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Hunton & Williams LLP v. U.S. Environmental Protection Agency

United States District Court, District of Columbia

March 31, 2017

HUNTON & WILLIAMS LLP, Plaintiff,
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendant. HUNTON & WILLIAMS LLP, Plaintiff,
v.
U.S. ARMY CORPS OF ENGINEERS, Defendant. HUNTON & WILLIAMS LLP, Plaintiff,
v.
U.S. DEPARTMENT OF THE ARMY, Defendant.

          MEMORANDUM OPINION RE DOCUMENT NOS: 36, 40, 46, 50, 52, 56,

          RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE

         Granting in Part and Denying in Part the EPA's Motion for Summary Judgment; Granting in Part and Denying in Part the Corps' Motion for Summary Judgment; Granting in Part and Denying in Part the Army's Motion for Summary Judgment; Granting in Part and Denying in Part Plaintiff's Motion for Order Governing Further Proceedings Concerning the EPA; Granting in Part and Denying in Part Plaintiff's Motion for Partial Summary Judgment Concerning the Corps; Granting in Part and Denying in Part Plaintiff's Motion for Partial Summary Judgment Concerning the Army

         I. INTRODUCTION

         Plaintiff Hunton & Williams LLP (Hunton) filed this action seeking documents under the Freedom of Information Act (FOIA). Hunton requested records from three agencies-the U.S. Environmental Protection Agency (EPA), the U.S. Army Corps of Engineers (Corps), and the U.S. Department of the Army (Army)-regarding the government's Clean Water Act (CWA) and Rivers and Harbors Act (RHA) jurisdiction over an industrial site in Redwood City, California. The developer of the site had requested an Approved Jurisdictional Determination (AJD) in 2012, in order to definitively establish the government's position on CWA and RHA jurisdiction. The Corps and the EPA share responsibility for issuing such AJDs.

         In this case, after the Corps prepared a draft AJD addressing both CWA and RHA jurisdiction, the Army intervened to perform a “legal and policy review” in its role as the Corps' parent agency. After that legal and policy review was complete and the Corps had briefly returned to work on the AJD, the EPA stepped in and used its “special case” authority to take over the CWA portion of the AJD. As of August of 2016, the EPA had still not issued the CWA portion of the AJD.

         Hunton, a law firm, submitted multiple FOIA requests for records from the EPA, the Corps, and the Army. Dissatisfied with the agencies' responses, Hunton filed this suit. Now pending before the Court are motions for summary judgment by the EPA, the Army, and the Corps, as well as Hunton's motion for partial summary judgment concerning the Corps, Hunton's motion for partial summary judgment concerning the Amy, and Hunton's motion for an order governing further proceedings against the EPA.[1]

         As explained below, because it concludes that the agencies have not adequately justified their application of FOIA exemptions to withhold documents, the Court will entertain supplemental briefing and review selected documents in camera. However, the Court concludes that the agencies' searches were adequate. The motions are thus granted in part and denied in part.[2]

         II. BACKGROUND

         Hunton filed FOIA requests seeking information relating to the AJD for an industrial site in Redwood City, California.[3] Compl. ¶ 5, ECF No. 1.[4] The site, located near the San Francisco harbor, serves as an active saltworks and contains pools of water and salty brine. Compl. ¶ 6. The agencies refer to the site by a variety of names, including the Salt Plant, Saltworks, Redwood City, and Cargill. Compl. ¶ 5. The developers of the site sought an AJD to determine if the site was covered by the Clean Water Act (CWA)-a highly technical issue turning on whether the site contains “waters of the United States.” Compl. ¶¶ 6, 9. An AJD would establish the government's position on the jurisdiction of both the CWA and the Rivers and Harbors Act (RHA). Compl. ¶ 9. The AJD at issue was requested on May 29, 2012, Compl. ¶ 9, and remained pending until at least August of 2016, EPA Reply at 18, ECF No. 57-a total time of more than 1500 days.

         Three agencies-the Corps, the EPA, and the Army-played a role in this lengthy process. Typically, the EPA and the Corps share responsibility for issuing AJDs. Compl. ¶ 9. For the AJD at issue, the Corps informed the developers that it would take the lead with the EPA providing the Corps with “technical support.” Compl., Ex. A, ECF No. 1-1. The Corps began work, and in May of 2014 was apparently “on the verge” of issuing an AJD determining both RHA and CWA jurisdiction. Compl. ¶¶ 15-16.

