United States District Court, D. Maryland
LIPTON HOLLANDER, UNITED STATES DISTRICT JUDGE
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”).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.
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.
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.
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.
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
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.”
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.
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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