United States District Court, District of Columbia
S. CHUTKAN, United States District Judge
March 2014, Plaintiff Jason Leopold submitted two Freedom of
Information Act ("FOIA") requests seeking records
related to surveillance of federal and state judges - one to
the National Security Agency ("NSA") and one to the
Department of Justice's Office of Legal Counsel
("OLC" and, together with NSA,
"Defendants"). Both agencies indicated that they
had no records responsive to the FOIA requests, prompting
Plaintiff to initiate this litigation.
2015, this court granted in part and denied in part
Defendants' first motion for summary judgment, finding
that Defendants had failed to conduct an adequate search and
to adequately explain the basis for their search in certain
limited respects. Among other things, the court ordered OLC
to reprocess Plaintiffs FOIA request by searching for draft
memoranda and legal opinions related to surveillance of
federal and state judges.
have now renewed their motion for summary judgment. Plaintiff
challenges only the manner in which OLC searched for these
draft memoranda and legal opinions.
consideration of Defendants' renewed motion for summary
judgment and the parties' briefs in support thereof and
in opposition thereto, and for the reasons set forth below,
Defendants' motion is hereby DENIED.
procedural and factual background of this case is set forth
in the court's July 2015 Memorandum Opinion granting in
part and denying in part Defendants' first motion for
summary judgment. See generally Leopold v. Nat'l Sec.
Agency, 118 F.Supp.3d 302 (D.D.C. 2015). The July 2015
Memorandum Opinion ordered that two additional searches be
conducted and that certain other information be provided to
Plaintiff. See id.
renewed motion for summary judgment centers on one of the
additional searches ordered by the court:
The court is persuaded that "any and all memoranda and
legal opinion[s]" means exactly what it says - any and
all, meaning drafts and final product. OLC has not provided
any persuasive justification regarding why it did not search
for drafts, and is therefore ordered to reprocess
Leopold's request and conduct a search for draft
memoranda and legal opinions.
Id. at 309-10 (citation to record omitted).
to the issuance of the court's July 2015 Memorandum
Opinion and Order, "OLC had already conducted a search
for final legal advice 'about the propriety of
surveilling federal and state judges' and located no
responsive documents." (Mot. Ex. 3 ("Third Colborn
Decl.") ¶ 10). According to OLC Special Counsel
Paul P. Colborn, "[t]he fact that no final legal advice
on this subject was located . . . made it much more difficult
to identify any likely locations to search for any draft
legal advice that might exist." (Id.). For
[h]ad OLC located final legal advice concerning the topic,
[OLC] would have been able to determine whether a file had
been maintained with materials related to the advice, and
could have located any drafts that may have been maintained
in that file. [OLC] also likely would have been able to
identify the principal attorneys who had worked on the
advice. With that information as a lead, [OLC] would have
searched the individual hardcopy and computer files of those
attorneys for drafts of the advice.
search that OLC ultimately conducted pursuant to the
court's July 2015 Memorandum Opinion and Order proceeded
[A]n OLC attorney asked an OLC Deputy Assistant Attorney
General and an OLC Senior Counsel, both of whom are senior
attorneys with long tenures in OLC (the Deputy Assistant
Attorney General joined the Office in 1989; the Special
Counsel joined the Office in 1998, departed for nine years in
2001, and rejoined the Office in 2010) and have close
familiarity with OLC's work on national security and
surveillance matters, . . . whether they were aware of any
classified or unclassified OLC projects concerning the