         But the AJD did not issue in May of 2014. Instead, the Assistant Secretary of the Army for Civil Works (ASA(CW)) used her “oversight responsibility” over the Corps to conduct a “legal and policy review” of the AJD process, with the effect of delaying the AJD's issuance. Decl. of Paul DeAgostino (DeAgostino Decl.) ¶ 21, ECF No. 36-2; Compl. ¶¶ 21, 24. According to the ASA(CW), this review “only considered the procedural aspects of the determination and did not in any way consider the substantive question of whether the property in question is in fact jurisdictional.” Darcy Mem. for the Chief of Engineers at 1, Ex. 1, ECF No. 46-1. The Army completed its “legal and policy review” in November of 2014 and the Corps once again returned to the AJD process. Compl. ¶ 24. In November of 2014, the Corps sent the EPA a “draft AJD” covering both RHA and CWA jurisdiction with the stated intent of issuing it in December of 2014. Pl.'s MSJ Against Corps, Ex. C, ECF No. 56-3. However, another delay arose. On March 18, 2015 the Corps informed the EPA that the Corps had “arrived at a decision” to “finalize and sign [the AJD] tomorrow.” Pl.'s Reply Army, Ex. E, ECF No. 54-5.

         On the eve of this planned issuance, the EPA used its “special case” authority to take over the CWA portion of the AJD. Brush Decl., Ex. E at 16, ECF No. 40-3; see also Mem. Agreement, Ex. 2, ECF No. 57-1. The Corps retained the authority to determine RHA jurisdiction, and issued an AJD with respect to the RHA on March 19, 2015. Compl. ¶ 27. The special case authority is typically used when “significant issues or technical difficulties are anticipated or exist, concerning the determination of the geographic jurisdictional scope of waters of the United States.” Mem. Agreement. A few months later, in June of 2015, the agencies published a new rule altering the definition of “waters of the United States” in the CWA. See generally 33 C.F.R. § 328 (2015).

         As of the briefing of these motions, the CWA portion of the Redwood City AJD had still not been issued by the EPA. EPA Reply at 18, ECF No. 57. Seeking insight into the EPA and the Corps' decisionmaking with respect to the Redwood City site, Hunton submitted multiple FOIA requests to the EPA, the Corps, and the Army. Nine of those requests are at issue here.

         A. FOIA Requests to the EPA

         Four of Hunton's FOIA requests to the EPA are at issue in this suit. First, on May 30, 2014, Hunton submitted FOIA requests to the EPA seeking[5]:

1. Any and all documents related to the DMB Redwood City Salt Plant (also known as DMB Redwood City Saltworks project, Redwood City Saltworks project site, Redwood City salt production facilities, or Cargill operations in Redwood City) since January 1, 2014.
2. Any and all communications between EPA (all offices) and the other parties, including but not limited to the Corps (all offices), the Department of the Army (all offices, including the Office of the Assistant Secretary of the Army for Civil Works), Congress (members and staff), other Executive Branch employees, and non-government third parties, related to the DMB Redwood City Salt Plant (also known as DMB Redwood City Saltworks project, Redwood City Saltworks project site, Redwood City salt production facilities, or Cargill operations in Redwood City) since January 1, 2014.
3. Any request (other than this letter) from any entity or person for any documents relating to the DMB Redwood City Salt Plant (also known as DMB Redwood City Saltworks project, Redwood City Saltworks project site, Redwood City salt production facilities, or Cargill operations in Redwood City) received on or after January 1, 2014, and all documents, communications, and records relating to such a request, including any response by EPA to that request.

Compl., Ex. E, ECF No. 1-5.

         Next, Hunton sought the same records as in its initial request, but twice expanded the applicable date range to cover any documents created since the previous FOIA requests: on August 19, 2014, Hunton requested documents “since May 30, 2014, ”[6] Compl., Ex. H, ECF No. 1-8; and, on March 19, 2015, Hunton requested documents “since August 19, 2014.”[7]

         On March 23, 2015, Hunton submitted a fourth request to the EPA seeking:[8]

the Corps' “final” CWA JD (with attachments) and/or “final” combined RHA and CWA JD (with attachments) for Redwood City Saltworks. By “final, ” we mean the version of the document that was prepared for signature by Major General Peabody (whether or not the document was ever actually signed), and sent to the EPA.

