Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Heffernan v. Azar

United States District Court, District of Columbia

June 27, 2018

ALEX AZAR, [1] in his official capacity as Secretary of the United States Department of Health and Human Services, Defendant.



         The plaintiff, Henry G. Heffernan, initiated this action against the defendant, Alex Azar, in his official capacity as Secretary of the United States Department of Health and Human Services (“HHS”), alleging multiple violations of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2012). See generally Complaint (“Compl.”). Currently before the Court are the Defendant's Motion for Summary Judgment (“Def.'s Mot.”), ECF No. 25, and the Plaintiff's Opposition to Summary Judgment and Cross-Motion for Summary Judgment (“Pl.'s Mot.”), ECF No. 27. Upon careful consideration of the parties' submissions, [2] the Court concludes for the reasons that follow that it must grant in part and deny in part without prejudice the defendant's motion for summary judgment and deny the plaintiff's cross-motion for summary judgment.

         I. BACKGROUND

         The undisputed facts relevant to the parties' cross-motions are the following. See generally Pl.'s Resp. (not disputing any of the facts contained in the defendant's statement of facts); Def.'s Resp. (not disputing any of the facts contained in the plaintiff's statement of facts). The “[p]laintiff . . . is a Roman Catholic Priest who served for two decades as a Roman Catholic chaplain within the HHS, National Institute of Health (NIH) Clinical Center's Department of Spiritual Ministry, Department of Spiritual Care (‘SMD').” Pl.'s Facts ¶ 1. “In 2007, the NIH Clinical Center assembled an outside panel of experts in spiritual ministry chaplaincy to review the operations of the Department of Spiritual Ministry and make recommendations for the policies and practices to ensure that [it] met the best standards for professional spiritual ministry practice.” Id. ¶ 2. “As a staff chaplain at the NIH Clinical Center, [the plaintiff] participated in the [ ] 2007 [o]perational [r]eview discussions with the outside experts.” Id. ¶ 7; see also id. ¶ 8 (noting some of the ways in which the plaintiff participated in the operational review). Ultimately, “[t]he review panel made recommendations to HHS. However, not all of those recommendations were communicated to the chaplains.” Id. ¶ 9. Based on the panel's recommendations, the Clinical Center began considering changes to its operations and policies. See id. ¶¶ 10-18 (discussing team meetings and the use of focus groups facilitated by an outside consultant to determine what changes were necessary). The plaintiff “retired from HHS in 2013.” Id. ¶ 1.

         On March 19, 2014, the plaintiff submitted to the defendant a FOIA request

seeking certain specified records concerning [(1)] the [o]perational [r]eview of the Department of Spiritual Ministry that occurred in approximately July 2007, [(2)] the Clinical Research Advisory Board [m]eeting that occurred in approximately September 2007, [(3)] the Marit 2008-2009 Organization Development Focus Group Study of the Department of Spiritual Ministry/Department of Spiritual Care, conducted by Diana Marit Kunkel, Ph.D., and (4) all current approved policies, procedures and standards of practice . . . specific to the Department of Spiritual Ministry/Department of Spiritual Care.

Def.'s Facts ¶ 1; see also Pl.'s Resp. ¶ 1 (not disputing these facts). On July 22, 2014, the defendant provided the plaintiff with an initial response to his FOIA request by “ma[king] an interim release . . . consisting of [thirty-five] pages.” Def.'s Facts ¶ 2; see also Pl.'s Resp. ¶ 2. On September 25, 2014, the defendant “made a final release to [the] plaintiff consisting of 614 pages of responsive records, ” some of which contained information that was withheld pursuant to Exemptions 5 and 6 of the FOIA. Def.'s Facts ¶ 3; see also Pl.'s Resp. ¶ 3. “On October 29, 2014, [the p]laintiff appealed [the d]efendant's ‘final response'” internally according to the defendant's FOIA procedures, Pl.'s Facts ¶ 26; see also Def.'s Resp. ¶ 26, and on December 17, 2015, while the defendant was processing that appeal, the plaintiff filed his Complaint commencing this case, see Pl.'s Facts ¶ 28; see also Def.'s Resp. ¶ 28.

