noting that a search’s reasonableness is judged by its process instead of results because “[a]fter
all, particular documents may have been accidentally lost or destroyed”).
Swick also makes the conclusory claim that the Army “only says that [her] data no longer
exist[s], without technical, explanative declaration as [to] how it arrived at that conclusion.”
Swick’s Reply at 4. But the Army submitted two detailed declarations summarizing the reasons
for its conclusion that Swick’s data must be on one of three computers and its failed attempts to
locate Swick’s data from those computers’ hard drives. See generally Decl. of Dr. Dulce
Benavides; Decl. of Terrance Branch. Each of these declarations spans multiple pages and
contains enough information about the Army’s process to be “relatively detailed and non-
conclusory.” SafeCard Servs., Inc., 926 F.2d at 1200 (quoting Ground Saucer Watch, Inc., 692
F.2d at 771).
2
Swick makes this argument for the first time in her reply, meaning the Court could treat the argument as
waived and disregard it entirely. See Rollins Env’t Servs. (NJ) Inc. v. EPA, 937 F.2d 649, 652 n.2 (D.C. Cir. 1991).
But because Swick makes this argument in response to the Army’s brief in opposition to her cross-motion, see Army’s
Opp’n to Swick’s Cross-Mot. at 3, Swick is proceeding pro se, and the argument is meritless anyway, the Court will
exercise its discretion to consider it now, see United States v. Merise, Crim. A. No. 06-42-1 (JDB), 2022 WL 355207,
at *2 n.4 (D.D.C. Feb. 7, 2022).
3
The Court also notes that Swick has not produced any evidence suggesting that the Army intentionally
deleted the data from her MCMI-III test in response to her FOIA request.
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In sum, the Army has demonstrated, through detailed declarations, that it conducted
extensive searches reasonably calculated to uncover Swick’s MCMI-III data. Though the Army
was unable to locate Swick’s data, the Army has satisfied its FOIA obligations and is entitled to
summary judgment.
III. Swick’s Remaining Assertions Are Unavailing
Swick makes two additional assertions that the Court will briefly address here. First, Swick
states several times that her “psychiatric examination . . . was not conducted for a background
security investigation.” Mem. in Supp. of Swick’s Cross-Mot. at 11. The Army challenges this
claim’s accuracy, Army’s Opp’n to Swick’s Cross-Mot. at 4, but, more importantly, the Army
correctly notes that the reason for Swick’s psychiatric evaluation “is not relevant to the adequacy
of [the Army’s] search, because [the Army] searched . . . all the locations reasonably expected to
contain the requested record,” id. at 4–5. Second, Swick urges the Court to recognize that the data
from her MCMI-III test should be regarded as a medical record that the Army was obligated to
preserve along with her psychiatric report. Mem. in Supp. of Swick’s Cross-Mot. at 12–14. As
the Court explained above, however, “FOIA does not impose a document retention requirement
on agencies.” Landmark Legal Found., 272 F. Supp. 2d at 66; accord Canning, 499 F. Supp. 2d at23–24. Hence, the fact that Swick’s data is no longer accessible does not preclude the Court from
granting the Army summary judgment, and the Court will not opine on the accuracy of either of
Swick’s assertions in this FOIA litigation.
Conclusion
For the foregoing reasons, the Court will grant the Army’s motion for summary judgment
in its entirety and deny Swick’s cross-motion. Through her persistence, aided by this Court’s
Orders requiring more careful searches by the Army, Swick has obtained the records the Army
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initially claimed were not available or did not exist. But the Army has now finally fulfilled its
obligations under FOIA and is entitled to summary judgment. A separate Order will issue on this
date.
/s/
JOHN D. BATES
United States District Judge
Dated: March 15, 2022
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