Compl., Ex. N, ECF No. 1-14 (footnotes omitted). Hunton appealed each of the four requests administratively. Brush Decl. ¶ 29, ECF No. 40-2. The exhaustion of administrative remedies is not at issue here.[9]

         Between June 2014 and June 2015, the EPA produced documents relating to Hunton's first three FOIA requests. Compl. ¶¶ 30, 48. To do so, EPA searched specific employee's accounts in its email system using various search terms. Brush Decl. ¶ 16. “[C]ustodians” at EPA Region 9 and the EPA headquarters were also instructed “to search for and collect other responsive files that would not be contained in the email system” in response to these three requests. Brush Decl. ¶ 17. The EPA produced about 600 documents in full, withheld 12 documents in full, and withheld 320 documents in part. Brush Decl. ¶ 31. Of the withheld information, the information in 314 documents was withheld on the basis of the deliberative process privilege, the information in 23 documents was withheld on the basis of the attorney-client privilege, and the information in 23 documents was withheld on the basis of the attorney work-product privilege. Brush Decl. ¶ 31.

         With respect to the fourth FOIA request, the EPA denied the March 23, 2015 request for the “final” AJD. Compl. ¶¶ 51-52. The EPA located the document using a manual search, but withheld it in its entirety under the deliberative process privilege. Brush Decl. ¶ 23.[10]

         B. FOIA Requests to the Corps

         Four of Hunton's FOIA requests to the Corps are at issue here. First, on May 30, 2014, Hunton submitted a FOIA request to the Corps seeking:[11]

1. Any and all documents related to the DMB Redwood City Salt Plant (also known as DMB Redwood City Saltworks project, Redwood City Saltworks project site, Redwood City salt production facilities, or Cargill operations in Redwood City) since January 1, 2014.
2. Any and all communications between Corps (all offices) and the other parties, including but not limited to EPA (all offices), the Department of the Army (all offices, including the Office of the Assistant Secretary of the Army for Civil Works and the Office of the General Counsel), Congress (members and staff), other Executive Branch employees, and non-government third parties, related to the DMB Redwood City Salt Plant (also known as DMB Redwood City Saltworks project, Redwood City Saltworks project site, Redwood City salt production facilities, or Cargill operations in Redwood City) since January 1, 2014.
3. Any request (other than this letter) from any entity or person for any documents relating to the DMB Redwood City Salt Plant (also known as DMB Redwood City Saltworks project, Redwood City Saltworks project site, Redwood City salt production facilities, or Cargill operations in Redwood City) received on or after January 1, 2014, and all documents, communications, and records relating to such a request, including any response by the Corps to that request.

15-cv-1207, Compl., Ex. E., ECF No. 1-5. As is evident from the request, Hunton sought the same information from the Corps as it did in its request to the EPA.

         Next, Hunton sought the same records as in its initial request, but thrice expanded the applicable date range to cover any document created after the previous FOIA request: on August 19, 2014, Hunton requested documents “since May 30, 2014, ” 15-cv-1207, Compl., Ex. F, ECF No. 1-6;[12] on March 19, 2015, Hunton requested documents “since August 19, 2014, ” 15-cv-1207, Compl., Ex. G, ECF No. 1-7; 15-cv-1207, Compl. ¶ 43;[13] and on June 12, 2015, Hunton requested documents “since March 19, 2015, ” and added the Office of the General Counsel within the Department of the Army to the list of enumerated offices. 15-cv-1207, Compl., Ex. H, ECF No. 1-8; 15-cv-1207, Compl. ¶ 46.[14]

         Between April 2015 and April 2016, the Corps released 20, 448 pages of documents. See Bartlett Decl. ¶ 8. The Corps identified a set of likely custodians within each office and used search terms to search their files and email. Bartlett Decl. ¶¶ 10-23. The search identified 22, 776 pages of responsive documents. Bartlett Decl. ¶ 24. Information was withheld under FOIA Exemptions 5 and 6. Bartlett Decl. ¶¶ 28-34. The Corps determined that there was only one “record custodian [who] appeared to have conducted any business using a personal email account.” Second Decl. Michelle Bartlett (2d Bartlett Decl.) ¶ 7, ECF No. 59-1. That custodian searched her personal email, but did not identify any previously undisclosed responsive documents. 2d Bartlett Decl. ¶ 7.

