United States District Court, District of Columbia
A. HOWELL CHIEF JUDGE.
plaintiff, American Oversight (“AO”), a
“nonpartisan organization committed to the promotion of
transparency in government, ” Compl. ¶ 5, ECF No.
1, challenges the response of the General Services
Administration (“GSA”), to a request for,
inter alia, records reflecting communications
between GSA and any member of the presidential transition
team (“PTT”) for then-president-elect Donald
Trump, id. ¶ 19, which request was submitted
pursuant to the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552. The parties have
now cross-moved for summary judgment. Def.'s Mot. Summ.
J. (“Def.'s Mot.”), ECF No. 12; Pl.'s
Cross-Mot. Summ. J. & Opp'n Def.'s Mot.
(“Pl.'s Cross-Mot.”), ECF No. 14. For the
reasons set forth below, summary judgment is granted to the
plaintiff with respect to GSA's failure to produce
non-exempt attachments to responsive emails, GSA's
withholding, under Exemption 5, of information shared with
the PTT or other non-federal agency entities, and GSA's
withholdings under FOIA's Exemption 6, and the
parties' cross-motions for summary judgment are denied,
without prejudice, with respect to the sufficiency of
GSA's search and GSA's withholdings under FOIA's
2013, GSA entered into a contract with the Trump Organization
to develop and lease the Old Post Office building in
Washington, D.C., as Trump International Hotel. Compl.
¶¶ 7-8. The lease stipulated that “[n]o . . .
elected official of the Government of the United States . . .
shall be admitted to any share or part of this Lease, or to
any benefit that may arise therefrom, ” id.
¶ 9, which provision raised concerns from
“[e]thics experts and members of Congress …
regarding the propriety of President Trump's continued
financial interest in the Trump International Hotel, ”
id. ¶ 10. Prompted by these concerns, the
plaintiff, filed several FOIA requests for records related to
GSA's lease of the Old Post Office building and contacts
between GSA and the PTT, id. ¶¶ 15, 19,
23, including the FOIA request, dated April 5, 2017, at issue
in this case for “[a]ll records reflecting
communications (including emails, telephone call logs,
calendar entries, meeting agendas, or any other records
reflecting communications) between GSA and any member of the
Trump transition team” from November 8, 2016 through
January 20, 2017, that is, from the 2016 election through
President Trump's inauguration, id. ¶
19.GSA's “initial search . . .
returned over 61, 000 documents, ” Def.'s Statement
of Material Facts As To Which There Is No Genuine Issue
(“Def.'s SMF”) ¶ 5, ECF No. 12 at 3-6
(citing Suppl. Decl. of Travis Lewis, GSA's Director of
the FOIA and Records Manager Division (“Lewis
Decl.”) ¶ 9, ECF No. 13, replacing earlier version
of declaration, id. at 1 n.1), or “over 100,
000 emails, ” Def.'s Mot., Ex. D at 6, Email from
GSA's Duane Smith to AO's Cerissa Cafasso (July 24,
2017), ECF No. 12-5.
light of the significant number of potentially responsive
documents, the parties conferred about the scope of the FOIA
request, and on July 26, 2017, nearly one month after the
plaintiff initiated the instant case, the plaintiff narrowed
the scope by providing GSA with search terms and locations to
be searched and specifying the names of individuals who
potentially had responsive records. Def.'s SMF ¶ 5
(citing Lewis Decl. ¶ 9); Pl.'s Statement of
Material Facts as to Which There is No Genuine Issue
(“Pl.'s SMF”) at 2 ¶ 5, ECF No. 14-4.
Specifically, the plaintiff described as
“correct” GSA's search scope as covering
“all records reflecting communications, ”
including “emails, telephone call logs, calendar
entries, meeting agendas, or any other records reflecting
communications between GSA and Casey Coleman, Charles James,
Robert Mackichan, Richard Milone, George Nesterczuk, Kurt
Stout, Robert Tompkins, Donald Williams (the GSA landing team
for the Trump Administration).” Def.'s Mot., Ex. D at 1,
Email from AO's Cerissa Cafasso to GSA's Duane Smith
(July 26, 2017). GSA acknowledged that these eight named
individuals were “listed on the greatagain.gov
[s]ite” of the PTT, and “are those who were the
members of the Agency Transition team in its entirety.”
