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Citizens for Responsibility and Ethics in Washington v. Dep't of the Interior

July 31, 2007

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, PLAINTIFF,
v.
DEPARTMENT OF THE INTERIOR, DEFENDANT.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

The non-profit organization Citizens for Responsibility and Ethics in Washington ("the plaintiff" or "CREW") brings this action against the United States Department of the Interior ("the defendant" or "DOI") seeking disclosure of certain records and information requested pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. §§ 552 et seq. (2000). Complaint ("Compl.") ¶ 1. The documents sought by the plaintiff, which comprise four FOIA requests, see id. ¶¶ 30-42, "relat[e] to contacts between [the] DOI and specified individuals and entities that have been linked to the lobbying activities of Jack Abramoff at [the] DOI on behalf of specific Indian tribes, as well as DOI records related to six Indian tribes on this subject," id. ¶ 1.*fn1

Currently before the Court is the defendant's motion for partial judgment on the pleadings and for partial summary judgment ("Def.'s Mot.").*fn2 For the reasons set forth below, the Court grants the defendant's motion and dismisses the plaintiff's complaint.

I. Factual Background

The plaintiff alleges the following facts in support of its complaint.*fn3 CREW is a nonprofit organization "committed to protecting the right of citizens to be informed about the activities of government officials and to ensuring the integrity of government officials." Compl. ¶ 4. Under the FOIA, government agencies are required to release requested records to the public unless there is an applicable statutory exception. Id. ¶ 8; see 5 U.S.C. § 552 (a)(3)(A) (stating that each agency shall generally make requested records available to any person).

The impetus behind this litigation can be described as follows: Over the course of six months in 2005, CREW made four FOIA requests to two components of the DOI regarding contacts between lobbyist Jack Abramoff, a number of government officials and six Indian tribes, following revelations about Abramoff's alleged involvement in various acts of corruption and influence peddling. Compl. ¶¶ 14-24. During the course of the submission of the plaintiff's FOIA request, Susan Schmidt of the Washington Post wrote an article about the scandal on August 28, 2005, that cited, inter alia, e-mails implicating a former DOI official in Abramoff's effort to block the development of a casino that would have competed with one of Abramoff's tribal clients. Id. ¶ 25. According to the article, "copies of Abramoff's e-mails referencing [DOI officials] were obtained from a variety of sources, including the Interior Department." Compl., Exhibit ("Ex.") N (August 28, 2005 Washington Post article by Susan Schmidt) at 2. Because the DOI's responses to the plaintiff's FOIA requests did not include any of these e-mails, see Pl.'s Opp'n at 24 (stating that "the DOI's repeated failure to produce or account for the missing email alone demonstrates the inadequacy of its searches"), the plaintiff filed the complaint in this case on December 7, 2005, alleging, inter alia, that the defendant's searches were inadequate, see Compl. ¶¶ 1, 47 (stating that "[the] DOI has failed to conduct an adequate search, and has failed to use search methods reasonably expected to produce all documents responsive to plaintiff's three FOIA requests"); Def.'s Stmt. ¶¶ 100-101 (identifying claims made by the plaintiff in its December 7, 2005 FOIA action). The plaintiff also alleges that the BIA is in violation of the FOIA because it did not respond to the plaintiff's FOIA request of April 21, 2005, within the statutorily required time period. Compl. ¶¶ 55-57; see also Def.'s Stmt. ¶ 101.

