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Light v. Department of Justice

United States District Court, District Circuit

October 16, 2013



ROSEMARY M. COLLYER United States District Judge

Plaintiffs Truthout and Jeffrey Light sued the Department of Justice with regard to its component, the Federal Bureau of Investigation's response to requests for records under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Plaintiffs seek to compel the release of records concerning the protest movement and encampment known as "Occupy Wall Street" and other Occupy encampments across the country. The Court granted the Department of Justice's motion for summary judgment, finding that the FBI conducted good faith, reasonable searches of the systems of records likely to possess records responsive to Plaintiffs' requests. Plaintiffs now move for reconsideration, reiterating their request that the Court require the FBI to search its Electronic Surveillance system of records and shared drives. As explained below, the motion will be denied because the FBI already has conducted an adequate search for records.


In response to Plaintiffs' multiple FOIA requests, the FBI searched the Central Records System (CRS), the FBI's electronic repository for information compiled for law enforcement purposes as well as administrative, applicant, criminal, personnel, and other files. Mot. to Dismiss or for Sum. J. (MSJ) [Dkt. 9], Ex. A (Hardy Decl.) [Dkt. 9-1] 59.[1] CRS is accessed via an Automated Case Support System (ACS) and General Indices by searching for the subject. Hardy Decl. ¶¶59-61. ACS consists of Investigative Case Management, Electronic Case File (ECF), and a Universal Index. Id. ¶ 63.

The FBI searched the CRS using the following terms: Occupy Movement/Northern California, Occupy Oakland, Occupy San Francisco, Occupy Cal, Occupy UC Davis, OWS, Occupy Wall, Occupy Movement, Occupy Encampment(s), Occupy McPherson, Occupy Zuccotti Park, Occupy New York City, Occupy DC, Occupy Portland, Occupy Sacramento, Occupy Salt Lake City, Occupy Seattle, Occupy Atlanta, Occupy San Jose, Occupy Boston, Occupy Los Angeles, Occupy Indianapolis, Occupy Baltimore, Occupy St. Louis, Occupy Cincinnati, Occupy Providence, Occupy Austin, Occupy Denver, Occupy Eugene, Occupy Philadelphia, Occupy Buffalo, Occupy Las Vegas, Occupy Charlotte, Occupy Pittsburgh, Occupy Dallas, Occupy Houston, Occupy Chicago, Occupy Washington, Occupy Washington DC, and Occupy K. The FBI did not find any documents as a result of these searches. Because the Occupy Movement has been widely publicized, the FBI also conducted text searches of ECF. Id. ¶¶ 65-66. Since decisions regarding how to index names within a document can vary, the text search of ECF was more comprehensive than the search of CRS. Id. ¶66 n.5. Responsive records were located and released to Plaintiffs on January 10, 2013. See Op. [Dkt. 28] at 2-4.[2]

In opposition to summary judgment, Plaintiffs protested that the FBI only searched CRS and that it did not search its Electronic Surveillance (ELSUR) file system or shared drives. The Court rejected this argument, finding that the FBI searched CRS because that is the place where records responsive to Plaintiffs' requests were most likely to be kept. Id. at 11 (citing Reply [Dkt. 20], Ex. 1 (Supp. Hardy Deck) [Dkt. 20-1] ¶¶5-6, 10). In their motion for reconsideration, Plaintiffs again complain that the FBI did not search ELSUR and shared drives.


A. FOIA Generally

"The defendant in a FOIA case must show that its search for responsive records was adequate, that any exemptions claimed actually apply, and that any reasonably segregable nonexempt information has been disclosed after deletion of exempt information." Sanders v. Obama, 729 F.Supp.2d 148, 154 (D.D.C. 2010). The adequacy of a search is measured by a standard of reasonableness and depends on the individual circumstances of each case. Truitt v. Dep 't of State, 897 F.2d 540, 542 (D.C. Cir. 1990). The question is not whether other responsive records may exist, but whether the search itself was adequate. Steinberg v. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). To rebut a challenge to the adequacy of a search, the agency need only show that "the search was reasonably calculated to discover the requested documents, not whether it actually uncovered every document extant." Safe Card Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991) (citing Meeropol v. Meese, 790 F.2d 942, 950-51 (D.C. Cir. 1986)). There is no requirement that an agency search every record system, but the agency must conduct a good faith, reasonable search of those systems of records likely to possess the requested records. Oglesby v. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). An agency's search must be evaluated in light of the request made and is "not obliged to look beyond the four corners of the request for leads to the location of responsive documents." Kowalczyk v. Dep 't of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996).

An agency may prove the reasonableness of its search through a declaration by responsible agency officials, so long as the declaration is reasonably detailed and not controverted by contrary evidence or evidence of bad faith. Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). An agency affidavit can demonstrate reasonableness by "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." Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (quoting Oglesby, 920 F.2d at 68). An agency's declarations are accorded "a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." Safe Card, 926 F.2d at 1200 (internal citation and quotation omitted).

B. Motion For Reconsideration Under Rule 59

Plaintiffs seek reconsideration under Federal Rule of Civil Procedure 59(e). This Rule specifies that a motion must be filed no later than twenty-eight days after the entry of the judgment. Fed.R.Civ.P. 59(e). The Court does not have authority to extend the deadline. See Fed. R. Civ. P. 6(b)(2) (a court "must not extend the time to act" under Rule 59(e)).

C. Motion for Reconsideration Under Rule 60

As an alternative to relief under Rule 59(e), Plaintiffs seek relief under Federal Rule of Civil Procedure 60(b)(1) and (6). A court can, in its discretion, grant relief from a final judgment under Rule 60(b)(1) due to "mistake, inadvertence, surprise, or excusable neglect, " and, under Rule 60(b)(6), due to "any other reason justifying relief from the operation of the judgment." Subsection (6), the catch-all provision, gives courts discretion to vacate or modify judgments when it is "appropriate to accomplish justice, " Klapprott v. United States, 335 U.S. 601, 614-15 (1949), but it should be applied only in "extraordinary circumstances, " Kramer v. Gates, 481 F.3d 788, 791 (D.C. Cir. 2007) (citing Ackermann v. United States, 340 U.S. ...

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