         C. FOIA Requests to the Army

         Only one FOIA request to the Army is at issue here. On March 19, 2015, Hunton submitted a FOIA request to the Army seeking:

1. Any and all documents related to the DMB Redwood City Salt Plant (also known as DMB Redwood City Saltworks project, Redwood City Saltworks project site, Redwood City salt production facilities, or Cargill operations in Redwood City).
2. Any and all communications between the Department of the Army (all offices, including the Office of the Assistant Secretary of the Army for Civil Works and the Office of the General Counsel) and the other parties, including but not limited to EPA (all offices), the Corps of Engineers (all offices), Congress (members and staff), other Executive Branch employees, and non-government third parties, related to the DMB Redwood City Salt Plant (also known as DMB Redwood City Saltworks project, Redwood City Saltworks project site, Redwood City salt production facilities, or Cargill operations in Redwood City).
3. Any request (other than this letter) from any entity or person for any documents relating to the DMB Redwood City Salt Plant (also known as DMB Redwood City Saltworks project, Redwood City Saltworks project site, Redwood City salt production facilities, or Cargill operations in Redwood City) and all documents, communications, and records relating to such a request, including any response by the Department to that request.

15-cv-1208, Compl., Ex. E, ECF No. 1-5.

         The Army did not release any documents to Hunton before the complaint in this action was filed. 15-cv-1208, Compl. ¶ 31, ECF No. 1; 15-cv-1203, Answer ¶ 31, ECF No. 16. After this lawsuit was initiated, the Army identified 3852 pages of responsive documents and released 2422 pages of materials between November 2015 and January of 2016. DeAgostino Decl. ¶¶ 5, 15, ECF No. 36-2.

         The Army searched for responsive documents within the Office of the ASA(CW) and within the Office of General Counsel (OGC), the two locations it determined were likely to have responsive documents. DeAgostino Decl. ¶ 6. The Army identified likely custodians in each office and applied various search terms to their files. DeAgostino Decl. ¶¶ 7-11. The Army also used search terms to search those custodians' files with the Defense Information Systems Agency-the email provider for the OGC and ASA(CW). DeAgostino Decl. ¶ 12. The Army withheld a variety of documents from its disclosure under FOIA Exemptions 5 and 6. DeAgostino Decl. ¶¶ 17-18. The Army supplemented its initial search by searching the personal email of a particular employee who had used a personal email account to conduct agency business. Compare Pl.'s Reply Army at 3, ECF No. 54, with Schmauder Decl. ¶ 4, ECF No. 61. The Army searched the personal email account for the terms “Cargill, ” “Saltworks, ” and “Redwood City, ” but found only previously released emails. Schmauder Decl. ¶ 4.

         D. Procedural History

         All three agencies move for summary judgment on the grounds that they performed adequate searches, appropriately withheld information pursuant to FOIA exemptions, and released all reasonably segregable material. Army MSJ, ECF No. 36; EPA MSJ, ECF No. 40; Corps MSJ, ECF No. 52. Against the EPA, Hunton seeks an order denying summary judgment and granting in camera review of the material the EPA withheld. Pl.'s Mot. Order EPA, ECF No. 50. Against the Corps, Hunton moves for partial summary judgment, seeking an order documenting violations of FOIA, re-review and production of materials currently withheld as non-responsive, and either production or in camera review of materials withheld under Exemption 5. Pl.'s MPSJ Corps, ECF No. 56. Against the Army, Hunton moves for partial summary judgment seeking an order documenting violations of FOIA, release of the names redacted under Exemption 6, and either production or in camera review of materials withheld under Exemption 5. Pl.'s MPSJ Army, ECF No. 46. Those motions are now ripe for decision.

         The Court reviews the applicable legal standard before analyzing the merits of the parties' positions.

