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International Counsel Bureau v. United States Dept. of Defense

United States District Court, D. Columbia.

April 29, 2015

INTERNATIONAL COUNSEL BUREAU, Plaintiff,
v.
UNITED STATES DEPARTMENT OF DEFENSE, et al., Defendants

For INTERNATIONAL COUNSEL BUREAU, Plaintiff: Ronald A. Schechter, LEAD ATTORNEY, ARNOLD & PORTER LLP, Washington, DC.

For UNITED STATES DEPARTMENT OF DEFENSE, UNITED STATES CENTRAL INTELLIGENCE AGENCY, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF STATE, UNITED STATES DEPARTMENT OF STATE, Defendants: Adam Christopher Siple, LEAD ATTORNEY, UNITED STATES DEPARTMENT OF JUSTICE, Washington, DC; Kristina Ann Wolfe, Stephen J. Buckingham, LEAD ATTORNEYS, U.S. DEPARTMENT OF JUSTICE, Washington, DC.

Page 49

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge.

In this FOIA litigation, the question is simple: did the FBI conduct an adequate search? Unfortunately, the Court is unable to answer that inquiry with confidence. The affidavits provided by the FBI fail to adequately explain the agency's recordkeeping system. As a result, the Court cannot determine whether a search of a single database was sufficient--because it does not know what else might be searchable. Until the FBI clarifies the scope of its search, judgment for either party is premature.

BACKGROUND

In May 2013, International Counsel Bureau filed another in a series of FOIA requests pertaining to certain Guantanamo detainees. This request, filed with the Federal Bureau of Investigation,[1] pertained

Page 50

to Fayiz Mohammed Ahmed Al Kandari and Fawzi Khaled Abdullah Fahad Al Odah. It demanded " [a]ny and all records created on or after September 30, 2011, relating to or reflecting any alleged breaches or violations [by Al Kandari or Al Odah] of any governing rules of discipline and/or behavior during their detention," as well as those records " relating to or reflecting any investigations into alleged abuse or mistreatment" of those detainees. Ex. A to Argall Decl. [ECF No. 20-1].

Three months later, the FBI responded. It averred that it was unable to identify responsive records as to Al Kandari. See Ex. C to Argall Decl. As to Al Odah, the FBI had not searched its records at all, as the records pertained to a third party, and ICB had not, in the agency's view, provided adequate justification for their release. See Ex. G to Argall Decl. ICB filed administrative appeals of both decisions, and, when those appeals remained unresolved, this suit seeking the requested records was initiated. See Compl. [ECF No. 1] at ¶ 75. The FBI and ICB have now filed cross-motions for summary judgment.

Over the course of briefing these motions, some initial disputes have dropped out of the case. For instance, the FBI clarified some of its positions, see Hardy Decl. [ECF No. 32-1] ¶ 7, and performed new searches under different spellings of the detainees' names, see id. ¶ 14. Most significantly, the FBI reconsidered its position on the Al Odah request, and performed a records search under his name--though to no avail. See id. ¶ ¶ 18--20. At this stage, then, the questions are identical as to both requests: the FBI searched its Central Records System, which " consist[s] of administrative, applicant, criminal, personnel, and other files compiled for law enforcement purposes," Argall Decl. ¶ 16, and it came up empty-handed. ICB is unconvinced that a search of CRS alone is an adequate one.

LEGAL STANDARD

" 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). Summary judgment is appropriate where " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).

" To prevail on summary judgment when the adequacy of an agency's search is at issue, 'the defending agency must show beyond material doubt that it has conducted a search reasonably calculated to uncover all relevant documents.'" Int'l Counsel Bureau v. U.S. Dep't of Defense,657 F.Supp.2d 33, 38 (D.D.C. 2009) (quoting Morley v. CIA,508 F.3d 1108, 1114, 378 U.S.App.D.C. 411 (D.C. Cir. 2007)). In making that determination, the Court " may be warranted in relying upon agency affidavits." Morley, 508 F.3d at 1116 (internal quotation marks and citation omitted). But " such reliance is only appropriate when the agency's supporting affidavits are relatively detailed[,] nonconclusory[,] and submitted in good faith." Id. (internal quotation marks, citation, and alteration omitted). As to the last point, " [a]gency affidavits are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims ...


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