United States District Court, District of Columbia
CHRISTOPHER R. COOPER, United States District Judge
Bagwell, an alumnus of Pennsylvania State University, filed a
request under the Freedom of Information Act
(“FOIA”) with the Executive Office for United
States Attorneys (“EOUSA”) seeking records
related to investigations into allegations of child sexual
abuse on the University's campus. The parties have now
filed cross-motions for summary judgment concerning three
aspects of EOUSA's response: (1) its search of email
accounts in the U.S. Attorney's Office for the Middle
District of Pennsylvania, which oversaw a criminal
investigation into the allegations; (2) its referral of
records to other agencies for review; and (3) its withholding
of records under FOIA Exemptions 5 and 7(A). The Court
concludes-for the second time in this case-that the
Department of Justice has failed to carry its burden of
detailing an adequate search. It also finds that the
Department has improperly withheld a set of records that it
referred to the Department of Education and has inadequately
justified its withholding of a set of Pennsylvania state
grand jury materials under Exemption 7(A). However, the Court
will sustain all but one of the Department's withholdings
under Exemption 5. The Court will, accordingly, grant and
deny both motions in part.
case has been here before, the Court will only briefly
recount the relevant factual background. Both the U.S.
Attorney's Office for the Middle District of Pennsylvania
(the “U.S. Attorney's Office”) and the
Pennsylvania Attorney General's Office oversaw criminal
investigations into allegations of child sexual abuse by
former Penn State assistant football coach Jerry Sandusky. In
addition, former FBI Director Louis Freeh and his law firm
were retained by Penn State's Board of Trustees to
conduct an internal investigation into the Sandusky matter.
Seeking material related to those investigations, in April
2014, Plaintiff Ryan Bagwell filed a FOIA request with EOUSA
for “any and all records of investigations between
November 1, 2011 and [April 30, 2014] that pertain to
allegations of child sexual abuse that occurred on the campus
of The Pennsylvania State University.” Compl. ¶ 5.
When EOUSA failed to timely respond, Bagwell filed suit
against EOUSA's parent agency, the Department of Justice.
the suit was filed, EOUSA produced 517 pages of records to
Bagwell and withheld another 104 pages. The parties then
filed cross-motions for summary judgment, with Bagwell
challenging the adequacy of the Department's search and
its withholding of documents. The Court concluded that the
Department had not provided enough information to allow for
resolution of the motions at that juncture. Bagwell v.
U.S. Dep't of Justice, 2015 WL 9272836, at *1
(D.D.C. Dec. 18, 2015).
Bagwell's challenge to the adequacy of the search, the
Court identified two concerns it had regarding the search
performed. First, it was unclear whether or how the
Department had searched the U.S. Attorney's Office email
system for responsive emails. Id. at *2. Second,
even though former Director Freeh had made public remarks
indicating that his firm had communicated with the U.S.
Attorney's Office regarding the investigation, the
Department's search had not uncovered any such
communications or related documents. Id. Because the
Department's supporting declarations failed to address
these concerns, the Court was left “in substantial
doubt as to the sufficiency of the search.”
Id. Similarly, the Court held that the
Department's Vaughn index and declarations were
not adequately detailed to justify the withholdings it had
made. Id. at *4-5. The Court therefore deferred
resolution of the cross-motions and directed the Department
to “conduct any necessary additional searches, and file
a supplemental memorandum in support of its motion for
summary judgment, including additional affidavits and a
revised Vaughn index.” Id. at *5.
that Order, the Department performed a second search,
including one of the U.S. Attorney's Office email system.
To conduct that search, the Department identified six staff
positions that were most likely to have potentially
responsive emails in their email accounts: the U.S. Attorney,
the First Assistant U.S. Attorney, the Criminal Chief, the
Deputy Criminal Chief, Assistant U.S. Attorney One, and
Assistant U.S. Attorney Two. Second Simpson Decl. ¶ 11.
It then searched these accounts for emails (and attachments)
during the relevant time period containing four search terms:
“Pennsylvania State University, ” “Child
sexual abuse and Pennsylvania State University, ”
“Sandusky, ” and “Freeh.”
Id. ¶ 12. Upon completion of its search, the
Department produced an additional set of documents to
Bagwell, while also making further withholdings.
the second round of productions, the Department renewed its
motion for summary judgment, filing supplemental declarations
and Vaughn indices. See Def.'s Mem. P.
& A. Supp. Renewed Mot. Summ. J. (“Def.'s
MSJ”). Bagwell filed a cross-motion for summary
judgment, again challenging the adequacy of the search and
the Department's withholdings. See Pl.'s Mem. P.
& A. Opp'n Def.'s Mot. Summ. J. & Supp.
Pl.'s Cross-Mot. Summ. J. (“Pl.'s MSJ”).
The Court held a hearing on the cross-motions on February 28,
2018. Based on the arguments presented in the briefing and at
the hearing, the Court will grant in part and deny in part
both motions, as detailed below.
judgment is appropriately granted if the moving party shows
that there are no genuine issues of material fact and that
they are entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). 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). The Court
can award summary judgment to an agency if it “proves
that it has fully discharged its obligations under FOIA,
after the underlying facts and inferences to be drawn from
them are construed in the light most favorable to the FOIA
requester.” Tushnet v. ICE, 246 F.Supp.3d 422,
431 (D.D.C. 2017).
first such obligation an agency must fulfill is to conduct an
adequate search for the requested records. See, e.g.,
Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326
(D.C. Cir. 1999). For a search to be adequate, an agency must
show “beyond material doubt that its search was
reasonably calculated to uncover all relevant
documents.” Ancient Coin Collectors Guild v. U.S.