         III. LEGAL STANDARD

         “FOIA cases typically and appropriately are decided on motions for summary judgment.” Def. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). Summary judgment is appropriate when “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). A “material” fact is one capable of affecting the substantive outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is enough evidence for a reasonable jury to return a verdict for the non-movant. Scott v. Harris, 550 U.S. 372, 380 (2007).

         The principal purpose of summary judgment is to streamline litigation by disposing of factually unsupported claims or defenses and determining whether there is a genuine need for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). In considering a motion for summary judgment, a court must “eschew making credibility determinations or weighing the evidence, ” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the light most favorable to the non-movant, see Anderson, 477 U.S. at 255.

         When assessing a summary judgment motion in a FOIA case, a court makes a de novo assessment of whether the agency has properly withheld the requested information. See 5 U.S.C. § 552(a)(4)(B); Judicial Watch, Inc. v. U.S. Dep't of Homeland Sec., 598 F.Supp.2d 93, 95 (D.D.C. 2009). To prevail on a motion for summary judgment, “the defending agency must prove that each document that falls within the class requested either has been produced, is unidentifiable or is wholly exempt from the Act's inspection requirements.” Weisberg v. U.S. Dep't of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980) (internal quotation marks omitted) (quoting Nat'l Cable Television Ass'n v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973)). To meet its burden, a defendant may rely on declarations that are reasonably detailed and non-conclusory. See Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Labor, 478 F.Supp.2d 77, 80 (D.D.C. 2007) (“[T]he Court may award summary judgment solely on the basis of information provided by the department or agency in declarations when the declarations describe ‘the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.'” (quoting Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981))). “Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical' or ‘plausible.'” Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007) (quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982)). Generally, a reviewing court should “respect the expertise of an agency” and not “overstep the proper limits of the judicial role in FOIA review.” Hayden v. Nat'l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1388 (D.C. Cir. 1979).

         Even if the nonmovant does not respond to the motion for summary judgment, the court cannot grant the motion for the reason that it was conceded. See Winston & Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016) (“Under the Federal Rules of Civil Procedure, a motion for summary judgment cannot be ‘conceded' for want of opposition. ‘The burden is always on the movant to demonstrate why summary judgment is warranted. The nonmoving party's failure to oppose summary judgment does not shift that burden.' The District Court ‘must always determine for itself whether the record and any undisputed material facts justify granting summary judgment.'” (quoting Grimes v. District of Columbia, 794 F.3d 83, 97 (D.C. Cir. 2015) (Griffith, J., concurring) and citing Fed.R.Civ.P. 56(e)(3))).

         IV. ANALYSIS

         Hunton disputes the adequacy of the agencies' searches, as well as the agencies' use of FOIA Exemptions 5 and 6. The Court addresses adequacy first, and concludes that the agencies' searches were adequate. The Court then turns to the agencies' withholdings, and concludes that no agency has fully justified its withholdings, and thus in camera review and further briefing will be appropriate.

         A. Adequacy of the Search

         Hunton argues that the agencies' searches were inadequate in two ways-first, because the agencies did not sufficiently search employees' personal communications, such as personal email accounts and text messages; and second, because the Corps artificially limited the number of custodians that it searched.

         Although Hunton does not, in general, challenge the adequacy of the agencies' searches, the Court nonetheless conducts an independent evaluation to determine whether the record and undisputed material facts justify granting summary judgment. Under FOIA, an adequate search is one that is “reasonably calculated to uncover all relevant documents.” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (internal quotation mark omitted) (quoting Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). The agency need not search “every record system” for the requested documents, but it “must conduct a good faith, reasonable search of those systems of records likely to possess the requested records.” Marino v. Dep't of Justice, 993 F.Supp.2d 1, 9 (D.D.C. 2013) (citing Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). When an agency seeks summary judgment on the basis that it conducted an adequate search, it “may rely on a ‘reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched.'” DiBacco v. U.S. Army, 795 F.3d 178, 188 (D.C. Cir. 2015) (quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999)). Once the agency has provided a reasonably detailed affidavit describing its search, the burden shifts to the FOIA requester to produce “countervailing evidence” suggesting that a genuine dispute of material fact exists as to the adequacy of the search. Morley, 508 F.3d at 1116.

