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Cole v. Rochford

United States District Court, District of Columbia

January 3, 2018

DAVID COLE, Plaintiff,
v.
KENT B. ROCHFORD, [1] et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Emmet G. Sullivan, United States District Court.

         Plaintiff David Cole seeks records from the Federal Emergency Management Agency ("FEMA") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Although Mr. Cole submitted his request in May 2011, FEMA failed to produce any documents until April 2016, approximately five months after Mr. Cole filed this lawsuit. Since that time, FEMA has produced responsive records and a Vaughn index, and the parties have made efforts to narrow the areas of dispute remaining between them. Unable to make further progress, but before either party had filed a motion for summary judgment, Mr. Cole filed the instant motion for leave to take limited discovery. See Pl.'s Mot. for Discovery ("Pl.'s Mot."), ECF No. 15. As explained more fully below, Mr. Cole's motion for discovery is denied.

         I. BACKGROUND

         A. Plaintiff's FOIA Request

         On May 20, 2011, plaintiff David Cole submitted a FOIA request to FEMA for certain documents related to the collapse of World Trade Center buildings on September 11, 2001. See Compl. ¶ 9, ECF No. 1. Specifically, Mr. Cole requested "all background or raw data used for the FEMA 403 Building Performance Study" regarding the World Trade Center buildings, "including photographs, video, audio, field notes, memoranda, lab samples, and lab results." Id.

         B. The Government's Efforts to Respond to Plaintiff's FOIA Request

         FEMA acknowledged receipt of Mr. Cole's request six days after receiving it, and the agency advised Mr. Cole that it had "queried the appropriate component of FEMA for responsive records." See Pl.'s Mot. Ex. 9, ECF No. 15-14. On December 23, 2011, FEMA sent Mr. Cole a letter explaining that, while it had been unable to locate any responsive records, it understood that the information sought by Mr. Cole was "under the purview of the National Institute of Standards and Technology ("NIST")." Pl.'s Mot. Ex. 6, ECF No. 15-11. FEMA therefore transferred Mr. Cole's FOIA request to NIST for processing. Id. On June 29, 2012, NIST confirmed that it had searched for records responsive to Mr. Cole's request and had determined that 3, 789 pages of records were releasable in whole or in part. Pl.'s Mot. Ex. 7, ECF No. 15-12.

         On August 30, 2012, FEMA notified Mr. Cole that it had approximately 490, 000 pages of boxed records pertaining to the World Trade Center in storage at the National Archives and Records Administration ("NARA"). Pl.'s Mot. Ex. 8, ECF No. 15-13. Although the inventory of those records did "not readily indicate any additional responsive material, " FEMA explained that Mr. Cole could "submit a new FOIA request if [he] was interested in searches being conducted on these records." Id.

         Having not received any documents from either FEMA or NIST, Mr. Cole filed this lawsuit on November 12, 2015. See Compl. ¶ 23, ECF No. 1; Pl.'s Mot. Ex. 5 ¶ 8, ECF 15-10. FEMA finally produced documents in April 2016, almost five years after Mr. Cole submitted his FOIA request. See Second Joint Status Report at 1 (June 7, 2016), ECF No. 9. Mr. Cole reviewed the records he received and, on June 7, 2017, sent an email to defendants' counsel identifying "a preliminary list of responsive records, and in some cases individually identifiable responsive records, not provided" to him in FEMA's production. Pl.'s Mot. Ex. 1 at 1, ECF No. 15-3. For example, Mr. Cole noted that a document produced by FEMA "show[ed] that a set of WTC7 drawings was sent . . . to FEMA contractor Gilsanz Murray Steficek" but that those drawings were not produced by FEMA. Id. Mr. Cole also pointed to an inventory of records transferred from FEMA to NIST which listed CDs and drawings that he believed were responsive to his FOIA request but had not been produced. Id. at 1-2.

         The government responded to Mr. Cole's email on August 23, 2016. See Pl.'s Mot. Ex. 2, ECF No. 15-7. With respect to the CDs and video Mr. Cole had specifically inquired about in his June email, FEMA explained that it had been "unable to locate any additional drawings" in its search for responsive records. Id. at 1 (emphasis added). With respect to drawings and other documents requested by Mr. Cole, FEMA explained that it had "been unable to locate" those records "in a search of the materials in the Disclosure Branch, where the documents returned by NIST have been retained because of Mr. Cole's FOIA requests." Id. at 1-2. FEMA further stated that the requested materials "may be available in [FEMA Region 2's] Regional off site archives" and that the agency would be "willing to send two of its personnel to the warehouse to perform a reasonable search" for the records. Id.

         Mr. Cole agreed that FEMA should conduct a search of its Region 2 archives and proposed that, if the records were not found, FEMA should "explain how it could be that these records . . . cannot be found, and state what happened to them." Pl.'s Mot. Ex. 3, ECF No. 15-8. Approximately six weeks later, FEMA responded that, "[a]fter consulting with the [subject-matter expert], it was determined that there is no FEMA Region 2 archive and the responsive records were not sent to the NARA archives." See Pl.'s Mot. Ex. 4 at 2-4, ECF No. 15-9. FEMA explained that this was its "final response" and that no additional records would be produced. Id. at 1.

         C. Plaintiff's Request for Discovery

         On March 27, 2017, Mr. Cole filed the instant motion for leave to conduct limited discovery. See Pl.'s Mot., ECF No. 15. Mr. Cole argues that discovery "is appropriate in a FOIA action when it is apparent that the Defendant agency had not provided complete disclosure of the records responsive to the plaintiff's FOIA request." Pl.'s Mem. in Supp. of Pl.'s Mot. at 2, ECF No. 15-1. According to Mr. Cole, the Court should allow discovery "regarding the nature and scope of Defendants' records searches (or lack thereof)" here because Mr. Cole has "presented evidence that raises serious doubt about . . . whether Defendants have made a complete disclosure and conducted an adequate search." Id. at 8.

         Mr. Cole further argues that FEMA's responses to his FOIA request "raise serious questions regarding whether Defendants' search for and production of documents . . . has been in good faith." Id. at 10. For example, Mr. Cole points to FEMA's "completely off point" statement that it was unable to locate "additional drawings" in response to Mr. Cole's inquiry about CDs and a video. Id. In addition, Mr. Cole asserts that FEMA's responses raise questions as to whether it "engaged in blatantly inadequate search efforts" and whether it had "complied with ...


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