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James Madison Project v. Department of State

United States District Court, District of Columbia

January 30, 2017

JAMES MADISON PROJECT, et al., Plaintiffs,


          AMY BERMAN JACKSON United States District Judge

         This case arises out of a Freedom of Information Act request by plaintiffs Shane Harris, a reporter for the publication The Daily Beast, and the James Madison Project, seeking records “pertaining to the revelations that former Secretary of State Hillary Rodham Clinton's private attorney, David Kendall, had retained personal control over a thumb drive containing e-mails which have been (or might ultimately be) deemed to contain classified information.” Compl. [Dkt. # 1] ¶ 6. Plaintiff requested records from the time period of January 21, 2013 to the date of its request, August 12, 2015. Id. ¶ 7.

         Plaintiffs filed this lawsuit on September 10, 2015, after the State Department did not respond to their FOIA request within the statutorily-required twenty-day period. Compl. ¶ 13; see 5 U.S.C. § 552(a)(6)(A). The State Department responded to the suit and the parties agreed to a stipulated production schedule. See Def's. Status Report [Dkt. # 12]. All in all, defendant located approximately 180 responsive records; it released approximately 60 in full and 90 in part, and it withheld the rest. See Decl. of Eric F. Stein [Dkt. # 20-1] (“Stein Decl.”) ¶¶ 6-10, 59.

         Once the State Department completed its production, it moved for summary judgment. Def.'s Mot. for Summ. J. [Dkt. # 20] (“Def.'s Mot.”); Mem. of P. &. A. in Supp. of Def.'s Mot. [Dkt. # 20] (“Def.'s Mem.”). Plaintiffs oppose the motion, arguing that the agency's searches were inadequate, and they challenge defendant's refusal to produce the name of a particular State Department employee. Mem. in Opp. to Def.'s Mot. [Dkt. # 21] (“Pls.' Opp.”). Because the Court finds that defendant's searches were inadequate, it will deny the motion for summary judgment in part and remand the matter back to the State Department. But since the single challenged withholding is justified, the Court will also grant the government's motion in part.


         In a FOIA case, the district court reviews the agency's decisions de novo and “the burden is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B); Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). “[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011).

         Summary judgment is appropriate “if 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). The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must “designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted).

         The mere existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the non-moving party; a fact is “material” only if it is capable of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing a party's motion, the court must “view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the summary judgment motion.'” Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam). “Summary judgment may be granted on the basis of agency affidavits” in FOIA cases, when those affidavits “contain reasonable specificity of detail rather than merely conclusory statements, ” and when “they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013), quoting Consumer Fed'n of Am. v. Dep't of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006).


         FOIA requires the release of government records upon request. Its purpose is “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). At the same time, Congress recognized “that legitimate governmental and private interests could be harmed by release of certain types of information and provided nine specific exemptions under which disclosure could be refused.” FBI v. Abramson, 456 U.S. 615, 621 (1982); see also Ctr. for Nat'l Sec. Studies v. DOJ, 331 F.3d 918, 925 (D.C. Cir. 2003) (“FOIA represents a balance struck by Congress between the public's right to know and the government's legitimate interest in keeping certain information confidential.”), citing John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). The Supreme Court has instructed that “FOIA exemptions are to be narrowly construed.” Abramson, 456 U.S. at 630.

         To prevail in a FOIA action, an agency must first demonstrate that it has 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 Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Second, the agency must show that any information withheld logically falls within the claimed statutory exemption. Elec. Frontier Found. v. DOJ, 739 F.3d 1, 7 (D.C. Cir. 2014), quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984). “[W]hen an agency seeks to withhold information, it must provide a ‘relatively detailed justification'” for the withholding, Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir. 2007), quoting King v. DOJ, 830 F.2d 210, 219 (D.C. Cir. 1987), through a Vaughn Index, an affidavit, or by other means. Gallant v. NLRB, 26 F.3d 168, 172-73 (D.C. Cir. 1994).

         I. Defendant has not adequately justified its searches for responsive records.

         A. Legal Standard

         When an 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); see also Oglesby, 920 F.2d at 68; Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C. Cir. 1983).

         To demonstrate that it has performed an adequate search for documents responsive to a FOIA request, an agency must submit a reasonably detailed affidavit describing the search. Oglesby, 920 F.2d at 68; see also Defs. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 91 (D.D.C. 2009). An affidavit is “reasonably detailed” if it “set[s] forth the search terms and the type of search performed, and aver[s] that all files likely to contain responsive materials (if such records exist) were searched.” Oglesby, 920 F.2d at 68; see also Defs. of Wildlife, 623 F.Supp.2d at 91.

         To meet these requirements, the affidavit must at least include the agency's “rationale for searching certain locations and not others.” Defs. of Wildlife, 623 F.Supp.2d at 92; Hodge v. FBI, 703 F.3d 575, 580 (D.C. Cir. 2013) (affirming the grant of summary judgment where the agency provided a detailed declaration articulating the search process). Agency affidavits attesting to a reasonable search “are accorded a presumption of good faith, ” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), that can be rebutted “with evidence that the agency's search was not made in good faith, ” Trans Union LLC v. FTC, 141 F.Supp.2d 62, 69 (D.D.C. 2001), or when a review of the record raises substantial doubt about the adequacy of the search effort. Valencia-Lucena, 180 F.3d at 326; see also Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (“If, however, the record leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper.”).

         An agency's declarations “need not ‘set forth with meticulous documentation the details of an epic search for the requested records, '” Defs. of Wildlife, 623 F.Supp.2d at 91, quoting Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982), but they should “describe what records were searched, by whom, and through what processes.” Id., quoting Steinberg v. DOJ, 23 F.3d 548, 552 (D.C. Cir. 1994). Conclusory assertions about the agency's thoroughness are not sufficient. See Morley v. CIA, 508 F.3d 1108, 1121-22 (D.C. Cir. 2007).

         B. There are substantial doubts about the adequacy of the agency's searches in this case.

         To describe its search for records in this case, the State Department proffered the declaration of Eric F. Stein, the Acting Co-Director of the Office of Information Programs and Services at the State Department. See Stein Decl. Stein is the State Department official “immediately responsible for responding to requests for records” under FOIA. Id. ¶ 1. The State Department does not conduct centralized searches for records; it is the responsibility of Stein's office to “determine which offices, overseas posts, or other records systems within the Department may reasonably be expected to contain the records requested, ” based on its institutional knowledge. Id. ΒΆ 12. In this case, Stein's team determined that the following components were reasonably likely to have documents responsive to plaintiffs' request: the Bureau of Diplomatic Security, the Office of the Undersecretary ...

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