Id., Email from GSA's Duane Smith to AO's
Cerissa Cafasso (July 26, 2017). In addition, GSA agreed to
search for “all records reflecting communications
(including emails, telephone call logs, calendar entries,
meeting agendas, or any other records reflecting
communications) between any member of the Trump transition
team and” an enumerated list of twenty-two GSA
employees “that contain any of the following [nine]
terms: OPO, Post Office, Hotel, Trump International, THI,
Ivanka, 1100 Penn, 1100 Pennsylvania, or Lease.”
Id. Ultimately, however, GSA apparently searched for
only seven terms, combining “Post Office” and
“Hotel” into “Post Office Hotel, ”
and did not search for “Ivanka” at all. Lewis
Decl. ¶ 10.
obtaining the plaintiff's clarified parameters, GSA's
Office of the Chief Information Officer (“OCIO”)
then conducted a search following GSA's
“practice” for requests containing “the
word ‘communication(s)'” by
“search[ing] each employee's emails, calendar logs
and shared drive files for responsive records by using the
key words searches and dates as requested by the
requester.” Id. ¶ 11. GSA's records
retention policy requires “all agency employee
communications” to be “stored via email /or on
the shared drive.” Id.
searches of “emails, calendar logs and shared drive
files, ” id., identified 3, 925 pages, of
which GSA's Director of FOIA and Records Management
Division determined only 3, 730 pages were actually
responsive to the plaintiff's request, Def.'s SMF
¶ 11 (citing Lewis Decl. ¶ 12), with the remaining
195 pages consisting of nonresponsive “news articles
and fliers, ” Lewis Decl. ¶ 12. GSA produced those
3, 730 pages to the plaintiff on September 1, 2017, with
redactions “pursuant to FOIA Exemptions 4, 5, and
6.” Def.'s SMF ¶ 12 (citing Lewis Decl. ¶
13); see also Def.'s Mot., Ex. F, Letter from
GSA's Travis Lewis to AO's Austin Evers (Sept. 1,
2017), ECF No. 12-7. Despite the extensive redactions, which
the plaintiff characterizes as appearing on “at least
3, 721” of the produced pages, Pl.'s Mem Supp.
Pl.'s Cross-Mot & Opp'n Def.'s Mot.
(“Pl.'s Opp'n”) at 1, ECF No. 14-1, GSA
originally provided a two-page Vaughn Index,
see Def.'s Mot, Ex. A, Vaughn Index,
ECF No. 12-2. After the plaintiff challenged the sufficiency
of the original index, GSA provided a lengthier Corrected
Revised Vaughn Index (“Revised
Vaughn”), ECF No. 27-1.
point, the plaintiff has withdrawn any challenge to
withholdings under Exemption 4, see Pl.'s Reply
Supp. Pl.'s Cross-Mot. (“Pl.'s Reply”) at
1 n.1, ECF No. 28, and GSA has “withdrawn all
withholdings based on the deliberative process privilege and
the attorney work-product doctrine, ” and “relies
exclusively on the attorney-client privilege” under
Exemption 5, Def.'s Reply Supp. Def.'s Mot. &
Opp'n Pl.'s Cross-Mot (“Def.'s
Opp'n”) at 9, ECF No. 24. Specifically, GSA relies
on the attorney-client privilege and Exemption 5 to withhold
material on pages 1-80, 129-70, 171-683, 703-2034-or nearly
2, 000 pages of the responsive “[c]ommunications
between GSA and the Presidential Transition
Team”-explaining that the material reflects
“[p]ortions of internal communications sent by GSA
attorneys to GSA employees providing legal opinions and
guidance based on questions and information provided by GSA
employees.” Revised Vaughn at 1, 4-6. After
GSA's briefing was complete, GSA produced five pages with
material previously withheld under Exemption 5. Pl.'s
Reply Supp. Pl.'s Cross-Mot., Attach. 1, Second Decl. of
Cerissa Cafasso, Attorney, AO (Feb. 20, 2018) (“Second
Cafasso Decl.”) ¶ 6, ECF No. 28-1. The plaintiff
notes, however, that twenty-nine of GSA's Exemption 5
redactions remain without explanation in the Revised
Vaughn Index. Id.
