United States District Court, District of Columbia
JAMES B. JETT, Plaintiff,
FEDERAL BUREAU OF INVESTIGATION, Defendant.
MEMORANDUM OPINION AND ORDER
P. Mehta United States District Judge
dispute concerns a Freedom of Information Act
("FOIA") request directed to Defendant the Federal
Bureau of Investigations ("FBI") for information
concerning an investigation of an alleged pre-election bribe
offer made to a former congressional candidate, Plaintiff
James Jett. Before the court are the parties' second
round of cross-motions for summary judgment. The parties
continue to dispute whether the FBI (1) performed an adequate
search in response to Jett's request and (2) properly
asserted exemptions to withhold certain documents responsive
to that request. Jett claims the search is inadequate in
light of inconsistencies in the FBI's representations
regarding the scope of its searches, which documents its
searches uncovered, and which documents it has produced. He
seeks limited discovery to untangle perceived inconsistencies
in the FBI's affidavits. Additionally, Jett challenges
the FBI's reliance on certain FOIA exemptions, as well as
whether the FBI properly segregated and released all
nonexempt information from the records responsive to his
thorough review of the parties' briefs and the underlying
record, the court concludes that limited discovery is
necessary to determine whether the FBI performed an adequate
search within the meaning of FOIA. Specifically, Jett will be
allowed to engage in discovery to determine whether an
additional, separate search of the FBI's Electronic
Surveillance Indices database is necessary to reach any
records responsive to Jett's FOIA request and satisfy the
FBI's search obligations. With respect to the materials
the FBI has produced thus far, however, the court concludes
the FBI properly withheld certain portions of the requested
investigative files. Accordingly, the court grants in part
and denies in part the FBI's Motion for Summary Judgment,
denies Jett's Cross-Motion for Summary Judgment, and
grants Jett's Rule 56(d) Motion for Limited Discovery.
the factual and procedural history of this case already is
set forth in the court's first summary judgment decision,
see Jett v. Fed. Bureau of Investigation, 139
F.Supp.3d 352, 357-58 (D.D.C. 2015), the court here recites
only what is necessary to resolve the narrow issues that
2012, while running for a seat to represent Florida in the
United States House of Representatives, James Jett reported
to the FBI that two intermediaries purportedly working on
behalf of one of Jett's opponents ("the
Intermediaries") had offered him bribes to withdraw his
candidacy. Id. The FBI began an investigation, at
the start of which Jett secretly recorded telephone
conversations with the Intermediaries. Id. The
investigation came to an abrupt end, however, when Jett
inexplicably revealed the FBI's investigation to its
after losing the election, Jett sent the FBI a FOIA request
for information pertaining to the short-lived bribe
investigation. See Id. at 358. He requested, among
other things, "FBI investigative reports, copies of
telephonic tape recordings made from [his] personal telephone
at the request of the FBI, interview reports of any
individuals involved, follow-up investigative reports by any
FBI agents, and/or written transcriptions of any recorded
conversations between [himself] and the suspects involved in
the case." Id. Additionally, Jett specifically
requested that the FBI search its Central Records System
("CRS"). Id. The FBI produced some records
in response to Jett's request but withheld others,
leading Jett to seek this court's review of the adequacy
of the FBI's search and the legitimacy of its
justifications for redactions and withholdings of certain
responsive materials. See Compl., ECF No. 1.
first round of summary judgment briefing, the FBI represented
that it had fully complied with FOIA by searching the CRS
using "a three-way phonetic breakdown" of
Jett's name only; the agency did not search for records
using the names of the Intermediaries or the opponent who
allegedly made the bribe offer. See Def's Mot.
for Summ. J., ECF No. 10 [hereinafter Def's First Mot.],
Decl. of David M. Hardy, ECF No. 10-2 [hereinafter First
Hardy Deck], ¶¶ 22, 34-36. That search yielded 66
pages of responsive documents, of which the FBI produced one
page in full and 59 pages in part. Id. ¶ 25.
Three of the remaining pages were withheld in full, pursuant
to the FBI's invocation of FOIA Exemptions 6, 7(C), and
7(E), and three pages were withheld as duplicative of other
responsive documents. Id. ¶¶ 25, 28. The
FBI moved for summary judgment, explaining that it
appropriately limited its search to the CRS because Jett had
specifically requested a search of the CRS. See
Def's Combined Reply in Opp'n to Pl's Mot. for
Summ. J., ECF No. 14 [Def's First Reply], at 4. In a
cross-motion for summary judgment, Jett challenged both the
adequacy of this search and the applicability of the
exemptions the FBI raised to withhold certain responsive
materials. See Pl's Mot. for Summ. J. & Mem.
in Supp., ECF No. 12, at 2.
September 30, 2015, after the benefit of in camera review of
the responsive materials, the court granted in part and
denied in part both parties' motions. See Jett,
139 F.Supp.3d at 368. The court ruled, among other things,
that the FBI's search was deficient insofar as the agency
(1) had categorically declined to search for the names of
third parties that Jett had provided as part of his FOIA
request, and (2) did not search its Electronic Surveillance
Indices database ("ELSUR indices"), in which the
FBI maintains electronic and telephonic recordings, despite
the FBI knowing responsive records were likely to be found
there, given Jett's participation in recorded phone calls
during the investigation. See Id. The court's
Order required the FBI to remedy the deficiencies in its
search and submit a subsequent status report reflecting its
compliance with the court's opinion. See Id. On
October 28, 2015, the FBI filed a Motion for Reconsideration,
which the court denied on January 8, 2016. See Jett v.