         In general, the agencies' searches are adequate. Each agency has provided a declaration describing its search in reasonable detail and explaining how that search was reasonably calculated to uncover all responsive documents. For example, the EPA provided a declaration describing its search process for records responsive to request EPA-R9-2014-006943. The EPA “focused on e-mail correspondence as the location most likely to contain the majority of responsive records” and therefore used a “centralized tool” to search the EPA's email system using the keywords “Cargill, ” “Redwood City, ” “salt pond, ” “DMB, ” and “Saltworks.” Brush Decl. ¶ 16, ECF No. 40-2. In addition, “custodians [] search[ed] for and collect[ed] other responsive files that would not be contained in the email system (such as word processing documents or hard copy documents).”[15] Brush Decl. ¶ 17. Upon its independent evaluation-and in the absence of countervailing evidence from Hunton-the Court thus concludes that the agencies' searches were, in general, reasonably designed to locate all responsive documents and that the record thus demonstrates that the agencies are entitled to summary judgment.

         * * *

         Having concluded that the agencies' searches were generally adequate, the Court addresses Hunton's specific objections. First, Hunton argues that the Corps and the Army did not adequately search non-official channels of communication. Second, Hunton asserts that the Corps improperly limited the number of custodians that it searched.

         1. Personal Communications

         Hunton disputes the adequacy of the Corps' and the Army's searches on the grounds that neither included “non-official channels, such as personal email, text messages, or the like.” Pl.'s MPSJ Corps at 19, ECF No. 56; Pl.'s MPSJ Army at 23, ECF No. 46. As noted previously, the agency bears the initial burden of demonstrating, typically through declarations, that it has performed an adequate search. Once the agency has met that burden-as it has here-the burden shifts to the FOIA requester to produce “countervailing evidence” showing a genuine dispute of material fact as to the adequacy of the search. Morley, 508 F.3d at 1116.

         The D.C. Circuit has suggested that a requester can satisfy its burden to present “countervailing evidence” in the context of personal email accounts by identifying evidence that a specific private email address has been used for agency business. See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145, 146 (D.C. Cir. 2016). Mere speculation, however, that private email accounts were used does not require the agency to perform a search. See Wright v. Admin. for Children & Families, No. 15-218, 2016 WL 5922293, at *8-9 & n.5 (D.D.C. Oct. 11, 2016) (rejecting “the plaintiff's purely speculative contentions” that personal email was used because “[t]he plaintiff misconstrues the nature of his burden to submit ‘countervailing evidence' to raise a ‘substantial doubt' as to the adequacy of the agency's search” and “the plaintiff has not overcome the presumption that agency records are unlikely to exist on the agency employees' personal accounts”).

         Here, the Corps initially searched the personal email account of one particular employee because that employee “appeared to have conducted . . . business using a personal email account.”[16] 2d Bartlett Decl. ¶ 7, ECF No. 59-1. The search did not identify any additional responsive documents. 2d Bartlett Decl. ¶ 7, ECF No. 59-1.

         The Army did not initially perform any searches for personal emails, but did perform a supplemental search after Hunton identified emails in the Army's releases that had been sent from a personal email account. Pl.'s Reply Army at 3, ECF No. 54. The Army's supplemental search covered that particular account and used the search terms “Cargill, ” “Saltworks, ” and “Redwood City.” Schmauder Decl. ¶ 4, ECF No. 61. That search discovered only the previously released emails. See Schmauder Decl. ¶ 4 (indicating that Mr. Schmauder “do[es] not routinely use [his] personal emails to conduct professional business”); see generally Schmauder Decl.

         Both agencies have thus performed searches when specific facts indicated that a particular employee had used a personal email account for agency business. Hunton identifies no other particular employees whose accounts it asserts should be searched, or other specific facts in the record indicating that personal email accounts were used. Hunton seeks to require the agencies to search other personal email accounts-presumably those for all employees identified as having been involved with the Saltworks issues-even in the absence of any indication that any such personal accounts were used for agency business. This goes too far. Unlike the requestor in Competitive Enterprise Institute, Hunton is unable to identify any “countervailing evidence” of personal email use. Cf. 827 F.3d at 146. Indeed, Hunton states merely that that “it is plausible that non-formal channels may have been utilized here.” Pl.'s MPSJ Corps at 20 (emphasis added). Here, as in Wright, the Court finds that Hunton's purely speculative claims are insufficient to overcome the presumption that the agency's search was adequate.[17] Cf. Wright, 2016 WL 5922293, at *8-9. Because the Court finds that the agencies have adequately searched for responsive personal emails, it need not address the Corps' and the Army's argument that they need not search personal email accounts because it is “unlikely” that they control them.[18] Corps Reply at 18, ECF No. 59; Army Reply at 10, ECF No. 51.