         After the filing of this case, “[o]n April 22, 2016, the [d]efendant produced its first Vaughn Index and sworn declaration.” Pl.'s Facts ¶ 30; see also Def.'s Resp. ¶ 30. The plaintiff challenged certain discrepancies in the defendant's Vaughn Index, “asked for clarification regarding missing explanations for [certain] redactions, ” and requested that the defendant conduct “a search for records responsive to [certain i]tems . . . and [to produce] a list of records that appear[ed] to be missing.” Pl.'s Facts ¶¶ 32-33; see also Def.'s Resp. ¶¶ 32-33. The defendant agreed to conduct the additional search for responsive documents requested by the plaintiff and to provide the plaintiff with the requested supplemental information. See Pl.'s Facts ¶ 36; see also Def.'s Resp. ¶ 36. On August 15, 2016, the defendant “produced its [s]econd Vaughn Index, [but] without a supplemental declaration.” Pl.'s Facts ¶ 39; see also Def.'s Resp. ¶ 39. The plaintiff had largely the same concerns with the defendant's second Vaughn Index as already expressed, see Pl.'s Facts ¶¶ 40-42; see also Def.'s Resp. ¶¶ 40-42, and the defendant also failed to provide the plaintiff with the agreed-upon supplemental information, see Pl.'s Facts ¶¶ 43-44; see also Def.'s Resp. ¶¶ 43-44. The parties discussed the situation, and the defendant again agreed to provide the plaintiff with the supplemental information. See Pl.'s Facts ¶¶ 45- 47; see also Def.'s Resp. ¶¶ 45-47. Because he did not receive the supplemental information as promised, on November 14, 2016, the “[p]laintiff filed a Motion for a Complete Vaughn Index.” Pl.'s Facts ¶ 48; see also Def.'s Resp. ¶ 48. “Subsequent to that filing, the [defendant] agreed [ ] once again” to provide the plaintiff with the supplemental information, Pl.'s Facts ¶ 49; see also Def.'s Resp. ¶ 49, and on January 2, 2017, “[t]he Court affirmed that agreement, ” Pl.'s Facts ¶ 50; see also Def.'s Resp. ¶ 50.

         On January 31, 2017, the defendant produced “its [t]hird Vaughn Index and [an additional] declaration from [its a]cting FOIA Officer.” Pl.'s Facts ¶ 51; see also Def.'s Resp. ¶ 51. The defendant “also produced a few additional pages[] and re-produced documents previously produced without certain prior redactions.” Pl.'s Facts ¶ 52; see also Def.'s Resp. ¶ 52. And, on February, 21, 2017, the defendant made an additional production that corresponded with the Third Vaughn Index. Pl.'s Facts ¶¶ 55, 57; see also Def.'s Resp. ¶¶ 55, 57. Later, on July 19, 2017, the defendant filed its motion for summary judgment on the plaintiff's claims, asserting that it “conducted adequate searches for responsive records, and it [provided to the] plaintiff all of the records to which he is entitled.” Def.'s Mem. at 1. The plaintiff then filed his opposition to the defendant's motion for summary judgment, along with his cross-motion for summary judgment, arguing that the defendant failed to conduct adequate searches and that it improperly withheld information pursuant to several FOIA exemptions. See generally Pl.'s Mem. Given that the parties have now fully briefed their cross-motions for summary judgment, these motions are now ripe for the Court's review.


         The Court must grant a motion for 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.P. 56(a). When ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000)). The Court must therefore draw “all justifiable inferences” in the non-moving party's favor and accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The non-moving party, however, cannot rely on “mere allegations or denials.” Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248). Thus, “[c]onclusory allegations unsupported by factual data will not create a triable issue of fact.” Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999) (Garland, J., concurring) (alteration in original) (quoting Exxon Corp. v. FTC, 663 F.2d 120, 126-27 (D.C. Cir. 1980)). If the Court concludes that “the nonmoving party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof, ” then the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). At bottom, “in ruling on cross-motions for summary judgment, the [C]ourt shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed.” Shays v. FEC, 424 F.Supp.2d 100, 109 (D.D.C. 2006).

