National Public Radio, Inc. v. United States Department of Veterans Affairs

Background

National Public Radio, Inc. and NPR reporter Eric Westervelt brought this Freedom of Information Act case against the United States Department of Veterans Affairs. The plaintiffs alleged that the VA had not promptly provided records requested in March 2018. The request sought records concerning investigations, complaints, and correspondence involving Veterans Affairs facilities in VISN 7 and VISN 10, as well as records mentioning Leslie Wiggins, the Network Director of VISN 7, and Robert McDivitt, the Network Director of VISN 10.

At a December 4, 2019 case-management conference, the court ordered the VA to make an initial production of 1,000 pages by January 17, 2020, and then produce 2,000 pages by the twentieth day of each following month until production was complete.

Motion to Clarify the FOIA Request

The parties disagreed about whether the request required the VA to search Wiggins’s email account and whether the request was directed only to the Office of Accountability and Whistleblower Protection or to the VA as a whole. The plaintiffs clarified that they were not seeking every email sent or received by Wiggins or a search of every VA employee’s records. They sought a search of Wiggins’s emails for records related to investigations and complaints about her conduct.

The court held that, liberally construed, the request covered Wiggins’s own emails because she might have exchanged messages with investigators, colleagues, and whistleblowers about complaints and investigations. The court also held that the request logically concerned the VA as a whole, because only the first two portions of the request expressly referred to the Office of Accountability and Whistleblower Protection. The court granted the motion and ordered the VA to extend its search for responsive records to Wiggins’s email account.

Motion for an Order to Show Cause

The plaintiffs asked the court to order the VA to explain why it should not be held in civil contempt for violating the December 4 order. The VA had produced a 6,498-page PDF on January 17, 2020. The plaintiffs argued that more than 6,000 pages consisted of a single spreadsheet attachment that was mostly blank or indecipherable, and that the remaining pages also included blank or otherwise deficient pages.

Civil contempt requires clear and convincing evidence that a party violated a specific and definite court order by failing to take all reasonable steps within its power to comply. The VA did not dispute that more than 6,000 pages were blank or indecipherable, but argued that it had complied because it produced more than 1,000 pages and had reviewed the pages for possible withholding. It also stated that processing the spreadsheet differently could require significant additional time and resources, without providing evidence quantifying those burdens.

The court concluded that the plaintiffs had not established contempt because the January production literally contained more than 1,000 pages. However, the court found that the production violated the spirit of the order because it consisted largely of blank and illegible pages. The VA therefore could not count blank, illegible, or indecipherable pages toward future court-ordered productions. The court declined to require an additional 500-document production because the parties reported that the VA had produced more than 3,000 pages in February and more than 6,000 pages in March, and the plaintiffs did not claim that those productions failed to meet the required monthly totals.

Disposition

The court granted the plaintiffs’ motion for an order clarifying the FOIA request and denied their motion for an order to show cause. It continued the case-management conference to July 15, 2020, and set a deadline for an updated joint case-management statement. Judge Donna Ryu signed the order.