United States District Court, District of Columbia
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff,
U.S. DEPARTMENT OF JUSTICE, Defendant.
TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE.
Citizens for Responsibility and Ethics in Washington
(“CREW”) has brought this suit against Defendant
U.S. Department of Justice (“DOJ”), seeking
records relating to the Attorney General's decision to
recuse himself from certain matters related to the 2016
presidential campaign. DOJ has moved for summary judgment,
arguing that it conducted a reasonable search and produced
the fruits of that search to CREW, thereby fulfilling its
obligations under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552. CREW argues that
DOJ's document search was inadequate, as evidenced by its
failure to uncover documents that CREW expected to receive.
For the reasons set forth below, DOJ's motion will be
March 6, 2017, CREW filed a FOIA request with DOJ's
Office of Information Policy (“OIP”). The request
sought three categories of documents: “(1) all records
containing or reflecting advice and/or recommendations given
to Attorney General Jeff Sessions by his staff regarding
whether or not he should recuse himself in any matters
involving the 2016 presidential campaign; (2) copies of all
calendars for Attorney General Sessions for the period
February 27, 2017 through March 3, 2017; and (3) copies of
all documents effectuating the attorney general's recusal
within the Department of Justice.” ECF No. 19-2 at 20.
Having not yet received the documents it desired, CREW filed
this lawsuit on April 4, 2017, to compel DOJ to produce them.
CREW initially sought a preliminary injunction, see
ECF No. 10, a request that became moot when the parties began
to chart a more cooperative path forward, see ECF
No. 15. In June and July 2017, DOJ released three sets of
documents to CREW and notified CREW that its document
productions were complete. See ECF No. 19-1
(“DOJ Br.”) at 2-3; ECF No. 19-2 at 25-53.
now moved for summary judgment, arguing that it has
undertaken an adequate search and produced all of the
responsive, non-exempt documents it uncovered to CREW.
See DOJ Br. at 1. In support of its motion, DOJ
filed a detailed declaration sworn to by the OIP attorney who
oversaw the search. ECF No. 19-2. OIP consulted with several
different DOJ offices to search for relevant records: the
Office of the Attorney General (“OAG”), the
Departmental Executive Secretariat (which is the
“official records repository for OAG”), the
Justice Management Division (which reviewed the records of
the Departmental Ethics Office), and the Office of the Deputy
Attorney General (which “would perform the functions of
the Attorney General with respect to matters from which he
was recused”). Id. ¶¶ 15, 24, 25.
DOJ's search methodology included discussions with
knowledgeable agency personnel, applying search terms
(including variations on the word “recuse”) to
electronic documents, and manual review of potentially
responsive records. See Id. ¶¶ 15-26.
Based on these efforts, the OIP attorney concludes,
“all files likely to contain relevant documents were
searched.” Id. ¶ 27.
response to CREW's opposition, DOJ filed a supplemental
declaration confirming that it had produced the Attorney
General's entire calendar during the requested timeframe.
See ECF No. 23-1. The declaration further explains
that the Attorney General's schedule often changes during
the day and sometimes differs from his official calendar.
Id. ¶ 12.
must grant summary judgment “if 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. Proc. 56(a). “In ruling on a motion for
summary judgment, a court must draw all justifiable
inferences in the nonmoving party's favor and accept the
nonmoving party's evidence as true.” Light v.
DOJ, 968 F.Supp.2d 11, 22 (D.D.C. 2013)
(citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986)). “A nonmoving party, however,
must establish more than ‘[t]he mere existence of a
scintilla of evidence' in support of its position.”
Id. (alteration in original) (quoting
Anderson, 477 U.S. at 252).
enacted FOIA in 1966 to “pierce the veil of
administrative secrecy and to open agency action to the light
of public scrutiny.” Morley v. CIA, 508 F.3d
1108, 1114 (D.C. Cir. 2007) (quoting Dep't of Air
Force v. Rose, 425 U.S. 352, 361 (1976)). In FOIA cases,
“to obtain summary judgment the agency must show that
it made a good faith effort to conduct a search for the
requested records, using methods which can be reasonably
expected to produce the information requested.”
