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Citizens for Responsibility v. National Indian Gaming Commission

December 12, 2006

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, PLAINTIFF,
v.
NATIONAL INDIAN GAMING COMMISSION, DEFENDANT.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

After the Court denied the initial motion for summary judgment filed by the National Indian Gaming Commission ("NIGC") in this FOIA*fn1 case, the Commission submitted additional declarations describing its search for responsive documents and moved again for summary judgment. Requester and Plaintiff Citizens for Responsibility and Ethics in Washington ("CREW") continues to object. NIGC has now thoroughly described its search and defended its reliance on various FOIA exemptions. Nothing more is required. The motion for summary judgment will be granted.

I. BACKGROUND FACTS

NIGC is a federal agency tasked with oversight regulation of Indian gaming operations under the Indian Gaming Regulatory Act of 1988 ("IGRA"), 26 U.S.C. §§ 2701 et seq. It has national headquarters in Washington, D.C. and is divided into six regions, with regional offices in Portland, Oregon; Sacramento, California; Phoenix, Arizona; St. Paul, Minnesota; Washington, D.C.; and Tulsa, Oklahoma. The agency also has satellite offices in Temecula, California; Las Vegas, Nevada; Jackson, Mississippi; Rapid City, South Dakota; and Bellingham, Washington. Auditors and investigators from NIGC are responsible for ensuring that Indian gaming establishments are complying with IGRA, NIGC regulations, and tribal gaming ordinances. NIGC works with the Federal Bureau of Investigations and other federal agencies to investigate allegations of regulatory violations and criminal activity in Indian gaming establishments. Given this portfolio and the on-going investigation into former lobbyist Jack Abramoff's relationship to Indian tribes, CREW challenges the response to its FOIA request, which turned up few responsive documents.

CREW submitted the FOIA request to NIGC on March 21, 2005 asking for all documents and records that related to any contact between NIGC and Jack Abramoff, Michael Scanlon, James Dobson, Ralph Reed, Scott Reed, Itlia Federici, Grover Norquist, David Safavian, Congressmen Bob Ney and Tom DeLay, House Speaker Dennis Hastert, Senator Conrad Burns, and staff members of the Congressmen and Senator. In addition, CREW asked for similar documents and records of contacts between NIGC and the employees of Greenberg Trauig LLP, Preston Gates Ellis LLP, Capital Campaign Strategies, Council of Republicans for Environmental Advocacy, National Center of Public Policy Research, and Americans for Tax Reform. The request also asked for records concerning the Agua Caliente Tribe, Tigua Tribe, Saginaw Chippewa Tribe of Michigan, Mississippi Band of Choctaw Indians, Coushutta Tribe of Louisiana, and the Jena Band of Choctaw Indians. Without objection from CREW, NIGC interpreted the request as seeking documents showing a relationship between the tribes and the non-tribal individuals and entities listed.

NIGC acknowledged CREW's FOIA request on March 22, 2005 and advised that its substantive response would be delayed due to limited personnel resources. NIGC's FOIA office then sent "search taskers" to the NIGC's Office of General Counsel, the NIGC Commissioners, the NIGC Office of Congressional and Public Affairs, the NIGC Enforcement Division, the NIGC Contracts Division, and NIGC's regional and satellite offices. Despite their somewhat misleading name, "search taskers" are not people; they are documents that contain written instructions to NIGC employees regarding the appropriate scope of the search they must conduct pursuant to a FOIA request. The search taskers used in this case attached CREW's FOIA request and "instructed recipients to search for responsive documents and reminded recipients to search electronic files in addition to paper files." Def.'s Reply In Supp. of Renewed Mot. for Summ. J. at 3.

When the search responses came back, the NIGC FOIA Office sorted through them and identified 14 responsive documents. It released in full a two-page letter and withheld its twelve-page attachment in its entirety under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), which protects inter-and intra-agency communications. The remaining documents, consisting of 262 pages, were withheld in their entirety under FOIA Exemption 7(A), 5 U.S.C. § 552(b)(7)(A), which protects law enforcement records, on the basis that release reasonably could be expected to interfere with an ongoing investigation and enforcement proceeding. On May 19, 2005, after a phone conversation between CREW and NIGC's FOIA Officer, NIGC released an additional ninety-six pages: eighty-one in full and fifteen in part. After CREW filed this lawsuit, NIGC also conducted a supplemental search of certain files to eliminate any doubt its search had been adequate. That search uncovered two additional documents, bringing the total number of responsive pages to 280, of which 84 pages were released in full, 17 pages were partially released, and 179 pages were withheld in full.

