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Judicial Watch, Inc v. United States Department of Justice

August 22, 2011

JUDICIAL WATCH, INC., PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE, DEFENDANT.



The opinion of the court was delivered by: Gladys Kessler United States District Judge

MEMORANDUM OPINION

Plaintiff Judicial Watch, Inc., brings this action against Defendant, the United States Department of Justice ("DoJ"), under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiff seeks records of any communications between the Civil Rights Division of DoJ and the National Association for the Advancement of Colored People Legal Defense Fund ("NAACP-LDF") concerning U.S. v. New Black Panther Party for Self-Defense, Case No. 2:09-cv-0065 (E.D. Pa. filed Jan. 7, 2009) ("NBPP"). This matter is before the Court on Defendant's Motion for Summary Judgment [Dkt. No. 10]. Upon consideration of the Motion, Opposition, and Reply, and the entire record herein, and for the reasons set forth below, Defendant's Motion for Summary Judgment is granted.

I. BACKGROUND*fn1

Plaintiff is a non-profit educational foundation seeking to promote "integrity, transparency, and accountability in government." Compl. ¶ 3 [Dkt. No. 1]. This case concerns Plaintiff's efforts to investigate Defendant's dismissal of voter intimidation claims against three defendants in NBPP. On November 2, 2010, Plaintiff sent Defendant a FOIA request seeking access to any and all records of communications between the "Civil Rights Division and the [NAACP] Legal Defense Fund (including, but not limited to communications with Kristen Clarke, Director of Political Participation) concerning, regarding, or relating to U.S. v. New Black Panther Party for Self-Defense, et. al." Plaintiff limited the relevant time period for the request to November 4, 2008, to May 22, 2009.

On March 9, 2011, Plaintiff filed this suit seeking to compel Defendant to search for and produce all non-exempt records responsive to Plaintiff's FOIA request. At the time the Complaint was filed, Plaintiff had not received any response from Defendant regarding its FOIA request. Compl. ¶ 6. In a letter dated April 19, 2011, Defendant informed Plaintiff that a search had been conducted and that it had not located any records responsive to the request.

On May 6, 2011, Defendant filed the present Motion for Summary Judgment. On May 27, 2011, Plaintiff filed its Opposition [Dkt. No. 11]. On June 10, 2011, Defendant filed its Reply [Dkt. No. 12].

II. STANDARD OF REVIEW

FOIA cases are typically and appropriately decided on motions for summary judgment. Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123, 130 (D.D.C. 2011); Defenders of Wildlife v. United States Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). "The standard governing a grant of summary judgment in favor of an agency's claim that it has fully discharged its disclosure obligations under FOIA is well-established . . . . [T]he agency bears the burden of showing that there is no genuine issue of material fact, even when the underlying facts are viewed in the light most favorable to the requester." Weisberg v. United States Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983); see also Fed. R. Civ. P. 56(c).

The purpose of FOIA is to "facilitate public access to Government documents" and "to pierce the veil of secrecy and to open agency action to the light of public scrutiny." McCutchen v. United States Dep't of Health & Human Servs., 30 F.3d 183, 184 (D.C. Cir. 1994) (internal quotations omitted). In responding to a FOIA request, an agency is under an obligation to conduct a reasonable search for responsive records. Oglesby v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). To win summary judgment on the adequacy of a search, the agency must demonstrate beyond material doubt that its search was "reasonably calculated to uncover all relevant documents." Weisberg, 705 F.2d at 1351.

To show reasonableness at the summary judgment phase and to allow the court to determine if the search was adequate, an agency must provide "[a] reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched." Oglesby, 920 F.2d at 68. Such affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. Cent. Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).

III. ANALYSIS

Plaintiff opposes Defendant's Motion on the ground that Defendant's search for responsive documents was inadequate. Pl.'s Opp'n 4. As noted above, to demonstrate that a search is adequate, the agency must "show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby, 920 F.2d at 68. Agencies must "follow through on obvious leads to discover requested documents." Valencia-Lucena v. United States Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999). There is no requirement, however, that an agency search every record system in which responsive documents might conceivably be found. Oglesby, 920 F.2d at 68. Still, the agency cannot limit its search to only one record system if there are others that are likely to produce the information requested. Nation Magazine v. United States Customs Serv., 71 F.3d 885, 892 (D.C. Cir. 1995).

According to the Declaration of Nelson D. Hermilla, the Chief of the Freedom of Information/Privacy Act Branch of the Civil Rights Division of the Department of Justice, on November 10, 2010, Defendant commenced a three-prong search for documents in response to Plaintiff's request. Hermilla Decl. ¶¶ 1, 5-6 [Dkt. No. 10-3]. First, Defendant conducted a tailored search within the records of the Voting Section, the Section within the Civil Rights Division that handled the prosecution of NBPP. Id. ¶¶ 5-6. The Voting Section conducted searches of all emails, networks, and local files for "Kristen Clarke" and "NAACP." Id. ¶¶ 8-9. The search term "NAACP" was used because it is included in the suffix of the business email addresses of all NAACP-LDF employees, i.e, "___@NAACPLDF.org," and therefore would retrieve any emails from or to NAACP-LDF employees. Id. ¶ 8. The Voting Section conducted additional searches within the requested date range of November 4, 2008, through May 22, 2009, in order to confirm that all responsive documents were found.*fn2 Id. ¶ 10.

Second, Defendant reviewed "the results of prior searches for NBPP-related records in response to requests from other FOIA requesters and the United States Commission on Civil Rights ('USCCR'), which examined the Department's handling of the New Black Panther Party case." Id. ¶ 6. Because the Civil Rights Division had received a number of previous, broader FOIA requests for Voting Section records related to NBPP, the Division had a set of previously collected materials referred to as the "NBPP Collection." Id. ¶¶ 12-15. This collection contained the results from searches of all Division activity in connection with NBPP, and constituted the Division's most comprehensive compilation of NBPP records. Id. ¶ 14. The materials included all the paper and electronic records of Civil ...


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