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Citizens for Responsibility and Ethics in Washington v. National Archives and Records Administration

October 28, 2008

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON PLAINTIFF,
v.
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION DEFENDANT.



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

AMENDED MEMORANDUM OPINION

The plaintiff filed this lawsuit on January 10, 2007, against the National Archives and Records Administration (hereafter "NARA" or "the defendant") pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2000). Complaint ("Compl."). The plaintiff challenges the failure of the National Archives and Records Administration ("NARA") to fulfill the request of [the] [p]laintiff for documents relating to a request NARA made to the United States Secret Service [("Secret Service")] that it cease its destruction of visitor records once the Secret Service has transferred copies of the agency records to the White House.

Id. ¶ 1. Specifically, the plaintiff made a FOIA request to NARA seeking records, regardless of format and including electronic records and information, relating to the request made by NARA to the Secret Service "that the Secret Service retain its own copies of the Workers and Visitors Entrance System ("WAVES") records that it transferred to the White House."

Id. ¶ 19. The plaintiff also sought communications between NARA and any other government entity regarding the practice of the Secret Service to erase copies of WAVES records it had transferred to the White House, documents referring or relating to the practice of the Secret Service to delete records from its computer system and documents related to three pending district court cases: (I) Judicial Watch v. U.S. Secret Service, [Civil Action Number] ("C.A. No.") 06-310 ([D.D.C.]), (ii) Democratic Nat'l Comm. v. U.S. Secret Service, C.A. No. 06-842 ([D.D.C.]), and (iii) CREW v. U.S. Dep't of Homeland Security, C.A. No. 06-833 ([D.D.C.]).

Id. Further, the plaintiff "seeks declaratory relief that NARA is in violation of the FOIA and NARA regulations, 36 C.F.R. §1250.36, for failing to fulfill [the] [p]laintiff's request for records and injunctive relief that NARA immediately and fully comply with [the] [p]laintiff's request under the FOIA." Id. ¶ 2. Currently before the Court is the defendant's motion for summary judgment and ("Def.'s Mot.") and the plaintiff's cross-motion for summary judgment ("Pl.'s Cross-Mot.").*fn1 For the reasons set forth below, both parties' motions are denied in part and granted in part.

I. Background

The plaintiff, Citizens for Responsibility and Ethics in Washington, "is a non-profit corporation . . . committed to protecting the right of citizens to be informed about the activities of government officials and ensuring the integrity of government officials." Compl. ¶ 4. Through "research, litigation, advocacy" and the use of "government records made available to the organization under the FOIA," the plaintiff "empower[s] citizens to have an influential voice in government decisions and in the governmental decision-making process." Id. "NARA is the federal agency with possession and control of the . . . records [requested by the plaintiff]." Id. ¶ 7. On September 27, 2006, the plaintiff submitted a FOIA request to the defendant seeking:

1. Any and all documents related to the request made by NARA, to the United States Secret Service, that the Secret Service retain its own copies of the . . . WAVES*fn2 records that it transferred to the White House.

2. Any and all communications both internally and between the National Archives and Records Administration and any other government agency or government entity, referencing the practice of the United States Secret Service to erase copies of WAVES records that it transferred to the White House.

3. Any and all documents referring or relating to a practice by the Secret Service of deleting records from its computer system.

4. Any and all documents and records referring or relating to Judicial Watch v. United States Secret Service, Civ. Action No. 06-310 [(D.D.C.)].

5. Any and all documents and records referring or relating to Democratic National Committee v. United States Secret Service, Civ. Action No. 06-842 [(D.D.C.)].

6. Any and all documents and records referring or relating to Citizens for Responsibility and Ethics in Washington v. United States Department of Homeland Security, Civ. Action No. 06-883 [(D.D.C.)].

Def.'s Mem., Attachment ("Attach.") ((Declaration of Gary M. Stern) ("Stern Decl.")) ¶ 4, Tab "A" (Plaintiff's Original FOIA Request) at 1-2. The plaintiff also sought "expedited processing [of its FOIA request] and a waiver of all fees associated with [processing] the request." Id. at 3-4.

