United States District Court, D. Maryland
Lipton Hollander, United States District Judge.
Cochran, the self-represented plaintiff, sued her former
employer, the United States Department of Homeland Security,
Federal Emergency Management Agency (“FEMA”),
under the Freedom of Information Act (“FOIA”), 5
U.S.C. § 522(a). ECF 1 (the
“Complaint”). In the suit, she seeks to obtain
compliance with her FOIA request of December 4, 2017,
requesting “all documents pertaining to her security
clearance.” ECF 1 at 5. According to plaintiff, FEMA
did not satisfy the FOIA request, and therefore she also
requests costs and legal fees associated with enforcement.
ECF 1 at 6.
has moved to dismiss or, in the alternative, for summary
judgment (ECF 7), supported by a memorandum of law (ECF 7-1)
(collectively, the “Motion”) and exhibits. ECF
7-3 to ECF 7-7; ECF 8-1. FEMA contends that by March 1, 2018,
it “provided Plaintiff with all documents responsive to
her request.” ECF 7-1 at 1. Therefore, FEMA maintains
that the Complaint is now moot, and dismissal is required.
ECF 7-1 at 5-7.
FEMA filed the Motion, plaintiff retained counsel. And, on
May 6, 2018, she submitted a modified FOIA request. In
addition to what was previously sought on March 4, 2018, she
requested the following: “(1) Plaintiff's emails
with Patricia Sandlin, Human Resources Specialist, in January
2013; (2) Any and all emails stating her security clearance
had been closed; (3) Any and all letters advising Plaintiff
that her security clearance had been closed.” ECF 17-2
opposes the Motion (ECF 17), with exhibits (ECF 17-2). She
asserts that “FEMA has produced no documents responsive
to the third item” of her modified request. ECF 17 at
has replied (ECF 22, the “Reply”), supported by
numerous exhibits. ECF 22-2; ECF 23-1 to ECF 23-13. As to the
third item of plaintiff's modified request, FEMA argues
that “no additional records exist.” ECF 22 at 4.
Therefore, it contends that dismissal is appropriate.
hearing is necessary to resolve this Motion. See
Local Rule 105.6. For the reasons that follow, I shall
construe FEMA's Motion (ECF 7) as one for summary
judgment, and I shall grant it.
was previously employed as the “Chief Freedom of
Information Act (FOIA) Officer for the Department of Homeland
Security, Federal Emergency Management Agency.” ECF
17-2 at 6; ECF 17-2 (Affidavit of Plaintiff), ¶ 2. Her
“area of expertise” was in the FOIA/Privacy Act
Sunday, June 12, 2016, Cochran sent an email to her
supervisor, Eric Leckey, FEMA's Deputy Chief
Administrative Officer, resigning from her position. ECF 17-2
at 6. A few days later, on June 17, 2016, Leckey sent an
email to FEMA employee Manuel de Guzman regarding
Cochran's resignation and security clearance, stating,
An OCAO [Office of the Chief Adminsitrative Officer]
employee, Terry Cochran, abruptly resigned on Sunday evening.
Her resignation is below. I've been unsuccessful in
getting her to return to check out, return her accountable
property, get out briefed from her clearance, and return her
badge. She was supposed to return to go through this process
this morning at 9:30 a.m. but she was a no call/no show.
I want to make sure her badge is deactivated and clearance is
no longer active with FEMA. I'd appreciate your advice
and counsel with the other stuff.
electronically submitted a FOIA request to FEMA on December
4, 2017, seeking “all documents pertaining to her
security clearance.” ECF 1 at 5. On December 5, 2017,
FOIA Program Specialist Kevin W. Hill sent a letter to
plaintiff (ECF 1-2), acknowledging receipt of her request and
assigning a FEMA reference number, 2018-FEFO-00264.
Id. at 2. The letter indicated that it is the
agency's “goal to respond within 20 business days
of receipt of [a] request.” Id. However, FEMA
“invoke[d] ¶ 10-day extension” as to
plaintiff's request, pursuant to 5 U.S.C. §
552(a)(6)(B), because her request would “require a
thorough and wide-ranging search.” ECF 1-2 at
2. Accordingly, the agency's response was due on
or before January 18, 2018. Id.
filed suit on January 22, 2018, alleging that FEMA failed to
provide the responsive documents by the deadline of January
18, 2018. ECF 1 at 5. On March 1, 2018, FEMA produced 19
pages of documents pertaining to plaintiff's security
clearance. ECF 7-5 (FEMA final report); ECF 17-2, ¶ 3
(Cockran Affidavit); ECF 7-7 (“Neuschaefer
Declaration”), ¶ 22; ECF 23-4. Aside from a few
minor redactions, the records were released to plaintiff in
their entirety. ECF 7-7, ¶ 22.
receipt, plaintiff notified FEMA that she was unable to
access the documents using the password provided by FEMA.
Id. ¶ 23. Therefore, on March 8, 2018, FEMA
mailed a CD to plaintiff containing the responsive records.
FEMA filed its Motion, plaintiff submitted a list of
documents responsive to her FOIA request that she claimed
FEMA had failed to produce. ECF 17-2, ¶ 3. In an email
of May 6, 2018 (ECF 17-2 at 4), plaintiff's counsel
advised FEMA that it had failed to produce three sets of
documents: “(1) Plaintiff's emails with Patricia
Sandlin, Human Resources Specialist, in January 2013; (2) Any
and all emails stating her security clearance had been
closed; and (3) Any and all letters advising Plaintiff that
her security clearance had been closed.”
to Cochran's modified request, FEMA performed additional
searches. ECF 22-2 (“Neuschaefer Supplemental
Declaration”), ¶ 23. Specifically, FEMA
“retasked” the Office of the Chief Security
Officer, and “tasked” the Office of Chief
Component Human Capital Office (“OCCHCO”) and the
Office of the Chief Information Officer (“OCIO”)
with “conducting a search for responsive
records.” Id.; see ECF 23-6.
Thirty-seven pages of documents were produced to plaintiff in
June 2018. ECF 22-2, ¶¶ 26, 28, 29, 30. See
also ECF 23-7; ECF 23-9; ECF 23-10; ECF 23-11. And, on
June 29, 2018, FEMA advised plaintiff that no records exist
as to Item 3. ECF 22-2, ¶ 34; ECF 23-13. This assertion
followed verification provided by Anthony Clark, Supervisor,
Federal Adjudication Branch, OCSC, to Ruthann Parise,
Government Information Specialist, Disclosure Branch,
Information Management Division, OCAO, representing that when
a FEMA employee terminates employment, her security badge and
her security clearance are deactivated. ECF 22-2, ¶ 33;
facts are included in the Discussion.
Standard of Review
noted, FEMA has moved to dismiss or, alternatively, for
summary judgment. ECF 15. In support of the Motion, defendant
contends: “Plaintiff's Complaint is now moot
because FEMA has produced all documents responsive to
Plaintiff's FOIA request.” ECF 7-1 at 5.
correct that a claim for relief is moot once an agency
produces the requested information. See,
e.g., Cornucopia Institute v. USDA, 560
F.3d 673, 675 (7th Cir. 2009); Shortall v. Baltimore
Dist. U.S. Army Corps of Engineers, Civil No.
WMN-14-3904, 2015 WL 3545259, at *4 (D. Md. June 4, 2015)
(stating that the controversy in the complaint that
“‘Defendants fail[ed] to produce documents'
fell away when the Corps produced documents.”).
I cannot conclude that FEMA has complied with FOIA merely
because it says so. Therefore, I will address the Motion
based on Fed.R.Civ.P. 56, because this will enable me to