Dep't of State, 641 F.3d 504, 514 (D.C. Cir. 2011)
(quotation omitted). In evaluating the adequacy of a search,
the Court may rely on sufficiently detailed affidavits or
declarations submitted by the agency that set forth the
search terms and the type of search performed. See
Valencia-Lucena, 180 F.3d at 326. Agency FOIA
declarations carry “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. SEC, 926 F.2d 1197, 1200
(D.C. Cir. 1991) (quotation marks omitted).
addition, an agency must adequately justify any withholdings
it makes under FOIA's exemptions from disclosure. Because
FOIA “seeks ‘to establish a general philosophy of
full agency disclosure unless information is exempted under
clearly delineated statutory language, '” NLRB
v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975)
(citation omitted), any exemption from disclosure is
construed narrowly and the agency bears the burden of
establishing that every withholding is justified. See,
e.g., DiBacco v. U.S. Army, 795 F.3d 178, 183
(D.C. Cir. 2015).
levels three main challenges in his renewed motion for
summary judgment. First, he once again challenges the
adequacy of the Department's searches. Second, he
contends that the Department's referral of a set of
records to other agencies constitutes an unlawful
withholding. And third, he challenges the Department's
withholding of documents, primarily pursuant to Exemption
7(A) and Exemption 5.
Court finds that that the Department's search efforts
were inadequate because the search terms used were facially
under-inclusive and thereby not reasonably calculated to
uncover all responsive materials. As to the referred records,
the Court finds that the records referred to the Department
of Education constitute improperly withheld records. Finally,
the Court finds that the Department has failed to adequately
justify the withholding of certain Pennsylvania state grand
jury materials under Exemption 7(A) but that it has
adequately supported most of its other withholdings.
The adequacy of the search
Bagwell claims the Department's search efforts are still
inadequate, despite its supplemental searches and
declarations. He does not dispute that the Department
searched for responsive emails, as the Court requested, nor
does he argue that more or different email accounts should
have been searched. Rather, Bagwell points to three specific
indications of an inadequate search.
Bagwell claims that the Department produced only two emails
with employees of former Director Freeh's law firm, which
he argues is a “positive [indication] of overlooked
materials.” Pl.'s MSJ at 9-10. He relies on
Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321,
326 (D.C. Cir. 1999), for this proposition, but that case is
inapposite. In Valencia-Lucena, the search was
deemed inadequate because the government failed to search
“all places it knew likely to turn up the information
requested.” Id. at 327 (internal quotation
marks omitted). By contrast, Bagwell does not identify any
additional places the Department should have
searched, such as other email accounts. Furthermore, based on
tallying up the numbers provided in the second declaration
from D. Brian Simpson, an Assistant U.S. Attorney for the
Middle District of Pennsylvania, the search term
“Freeh” turned up over 300 emails across the six
accounts searched. See Second Simpson Decl. ¶
17. Given these results, the Court is satisfied that any
responsive email between employees of Freeh's law firm
and the U.S. Attorney's Office relating to the
investigation would have been uncovered by the search term
“Freeh, ” making it adequate in this regard.
next contends the four search terms used to conduct the
search were not reasonably selected to capture responsive
documents. Pl.'s MSJ at 9. Bagwell argues that
the search term “Pennsylvania State University”
alone is insufficient because it would not pick up documents
that contained only “PSU” or “Penn State,
” names commonly used to refer to the University.
Id. The Court agrees. As Bagwell notes, in common
conversation the University is more likely to be referred to
as “Penn State” or “PSU, ” making it
reasonable to conclude that emails concerning the various
investigations would use one of these two terms rather than
the full name of the University. Indeed, in its own pleadings
and Vaughn Index, the Department itself uses the
terms “PSU” and “Penn State, ” rather
than the University's full name. At the hearing, counsel
for the Department was unable to provide a sufficient
explanation for why the Department used the full name of the
University alone as a search term. Because it is likely that
emails concerning the investigation would use
“PSU” or “Penn State” rather than the
full name of the University, the Department's search was
not reasonably calculated to find all responsive emails.
Cf. Tushnet, 246 F.Supp.3d at 434-35 (expressing
concern over selection of terms that was “facially
lacking, with some [searches] not even including terms
explicitly called out in [the] request.”).
the facial under-inclusivity of the term “Pennsylvania
Search University, ” the Court finds that the
Department has yet to show “beyond material doubt that
its search was reasonably calculated to uncover all relevant
documents.” Ancient Coin Collectors Guild, 641
F.3d at 514 (quotation marks omitted). The Court will
therefore require the Department to conduct a further
adequate search of the U.S. Attorney's Office emails.
However, before doing so, the Court will order the parties to
meet and confer within fourteen days and engage in a good
faith effort to arrive at a reasonably limited set of
additional search terms that rectify the under-inclusivity of
the “Pennsylvania State University” search term
without being too over-inclusive.If the parties cannot reach
agreement, they shall file a joint submission setting forth
their respective terms and their positions on all ...