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Jett v. Federal Bureau of Investigation

United States District Court, District of Columbia

March 13, 2017

JAMES B. JETT, Plaintiff,


          Amit P. Mehta United States District Judge

         This 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 request.

         After 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.

         I. BACKGROUND

         Because 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 remain.

         In 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 targets. Id.

         Shortly 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.

         In the 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.[1]

         On 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).

         On 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.

         Now 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, 2015.


         The court reviews de novo whether an agency has complied with its obligations under FOIA. 5 U.S.C. § 552(a)(4)(B).

         On a 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).

         An 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).

         Discovery 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.

         The 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)).

         Lastly, 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).


         The FBI 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[2]-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 ...

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