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
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
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) Plaintiffs 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 1.
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
plaintiffs 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.
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 plaintiffs 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), plaintiffs counsel advised
FEMA that it had failed to produce three sets of documents:
"(1) Plaintiffs 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; ECF
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: "Plaintiffs Complaint is now moot because FEMA
has produced all documents responsive to Plaintiffs 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
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