         “FOIA cases typically are resolved on a motion for summary judgment.” Ortiz v. U.S. Dep't of Justice, 67 F.Supp.3d 109, 116 (D.D.C. 2014); see also Defs. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). “[The] FOIA requires federal agencies to disclose, upon request, broad classes of agency records unless the records are covered by the statute's exemptions.” Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001). In a FOIA action, the defendant agency has “[the] burden of demonstrating that the withheld documents are exempt from disclosure.” Boyd v. U.S. Dep't of Justice, 475 F.3d 381, 385 (D.C. Cir. 2007) (citation omitted). The Court will grant summary judgment to the government in a FOIA case only if the agency can prove “that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester.” Friends of Blackwater v. U.S. Dep't of Interior, 391 F.Supp.2d 115, 119 (D.D.C. 2005) (quoting Greenberg v. U.S. Dep't of Treasury, 10 F.Supp.2d 3, 11 (D.D.C. 1998)). Thus, in a lawsuit brought to compel the production of documents under the FOIA, “an 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[, or partially, ] exempt [from disclosure].'” Students Against Genocide, 257 F.3d at 833 (omission in original) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)).

         III. ANALYSIS

         The plaintiff primarily challenges the adequacy of the defendant's searches for responsive records regarding the: (1) 2008-2010 SMD policies, (2) 2007 operational review, fall 2007 chaplain meetings, and 2007 Advisory Board meeting, (3) fall 2007 chief operating officer's Power Point presentation, and (4) John Pollack's e-mail responses to a July 27, 2009 e-mail. See Pl.'s Reply at 2-11. The plaintiff also challenges the defendant's withholdings pursuant to the deliberative process privilege of FOIA Exemption 5, see id. at 12-21, and the adequacy of the defendant's explanations provided in its Vaughn Index, see id. at 22-30.[3] The Court will address each of the plaintiff's challenges in turn.

         A. The Adequacy of the Defendant's Searches

         “The adequacy of an agency's search is measured by a standard of reasonableness, and is dependent upon the circumstances of the case.” Truitt v. U.S. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (internal quotation marks omitted). To satisfy its burden to show that no genuine issue of material fact exists as to the adequacy of its search, the agency must show that each agency component “has conducted a search reasonably calculated to uncover all relevant documents, ” Elliot v. U.S. Dep't of Agric., 596 F.3d 842, 851 (D.C. Cir. 2010) (quoting Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)), and it may make this showing based on affidavits or declarations submitted in good faith, provided that the affidavits or declarations explain in reasonable detail the scope and method of the search, see Morley v. CIA, 508 F.3d 1108, 1116 (D.C. Cir. 2007) (citing Goland, 607 F.2d at 352). “In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency's compliance with [the] FOIA.” North v. U.S. Dep't of Justice, 774 F.Supp.2d 217, 222 (D.D.C. 2011) (citing Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982)). There is no requirement that an agency's search every record system in response to a FOIA request; rather, it may limit its search to only those locations where responsive documents likely are maintained. See Porter v. CIA, 778 F.Supp.2d 60, 69 (D.D.C. 2011) (holding that there “[was] no genuine issue as to the adequacy of the [agency's] search” given that it searched the “likely databases for responsive documents”). The question a court must answer in considering the adequacy of an agency's search is “not whether other responsive documents may exist, but whether the search itself was adequate.” Moore v. Bush, 601 F.Supp.2d 6, 13 (D.D.C. 2009) (citing Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994)). However, if the record “leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper.” Belltranena v. Clinton, 770 F.Supp.2d 175, 183 (D.D.C. 2011) (quoting Truitt, 897 F.2d at 542).

