Female Veteran Pursues Sex Harassment Claim

Absent sufficient explanations for failure to search every database and to use relevant search terms, the court denied in part the government’s motion for summary judgment. Cheryl Eberg, a female veteran who served in Iraq, alleged that her battalion commander, William Adams, engaged in sexual harassment and made explicit sexual advances when she complained. She obtained an honorable discharge from the military, qualified for disability benefits for post-traumatic stress disorder and became an advocate against sex discrimination in the military.

In 2014, Eberg requested that various government agencies provide records concerning any complaints made against her battalion commander, any complaints that Chris Gutierrez in particular made against her battalion commander, and any complaints that Eberg made about alleged sexual assault and sexual harassment. Eberg filed a complaint against the government and alleged that government agencies failed to disclose records and to make reasonable efforts to search for records, in violation of 5 U.S.C. §552(a) of the Freedom of Information Act.

The government moved for summary judgment. To prevail, the government was required to prove that records searches were reasonably calculated to uncover relevant documents and that any documents that were withheld were within an exemption to the Freedom of Information Act. When Eberg requested documents from the United States Army Crime Records Center, it indicated the date on which databases were searched, the search terms and the results of the search. The U.S. Army Crime Records Center and eight other agencies conducted adequate searches, and the court granted the government’s motions for summary judgment in part.

The Department of the Army Inspector General, on the other hand, did not adequately explain the decision to search one database and to neglect another database, and the court found it did not prove its search was reasonably calculated to obtain all responsive documents. The Office of Inspector General Field Office, which indicated it searched various electronic databases, did not provide a reasonable description of the search and the rationale for excluding key search terms, such as “Adams.” The Connecticut Army National Guard did not adequately describe its file system, or explain why no search was made for the name “Chris Gutierrez.” The U.S. Army Pacific did not describe the types of files and systems searched or the search terms or search methods used.

The Department of Defense Freedom of Information Division claimed it knew that a search would not yield responsive records, and it admitted it did not conduct a search. Information that the plaintiff requested concerning the battalion commander was not exempt pursuant to exemption 7(C). The battalion commander’s rank was high and the alleged degree of wrongdoing was fairly serious, which favored disclosure. Government agencies possessed exclusive access to the records requested. The public’s interest in disclosure was greater than the battalion commander’s interest in keeping the information private.

“Because this Court finds that Defendant has failed to establish the adequacy of the searches conducted by a number of its agencies,” wrote the district court, “the Court shall allow limited discovery.” The court ordered defendants to provide the plaintiff any information responsive to the plaintiff’s requests and granted the plaintiff permission to depose various agency workers. The court granted in part and denied in part the government’s motion for summary judgment.

This case was not handled by our firm. However, if you have any questions regarding this case or other related matter, please contact Joseph Maya at 203-221-3100.

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Source: J. Bolden, Female Vet Sought Records to Support Allegations of Harassment, 42 Conn. Law Trib. 26 at 24 (June 27, 2016)