United States District Court, District of Columbia
N. MCFADDEN, UNITED STATES DISTRICT JUDGE.
Judicial Watch, Inc. ("Judicial Watch") brought an
action against the United States Department of State
("State Department") under the Freedom of
Information Act ("FOIA"), 5 U.S.C. § 552
et seq., seeking the production of documents related
to a determination that certain emails of former Secretary of
State Hillary Clinton are not official State Department
records. Pending before the Court is the State
Department's motion for summary judgment and Judicial
Watch's cross-motion for summary judgment. Having
confirmed that jurisdiction and venue is proper in this
Court,  and upon consideration of the pleadings,
relevant law, and related legal memoranda in opposition and
in support, I find that no genuine issue of material fact
exists and that the State Department met its obligations with
respect to Judicial Watch's FOIA request. Accordingly,
the State Department's motion will be granted and
Judicial Watch's motion will be denied.
Watch is a not-for-profit organization that seeks to promote
transparency, integrity, and accountability in government and
regularly submits FOIA requests to execute its mission.
Compl. ¶ 3, In September 2016, Judicial Watch submitted
a FOIA request to the State Department seeking "[a]ny
and all records concerning, regarding or relating to the
determination by the Office of Legal Counsel that the emails
of former Secretary of State Hillary Clinton dated
January-April 2009 would not be considered official State
Department Records." Memo, of P. & A. in Support of
Def.'s Mot. for Summary J. Ex. 1. The request attached a
Federal Bureau of Investigation ("FBI") Form 302
dated August 18, 2015 that summarized an interview conducted
by the FBI with an employee of the Office of Information
Programs and Services ("IPS"), an office within the
State Department. See Id. at 4-8. The identity of
the employee had previously been redacted pursuant to FOIA
exemptions (B)(6) and (B)(7)(c), which protects personal
identifying information. See Id. The Form 302 stated
that "IPS had to wait on the Office of Legal Counsel to
provide an official determination as to whether the emails
would be considered official STATE records. At some point,
the determination was made that the emails would not be
considered official STATE records." Id. at 2
(capitalization in original). These two sentences formed the
basis for Judicial Watch's FOIA request.
State Department reviewed Judicial Watch's request and
determined that the offices reasonably likely to have
responsive records were the Office of the Legal Adviser and
IPS. Def.'s Statement of Material Facts Not In Dispute
("SOMF") ¶ 8. Within the Office of the Legal
Adviser, an employee with relevant knowledge of the FOIA
request and the office's systems determined that no
centralized electronic or paper files were reasonably likely
to have responsive records. Id. at ¶ 9. The
employee also identified the current and former Acting Legal
Adviser as individuals reasonably likely to have responsive
records and conducted searches of their unclassified and
classified email records. Id. at ¶¶9-11.
In addition, the employee searched the archived personal
drive materials of the former Acting Legal Adviser.
Id. at ¶ 11. No responsive records were located
pursuant to these searches, and other officials in the Office
of the Legal Adviser's Front Office and Office of the
Legal Adviser, Management confirmed that they were not
reasonably likely to have records responsive to the FOIA
request. Id. at ¶¶ 10-12.
IPS, an employee with relevant knowledge of the FOIA request
and the office's systems determined that no centralized
electronic or paper files, or classified records systems,
were reasonably likely to have responsive records.
Id. at ¶ 13. The employee further identified
four individuals as reasonably likely to have responsive
records: the former IPS Director, the former Deputy Assistant
Secretary for Global Information Systems, the current IPS
Deputy Director, and the current IPS Director. Id.