         1. The SMD's Clinical Center Policies from 2008 Through 2010

         The plaintiff first contends that the defendant failed to “search[] for Clinical Center policies maintained about NIH chaplains in the Department of Spiritual Care/Ministry, or the SMD policies from 2008-2010 resulting from the [o]perational [r]eview [a]ction [p]lan.” Pl.'s Mem. at 11-12. Specifically, the plaintiff argues that the search was unreasonable because (1) “such policies must exist and should have been produced had the [defendant] conducted an appropriate search, ” id. at 12, (2) that the defendant's hard copy search for such policies was limited to its 2014 policies, see id. at 14, and (3) that the defendant's electronic search was limited to the calendar year 2007, see id., and did not include search terms “reasonably likely to uncover such policies, ” Pl.'s Reply at 3; see also Pl.'s Mem. at 14. Thus, according to the plaintiff, the defendant “failed to perform a good faith search of all potential locations for responsive records, in both electronic and hard copy format, using reasonably-tailored search terms and the relevant time period at issue.” Pl.'s Mem. at 14.

         The Court concludes, however, that the defendant “conducted a search reasonably calculated to uncover all relevant documents, ” Elliot, 596 F.3d at 851 (citation omitted), and therefore, the defendant's search for the Clinical Center's policies from 2008 through 2010 was adequate. The Court begins its analysis with the appreciation that “the 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) (citing Steinberg, 23 F.3d at 551). And, “[i]n this [C]ircuit, it is clear that a plaintiff's unsubstantiated belief that missing records exist cannot demonstrate the inadequacy of an agency's search[, and this] [ ] Circuit has dismissed as ‘mere speculation' similar arguments from plaintiffs that the agency did not locate documents that the plaintiffs suspected to exist.” Parker v. U.S. Immig. & Customs Enf't, 238 F.Supp.3d 89, 102 (D.D.C. 2017) (quoting Baker & Hostetler LLP v. U.S. Dep't of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006)). Thus, as the defendant correctly notes, the issue the Court must resolve is whether the defendant's search for the requested policies was adequate, not whether those policies in fact exist. See Def.'s Reply at 4. Consequently, contrary to the plaintiff's proposition that these policies must exist, see Pl.'s Mem. at 12-13 (reaching this conclusion because “there was every indication at the time that the SMD was issuing new policies and procedures as a result of the [o]perational review, ” and because the Joint Commission Standards require hospitals to have formal policies governing each department of a hospital”); see also Pl.'s Reply at 4 (alleging that the SMD “changed its practices regarding the chaplains' assignments” as a result of the 2007 operational review), the plaintiff's conjecture and speculative arguments that policies that must have been adopted have not been produced has no bearing on the Court's determination of whether the defendant's search was adequate, see Parker, 238 F.Supp.3d at 103 (holding that the plaintiff's “conjecture about the possible existence of other documents fail[ed] to show that the agency's search was inadequate”). In any event, John M. Pollack, the Chief of the Spiritual Care Department, see Pollack Decl. ¶ 1, affirmed that “[n]o new policies were put into practice as a result of the 2007 operational review, ” id. ¶ 3. Additionally, Laura M. Lee, the Director of the Office of Patient Safety and Clinical Quality at NIH, see Lee Decl. ¶ 1, has represented that

[t]he Joint Commission standards do not explicitly and prescriptively direct what information should be included in the portfolio of policies and procedures for spiritual care. The standards provided general guidance about the need to assure that each patient's spiritual needs are met. How the organization meets those needs must be determined by the hospital.

Id. ¶ 3.

         Moreover, the plaintiff's challenges to the methods used by the defendant to search for the requested policies do not give the Court “substantial doubt as to the sufficiency of the [defendant's] search.” Belltranena, 770 F.Supp.2d at 183 (citation omitted). As support for its position that its search for the requested policies was adequate, the defendant submitted the declarations of Katherine Uhl, the NIH's former acting FOIA officer, see Uhl Decl. ¶ 1, and Gorka Garcia-Malene, the NIH's current acting FOIA officer, see Garcia-Malene Decl. ¶ 6(1).[4] In her declaration, Uhl states that the Clinical Center “search[ed] its files for records related to policies and guidelines from 2008-2010, ” and that “all [of the Spiritual Care Department's] policies and guidelines are housed in a policy book within the department.” Uhl Decl. ¶ 4(1). Uhl also states that “[t]here are no other places to search for such information that would reasonably be expected to have a policy or guideline not contained in this policy book, ” and that “[t]his book was searched for records considered responsive.” Id.[5] Furthermore, Garcia-Malene represents that, in response to “the numerous allegations of insufficient searches, on November 8, 2017, the [Spiritual Care Department] again searched the policy book, and then also performed an electronic search and a search for paper files for policies and guidelines from 2008-2010.” Garcia-Malene Decl. ¶ 6(1). Garcia-Malene also represents that