A. The March 18, 2005 FOIA Request

On March 18, 2005, the plaintiff requested documents and information from the defendant under the FOIA, regardless of format and including electronic records, relating, inter alia, to "any contact, dating from January 1, 2001 to the present, that any office of the Department of the Interior may have had . . . with Jack Abramoff" and a host of other individuals, employees of various organizations, firms, and members of Congress. Compl., Ex. T (March 18, 2005 FOIA request from CREW to the DOI) at 1; see also Compl. ¶ 30; Def.'s Stmt. ¶¶ 2-6. The request also sought "any records, dating from January 1, 2001 to the present, from any office of the Department of the Interior[,] including but not limited to the Office of the Secretary, the Office of the Deputy Secretary and the Bureau of Indian Affairs," regarding six Indian tribes. Compl., Ex. T at 1. After receiving the request, Linda Thomas, the employee responsible for processing FOIA requests at the OS, telephoned the CREW representative who had filed the request. Def.'s Mot., Ex. 001 (Declaration of Linda S. Thomas) ("Thomas Decl.") ¶ 5. Ms. Thomas explained that she would "search through" documents that had been produced through similar FOIA requests and provide CREW with documents from those searches that were responsive to its request. Id.; see also Pl.'s Resp. ¶ 11 (stating that Ms. Thomas promised to provide CREW with responsive documents that the DOI had already provided to other requesters); Def.'s Mot. at 3; Def.'s Stmt. ¶¶ 9-11. According to Ms. Thomas, the CREW representative indicated during that telephone call "that the search efforts described [by Thomas] would be sufficient and [that] it would not be necessary for the Department to pursue the electronic records portion of [the March 18, 2005] request at that time." Thomas Decl. ¶ 5; see Def.'s Mot. at 4. While admitting that the telephone call took place, Pl.'s Resp. ¶ 10, the plaintiff denies that the conversation limited the scope of its March 18th request by excluding electronic communications, id. ¶ 13.

The DOI issued three responses to the plaintiff's March 18, 2005 FOIA request. The agency made an initial partial response to the plaintiff's request on March 21, 2005, which produced 218 documents. Compl. ¶ 31; Def.'s Mot. at 4. The DOI made a second partial response to the March 18th request on April 12, 2005, which contained the results of a search of the Secretary's Automated Correspondence Indexing System.*fn4 Compl. ¶ 32; Def.'s Mot. at 5. On April 27, 2005, the defendant provided a final response to the plaintiff's March 18th request. Compl. ¶ 33; Pl.'s Opp. at 7; Def.'s Mot. at 5. The April 27th response referenced the purported agreement to limit the scope of the March 18th request, stating:

As you will recall, by telephone we agreed that . . . within the Office of the Secretary you would accept appointment records for Secretary Norton and for former Deputy Secretary Griles . . . and for all of the parties and topics mentioned, and the index results of a search of the Secretary's Automated Correspondence Indexing System.

Compl., Ex. W (April 27, 2005 response to CREW's March 18th FOIA request) at 2. The response also expressly stated that CREW had thirty days to appeal the DOI's response.*fn5 Id. at 5.

CREW did not file an administrative appeal within the allotted time period. Instead, it collectively appealed all three of the defendant's responses to its March 18th request to the DOI's FOIA Appeals Officer on October 20, 2005. Compl., Ex. BB (October 20, 2005 FOIA Appeal). In its appeal, CREW argued that the DOI had conducted an inadequate search for documents responsive to its request, citing as support for its assertion the August 28th Washington Post article as well as multiple references by the Senate Indian Affairs Committee to existing e-mails that it had allegedly not received from the DOI. Compl. ¶ 39; Def.'s Stmt. ¶¶ 86, 89. The DOI denied the defendant's administrative appeal on November 28, 2005, on the grounds that it was untimely. Compl., Ex. CC (November 28, 2005 letter from FOIA Appeals Officer Darrell Strayhorn to CREW) at 1; see also Compl. ¶ 41; Def.'s Stmt. ¶¶ 95-96.

B. The April 5, 2005 FOIA Request

The plaintiff sent a second FOIA request to the DOI on April 5, 2005, specifically requesting, inter alia,

all electronic records relating to any contact . . . that any of [a number of listed officials within the DOI] may have had with the individuals and entities outlined in [CREW's] March 18, 2005 FOIA request relating to any matter within the jurisdiction of the [BIA], and all contacts [these listed officials] had with the six Indian Tribes listed in [CREW's] earlier request.

Compl., Ex. X (April 5, 2005 FOIA request from CREW to the DOI); see Compl. ¶ 34. The April 5th request also asked for the electronic records of people occupying certain positions at the BIA from January 1, 2001, until the time of the request, and sought all documents relating to a meeting conducted by the Secretary of the DOI on November 8, 2002. Compl., Ex. X at 1-2. The OS advised the plaintiff to submit this new request because its March 18th request had been narrowed to exclude electronic records. Def.'s Mot. at 6-7; see also Thomas Decl. ¶ 11 (stating that she had "advised [CREW] to submit a new FOIA request because the request of March 18, 2005 has been narrowed by [CREW] to exclude electronic records"). The April 5th FOIA request stated that the plaintiff thought a new FOIA request was unnecessary, but that the DOI should, "if necessary, . . . consider this letter to ...


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