IPS then conducted searches of the unclassified email or
archived email files, certain folders and sub-folders, or
archived personal drive materials of the former IPS Director
and former Deputy Assistant Secretary for Global Information
Systems. Id. at ¶¶ 14-15. The current IPS
Deputy Director confirmed that he was not reasonably likely
to have responsive records, and the current IPS Director
searched and reviewed records in certain email archives he
determined that were reasonably likely to have responsive
records. Id. at ¶¶ 16-17. No responsive
records were located through these searches. Id., at
¶¶ 14-16, Last, IPS conducted a search using its
Retired Records Inventory Management System to identify any
potentially responsive paper files, pursuant to which no
responsive records were identified. Id. at
requires federal agencies to "disclose information to
the public upon reasonable request unless the records at
issue fall within specifically delineated exemptions."
Judicial Watch, Inc. v. FBI, 522 F.3d 364, 365-66
(D.C. Cir. 2008); see also 5 U.S.C. §
552(a)(3)(A) (records sought must be "reasonably
describe[d]"). The "vast majority" of FOIA
cases are decided on motions for summary judgment. See
Bray ton v. Office of U.S. Trade Rep., 641 F.3d 521, 527
(D.C. Cir. 2011). To prevail on summary judgment, the movant
must show an absence of a genuine issue of material fact.
Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986); Celotex Corp v.
Catrett, 477 U.S. 317, 322 (1986). In FOIA cases, an
agency must demonstrate that no material facts are in
dispute, that it has conducted an adequate search for
responsive records, and that each responsive record has
either been produced to the requestor or is exempt from
disclosure. See Weisberg v. U.S. Dep 't of Justice,
621 F.2d 365; 368 (D.C. Cir. 1980).
agency's search is adequate if the agency has conducted
"a good faith effort to  search for the requested
records, using methods which can be reasonably expected to
produce the information requested." Oglesby v. U.S.
Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990).
In other words, the agency must "demonstrate beyond
material doubt that its search was reasonably calculated to
uncover all relevant documents." Nation Magazine v.
U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995).
However, the touchstone of the analysis is the reasonableness
of the agency's search, not the records produced. See
Hodge v. FBI, 703 F.3d 575, 580 (D.C. Cir. 2013)
("the adequacy of a search is determined not by the
fruits of the search, but by the appropriateness of [its]
methods"); Mobley v. CIA, 806 F.3d 568, 583
(D.C. Cir. 2015) ("a search, under FOIA, is not
unreasonable simply because it fails to produce all relevant
material."). An agency has discretion to craft its
search to meet this standard, and do not have to search every
system if additional searches are unlikely to produce any
marginal return. See Campbell v. U.S. Dep't of
Justice, 164 F.3d 20, 28 (D.C. Cir. 1998). Searching for
records requires "both systemic and case-specific
exercises of discretion and administrative judgment and
expertise, " and is "hardly an area in which the
courts should attempt to micro-manage the executive
branch." Schrecker v. Dep't of Justice, 349
F.3d 657, 662 (D.C. Cir. 2003). To demonstrate reasonableness
of its search, an agency can submit 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." Oglesby, 920 F.2d at 68. Agency
declarations are given "a presumption of good faith,
which cannot be rebutted by 'purely speculative claims
about the existence and discoverability of other
documents.'" SafeCard Servs. Inc. v.
S.E.C., 926 F.2d 1197, 1201 (D.C. Cir. 1991).
State Department's search was "reasonably calculated
to uncover all relevant documents" responsive to
Judicial Watch's FOIA request. See Nation
Magazine, 71 F.3d at 890. As an initial matter, although
the request sought records relating to a determination
reportedly made by the "Office of Legal Counsel, "
mirroring the language used in the FBI's completed Form
302, the State Department liberally interpreted the request
to mean its Office of the Legal Adviser as it does not have
an "Office of Legal Counsel." Mem. of P. & A.
in Support of Def.'s Mot. for Summary J. 7. Given that the
Form 302 was prepared by a FBI agent who was, in turn,
summarizing the interviewee's statements, it is not clear
whether the citation to the "Office of Legal
Counsel" is a typo on the agent's part, a
misunderstanding on the agent's part, a misunderstanding
on the interviewee's part, or some combination thereof.