also withheld, under Exemption 6, the “names and
contact information for non-federal employees, ” based
on the agency's “determin[ation] that any public
interest in the release of the names of private individuals
here was not outweighed by the disclosure of that
information.” Revised Vaughn at 1-10. In
response to the Court's inquiry about this justification
for Exemption 6 withholdings, in light of the fact that PTT
members' names were made publicly available on a PTT
website, see Minute Order (Apr. 9, 2018), GSA
submitted a supplemental affidavit clarifying that the PTT
members' names were redacted simply because they were not
federal employees, Second Decl. of Travis Lewis, GSA's
Director of the FOIA and Records Manager Division
(“Second Lewis Decl.”) (Apr. 11, 2018) ¶ 4,
ECF No. 29-1.
GSA was granted six extensions to complete its briefing,
see GSA's motions for time extensions, ECF Nos.
16-23, the parties' cross-motions for summary judgment
are now ripe for review.
Rule of Civil Procedure 56 provides that summary judgment
shall be granted “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.P.
56(a). “In FOIA cases, ‘summary judgment may be
granted on the basis of agency affidavits if they contain
reasonable specificity of detail rather than merely
conclusory statements, and if they are not called into
question by contradictory evidence in the record or by
evidence of agency bad faith.'” Judicial Watch,
Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir.
2013) (quoting Consumer Fed'n of Am. v. U.S.
Dep't of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006))
(alteration adopted); see also Students Against Genocide
v. U.S. Dep't of State, 257 F.3d 828, 833 (D.C. Cir.
2001) (“[A]n agency is entitled to summary judgment if
no material facts are in dispute and if it demonstrates
‘that each document that falls within the class
requested either has been produced or is wholly exempt from
the Act's inspection requirements.'” (quoting
Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)
(alteration adopted))). Indeed, the D.C. Circuit has observed
that “the vast majority of FOIA cases can be resolved
on summary judgment.” Brayton v. Office of the U.S.
Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011).
FOIA was enacted “to promote the ‘broad
disclosure of Government records' by generally requiring
federal agencies to make their records available to the
public on request.” DiBacco v. U.S. Army, 795
F.3d 178, 183 (D.C. Cir. 2015) (quoting U.S. Dep't of
Justice v. Julian, 486 U.S. 1, 8 (1988)). Reflecting the
necessary balance between the public's interest in
governmental transparency and “legitimate governmental
and private interests that could be harmed by release of
certain types of information, ” United Techs. Corp.
v. U.S. Dep't of Def., 601 F.3d 557, 559 (D.C. Cir.
2010) (quoting Critical Mass. Energy Project v. Nuclear
Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir.
1992) (en banc) (alterations omitted)), the FOIA contains
nine exemptions, set forth in 5 U.S.C. § 552(b), which
“are explicitly made exclusive and must be narrowly
construed, ” Milner v. U.S. Dep't of Navy,
562 U.S. 562, 565 (2011) (internal quotation marks and
citations omitted); see also Murphy v. Exec. Office for
U.S. Attys., 789 F.3d 204, 206 (D.C. Cir. 2015);
Citizens for Responsibility & Ethics in Wash. v. U.S.
Dep't of Justice (“CREW”), 746
F.3d 1082, 1088 (D.C. Cir. 2014); Pub. Citizen, Inc. v.
Office of Mgmt. & Budget, 598 F.3d 865, 869 (D.C.
