United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
G. Sullivan, United States District Court.
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.
Plaintiff's FOIA Request
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."
The Government's Efforts to Respond to Plaintiff's
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.
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.
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
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
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.
Plaintiff's Request for Discovery
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.
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