Therefore, the State Department appropriately interpreted the
request to mean a determination either by its Office of the
Legal Adviser or by OLC. See Id. Ex. 3 ¶ 4 n.
State Department then appropriately crafted searches
commensurate with the scope and nature of Judicial
Watch's request. The State Department determined that,
based on the details of the request and in consideration of
the functions of its component offices, the offices
reasonably likely to have responsive records were the Office
of the Legal Adviser and IPS, the office in which the
interviewee worked. Def.'s SOMF ¶ 8. For each of
these offices, an employee with requisite knowledge of the
FOIA request and the office's systems determined: (1)
whether any of the office's systems were reasonably
likely to contain responsive documents, and (2) which
individuals within the office were reasonably likely to have
responsive documents. Id. at ¶¶ 9, 13.
Searches tailored to the request, both in subject matter and
date range, were conducted of the various sources of data
identified as potentially containing responsive information,
including unclassified email records, unclassified email
archive files, classified email records, and archived
personal drive materials. Id. at ¶¶ 10-17.
These searches were further modified or refined as
necessary-for example, the State Department not only searched
the emails of the former IPS Director using search terms, but
also conducted a manual review of emails in certain folders
and sub-folders that, based on their subject matter title,
were deemed reasonably likely to contain responsive records.
See Def.'s SOMF ¶ 14. Within IPS, an
employee further identified, through the use of the
office's Retired Records Inventory Management System, two
archived boxes of potentially responsive documents, which
were manually reviewed. Id. at ¶¶ 18-19.
responsive records were identified throughout all of the
State Department's searches does not impugn the
appropriateness of the search methodology. See
Hodge, 703 F.3d at 580 ("the adequacy of a search
is determined not by the fruits of the search, but by the
appropriateness of [its] methods"). Indeed, Judicial
Watch does not challenge any of the specific determinations
made or the searches conducted by the State Department, other
than to characterize the searches as "garden
variety". See Pl.'s Response to Def.'s
SOMF; Pl.'s Mem. of P. & A. in Opp. to Def.'s
Mot. for Summary J. and in Support of Pl.'s Cross-Mot.
for Summary J. 3. Rather, Judicial Watch asserts that a
reasonably calculated search in response to its request
necessarily should have included asking the IPS interviewee
whether the requested documents exist, and where they may be
located. Id. However, as demonstrated above, the
State Department's searches were anything but rote: they
were designed and executed in a manner reasonably expected to
produce the information requested. In particular, the State
Department was aware of the identity of the interviewee, and
its searches included a search of the files and accounts of
the interviewee. Mem. of P. & A. in Opp. to Pl.'s
Mot. for Summary J and in Reply in Support of Def.'s Mot.
for Summary J. 4-5 (citing the Second Declaration of Eric F.
Stein). Because agency declarations are given a presumption
of good faith, see SafeCard, 926 F.2d at 1201, and
there is no evidence in the record indicating the contrary,
there is no reason to disbelieve that the agency considered
and incorporated the source of the interview in its search
Judicial Watch's suggestion of simply asking the
interviewee about the potential existence and location of the
documents appears plausible on its face-indeed, likely much
easier than the laborious efforts the State Department
actually utilized-to do so would have placed the State
Department in a quandary. Judicial Watch has already narrowed
the list of potential interviewees to three, one of whom no
longer works for the State Department. See Pl.'s
Reply in Support of Cross-Mot. for Summary J. 2-3. Depending
upon whether the interviewee is in fact the former employee,
the requisite declaration describing the efforts taken by the
State Department would inevitably have either identified the
interviewee or narrowed the list to two. FOIA does not
require-and in fact expressly exempts-disclosure of the
interviewee's identity; see 5 U.S.C.
§§ 552(B)(6), 552(B)(7)(c); and this litigation
should not be used as a back-door means of discerning the
same. Thus, the agency's search of the interviewee's
documents, coupled with the other steps taken by the State
Department in response to Judicial Watch's request,
reflects a search ...