United States District Court, District of Columbia
BERMAN JACKSON United States District Judge
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.
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.
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.
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).
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).
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.
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
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.
Defendant has not adequately justified its searches for
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).
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.
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.”).
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).
There are substantial doubts about the adequacy of the
agency's searches in this case.
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. ¶ 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