Mobley v. CIA, 806 F.3d 568, 580 (D.C. Cir. 2015)
(quoting Oglesby v. U.S. Dep't of Army, 920 F.2d
57, 68 (D.C. Cir. 1990)). “The court 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.'” Id.
at 580-81 (quoting Oglesby, 920 F.2d at 68).
“The court applies a ‘reasonableness' test to
determine the ‘adequacy' of a search methodology,
consistent with congressional intent tilting the scale in
favor of disclosure . . . .” Morley, 508 F.3d
at 1114 (quoting Campbell v. DOJ, 164 F.3d 20, 27
(D.C. Cir. 1998)). The agency need not show that it
“actually uncovered every document extant.”
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201
(D.C. Cir. 1991). “Agency affidavits are accorded a
presumption of good faith, which cannot be rebutted by
‘purely speculative claims about the existence and
discoverability of other documents.'” Id.
at 1200 (quoting Ground Saucer Watch, Inc. v. CIA,
692 F.2d 770, 771 (D.C. Cir. 1981)).
does not challenge the validity of DOJ's claimed FOIA
exemptions; therefore, the only issue in this case is whether
DOJ conducted an adequate search and produced all of the
non-exempt documents it found. See ECF No. 20
(“CREW Br.”) at 3; ECF No. 17 at 1. Taken at face
value, DOJ's evidence demonstrates “a good faith
effort to conduct a search for the requested records, using
methods which can be reasonably expected to produce the
information requested.” Mobley, 806 F.3d at
580. CREW has presented no argument finding fault with the
search methodology described by DOJ. CREW nonetheless makes
two arguments for why the results of DOJ's search merit
denying summary judgment.
CREW claims that irregularities in the Attorney General's
calendar for March 2, 2017, mean that DOJ's search must
have been inadequate. See CREW Br. at 7-10. In
particular, the calendars do not account for a press
conference, held at 4:00 p.m. that day, in which the Attorney
General announced his recusal. See Id. at 8; ECF No.
22 ¶ 2. In addition, even though the Attorney General
had reportedly met with advisors to discuss recusal earlier
on March 2, the only such meeting on his calendar that day
was at 5:15 p.m., after his press conference. See
CREW Br. at 3, 8; ECF No. 22 ¶ 3. According to CREW,
these irregularities are simply “inexplicable”
because DOJ possesses a “technology” that makes
its calendars “easily modified with a single
click.” CREW Br. at 8. That technology-a computer
program called Microsoft Outlook-means, in CREW's view,
that it “is simply not credible” that the
Attorney General's calendars “are not updated as
his schedule changes.” Id. at 9. CREW also
notes that the Attorney General's calendar entries are
“permanent records” that should have been
preserved per DOJ retention policies. Id. These
facts, CREW claims, not only mean that DOJ conducted an
inadequate search, but also raise the possibility that other
entries on the Attorney General's calendar “are
incomplete, inaccurate, or were not corrected or updated in
other ways.” Id. at 10.
CREW points to “startling information” that this
lawsuit has uncovered: that “no paper trail exists of
what the attorney general has represented was a careful,
deliberate decision.” Id. at 2. CREW complains
that DOJ, after four months, “ultimately produced only
11 pages of documents, nine of which it had located months
earlier.” Id. at 11. Moreover, none of those
documents contained advice given to the Attorney General
about his possible recusal. See Id. at 10. DOJ's
assertion that such documents do not exist is, according to
CREW, “not credible.” Id.
CREW's arguments boil down to this: DOJ's assertion
of a reasonable search is not to be believed because it
failed to produce the number and type of documents that CREW
expected to receive. Unfortunately for CREW, courts have
rejected such arguments time and time again. “[T]he
adequacy of a FOIA search is generally determined not by the
fruits of the search, but by the appropriateness of the
methods used to carry out the search.” Iturralde v.
Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir.
2003). Moreover, it “is well-established that
speculation is not enough to undermine a finding that an
agency conducted a reasonable search.” Blank Rome
LLP v. Dep't of Air Force, No. 15-cv-1200 (RCL),
2016 WL 5108016, at *7 (D.D.C. Sept. 20, 2016). Thus, courts