Pollack's computer hard drive, network drive and [the Spiritual Care Department's] shared drive were searched, as documents created in connection with policies could be on the IT network drive assigned to the department Chief and/or the department shared drive. During this search, the individual keywords “policies”, “policy”, “op review”, “operational review”, “SMD”, “Spiritual Ministry”, “Pollack”, “Maureen Gormley”, “Gormley”, “Operational Review response”, and “operational review action plan” were used.

Id. Additionally, “Pollack [ ] searched his office file cabinets and overhead bin, as any work product of this nature could be filed in the Chief's office. File folders labeled ‘operational review' and ‘policies' were searched on October 2, 2017, but no new records were found during these . . . searches.” Id.

         Based on these representations, the Court finds that the defendant has sufficiently established that its search for the requested policy documents was adequate and reasonably calculated to discover documents responsive to the requests. See Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (“[T]he court may rely on ‘[a] reasonably detailed [declaration], 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.'” (second alteration in original) (quoting Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990))). The defendant's declarations “explain[ ] in adequate detail that all systems likely to contain responsive records were searched.” Hall v. CIA, 881 F.Supp.2d 38, 58 (D.D.C. 2012). In fact, the defendant conducted multiple searches of the Spiritual Care Department's policy book, the only place likely to contain the Clinical Care policies sought by the plaintiff. See Uhl Decl. ¶ 4(1); see also Garcia-Malene Decl. ¶ 6(1). And, the defendant went beyond the policy book, searching electronic files using reasonably tailored search terms and paper files of employees likely to possess the policies sought by the plaintiff. See Airaj v. United States, No. 15-983 (ESH), 2016 WL 1698260, at *7 (D.D.C. Apr. 27, 2016) (“[T]he [ ] Circuit has held that the performance of additional searches following an agency's initial response to a FOIA request not only does not discredit the original search, but to the contrary, actually indicates good faith and ‘suggest[s] a stronger . . . basis for accepting the integrity of the search.'” (omission and third alteration in original) (quoting Meeropol v. Meese, 790 F.2d 942, 953 (D.C. Cir. 1986))). Consequently, it cannot be said that the defendant did not “ma[ke] a ‘good faith effort to conduct a search . . . using methods which can be reasonably expected to produce the information requested.” Dibacco v. U.S. Army, 795 F.3d 178, 188 (D.C. Cir. 2015) (omission in original) (quoting Oglesby, 920 F.2d at 68).

         It is also significant that the plaintiff does not contest any of the representations made by the defendants' declarants regarding their searches, see Pl.'s Reply at 2-4, or produce any “‘countervailing evidence' as to the adequacy of the [defendant's] search[es], ” Iturralde, 315 F.3d at 314 (quoting Founding Church of Scientology of Wash., D.C., Inc. v. Nat'l Sec. Agency, 610 F.2d 824, 836 (D.C. Cir. 1979)), or assert that the defendant did not make a good faith search, see Defs. of Wildlife v. U.S. Dep't of Interior, 314 F.Supp.2d 1, 8 (D.D.C. 2004) (“An adequate [declaration] can be rebutted only with evidence that the agency's search was not made in good faith.” (citation and internal quotation marks omitted)). Rather, the plaintiff primarily argues that the defendant's electronic search did not utilize search terms that were “likely to result in locating responsive records.” Pl.'s Reply at 4; see also id. at 3-4 (listing sixteen search terms that the defendant should have employed in order for the Court to conclude that the defendant conducted a thorough search).[6] However, “[a]gencies generally have ‘discretion in crafting a list of search terms' as long as they are ‘reasonably tailored to uncover documents responsive to the FOIA request.'” Tushnet v. U.S. Immig. & Customs Enf't, 246 F.Supp.3d 422, 434 (D.D.C. 2017) (quoting Bigwood v. U.S. Dep't of Def., 132 F.Supp.3d 124, 140-41 (D.D.C. 2015)). And, “[w]here the agency's search terms are reasonable, the Court will not second guess the agency regarding whether other search terms might have been superior.” Id. (internal quotation marks omitted) (quoting Liberation Newspaper v. U.S. Dep't of State, 80 F.Supp.3d 137, 146 (D.D.C. 2015)).