Cir. 2010). “[T]hese limited exemptions do not obscure
the basic policy that disclosure, not secrecy, is the
dominant objective of the Act.” Dep't of Air
Force v. Rose, 425 U.S. 352, 361 (1976).
FOIA authorizes federal courts to “enjoin the agency
from withholding agency records and to order the production
of any agency records improperly withheld from the
complainant.” 5 U.S.C. § 552(a)(4)(B). District
courts must “determine de novo whether
nondisclosure was permissible.” Elec. Privacy Info.
Ctr. v. U.S. Dep't of Homeland Sec., 777 F.3d 518,
522 (D.C. Cir. 2015). When the sufficiency of “the
release of information under the FOIA” is challenged,
“‘the agency has the burden of showing that
requested information comes within a FOIA
exemption.'” Pub. Citizen Health Research Grp.
v. Food & Drug Admin., 185 F.3d 898, 904 (D.C. Cir.
1999) (quoting Niagara Mohawk Power Corp. v. U.S.
Dep't of Energy, 169 F.3d 16, 18 (D.C. Cir. 1999));
see also U.S. Dep't of Justice v. Landano, 508
U.S. 165, 171 (1993) (noting that “[t]he Government
bears the burden of establishing that the exemption
applies”); Fed. Open Mkt. Comm. of Fed. Reserve
Sys. v. Merrill, 443 U.S. 340, 352 (1979) (finding that
the agency invoking an exemption bears the burden “to
establish that the requested information is exempt”);
Elec. Frontier Found. v. U.S. Dep't of Justice,
739 F.3d 1, 7 (D.C. Cir. 2014). This burden does not shift
even when the requester files a cross-motion for summary
judgment because “the Government ‘ultimately
[has] the onus of proving that the [documents] are exempt
from disclosure, '” while the “burden upon
the requester is merely ‘to establish the absence of
material factual issues before a summary disposition of the
case could permissibly occur.'” Pub. Citizen
Health Research Grp., 185 F.3d at 904-05 (quoting
Nat'l Ass'n of Gov't Emps. v. Campbell,
593 F.2d 1023, 1027 (D.C. Cir. 1978)) (alterations in
agency may carry its burden of showing an exemption was
properly invoked by submitting sufficiently detailed
affidavits or declarations, a Vaughn index of the
withheld documents, or both, to demonstrate that the
government has analyzed carefully any material withheld and
provided sufficient information as to the applicability of an
exemption to enable the adversary system to operate. See
Judicial Watch, Inc., 726 F.3d at 215 (“In FOIA
cases, ‘summary judgment may be granted on the basis of
agency affidavits if they contain reasonable specificity of
detail rather than merely conclusory statements, and if they
are not called into question by contradictory evidence in the
record or by evidence of agency bad faith.'”
(quoting Consumer Fed'n of Am., 455 F.3d at 287)
(alteration adopted)); CREW, 746 F.3d at 1088
(noting that an agency's burden is sustained by
submitting an affidavit that “describe[s] the
justifications for nondisclosure with reasonably specific
detail, demonstrate[s] that the information withheld
logically falls within the claimed exemption, and [is] not
controverted by either contrary evidence in the record nor by
evidence of agency bad faith” (quoting Larson v.
U.S. Dep't of State, 565 F.3d 857, 862 (D.C. Cir.
2009))); Oglesby v. U.S. Dep't of Army, 79 F.3d
1172, 1176 (D.C. Cir. 1996) (instructing that an agency's
description “should reveal as much detail as possible
as to the nature of the document, without actually disclosing
information that deserves protection[, ] . . . [which] serves
the purpose of providing the requestor with a realistic
opportunity to challenge the agency's decision.”
(internal citation omitted)). While “an agency's
task is not herculean” it must “‘describe
the justifications for nondisclosure with reasonably specific
detail' and ‘demonstrate that the information
withheld logically falls within the claimed
exemption.'” Murphy, 789 F.3d at 209
(quoting Larson, 565 F.3d at 862).