NARA acknowledged its receipt of the plaintiff's FOIA request in a letter dated October 20, 2006, from Ramona Branch Oliver, NARA's FOIA Officer. Id., Tab B (Oct. 20, 2006 Letter of Ramona Branch Oliver) at 1. Ms. Oliver also informed the plaintiff that its requests for expedited processing of its FOIA request and for a waiver of the processing fees had been granted by NARA. Id. at 2. On October 24, 2006, NARA responded to the plaintiff's FOIA request in a letter from Ms. Oliver. Id., Tab "C" (Oct. 24, 2006 Letter of Ramona Branch Oliver). The letter informed the plaintiff that NARA had identified 336 pages of documents responsive to the plaintiff's FOIA request. Id. at 2. NARA released to the plaintiff thirty-one of those pages in full and partially released eleven pages. Id. NARA further indicated that it was withholding the redacted portions of the eleven pages and the entire content of the remaining 294 pages pursuant to Exemption 5 of the FOIA, 5 U.S.C. § 552(b)(5). Id. On October 25, 2006, the plaintiff administratively appealed NARA's response to its FOIA request, challenging the applicability of Exemption 5, the adequacy of the explanations provided for the non-disclosures, and the adequacy of the plaintiff's search for documents responsive to its request. Def.'s Mem., Tab "D" (Letter from Sharon Eubanks, the plaintiff's Senior Counsel, to the defendant, dated October 25, 2006) at 2. In a letter dated November 28, 2006, Lewis Bellardo, NARA's Deputy Archivist and Chief of Staff, responded to the plaintiff's administrative appeal informing it that NARA had identified an additional fifty pages of responsive materials, of which it was partially releasing twenty-eight pages. Def.'s Mem., Tab "F" (Oct. 24, 2005 Letter of Lewis Bellardo) at 2. Further, NARA informed the plaintiff that it decided to release in full an additional eleven pages of responsive material originally withheld, and to release in part an additional fifty-seven pages of documents originally withheld. Id. However, Mr. Bellardo affirmed NARA's initial determination that the remaining withheld materials were protected by Exemption 5 of the FOIA. Id. at 3. Subsequently, the plaintiff filed this action on January 10, 2007.

II. Standard of Review

Courts will grant a motion for summary judgment if "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). When ruling on a Rule 56(c) motion, the Court must view the evidence in the light most favorable to the non-moving party. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000)). The Court must therefore draw "all justifiable inferences" in the non-moving party's favor and accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). The non-moving party, however, cannot rely on "mere allegations or denials," Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir.2002) (quoting Anderson, 477 U.S. at 248) (quotation marks omitted), and "conclusory allegations unsupported by factual data will not create a triable issue of fact," Pub. Citizen Health Research Group v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999) (internal quotation marks and citations omitted). If the Court concludes that "the non-moving party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof," then the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

"[The] FOIA requires federal agencies to disclose, upon request, broad classes of agency records unless the records are covered by the statute's exemptions." Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (citation omitted). The Court will grant summary judgment to the government in a FOIA case only if the agency can prove "that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester." Friends of Blackwater v. Dep't of Interior, 391 F. Supp. 2d 115, 119 (D.D.C. 2005) (internal quotation marks and citations omitted). Thus, in a lawsuit brought to compel the production of documents under the FOIA, "an agency is entitled to summary judgment if no material facts are in dispute and if it demonstrates that each document that falls within the class requested either has been produced . . . or is wholly[, or partially,] exempt from [disclosure]." Students Against Genocide, 257 F.3d at 833 (internal quotation marks and citation omitted).

III. Legal Analysis

The defendant contends that "each document withheld in full or in part by NARA is protected by one or more of these three evidentiary protections[,] [the deliberative process privilege, attorney work-product doctrine, or the attorney-client privilege]." Def.'s Mem. at 11. Further, the defendant asserts that it "is entitled to summary judgment . . . because its search was reasonably calculated to uncover documents responsive to [the] [p]laintiff's FOIA request." Id. at 35. In opposition, the plaintiff responds that "NARA has not met its burden of proof in establishing that significant portions of the withheld documents are within the scope of Exemption 5 of the FOIA and therefore is not entitled to summary judgment as a matter of law." Pl.'s Opp'n and Cross-Mem. at 2. Further, the plaintiff contends that NARA's "argument that it conducted a legally adequate search is without sufficient evidentiary support." Id. at 25.

A. Exemption 5 of the FOIA

Exemption 5 of the FOIA provides that the "inter-agency or intra-agency memorand[a] or letters which would not be available by law to a party other than an agency in litigation with the agency" are not subject to disclosure. 5 U.S.C. ยง 552(b)(5). "To qualify [for non-disclosure under Exemption 5], a document must thus satisfy two conditions: its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against ...


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