         Here, although the defendant does not explain why it selected the search terms it used, see Garcia-Malene Decl. ¶ 6(1), the Court nonetheless finds the search terms that were employed were reasonable. The Court so concludes because after comparing the search terms utilized in response to the plaintiff's FOIA request as modified by the Court's January 2, 2017 Minute Order, [7] “it [ ] appears more than likely that the terms utilized would identify responsive documents, ” Bigwood, 132 F.Supp.3d at 141; see also Pl.'s Reply at 4 (including in his list of proposed search terms, some of the search terms the defendant actually used (i.e., “policy”, “policies, ” and “[a]ction [p]lan”)). Moreover, even though “a FOIA petitioner cannot dictate the search terms [that must be used in response to his] . . . FOIA request, ” Bigwood, 132 F.Supp.3d at 140, there is no indication that the plaintiff requested the defendant to employ these proposed search terms either in his FOIA request or subsequent negotiations regarding the defendant's searches for responsive documents. And “[t]he plaintiff's insistence on [his] own preferred search terms does not undermine the reasonableness of the [defendant's] search terms.” Agility Pub. Warehousing Co. K.S.C., v. Nat'l Sec. Agency, 113 F.Supp.3d 313, 339 (D.D.C. 2015) (emphasis in original). Thus, the Court finds the search terms used by the defendant to search for the Clinical Center's policies from 2008-2010 were reasonable and adequate.

         In sum, “[t]he plaintiff has presented no grounds for upsetting the presumption of regularity afforded to [the defendant's] declarations, and the Court finds that the declarations are reasonably detailed and the [defendant's] search [for any policies from 2008-2010] was reasonably calculated to lead to [the discovery of] responsive documents.” Id. at 340. Accordingly, the Court must grant this aspect of the defendant's motion for summary judgment and deny this component of the plaintiff's cross-motion for summary judgment.

         2. Records Regarding the 2007 Operational Review

         The plaintiff also argues that the defendant “performed an inadequate search for responsive e[-]mails, notes, statements, correspondence, and records pertaining to the 2007 [o]perational [r]eview . . . and the Clinical Research Advisory Board meeting in September 2007.” Pl.'s Mem. at 15. In response, the defendant maintains that it conducted multiple searches for documents responsive to this aspect of the plaintiff's FOIA request that were adequate under the FOIA. See Def.'s Reply at 10.

         To demonstrate that its search was adequate and reasonable, the defendant submitted Garcia-Malene's declaration, which represents that the defendant performed searches on January 9, 2017, and on November 8, 2017, for documents responsive to this aspect of the plaintiff's FOIA request. See Garcia-Malene Decl. ¶ 6(2). On January 9, 2017, Maureen Gormley, Sandy Seubert, Pollack, Dana Kelley, Dominic Ashkar, and Diana Gomez de Molina, “the individuals most likely to have responsive records, ” each conducted a “search for e-mail correspondence from the fall of 2007, involving the Chief Operating Officer, her staff, and chaplains, that discussed the problems that arose when the chaplains attempted to implement the tentative assignments to nursing units, and comply with the activities in the Operational Review Team's recommendations.” Id. (internal quotation marks omitted). This electronic search employed the following search terms: “Heffernan, ” “Gormley, ” “Checking in, ” “Spiritual Ministry, ” and “2007.” Id. (referring to Uhl's declaration). “[T]o ensure [that] a comprehensive search was completed, ” on November 8, 2017, the defendant requested that the same individuals conduct “a new search for records in this category.” Id. These individuals “search[ed] their computer[s] [and] network files, both shared and personal, outlook (e[-]mail) folders, paper files, and any other place that would likely house responsive documents, ” and utilized the following search terms: “Dominic Ashkar, ” “Diana Gomez de Molina, ” “Dana Kelley, ” “Owen Fitzgerald, ” “Spiritual Ministry, ” “Operational Review, ” “Fall 2007, ” “Spiritual Ministry Operational Review, ” “Maureen Gormley, ” “Staff assigned departments, ” “Walter Jones, ” and “Staff meetings.” Id. According to Garcia-Malene, these search terms were selected because they “would likely have located all responsive records as they all relate to the SMD operational review and/or are persons associated with [the Spiritual Care Department] who would have been privy to the changes of [the Spiritual Care Department].” Id. Lastly, Garcia-Malene stated that “[t]he word ‘and' was not included with respect to these search terms, nor was any other limitation imposed in connection with these search terms.” Id.[8]

