United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
L. FRIEDMAN United States District Judge.
a Freedom of Information Act case brought by plaintiff Ryan
Noah Shapiro against the United States Department of Justice.
On March 31, 2014, the Court granted defendant's motion
for summary judgment with respect to information withheld
under Exemptions 6 and 7(C), but held the parties'
cross-motions for summary judgment in abeyance with respect
to the adequacy of the FBI's search and ordered defendant
to provide further explanation as to three aspects of its
search. The Court now is satisfied that defendant has
conducted an adequate search of those systems of records
likely to possess the information requested by plaintiff, as
required under the FOIA, despite the unnecessarily piecemeal
approach adopted by defendant in this case. The Court
therefore will grant defendant's motion for summary
judgment and deny plaintiff's motion for summary judgment
with respect to the adequacy of defendant's search.
supplementing its production following the Court's March
31, 2014 Order, however, defendant located an additional 68
pages of responsive documents, 23 pages of which defendant
withheld in part and 9 pages of which were withheld entirely
pursuant to FOIA Exemptions 3, 6, 7(C), 7(E), and 7(F).
Because defendant has provided only conclusory statements of
its rationale for withholding these pages as to Exemptions 3
and 7(E), the Court must order defendant to provide
additional specificity. It therefore will again hold portions
of the parties' cross-motions for summary judgment in
abeyance, this time only with respect to defendant's
assertion of FOIA Exemptions 3 and 7(E).
March 31, 2014, this Court held the parties'
cross-motions for summary judgment in abeyance in part,
pending further briefing and the FBI's processing of
additional records, if necessary. See March 31, 2014
Op. at 3-4. Specifically, the Court directed the defendant to
(1) consider “whether responsive records would
reasonably reside outside the [Central Records System (CRS)],
and either perform any additional appropriate searches in
[those] databases or records . . . or explain why additional
searches would not be appropriate”; (2) either
“conduct a full-text search of ECF or provide further
explanation as to why such a search is unnecessary in this
particular case”; and (3) “provide the
third-party requests and related documents received after the
cut-off date or explain further why its decision to withhold
these documents is reasonable.” See id. at
12-13; see also March 31, 2014 Order at 1-2.
FBI's renewed search identified 24 third-party FOIA
requests pertaining to Aaron Swartz, 22 of which resulted in
the same release of documents as those that had been provided
to plaintiff; a twenty-third requestor received one
additional page now provided to plaintiff. Second Hardy Decl.
¶ 9. John Greenewald, Jr. made the final request and
requested documents pertaining to Aaron Swartz with specific
reference to case number 288A-WF-238943, the same case number
listed on each of the 23 pages of documents previously
produced to plaintiff by defendant. Third Hardy Decl. ¶
6. But the FBI ultimately identified an additional 68 pages
of documents in that case file not previously processed and
therefore not previously released to plaintiff, but that had
been produced to Mr. Greenewald. Of these 68 pages of
documents, defendant produced 35 to plaintiff in full,
withheld 23 in part, and withheld 9 in full, invoking FOIA
Exemptions 3, 6, 7(C), 7(E), and 7(F); one page is a
duplicate page previously provided to plaintiff. Third Hardy
Decl. ¶¶ 7-8. Plaintiff does not challenge
defendant's withholding pursuant to Exemptions 6, 7(C),
and 7(F), but does argue that defendant has improperly
withheld information pursuant to Exemptions 3 and 7(E).
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). The
Court grants summary judgment if the movant shows that there
is no genuine dispute as to any material fact and that it is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
In a FOIA action to compel production of agency records, the
agency “is entitled to summary judgment if no material
facts are in dispute and if it demonstrates ‘that each
document that falls within the class requested either has
been produced . . . or is wholly exempt from the [FOIA's]
inspection requirements.'” Students Against
Genocide v. U.S. Dep't of State, 257 F.3d 828, 833
(D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d
339, 352 (D.C. Cir. 1978)).
establish that its search for responsive records was
adequate, an agency must show that it made a “good
faith effort to conduct a search for the requested records,
using methods which can be reasonably expected to produce the
information requested.” Oglesby v. U.S. Dep't
of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990); see
also Ancient Coin Collectors Guild v. U.S. Dep't of
State, 641 F.3d 504, 514 (D.C. Cir. 2011) (quoting
Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321,
325 (D.C. Cir. 1999) (noting an agency's FOIA obligations
are fulfilled “if it can demonstrate beyond material
doubt that its search was ‘reasonably calculated to
uncover all relevant documents'”). A search need
not be exhaustive, Saldana v. FBI, 715 F.Supp.2d 24,
26 (D.D.C. 2010), and an agency's failure to find a
particular document does not undermine the determination that
the search was adequate. Wilbur v. CIA, 355 F.3d
675, 678 (D.C. Cir. 2004); Nation Magazine, Wash. Bureau
v. U.S. Customs Serv., 71 F.3d 885, 892 n.7 (D.C. Cir.
1995). The adequacy of a search therefore is not determined
by its results but by the method of the search itself,
Weisberg v. U.S. Dep't of Justice, 745 F.2d
1476, 1485 (D.C. Cir. 1984); see also Saldana v.
FBI, 715 F.Supp.2d at 25-26, and principles of
reasonableness guide the determination. Oglesby v. U.S.
Dep't of the Army, 920 F.2d at 68.
agency can satisfy its burden with supporting affidavits or
declarations if they are “relatively detailed and
non-conclusory, ” SafeCard Servs., Inc. v.
SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), and 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 the record nor by evidence of agency bad
faith.” Military Audit Project v. Casey, 656
F.2d 724, 738 (D.C. Cir. 1981); see Ancient Coin
Collectors Guild v. U.S. Dep't of State, 641 F.3d at
514. Such affidavits or declarations are accorded “a
presumption of good faith, which cannot be rebutted by purely
speculative claims about the existence and discoverability of
other documents.” Lasko v. U.S. Dep't of
Justice, 684 F.Supp.2d 120, 127 (D.D.C. 2010) (quoting
SafeCard Servs., Inc. v. SEC, 926 F.2d at 1200).
Court first will consider defendant's supplemental
responses as to the adequacy of its search, and then will
discuss defendant's withholding of certain responsive
documents pursuant to FOIA Exemptions 3 and 7(E).
Adequacy of the Search
makes no arguments that the government inappropriately
limited its search to records related to criminal
investigations or that the government has not now released to
plaintiff all third-party requests previously withheld due to
the search cut-off date for plaintiff's FOIA request. It
is also clear that the FBI has done most of what the Court
directed it to do. See Second Hardy Decl. ¶ 6.
The only remaining issue is whether the government has