Judge denies bid to compel Interior to respond in Brown shredding case

The U.S. District Court for the District of Columbia has denied attorney Teresa K. Kim’s motion to compel the U.S. Department of the Interior to answer to her interrogatories seeking information about Federal Ombudsman Pamela Brown’s shredding of records related to a census of aliens in the CNMI in 2009.

Judge Reggie B. Walton ruled that Kim’s arguments, through counsel Deanne C. Siemer, failed to show that Interior acted in bad faith.

Citing precedent, Walton said that in order to justify discovery once the agency has satisfied its burden under the Freedom of Information Act to produce responsive documents, “the plaintiff must make a showing of bad faith on the part of the agency sufficient to impugn the agency’s affidavits or declarations.”

Kim, legal counsel of the CNMI Lieutenant Governor, filed a Freedom of Information Act lawsuit against Interior to force it to produce records related to a census of aliens in the CNMI conducted by the Federal Ombudsman in December 2009. Kim alleged that Brown destroyed 20,000 documents. Brown’s office is under Interior.

Siemer alleged that by destroying the original documents, Brown has destroyed the only information from which the most important conclusions drawn from Brown’s census can be challenged.

Siemer said that Interior used the results of its informal census to answer three requests for information posed by the U.S. Congress: the number of aliens residing in the CNMI, description of the legal status (under federal law) of such aliens, and the number of years each alien has been residing in the CNMI.

In response to the motion, Interior claimed that the information was transferred to Excel spreadsheets prior to the destruction of the originals. DOI also objected to the seven interrogatories “on the basis that such discovery is inappropriate.”

Kim argued that Interior’s destruction of the census records is a potential violation of the Federal Records Act. She said Interior should have disclosed the destruction of the documents “in a more timely fashion.” She also contends that Interior’s production of responsive emails relating to the census records in PDF format sought to impede her ability to use the information.

In his five-page order issued last week, Walton said that Kim’s “primary concern appears to be with the destruction of documents, as evidenced by the interrogatories.”

“Even assuming that the destruction was a violation of the Federal Records Act, that violation has no bearing on the plaintiff’s request for discovery,” he said.

While the Federal Records Act does require agencies to retain certain documents, the “FOIA does not impose a document retention requirement on agencies.”

Walton said Kim correctly points out that courts have occasionally sanctioned an agency for deleting relevant documents in FOIA litigation. “Yet, in those cases, the destruction occurred after the FOIA request was filed,” the judge said.

In this case, Walton said, the destruction of documents occurred nearly five months before the FOIA request was even submitted.

“Consequently, although it is unfortunate that the documents are no longer available, discovery in this FOIA action is not appropriate because the defendant’s duty under the FOIA is limited to producing documents in its possession at the time the FOIA request was made,” Walton said.