         The Court finds that the defendant's search for records regarding the 2007 operational review, chaplain staff meetings, and Advisory Board meetings was reasonable and adequate. The Garcia-Malene declaration “explain[s] in reasonable detail the scope and method of the search conducted by the [defendant sufficient] to demonstrate compliance with the obligations imposed by the FOIA.” Perry, 684 F.2d at 127. The Garcia-Malene declaration also “set[s] forth the search terms and the type of search performed, and aver[s] that all files likely to contain responsive materials . . . were searched.” Valencia-Lucena, 180 F.3d at 326 (citation omitted). Because, the Garcia-Malene declaration is entitled to be “accorded a presumption of good faith, ” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), and the plaintiff has not produced any “countervailing evidence” to rebut this presumption, Iturralde, 314 F.3d at 314 (citation and internal quotation marks omitted); see also Pl.'s Reply at 4-8, the Garcia-Malene declaration “leave[s] . . . this Court confident that the [defendant] ha[s] conducted searches reasonably calculated to uncover all relevant documents, ” Defs. of Wildlife, 623 F.Supp.2d at 91.

         Despite not contesting the reasonableness of Garcia-Malene's declaration, the plaintiff contends that the defendant's search was deficient (1) because it “did not locate records of the fall 2007 meetings between [Chief Operating Officer] Gormley and the chaplains about the new nursing unit assignments, ” records which he “knows . . . exist because he saw them during his employment with [HHS], ” Pl.'s Mem. at 17 (recalling details of the assignment spreadsheets), and (2) because it did not utilize “search terms that would be likely to result in the 2007 chaplain assignment spreadsheets, Advisory Board meetings, chaplain meetings records, or records related to the implementation or adoption of the [Operational Review Team] report, ” Pl.'s Reply at 5. However, the Court finds these arguments unpersuasive.

         Regarding the plaintiff's challenge to the defendant's search based on the defendant's inability to locate records related to the 2007 chaplain meetings about new nursing unit assignments, see Pl.'s Mem. at 17, as the Court previously noted, “a search is not inadequate simply because it failed to yield every document that [the p]laintiff seeks, ” Shores v. FBI, 185 F.Supp.2d 77, 82 (D.D.C. 2002); see also SafeCard Servs., Inc., 926 F.2d at 1201 (“When a plaintiff questions the adequacy of the search an agency made in order to satisfy its FOIA request, the factual question it raises is whether the search was reasonably calculated to discover the requested documents, not whether it actually uncovered every document extant.”). In addition, “[i]t is long settled that the failure of an agency to turn up one specific document in its search does not alone render [the] search inadequate . . . [because] particular documents may have been accidentally lost or destroyed, or a reasonable and thorough search may have missed them.” Judicial Watch, Inc. v. U.S. Dep't of State, 177 F.Supp.3d 450, 458 (D.D.C. 2016) (omission and first and third alterations in original) (quoting Iturralde, 315 F.3d at 315). Furthermore, as the defendant correctly notes, see Def.'s Reply at 9-10 (asserting that “[t]he fact that certain documents were passed out to individuals in 2007, does not mean that any of those documents were still in[ ]existence in March of 2014[, ] when [the] plaintiff's FOIA request was made” (citation omitted)),

[i]t is well settled that a FOIA request pertains only to documents in the possession of the agency at the time of the FOIA request. That an agency once possessed responsive documents but does not at the time of the FOIA request does not preclude summary judgment in the agency's favor. FOIA does not impose a document retention requirement on agencies.