         Next, Hunton argues that the agencies should be required to search for responsive text messages. Pl.'s MPSJ Army at 23-24, ECF No. 46; Pl.'s MPSJ Corps at 19-20. However, as with emails, Hunton does not present countervailing evidence to overcome the presumption inherent in the agency's declarations that all sources of responsive records were searched. Hunton does not point to any evidence indicating that text messages were used for agency business or otherwise show that searching text messages would be likely to lead to responsive documents. Unlike email messages, no evidence in the record suggests that any agency employees used text messages to conduct official business. The Court therefore finds that Hunton's speculative arguments about the possible existence of text messages are insufficient, and the undisputed facts in the record-including the agency's declarations-demonstrate that the agencies are entitled to summary judgment as to the adequacy of their search.

         Finally, Hunton's requests for discovery regarding personal communications channels are denied as to both the Army and the Corps. “Discovery is the exception, not the rule, in FOIA cases.” Landmark Legal Found. v. EPA, 959 F.Supp.2d 175, 183 (D.D.C. 2013) (noting that “discovery is an extraordinary procedure in a FOIA action” (quoting Thomas v. FDA, 587 F.Supp.2d 114, 115 (D.D.C. 2008))). Here, the Court has determined that the agency's declarations are sufficient to support a finding that their search of personal communication channels was adequate, and discovery is thus not appropriate.

         2. The Corps' Selection of Custodians

         Hunton objects that the Corps wrongfully limited the number of custodians whose records it searched. Pl.'s MPSJ Corps at 20. However, the Court finds that Hunton agreed to a limited list of custodians-subject to Hunton's right to suggest additional custodians, which it never exercised.

         The Corps identified seven custodians at Headquarters whose records were searched.[19]Bartlett Decl. ¶ 10, ECF No. 52-2; see also 2d Bartlett Decl. ¶ 6, ECF No. 59-1. The Corps emailed Hunton its proposed list of custodians, and Hunton agreed that the Corps could “prioritize” the seven Headquarters custodians. Pl.'s MPSJ Corps, Ex. F, ECF No. 56-6. Hunton “reserve[d] the right to ask that [the Corps] provide documents from additional custodians at a later date.” Pl.'s MPSJ Corps, Ex. F. The Corps asserts-and Hunton does not dispute[20]-that Hunton never requested the inclusion of any additional custodians. 2d Bartlett Decl. ¶ 6. According to the Corps, the email exchange and several phone calls resulted in “the understanding between both parties that if [Hunton] decided they wanted to expand the scope of the search beyond the agreed to records custodians they would so notify [the Corps].” 2d Bartlett Decl. ¶ 6. The Court agrees with this interpretation. While Hunton may not have consented to an unconditional limitation, it did agree that it would inform the Corps if it sought records from additional custodians. Hunton never exercised this right, and thus cannot object to the Corps proceeding with only the original list. Cf. Wilson v. U.S. Dep't of Transp., 730 F.Supp.2d 140, 152 (D.D.C. 2010) (“Having agreed to that interpretation [of his FOIA request], [the plaintiff] cannot now argue that he meant something else.”), aff'd, No. 10-5295, 2010 WL 5479580 (D.C. Cir. Dec. 30, 2010); Kenney v. U.S. Dep't of Justice, 603 F.Supp.2d 184, 189 (D.D.C. 2009) (“Plaintiff cannot allege that the agency failed to produce responsive records, when the records he now identifies fall outside the scope of his appropriately narrowed request.”). Because “[t]he adequacy of the search, . . . is judged by a standard of reasonableness and depends, . . . upon the facts of each case, ” Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994), and the Corps performed a reasonable search here, the Court grants the Corps summary judgment as to the adequacy of its search.

         B. Propriety of the Agencies' Withholdings ...


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