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Cochran v. Department of Homeland Security DHS

United States District Court, D. Maryland

March 11, 2019

TERRY COCHRAN, Plaintiff,
v.
DEPARTMENT OF HOMELAND SECURITY DHS, FEDERAL EMERGENCY MANAGEMENT AGENCY FEMA Defendant.

          MEMORANDUM OPINION

          ELLEN LIPTON HOLLANDER, UNITED STATES DISTRICT JUDGE

         Terry Cochran, the self-represented plaintiff, has 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”).[1]According to Cochran, FEMA has not complied with plaintiff's FOIA request of December 4, 2017, requesting “Family & Medical Leave Act [(‘FMLA')] records from 1962 - present.” ECF 1-1 (“FOIA Request”) at 5. Plaintiff also requests costs and legal fees associated with enforcement of her FOIA request. ECF 1 at 5-6.

         On April 4, 2018, FEMA 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 - ECF 7-8. According to FEMA, by March 1, 2018, it produced “all documents responsive to [plaintiff's] request.” ECF 7-1 at 1. Therefore, FEMA maintains that the Complaint is now moot and “should be dismissed, ” id., as there is no case or controversy. Id. at 5.

         After FEMA filed its Motion, plaintiff retained counsel. On May 6, 2018, through counsel, plaintiff refined her initial FOIA request. In particular, she requested “[a]ny and all records pertaining to her treatment by psychologist Margaret Hayward, ” which was probably provided by Hayward in 2016. ECF 16-2 at 4; see also ECF 16-2 (Affidavit of Plaintiff), ¶ 3. Plaintiff explains that she “sought treatment by Ms. Heyward [sic] due to harassment and a hostile work environment at FEMA, about which [she] filed an EEO [Equal Employment Opportunity] complaint.” ECF 16-2, ¶ 3.

         Plaintiff opposes the Motion (ECF 16, the “Opposition”), supported by exhibits. ECF 16-2. She “asserts that FEMA has failed to produce” documents responsive to her modified request. ECF 16 at 1 (citing ECF 16-2, ¶¶ 3-6). In her view, FEMA “failed to conduct an adequate search for all responsive documents.” ECF 16-2, ¶ 3. Thus, she insists that the case is not moot. ECF 16 at 2.

         FEMA filed a reply (ECF 21, the “Reply”), supported by several exhibits. ECF 22-1 to ECF 22-10. These include the Declaration of Eric Neuschaefer, FEMA's Disclosure Branch Chief, Information Management Division. ECF 21-2 (the “Neuschaefer Declaration”).

         FEMA contends that it “performed a reasonable search, ” ECF 21 at 2, and it “was not obligated to speculate regarding ‘potential leads' concerning the location of the Hayward treatment records.” Id. at 4. FEMA also maintains that plaintiff “has impermissibly attempted to expand her FOIA request after FEMA already responded . . . .” Id. at 5. The agency argues, id. at 6: “The Court lacks subject matter jurisdiction, because after FEMA conducted a reasonable search for Ms. Cochran's FMLA records, Plaintiff has attempted to expand the scope of her request through the present litigation, without appealing the Agency's final response administratively.”

         No hearing is necessary to resolve the 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.

         I. Factual Background

         Plaintiff was previously employed as the “Chief FOIA Officer for FEMA's Disclosure Branch.” ECF 16-2, ¶ 2. Her “area of expertise” was in the FOIA/Privacy Act “arena.” Id.

         Plaintiff electronically submitted a seemingly broad FOIA request to FEMA on December 4, 2017, seeking all of her FMLA “records from 1962 - present.” ECF 1 at 5; ECF 1-1 at 5. On December 4, 2017, FOIA Program Specialist Paula Presley sent a letter to plaintiff (ECF 1-2), acknowledging receipt of her request and assigning a FEMA reference number, 2018-FEFO-00259. ECF 1 at 5; ECF 1-1 at 2. FEMA indicated that it is the agency's “goal to respond within 20 business days of receipt of [a] request.” ECF 1-2. 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. Plaintiff filed suit on January 22, 2018, alleging that FEMA failed to provide a response to her FOIA request. ECF 1 at 5.

         Neuschaefer is the Disclosure Branch Chief, Information Management Division, Office of the Chief Administrative Officer (“OCAO”) of FEMA. ECF 21-2, ¶ 1. He supervises FOIA requests for FEMA. ECF 21-2, ¶ 3.

         In his Declaration, Neuschaefer outlines the FOIA process utilized generally by FEMA, which he claims was followed in this matter. ECF 21-2, ¶¶ 4-14. Neuschaefer also describes the places that were searched in response to plaintiff's FOIA request, the methods used to conduct the searches, and the search terms. ECF 21-2. He avers that FEMA “performed a reasonable search for documents responsive” to plaintiff's “original and amended FOIA request” and that the agency has complied with plaintiff's FOIA request. Id. ¶ 15.

         The Office of the Chief Component Human Capital Officer (“OCCHCO”) is FEMA's human resources division. ECF 21-2, ¶ 17. Neuschaefer recounts that OCCHCO was initially “tasked” with responsibility to search for the records responsive to plaintiff's request, because it is the Program Office thought to be “most likely to have records pertaining to FMLA” for plaintiff. ECF 21-2, ¶ 17; ECF 22-3. No. records were located. ECF 21-2, ¶ 18; ECF 22-4.

         OCCHCO suggested a search of payroll records. ECF 21-2, ¶ 8. The Payroll Branch provided some time and attendance records. ECF 21-2, ¶ 19; ECF 22-5. But, it was unable to locate responsive medical records. ECF 21-2, ¶ 20.

         The Disclosure Branch contacted Eric Leckey, the Deputy Chief Administrative Officer in the Office of the Chief Administrative Officer (“OCAO”), who was also plaintiff's former supervisor, and he was directed to search for responsive records. ECF 21-2, ¶ 21; ECF 22-7. Leckey “searched electronic files on SharePoint, his desktop, and his hard drive.” ECF 21-2, ¶ 21. He also searched the OCAO “shared drive, which is a repository for documents used throughout the OCAO.” Id. And, he “manually searched his physical file cabinet . . . .” Id. In addition, the Disclosure Branch searched the Records Management “shared drive, which is a database that contains the files used by the Records Management teams . . . .” Id.; ECF 21-7.

         Further, Robyne Jackson, the OCCHCO FMLA Coordinator, was directed to search for responsive records. ECF 21-2, ¶¶ 20, 22; see ECF 22-8. She located duplicates of records already obtained by Leckey. ECF 21-2, ¶ 22.

         On March 1, 2018, FEMA produced 96 pages of responsive records. ECF 7-5 (“March 1, 2018 Final Response Letter”); ECF 22-9 (same); ECF 21-2, ¶ 25. The records were released in their entirety, with “no redactions or exemptions.” ECF 21-2, ¶ 25.

         Upon 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. Id.

         On May 6, 2018, after FEMA had filed the Motion, plaintiff, through counsel, sent an email (ECF 16-2 at 4) advising FEMA that it had failed to produce “[a]ny and all records pertaining to [plaintiff] treatment by psychologist Margaret Hayward.” Counsel noted: “I understand the treatment took place in 2016, but I am not certain.” Id.; see also ECF 16-2, ¶ 3. Upon review of the email, the Disclosure Branch “determined that all appropriate offices had been tasked in the original search for responsive records, which would have included treatment records.” ECF 21-2, ¶ 27. Further, the DB ...


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