Landmark Legal Found. v. EPA, 272 F.Supp.2d 59, 66 (D.D.C. 2003) (citations omitted); see also DiBacco, 795 F.3d at 190 (“FOIA is not a wishing well; it only requires a reasonable search for records an agency actually has.”); Wadelton v. U.S. Dep't of State, 208 F.Supp. 3D 20, 27 (D.D.C. 2016) (“While an agency violates its FOIA obligations by destroying records once a FOIA request has been received, any previous failure to preserve records related to pending or imminent litigation is not a FOIA violation.”). Thus, the Court does not find this first challenge by the plaintiff convincing.

         The plaintiff's challenge to the search terms used by the defendant to conduct its search is also unpersuasive because the Court finds those search terms “reasonably calculated to lead to responsive documents.” Bigwood, 132 F.Supp.3d at 140. Comparing the search terms used to conduct the search to the scope of the plaintiff's FOIA request as limited by the parties' agreement, see Third Cornell Decl. at ¶ 2(d)-(e) (limiting the search to the tentative staff assignments); see also Praecipe (noting that the “[d]efendant has committed in a sworn declaration to provide all of the substantive relief sought in [the p]laintiff's proposed order”), “it certainly appears more than likely that the terms utilized would identify responsive documents, ” Bigwood, 132 F.Supp.3d at 141, regarding the operational review and tentative staff assignments.

         Nonetheless, the plaintiff argues that the defendant's search terms “were too limited, not tailored to the specific requests, and unlikely to result in the production of all responsive documents, ” Pl.'s Reply at 6, because some of the search terms “were [ ] improperly limited in scope and time, ” Pl.'s Mem. at 16 (referring to the search terms provided in the Uhl declaration), and because “[o]ther terms were improperly compounded” or do not relate to the topics corresponding to this aspect of his FOIA request, Pl.'s Reply at 6 (referring to the search terms used in the November 8, 2017 search). Relying on Coffey v. Bureau of Land Management, 249 F.Supp.3d 488 (D.D.C. 2017), the plaintiff contends that using the selected individuals' e-mail addresses, see id. at 6, and a Boolean search protocol, see id. at 7 (citing Coffey for this assertion as well), [9] “might be particularly effective, ” see id. at 6, and would “satisfy the [defendant's] burden of showing [that] a reasonable search was conducted, ” id. at 7. However, the plaintiff's reliance on Coffey is misplaced. In Coffey, the plaintiff's FOIA request sought all of two custodians' communications with certain individuals without any limitation on the scope of that request. See 249 F.Supp.3d at 498. But, the agency conducted its search using search terms limited to one particular topic without using names or e-mail addresses. See id. at 498-99. The Court reasoned that using the individual names and e-mail addresses “would presumably uncover all electronic correspondence responsive to [the plaintiff's] request.” Id. at 499. Here, however, the plaintiff has not requested all electronic correspondence, but, as noted above, has limited this aspect of his FOIA request to records related to the tentative staff assignments. Thus, using e-mail addresses would be overly encompassing, particularly since the defendant conducted its search using the names of the individuals likely to contain responsive records. See Garcia-Malene Decl. ¶ 6(2).

         Moreover, regarding the plaintiff's contention that the defendant should not have used compounded search terms, the defendant attests that it did not use such limitation in its search. See id. (noting that its search was not limited by the use of “and”). In any event, the question for the Court to resolve is not whether a Boolean search protocol would have been more appropriate, as the plaintiff suggests. See Pl.'s Reply at 7. Rather, the Court must determine whether the search terms used were “reasonably calculated to lead to responsive documents.” Bigwood, 132 F.Supp.3d at 140. And, the Court finds that the search terms selected pass muster under that standard. Accordingly, the Court must grant ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.