“Ultimately, an agency's justification for invoking
a FOIA exemption is sufficient if it appears
‘logical' or ‘plausible.'”
Judicial Watch, Inc. v. U.S. Dep't of Def., 715
F.3d 937, 941 (D.C. Cir. 2013) (quoting ACLU v. U.S.
Dep't of Def., 628 F.3d 612, 619 (D.C. Cir. 2011));
Larson, 565 F.3d at 862 (quoting Wolf v.
CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007)).
plaintiff challenges three aspects of GSA's response to
the FOIA request at issue: (1) the adequacy of GSA's
search, Pl.'s Opp'n at 6; Pl.'s Reply at 1-3, ECF
No. 28; (2) GSA's failure to produce “attachments
to emails exchanged between GSA and the” PTT, Pl.'s
Reply at 3; Pl.'s Opp'n at 8-9; and (3) the
sufficiency of GSA's explanations for redactions under
Exemption 5 and Exemption 6, Pl.'s Opp'n at 17-29;
Pl.'s Reply at 6-14. These issues are addressed
GSA'S SEARCH WAS INADEQUATE
conferred with the plaintiff and advised via email on July
26, 2017, that the agency would search for “all records
reflecting communications (including emails, telephone call
logs, calendar entries, meeting agendas, or any other records
reflecting communications)” between GSA and eight
identified PTT members as well as for certain search terms.
Def.'s Mot., Ex. D at 1, Email from GSA's Duane Smith
to AO's Cerissa Cafasso (July 26, 2017). Contrary to
GSA's assurance, however, the plaintiff contends that GSA
failed to search “telephone call logs, calendar
entries, stand-alone electronic records (i.e.,
records that were created electronically but never emailed),
or paper records, ” and further that “GSA has
systems of records that potentially contain responsive
records, and yet the agency has entered no evidence that it
searched those systems or an adequate alternative.”
Pl.'s Reply at 2. GSA does not dispute that no search was
conducted of call logs, meeting agendas, or paper records,
but apparently contends that a search for these forms of
records “goes far beyond what is required by the FOIA,
” Def.'s Opp'n at 3, and that the search
performed was “reasonably tailored” to the
request “based on its knowledge of its [own] practices,
” id. at 4.
outset, GSA provides conflicting information regarding
whether calendar entries were searched. The agency affidavit
states that, in searches of the type performed in this case,
“calendar logs” are searched. Lewis Decl. ¶
11; see also Def.'s Mem. Supp. Def.'s Mot.
(“Def.'s Mem.”) at 5, ECF No. 12 at 7
(“When conducting a search for documents responsive to
a FOIA request, the OCIO searches each employee's emails,
calendar logs, and shared drive files for responsive
records.”). Nevertheless, while records of emailed
calendar invitations were produced, no actual calendar
entries or logs were reflected in GSA's production. Thus,
based on this record, the plaintiff raises the reasonable
suspicion “that the agency almost certainly did not
actually search calendars.” Pl.'s Opp'n at 7.
GSA has been silent in explaining the presence of calendar
invitation emails in its production, without concomitant
calendar entries or logs, despite the agency's promise to
search for and produce responsive, non-exempt calendar logs.
See Def.'s Opp'n at 4. In light of the
“well defined requests and positive indications of
overlooked materials, ” Aguiar v. DEA, 865
F.3d 730, 739 (D.C. Cir. 2017) (quoting DiBacco v. U.S.
Army, 795 F.3d 178, 188 (D.C. Cir. 2015) (quoting
Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321,
326 (D.C. Cir. 1999))), the GSA's silence about the lack
of calendar logs fails to assure the Court on summary
judgment that the search was reasonable. GSA is directed
either to search calendar entries or, if such a search was
already performed, to clarify the method and scope of such a
search, as well as any withholdings of calendar entries.
respect to the other forms of records sought by the
plaintiff, “[a]gencies have ‘a duty to construe a
FOIA request liberally.'” People for the
Ethical Treatment of Animals v. Nat'l Institutes of
Health, Dep't of Health & Human Servs.
