"The first time he was deposed, Murphy testified that in 2003 he had indeed prepared a “narrative” appraisal in “final form” of Chambers’s past performance and that Fajardo had seen it. 8/11/04 Murphy Dep. at 18-20, 22-23. Fajardo too testified that the appraisal existed and that she had stored it, as she routinely did, on her computer’s hard drive, on a floppy disk and, in hard copy, in a filing cabinet. 10/7/05 Fajardo Dep. at 27, 35-36, 47. Yet, Interior’s response to Chambers’s first document request, submitted on October 26, 2004, was limited to Murphy’s own examination of his e-mails and his assistant’s inspection of his files; no search was made of Fajardo’s computer, floppy disks or filing cabinets, where, according to Fajardo’s testimony, the appraisal was likely to be found. Then, after Chambers’s second request in January 2005, Murphy recanted his earlier characterization of the 2003 document as a “narrative” “performance appraisal,” asserting it was in fact the nonnarrative SES Plan Brooks had found in his files to be used to measure Chambers’s future performance. See Murphy Note ( JA A53); Murphy Decl. ¶ 3 (JA A59). Further, notwithstanding Chambers requested the appraisal for a second time in January 2005, Interior failed to undertake a thorough search until August 2005—one month after Interior erased Fajardo’s computer hard drive—at which time, according to Fajardo, the “evaluation” portion of the appraisal was missing from her floppy disk. When Interior finally searched Fajardo’s paper files in November 2005, the hard copy Fajardo insisted she had filed was likewise missing. From this evidence, a jury could reasonably infer that Murphy and Fajardo did prepare a narrative appraisal in 2003, that Murphy subsequently misrepresented that the appraisal consisted only of the SES Plan and that the appraisal was thereafter intentionally removed from Murphy’s computer and files and from Fajardo’s computer hard drive, floppy disk and files before a thorough search for the appraisal was finally undertaken in August 2005. Thus, there is a genuine issue of material fact as to whether Interior (and in particular, Murphy) intentionally destroyed the narrative appraisal identified by Fajardo (and initially by Murphy as well) and, consequently, as to whether Interior’s search for the appraisal was adequate as well. As we explained above, Interior’s search would not be adequate under the Privacy Act if Interior officials, aware of Chambers’s document requests, deliberately destroyed her performance appraisal before completing the search in order to avoid providing the document to her. See supra pp. 10-11. Such a search would not be “ ‘reasonably calculated to uncover all relevant documents’ ”—which is what the Privacy Act, like FOIA, requires, see Students Against Genocide v. Dep’t of State, 257 F.3d 828, 838 (D.C. Cir. 2001) (quoting Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995))—but instead would be designed to keep concealed the particular document that is most relevant. Accordingly, we reverse the district court’s grant of summary judgment in Interior’s favor." |