Fed. Bureau of Investigation, No. 14-276, 2016 WL 107912
(D.D.C. Jan. 8, 2016).
December 30, 2015, before the court had ruled on the
FBI's Motion for Reconsideration, the FBI sent Jett
additional, partially redacted materials responsive to
Jett's FOIA request. See Def.'s Renewed Mot.
for Summ. J., ECF No. 31 [hereinafter Def.'s Second
Mot.], at 3. The FBI did not, however, explain to Jett the
origin of these records at the time it sent them. Then, after
the court denied the Motion for Reconsideration, the FBI
performed additional searches of the CRS using the names of
the third-parties supplied by Jett to comply with the
court's September 2015 Order, but found no new records.
See Notice of Filing, ECF No. 29, Third Decl. of
David M. Hardy, ECF No. 29-1 [hereinafter Third Hardy Decl.]
¶¶ 8, 13.
before the court are the parties' renewed cross-motions
for summary judgment regarding whether the FBI (1) has
remedied the deficiencies in its search for documents
responsive to Jett's FOIA request and (2) has properly
withheld portions of the records it disclosed on December 30,
court reviews de novo whether an agency has complied with its
obligations under FOIA. 5 U.S.C. § 552(a)(4)(B).
motion for summary judgment, a court must enter judgment in
favor of the moving party if that party "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). A dispute is "genuine" only if
a reasonable fact-finder could find for the nonmoving party,
and a fact is "material" only if it is capable of
affecting the outcome of the litigation. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
agency performs an "adequate search" and may be
awarded summary judgment when it performs a search
"reasonably calculated to uncover all relevant
documents." Oglesby v. U.S. Dep 't of the
Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The agency bears
the burden of proving that it performed an adequate search,
and it may rely on sworn affidavits or declarations to make
that showing. See SafeCard Servs., Inc. v. SEC, 926
F.2d 1197, 1200 (D.C. Cir. 1991). The court may grant summary
judgment to the agency based on those materials if they are
reasonably specific and contradicted by neither other record
evidence nor evidence of agency bad faith. See Military
Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.
1981); Beltranena v. Clinton, 110 F.Supp.2d 175,
181-82 (D.D.C. 2011). FOIA plaintiffs can rebut an
agency's declarations and affidavits by demonstrating,
with "specific facts, " that there remains a
genuine issue as to whether the agency performed an adequate
search for documents responsive to the plaintiff s request.
See Span v. U.S. Dep't of Justice, 696 F.Supp.2d
113, 119 (D.D.C. 2010) (internal quotation marks omitted).
is only appropriate in a FOIA case "when a plaintiff
raises a sufficient question as to the agency's good
faith in processing documents in response to a FOIA
request." Competitive Enter. Inst. v.
Office of Science & Tech. Policy, 185 F.Supp.3d 26,
27 (D.D.C. 2016). Any affidavits or declarations the agency
submits are presumed to be submitted in good faith, and it
takes more than speculation for a plaintiff to rebut that
presumption. SafeCard Servs., 926 F.2d at 1200.
Instead, the plaintiff must advance evidence of government
wrongdoing or affirmative bad faith-such as serious
inconsistences in the agency's representations of the
scope and completeness of its searches-before the court will
allow any discovery. See Competitive Enter. Inst,
185 F.Supp.3d at 27.
agency also bears the burden of proving that it withheld
certain materials responsive to a plaintiffs FOIA request
pursuant to a statutory exemption from disclosure.
Citizens for Responsibility & Ethics in Wash. v. U.S.
Dep't of Justice, 746 F.3d 1082, 1088 (D.D.C. 2014).
Once more, to make this showing, the agency may rely on
affidavits and declarations. "If the agency's
affidavits 'provide specific information sufficient to
place the documents within the exemption category, if this
information is not contradicted in the record, and if there
is no evidence in the record of agency bad faith, then
summary judgment is appropriate without in camera review of
the documents.'" Am. Civil Liberties Union v.
U.S. Dep't of Def, 628 F.3d 612, 626 (D.C. Cir.
2011) (quoting Larson v. U.S. Dep 't of State,
565 F.3d 857, 870 (D.C. Cir. 2009)).
even when an exemption applies to shield one portion of a
document responsive to the FOIA request, the agency is
required to disclose "[a]ny reasonably segregable
portion" of that document. See 5 U.S.C. §
552(b). "It is neither consistent with the FOIA nor a
wise use of increasingly burdened judicial resources to rely
on in camera review of documents as the principal tool for
review of segregability disputes." Mead Data Cent.,
Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242,
262 (D.C. Cir. 1977) (footnote omitted). Instead, agencies
enjoy a presumption of compliance with this obligation,
absent contrary evidence submitted by the plaintiff. See
Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117
(D.C. Cir. 2007).
seeks summary judgment on the ground that it has fully
complied with the court's September 2015 Order. The Third
and Fourth Declarations of FBI Section Chief David M.
Hardy-which the FBI offers as proof of its
compliance-state that the FBI has searched for the
third-party names Jett provided, as well as run a search of
its systems that would flag any responsive records in the
ELSUR indices. See Third Hardy Decl. ¶ 7;
see also Def's Second Mot. at 2-3. Despite
running these additional searches, the FBI represents that it
only found the documents initially produced to Jett ...