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Citizens for Responsibility and Ethics In Washington v. Dep't of Justice

March 10, 2008

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



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

MEMORANDUM OPINION

Citizens for Responsibility and Ethics in Washington ("CREW") brought this suit against the Department of Justice ("DOJ") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. CREW complains that DOJ failed to conduct an adequate search for documents regarding the termination of nine U.S. Attorneys and how the explanation for such terminations might have been influenced by Mark McKinnon and his public relations firm. Despite the fact that its search turned up no documents, DOJ asserts that it conducted the reasonable and adequate search that FOIA requires. Thus, DOJ has moved to dismiss or for summary judgment. As explained below, the motion will be granted.

I. FACTS

In response to a media report that the White House worked with political consultant Mark McKinnon to devise a media strategy concerning the U.S. Attorney firings, CREW submitted a FOIA request to DOJ. Specifically, on May 23, 2007, CREW requested email messages sent between Mark McKinnon or his public relations firms, Maverick Media, Inc. and Public Strategies, Inc., and "any current or former [DOJ] employee in the Offices of the Attorney General, Deputy Attorney General, and/or Associate Attorney General concerning any aspect of the Congressional inquiry into the firings of U.S. Attorneys." Def.'s Mot. to Dismiss or for Summ. J. and Mem. in Supp. ("Def.'s Mem."), Ex. 1, A.

In response to the request, on June 27, 2007, DOJ's Office of Information and Privacy ("OIP") initiated a records search. Before the Court, DOJ has submitted the Declaration of Melanie Ann Pustay, Director of OIP, describing the search conducted. See Def.'s Mem., Ex. 1 (Pustay Decl.). On June 29, 2007 records searches were initiated in the Offices of the Attorney General, Deputy Attorney General, and Associate Attorney General. Id . ¶ 9. Ms. Pustay states:

The practice for these three Offices is to notify each individual staff member in that Office of the receipt of OIP's memorandum requesting that a search be conducted, and each staff member's files, including electronic files, are then searched as necessary for records responsive to the request. In this instance, OIP notified these Offices that e-mails were specifically requested by plaintiff.

Id . Because this search would only encompass the records of current employees, OIP itself conducted a search of the records of former employees of these Offices. Id . ¶ 13. Ms. Pustay explains:

OIP determined which former employees were the most likely to have responsive records, and then conducted e-mail searches of the Enterprise Vault ("EV Vault") for those custodians. The EV Vault maintains e-mails of former employees in the senior leadership offices of the [DOJ]. . . .

Custodians were identified from a list of former employees in the EV Vault, using general information on the topic as well as the extensive personal experience of the FOIA Specialist assigned to plaintiff's request in conducting previous e-mail searches regarding the Congressional inquiries into the replacement of U.S. Attorneys. Once we identified the likely records custodians, the FOIA Specialist conducted a search of each individual's e-mails in the EV Vault using the terms "Mark McKinnon," "Maverick Media," and "Public Strategies" from March 8, 2007, the date of the first congressional inquiry into the U.S. Attorney firings, to July 18, 2007, the date the search was conducted.

Id . ¶¶ 13-15.

On August 6, 2007, OIP informed CREW that searches in the Offices of the Attorney General and the Associate Attorney General produced no responsive records and that the search in the Office of the Deputy Attorney General was not yet completed. On September 13, 2007, CREW brought suit under FOIA, alleging that DOJ failed to produce the records requested.*fn1 Subsequently, DOJ completed processing the FOIA request, and on October 22, 2007, DOJ informed CREW that the search of the Office of the Deputy Attorney General also had failed to produce responsive records. Asserting that it conducted an adequate under FOIA, DOJ seeks dismissal or summary judgment of this suit.

II. STANDARD OF REVIEW

If, in considering a Rule 12(b)(6) motion, "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56[.]" Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003). Because matters outside the pleadings are presented in this case, the court will treat the motion as one for summary judgment under Rule 56. Fed. R. Civ. P. 12(b)(6).

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); see also Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). Moreover, summary judgment is properly granted against a party who "after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the ...


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