The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Government Accountability Project ("GAP") brings this action against the United States Department of Justice ("DOJ") pursuant to the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). GAP seeks certain information withheld by the DOJ's Criminal Division ("CRM") regarding a case the World Bank had referred to CRM for possible prosecution. Currently before the Court are DOJ's motion to dismiss in part for failure to exhaust and its motion for summary judgment on the remainder of the claims, and GAP's cross-motion for summary judgment. Upon consideration of the parties' written submissions, and the entire record herein, the Court will grant DOJ's motion to dismiss in part and for summary judgment and will deny GAP's cross-motion for summary judgment.
On November 17, 2008, GAP made a FOIA request to the Department of Justice's Freedom of Information Unit for all correspondence from 2005 to the present between World Bank employees or Diligence LLC and CRM regarding Satyam Computer Services, Ltd., the Development Gateway Foundation, or Mohamed Vazir Mushin. Compl. ¶ 6. On February 26, 2009, CRM responded that no responsive records were located. GAP followed with a second request on May 18, 2009 regarding the same types of records from specific departments within CRM -- the Fraud Section, the Computer Crime and Intellectual Property Section, and the Office of International Affairs. Id. ¶ 9. Again, on July 27, 2009, DOJ responded that no responsive records had been located. Based on information that GAP received from the World Bank concerning a March 14, 2006 meeting between the Fraud Section and the World Bank, and a March 21, 2006 letter sent by the DOJ regarding "its review of the case for possible prosecution," GAP thereafter contacted the DOJ on September 16, 2009 and spoke with Kathleen Segui, CRM's FOIA Public Liaison. According to GAP, Segui agreed to conduct another search. Id. ¶ 10. A same-day fax from GAP to CRM followed, describing the aforementioned letter, as well as other documents GAP sought. Pl.'s Statement of Facts ¶ 16; see also Facsimile from GAP to DOJ, Def.'s Ex. 9 (Sept. 16, 2009).
Based on the fax, the Fraud Section conducted another search and located eighteen responsive documents -- six letters, eleven e-mails, and one page of attorney notes. By letter dated December 11, 2009, CRM released one email in part and four documents in their entirety, and withheld thirteen documents in their entirety. Def.'s Statement of Facts ¶ 11-13; Pl.'s Statement of Facts ¶ 20. CRM's search did not locate the March 21, 2006 letter referenced by GAP, nor did other subsequent searches yield the letter. See Letter from CRM to GAP, Def.'s Ex. 10 (December 11, 2009); Declaration of Kristin L. Ellis (May 5, 2011) ("Ellis Decl.") ¶¶ 32, 38-40. GAP appealed CRM's response to DOJ's Office of Information Policy ("OIP") on December 17, 2009. Compl. ¶ 13.
In February 2010, OIP directed the Fraud Section to search again for the March 21, 2006 letter referred to in the fax. Def.'s Statement of Facts ¶¶ 14-16. A records technician from the Fraud Section and one of the Fraud Section's deputy chiefs searched correspondence records from March 2006 to find the aforementioned letter. These searches were also fruitless. See Ellis Decl. ¶40. On December 29, 2010, OIP denied GAP's appeal with respect to the documents withheld pursuant to 5 U.S.C. § 552(b)(5), (6), and (7), which are commonly referred to as Exemptions 5, 6, and 7 respectively. Compl. ¶ 22.
GAP filed this action on February 9, 2011. The DOJ moved to dismiss GAP's FOIA requests dated February 26, 2009 and June 27, 2009 on failure of exhaustion grounds. It also moved for summary judgment in the alternative, and with respect to the remainder of GAP's complaint, claiming that an adequate search was conducted and that the claimed exemptions applied to the withheld information. GAP filed a cross-motion for summary judgment. During the course of litigation, CRM has now released certain documents mentioned in the December 11, 2009 letter, including those previously withheld pursuant to Exemptions 6 and 7. See e.g., Def.'s Statement of Facts ¶ 17; Def.'sOpp'n & Reply at 2, 16. Accordingly, only three issues remain: (1) whether GAP's FOIA requests should be dismissed for failure to exhaust, (2) the adequacy of the DOJ's search, and (3) whether DOJ was entitled to withhold the remaining six documents pursuant to Exemption 5.
Because the parties have presented -- and the Court has considered -- matters outside the pleadings, the Court will analyze the parties' motions as motions for summary judgment. See Fed. R. Civ. P. 12(d). Moreover, "FOIA cases typically and appropriately are decided on motions for summary judgment." Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009).
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate "if the pleadings . . . and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party opposing a motion for summary judgment, however, "may not rely merely on allegations or denials in its own pleading; rather, its response must -- by affidavits or as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The nonmoving party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Any factual assertions in the movant's affidavits will be accepted as being true unless the opposing party submits his own affidavits or other documentary evidence contradicting the assertion. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).
FOIA requires a federal agency to release all records responsive to a proper request except those protected from disclosure by one or more of nine enumerated exemptions set forth at 5 U.S.C. § 552(b). A district court is authorized "to enjoin [a federal] agency from withholding agency records or to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B); see Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 139 (1980). The agency has the burden of proving that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements." Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal citation and quotation omitted); see also Maydak v. Dep't of Justice, 218 F.3d 760, 764 (D.C. Cir. 2000) (the government has the burden of proving each claimed FOIA exemption).
To satisfy its burden on summary judgment to show that no genuine issue of material fact exists, the agency must show that it has "conducted a search reasonably calculated to uncover all relevant documents." Eliot v. U.S. Dep't of Agric., 596 F.3d 842, 851 (D.C. Cir. 2010) (internal citations and quotations omitted). The district court may award summary judgment to an agency solely on the basis of information provided in affidavits or declarations that describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in ...