NIGC filed its initial motion for summary judgment on September 12, 2005. CREW opposed, arguing that NIGC had not performed an adequate search. This Court denied the motion without prejudice, concluding that NIGC "might have fully performed its duties to search and disclose requested non-exempt documents but fail[ed] to give the Court sufficient information to make that determination." Citizens for Responsibility & Ethics In Wash. v. Nat'l Indian Gaming Comm'n, 05-CV-00806 (RMC) Mem. Op. at 1. "The difficulty is that 'NIGC employees are asked to search all files they consider likely to contain relevant material when given a FOIA search request' [but] [t]his description does not provide . . . information as to what methods were used by the NIGC employees to identify and search for records likely to contain relevant material." Id. at 5.

NIGC filed a renewed motion for summary judgment on July 17, 2006. In support of its renewed motion, NIGC submits a third declaration of Regina Ann McCoy, NIGC's FOIA Officer in charge of NIGC's records management. Ms. McCoy's Third Declaration provides further details regarding the methods and scope of NIGC's search in response to Plaintiff's FOIA request. She explains the file systems maintained in each NIGC headquarters office as well as its regional and satellite offices, and that the Office of the Chairman and Commissioners, Office of Congressional and Public Affairs, Office of General Counsel, Division of Contracts, and Division of Enforcement searched those file systems because they were the divisions within NIGC that "had a reasonable possibility of having records responsive to [CREW's] search request." 3rd McCoy Decl. ¶ 20. "The Division of Audits was not asked to conduct a search because the audit-related files that it maintains were deemed not reasonably likely to contain" responsive documents as the persons and entities named in the request "do not appear to be audit firms or operators of Indian casinos" or certified public accountants. Id.

The Office of the Chairman and Commissioners searched by name for the individuals, entities, and tribes listed in the request. Files containing NIGC bulletins, biographical files of the Commissioners, invitations to speak and speeches, and similar kinds of records were not searched. Rather, the search focused on those files that were reasonably likely to contain records relating to contacts between the Commissioners and designated people, tribes, and entities. Id. ¶ 21.

The Office of Congressional and Public Affairs conducted electronic and manual searches of its file systems, excluding only those files that were deemed not likely to contain responsive records, such as file systems for congressional hearing testimony and pending litigation which contain only internally-generated documents that do not relate to external contacts. Id. ¶ 22.

The Office of General Counsel ("OGC") searched its file systems electronically with the exception of tribal gaming ordinance files, litigation files, enforcement action files, Indian land opinions files, or requests for game classification opinions as to which class of gaming under the IGRA covers certain gaming machines. Thus, the OGC searched subject matter files, outgoing correspondence files, pending legislation files, and contract review files. Id. ¶ 23.

The Contracts Division conducted electronic searches in files containing outgoing correspondence and management contracts - but discovered that none of the named tribes ever submitted a management contract to the Contracts Division. Initially, individual background files were not searched as no Privacy Act waivers were included in the request. Id. ¶ 24. But in order to assuage CREW's objections, the Contracts Division eventually searched those files and found no responsive records. 4th McCoy Decl. ¶ 14.

The Division of Enforcement conducted electronic searches with the exception of the Phoenix office for the Southwest region where none of the Indian tribes cited in the request is located. Tribal files, investigatory files, enforcement files, and outgoing correspondence were all searched. File systems containing memoranda of agreement with tribal governments for the processing of fingerprint background checks were not searched as they were not deemed reasonably likely to contain responsive records. Id. ¶ 26. The Tribal Background Investigation Section within the Division of Enforcement was not asked to conduct a search because no Privacy Act waivers had been submitted. Id. ¶ 27.

The Division of Administration was not asked to searched its file systems containing procedural guidelines and directives, fee payments and quarterly reports, billing records, FOIA records, or the correspondence log which tracks all incoming mail, packages, and faxes. In response to the Court's decision, Ms. McCoy checked the incoming correspondence database to verify that the searches conducted elsewhere had identified all responsive documents which were not already disclosed. Ms. McCoy's secondary search confirmed the original result. Id. ¶ 29.

The NIGC's visitor logbooks that had been totally filled were misplaced on or about March 9, 2005, prior to CREW's FOIA request, and therefore were not initially searched. Id. ¶ 29. But at some point the logbooks "resurfaced," and Ms. McCoy searched the them for the periods August 24, 1998 - June 22, 2000; June 22, 2000 - March 8, 2005; and March 9, 2005 - present. Id. Only one entry was discovered, which revealed that the Jena Band of Choctaw Indians visited the NIGC on January 25, 2005. Id.

II. LEGAL ...


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