United States District Court, District of Columbia
CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE
years ago, Freedom Watch, Inc., brought an action in this
Court pursuant to the Freedom of Information Act
(“FOIA”), seeking documents from the State
Department and three other agencies related to a recently
published New York Times article. The Court
ultimately entered judgment for the agencies on various
grounds, all affirmed on appeal. See Freedom Watch, Inc.
v. Nat'l Sec. Agency, 783 F.3d 1340 (D.C. Cir.
2015). During the appeal, however, former Secretary of State
Hillary Clinton turned over to the Department emails from her
private server, some of which State thought might be
responsive to Freedom Watch's FOIA request. Accordingly,
as proposed by State, the Circuit remanded the case so that
this Court could “manage record development and oversee
the search of the former Secretary's emails[.]”
Id. at 1344. State has since conducted that
supplemental search, and-finding other potential sources of
responsive documents-it has conducted additional searches as
well. Because these searches were adequate and otherwise
complied with FOIA, the Court will grant summary judgment for
2012, the New York Times published an article about
classified government cyberattacks against the Iranian
nuclear program. See David E. Sanger, Obama
Order Sped Up Wave of Cyberattacks Against Iran, N.Y.
Times, June 1, 2012, at ¶ 1. The article immediately
prompted Freedom Watch to submit a FOIA request to the State
Department, the Central Intelligence Agency
(“CIA”), the Department of Defense, and the
National Security Agency (“NSA”) seeking, among
other categories of documents, “[a]ny and all
information that refers or relates in any way to information
released to David E. Sanger, ” the author of the
article. Compl., Ex. 1. Later the same month, Freedom Watch
filed a Complaint in this Court, challenging the
agencies' responses to its request.
agencies variously moved for judgment on the pleadings and
for summary judgment, and the Court resolved all motions in
their favor, with one exception: It initially denied
State's motion for summary judgment as to Freedom
Watch's request for any information released to David
Sanger. Order, Dec. 13, 2012, ECF No. 8. State then proceeded
to conduct an extensive search for responsive records, a
process which included: identifying the “offices,
overseas posts, or records systems within the
Department” likely to contain the requested
information; conducting full-text searches of the identified
records, including a voluntary supplemental search; and
manually reviewing the records of five employees whom Sanger
interviewed. See Freedom Watch, Inc. v. Nat'l Sec.
Agency, 49 F.Supp.3d 1, 4-5 (D.D.C. 2014) (detailing
search efforts). Satisfied that the search was adequate, the
Court granted State's motion for summary judgment on the
sole remaining claim. Id. at 3.
appeal, the D.C. Circuit affirmed the Court's judgments
as to the CIA, Department of Defense, and NSA, and it
rejected all of Freedom Watch's objections to the
Court's grant of summary judgment for State. Freedom
Watch, 783 F.3d at 1344-45. In accordance with
State's request, however, the Circuit remanded the case
so that the Department could process and search emails that
Secretary Clinton had kept on a private server, and had only
recently made available. Id at 1344. This was the
sole purpose of the remand-“to manage record
development and oversee the search of the former
Secretary's emails for records responsive to Freedom
Watch's FOIA request.” Id.
on remand, this Court ordered State to “prioritize its
search for responsive electronic records as soon as [the]
digitization of the relevant emails [was] complete, ”
and it directed the parties to “meet and confer
concerning appropriate search terms.” Minute Order, May
5, 2015. The parties did so, but were unable to reach full
agreement on the appropriate list of terms. See
Joint Status Report, June 29, 2015, ECF No. 35. After holding
a telephone conference on the matter, the Court ordered State
to conduct the search using its list of proposed terms, plus
certain additional terms proposed by Freedom Watch.
See Minute Order, August 5, 2015. State conducted
its search of Secretary Clinton's emails using those
terms, but uncovered no responsive documents. Defs.'
Status Report, Aug. 19, 2015, ECF No. 37; Defs.' Mem.
Supp. Mot. Summ. J. (“Defs.' MSJ”),
Supplemental Declaration of John F. Hackett (“Hackett
Decl.”) ¶ 9.
after concluding that search, however, two former State
employees provided the Department with additional,
potentially relevant records. See Motion to Stay,
Sept. 4, 2015, ECF No. 40, at ¶¶ 5-6. And in late
2015, the Department located a potentially responsive
collection of electronic files within the Office of the
Executive Secretariat that had not previously been searched.
See Defs.' Mot. for Extension of Time, Dec. 22,
2015, ECF No. 45. For both sets of newly revealed documents,
State proposed-and the Court ordered-that the Department
conduct additional searches using the same list of search
terms previously applied to Secretary Clinton's emails.
Minute Order, Oct. 20, 2015; Minute Order, Jan. 11, 2016. The
Department did so. Among the documents from the former State
employees, the Department found two responsive
“intra-agency email messages . . . detail[ing]
discussions between State officials regarding a briefing for
an interview, including draft versions of the
briefing.” Hackett Decl. ¶¶ 15, 19. State
produced those documents in part, redacting portions under
the deliberative process privilege as permitted by FOIA's
Exemption 5, 5 U.S.C. § 552(b)(5). Id. ¶
19. Upon searching the file collection from the Executive
Secretariat, the Department found and produced in full one
responsive document. Id. ¶ 11.
now moves for summary judgment, maintaining that its search
was adequate, and that it has released all responsive,
non-exempt records. Defs.' MSJ 5-12. Freedom Watch
opposes the motion, challenging State's use of search
terms and certain of its withholdings and redactions. Mem.
Supp. Pl.'s Mot. for Discovery and Opp'n to
Defs.' MSJ (“Pl.'s Opp'n”) 13- 14,
18-20. Freedom Watch also moves for discovery. It asserts
that State's belated unearthing of potentially relevant
documents-where the Department had earlier claimed to have
performed an adequate search-suggests bad faith and therefore
warrants discovery. Id. at 13, 17. These arguments,
for the reasons outlined below, are ill-founded. The Court
will therefore grant State's motion for summary judgment
and deny Freedom Watch's motion for discovery.
cases are typically resolved at summary judgment. See
Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527
(D.C. Cir. 2011). Summary judgment is appropriately granted
if “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).
agency's search is questioned, it must show “beyond
material doubt that its search was reasonably calculated to
uncover all relevant documents.” 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))
(internal quotation marks omitted). The search is judged by
the individual circumstances of each case. See Truitt v.
Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990).
The central question is whether the search itself was
reasonable, regardless of the results. See Cunningham v.
U.S. Dep't of Justice, 40 F.Supp.3d 71, 83-84
(D.D.C. 2014). Agencies need not turn over every stone, but
they must conduct a “good faith, reasonable search of
those systems of records likely to possess requested
records.” Id. (quoting SafeCard Servs.,
Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991)).
declarations, especially from individuals coordinating the
search, are afforded “a presumption of good faith,
which cannot be rebutted by purely speculative claims about
the existence and discoverability of other documents.”
SafeCard, 926 F.2d at 1200. Indeed, courts can award
summary judgment solely based on agency affidavits and
declarations that are “relatively detailed and
non-conclusory.” Id. For that reason,
“[d]iscovery in FOIA is rare and should be denied where
an agency's declarations are reasonably detailed,
submitted in good faith[, ] and the court is satisfied that
no factual dispute remains.” Baker & Hostetler
LLP v. U.S. Dep't of Commerce, 473 F.3d 312, 318
(D.C. Cir. 2006) (quoting Schrecker v. DOJ, 217
F.Supp.2d 29, 35 (D.D.C. 2002)).