United States District Court, District of Columbia
JUDICIAL WATCH, INC. Plaintiff,
UNITED STATES DEPARTMENT OF THE TREASURY, Defendant.
ROSEMARY M. COLLYER United States District Court
it Bernie Sanders who expressed exasperation at the
continuing attention to Hillary Clinton's emails some
18-20 months ago? He spoke too soon. Many interested parties
have used the Freedom of Information Act (FOIA), 5 U.S.C.
§ 552 (2012) to try to find traces of the former
Secretary of State's use of a private email server in
emails at other federal agencies. Plaintiff Judicial Watch,
which sued the Treasury Department to enforce its FOIA
request for such emails, cannot believe that none were found;
it wants a broader search. Treasury insists its three
searches were appropriate enough, and has filed a Motion for
Summary Judgement [Dkt. 7], asserting they have met their
FOIA obligations. Judicial Watch has opposed, [Dkt. 12], and
Treasury has replied [Dkt. 13]. The Court agrees with
Treasury. Summary judgment will be granted to the Department.
Judicial Watch Inc. is a nonprofit education institution that
regularly requests records under FOIA to “shed light on
the operations of the federal government and to educate the
public about those operations.” Compl. [Dkt. 1] ¶
3. Judicial Watch submitted a FOIA request to the Department
of the Treasury seeking any and all email correspondence
between specific Treasury departments and any
“clintonemail.com” address between February 2,
2009 and January 31, 2013. Id. ¶ 5.
Specifically, Judicial Watch requested any such emails from
the following three Treasury departments: (1) the Office of
Foreign Assets (OFAC); (2) the Committee on Foreign
Investment (CFIUS); and (3) the Office of the Secretary of
the Treasury. Id.
response, the three named Treasury departments independently
conducted searches for responsive documents. See
Def.'s Mem. in Support of Mot. for Sum. J. (MSJ Mem.)
[Dkt. 7-1] at 2; Mot. Sum. J (MSJ) Ex. B [Dkt. 7-4], Ex. C
[Dkt. 7-5]. The searches was limited to the “senior
policy officials within each of the three offices, ”
including “Secretaries of the Treasury, Associate
Directors, Assistant Directors, the Deputy Director, and
Director of OFAC, and the Directors of CFIUS.” MSJ Ex.
A (Law Decl.) [Dkt. 7-3] ¶ 5. The Secretary's Office
and CFIUS searched for any email communication to or from any
“clintonemail.com” address. Id. OFAC,
for each individual searched, searched for email
communications using either “clintonemail.com.”
“clintonemail” or “clinton” as search
terms. Id. No search identified any responsive
judgment is the typical vehicle to resolve an action brought
under FOIA. See McLaughlin v. U.S. Dep't of
Justice, 530 F.Supp.2d 210, 212 (D.D.C.2008). Under Rule
56 of the Federal Rules of Civil Procedure, summary judgment
is appropriate if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is
entitled to a judgment as a matter of law. Fed.R.Civ.P.
56(c). The party seeking summary judgment bears the initial
burden of demonstrating the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Tao v. Freeh, 27 F.3d 635, 638
(D.C. Cir. 1994).
considering whether there is a triable issue of fact, the
Court must draw all reasonable inferences in favor of the
non-moving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). The party opposing a motion for
summary judgment, however, “may not rest upon the mere
allegations or denials of his pleading, but . . . must set
forth specific facts showing that there is a genuine issue
for trial.” Anderson, 477 U.S. at 248.
requires federal agencies to release government records to
the public upon request, subject to certain exceptions.
See 5 U.S.C. § 552(b); Wolf v. C.I.A.,
473 F.3d 370, 374 (D.C. Cir. 2007). The defendant in a FOIA
case must show that its search for responsive records was
adequate. See Sanders v. Obama, 729 F.Supp.2d 148,
154 (D.D.C. 2010). In assessing whether an agency has met its
obligations, the inquiry therefore goes to the adequacy of
the search, not whether other responsive records may
conceivably exist elsewhere. Steinberg v. Dep't of
Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). A
search's adequacy is measured by a standard of
reasonableness and depends on the individual circumstances of
each case. Truitt v. Dep't of State, 897 F.2d
540, 542 (D.C. Cir. 1990); Judicial Watch, Inc. v.
Dep't of State, 177 F.Supp.3d 450, 455 (D.D.C.
requester dissatisfied with the agency's response that no
records have been found may challenge the adequacy of the
agency's search by filing a lawsuit in the district court
after exhausting any administrative remedies.”
Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321,
326 (D.C. Cir. 1999). “[T]he agency must demonstrate
beyond material doubt that its search was reasonably
calculated to uncover all relevant documents.”
Nation Magazine, Wash. Bureau v. U.S. Customs Serv.,
71 F.3d 885, 890 (D.C. Cir. 1995). An agency must search for
documents in good faith, using methods that are reasonably
expected to produce the requested information.
Valencia-Lucena, 180 F.3d at 326 (citing Oglesby
v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir.
1990)). The principal issue is not whether the agency's
search uncovered responsive documents, but whether the search
was reasonable. Oglesby, 920 F.2d at 67 n.13 (citing
Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C. Cir.
1986)). The agency need not search every record in the system
or conduct a perfect search. SafeCard Servs., Inc. v.
SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991);
Meeropol, 790 F.2d at 952, 956.
argues that its searches for documents were adequate, and it
is therefore entitled to summary judgment. MSJ Mem. at 1.
Judicial Watch counters that Treasury has not shown that its
search, limited only to senior officials, was appropriate.
Opp. at 3. Specifically, Judicial Watch argues that Treasury
has not demonstrated that it was unable to perform a global
search of all employees' emails in the three offices.
Id. If Treasury is able to execute such a search,
Judicial Watch argues, then “Treasury's decision to
narrow the search [to senior agency officials] would not be
reasonable or appropriate.” Id.
the operative question is not whether a global search of all
employees is technically possible, but whether Treasury's
searches were “reasonably calculated to uncover all
relevant documents.” Nation Magazine, 71 F.3d
at 890. Treasury has proffered, through its supporting
affidavits, that senior agency officials were “the only
people in each office who could reasonably have communicated
with Ms. Clinton or one of her senior aides, while Ms.
Clinton was serving as Secretary of State.” Law Decl.
¶ 5. Treasury asserts that, because of this fact, only a
search of those officials' emails would be reasonably
likely to uncover any relevant records.
Watch has given the Court no reason to doubt Treasury's
commonsensical explanation. While it may be the case that
Treasury could perform a global search of all its
employees' emails, there is no indication that such a
search of non-senior employees would be reasonably calculated
to uncover relevant documents. There is further no allegation
or indication that Treasury undertook its searches in bad