(“PETA”), 745 F.3d 535, 540 (D.C. Cir.
2014) (quoting Nation Magazine, Washington Bureau v. U.S.
Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)). At
the same time, agencies “are not required to . . .
perform searches which are not compatible with their own
document retrieval systems, ” Assassination
Archives & Research Ctr., Inc. v. CIA, 720 F.Supp.
217, 219 (D.D.C. 1989), aff'd, No. 89-5414, 1990
U.S. App. LEXIS 27799 (D.C. Cir. Aug. 13, 1990), and they
“need not respond to overly broad and unreasonably
burdensome requests, ” Judicial Watch, Inc. v. U.S.
Dep't of State, 681 Fed.Appx. 2, 4 (D.C. Cir. 2017)
(citing Am. Fed'n of Gov't Emps. v. U.S.
Dep't of Commerce, 907 F.2d 203, 208-09 (D.C. Cir.
1990)); see also Anderson v. U.S. Dep't of
State, 661 F.Supp.2d 6, 12 n.3 (D.D.C. 2009) (an agency
does not have to “honor a FOIA request that requires it
to conduct an unduly burdensome search” (quoting
Pub. Citizen, Inc. v. U.S. Dep't of Ed., 292
F.Supp.2d 1, 6 (D.D.C. 2003))). When confronted with a
challenge to the adequacy of a search, “an
‘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, ' which it can do by submitting ‘[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.'” Reporters Comm. for
Freedom of Press v. FBI, 877 F.3d 399, 402 (D.C. Cir.
2017) (quoting Oglesby, 920 F.2d at 68) (alteration
description of the search performed falls short of meeting
the applicable standard for justifying the scope and method
of the search. See Id. GSA explains that, when
processing a FOIA “request which includes the word
‘communication(s)' /or any derivative thereof,
” the GSA's FOIA Office directs the OCIO to search
for responsive records in “each employee's emails,
calendar logs and shared drive files.” Lewis Decl.
¶ 11. GSA further explains that “[i]t is GSA
policy via its record retention policy that all agency
employee communications and documents are stored via email
/or on the shared drive, ” id., as a
justification for limiting the search conducted for records
reflecting communications to those two locations (i.e., email
and shared drive). In other words, when a request seeks
“communications, ” the GSA reads no further and
searches “emails, calendar logs and shared drive
files” as a default, Lewis Decl. ¶ 11,
irrespective of the specifics of a request. In this case, the
plaintiff expressly sought “telephone call logs,
” Def.'s SMF ¶ 1, and “all records
reflecting communications, ” id., which
includes “stand-alone electronic records, ” and
“paper records, ” Pl.'s Reply at 2, but GSA
has not explained whether or how such records were searched
for the requested communications. The agency affidavit notes
as an afterthought that “our search for responsive
records included calendar dates and paper records as well,
” Lewis Decl. ¶ 28, but is silent as to how that
search was conducted, and whether any responsive records were
found, and GSA's briefs do not even mention that point.
other words, GSA performed a search using its default
methodology for requests seeking “communications,
” but fails to take account of the specific aspects of
the plaintiff's request that may warrant a broader
search. Consequently, the agency does not adequately
demonstrate “that all files likely to contain
responsive materials (if such records exist) were searched,
” Reporters Comm. for Freedom of Press, 877
F.3d at 402 (quoting Oglesby, 920 F.2d at 68), or
that a search other than its default practice would be
“unreasonably burdensome, ” Judicial Watch,
Inc., 681 Fed.Appx. at 4; see also, e.g.,
Leopold v. U.S. Dep't of Justice, No. CV
16-1827, 2018 WL 1384124, at *7 (D.D.C. Mar. 19, 2018)
(upholding the sufficiency of the FBI's search where the
FBI explained the plaintiff's “request for
non-investigative records is ...