United States District Court, District of Columbia
James B. Jett, Plaintiff,
Federal Bureau of Investigation, Defendant.
MEMORANDUM OPINION AND ORDER
Amit P. Mehta United States District Judge
In this Freedom of Information Act (“FOIA”) case, Defendant Federal Bureau of Investigation (“FBI”) seeks reconsideration of a ruling granting a motion for summary judgment in favor of Plaintiff James B. Jett and denying the agency’s cross-motion for summary judgment. Specifically, the court held on September 30, 2015, that the FBI conducted an inadequate search for records responsive to Plaintiff’s FOIA request, because the FBI refused to use as search terms the names of third parties that Plaintiff had provided. The court also ruled that the FBI’s search was inadequate because it did not attempt to locate responsive recordings in its Electronic Surveillance Indices database, even though Plaintiff’s FOIA request expressly sought certain recordings likely to be found in that database.
The court has considered the FBI’s arguments and declines to change its prior decision. The Motion for Reconsideration is therefore denied.
The background of this case is set forth in detail in the court’s Memorandum Opinion, issued on September 30, 2015. See Jett v. FBI, No. 14-cv-276, 2015 WL 5921898, at *1-3 (D.D.C. Sept. 30, 2015) [hereinafter Mem. Op.]. Briefly, the background is as follows.
A. Factual Background
In 2012, Plaintiff, who at the time was a local public official, ran for a seat in the U.S. House of Representatives. Among his opponents was an incumbent Congressman (the “Opponent”). During the race, multiple intermediaries (the “Intermediaries”), purportedly acting on behalf of the Opponent, approached Plaintiff and offered him certain inducements to drop out of the race. Plaintiff reported the offers to the FBI, which initiated an investigation of the Opponent and the Intermediaries. The investigation included Plaintiff’s consensual recording of telephone conversations with the Intermediaries. Id. at *1. Shortly after Plaintiff made these recordings, the FBI terminated the investigation, in part because, against the FBI’s wishes, Plaintiff told the investigation’s subjects that the FBI had approached him and had asked whether he had received offers to drop out of the race. Id. at *2.
Six months later, in December 2012, Plaintiff submitted a FOIA request to the FBI by email seeking records about the FBI’s investigation of the Opponent and the Intermediaries. See Defs.’ Mot. for Summ. J., ECF No. 10, Decl. of David M. Hardy, Ex. A, ECF No. 10-2, at 25 [hereinafter Hardy Decl.]. As pertinent here, the FOIA request asked the FBI to search its Central Records System (the “CRS”) for any information concerning the investigation; the request specifically named the Opponent and the Intermediaries as “suspects” of that investigation. Id. The FOIA request also sought “copies of telephonic tape recordings made from my personal telephone at the request of the FBI.” Id.
The FBI identified and produced some records based on a search of the CRS using a three-way phonetic breakdown of Plaintiff’s name. See Mem. Op. at *3. The FBI, however, categorically refused to search for the names of the Opponent or the Intermediaries in the CRS database, because Plaintiff had not submitted Privacy Act waivers from those individuals. See Id. The FBI also did not search its Electronic Surveillance Indices (“ELSUR”) database, a record-keeping system separate from the CRS, in which the FBI stores investigative records pertaining to the agency’s use of electronic and telephone recordings. Id. at *10. The FBI did not search the ELSUR database even though Plaintiff specifically requested copies of his recorded telephone conversations with the Intermediaries. Id.
B. Procedural History
Defendant moved for summary judgment, and Plaintiff cross-moved. The parties disagreed as to whether the FBI’s search was adequate. Id. at *1. Plaintiff argued that the FBI’s search was inadequate because the FBI: (1) did not search the CRS database using the Opponent’s and Intermediaries’ names, and (2) did not search the ELSUR database at all. Id. at *9-*10. The FBI maintained that its search met its obligations under FOIA.
The court ruled in Plaintiff’s favor regarding his first contention. In making its decision, the court relied primarily on Citizens for Responsibility & Ethics in Washington (CREW) v. DOJ, 746 F.3d 1082, 1095-96 (D.C. Cir. 2014). This court concluded that here, as in CREW, the private-public interest balance under FOIA Exemption 7(C) did not weigh decidedly in favor of nondisclosure and therefore the FBI could not categorically refuse to search the CRS database using the Opponent’s and the Intermediaries’ names. Importantly, the court made clear that it was not ruling on the applicability of any FOIA exemptions should an expanded search of the CRS database produce additional responsive records. Id.
Regarding the FBI’s decision not to search the ELSUR database, the court again ruled in Plaintiff’s favor. The court’s reasoning was straightforward. Plaintiff explicitly sought recorded communications. Such communications could be located only through a search of the ELSUR database. Id. at *10-*11. Because the FBI failed to search an ...