United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE.
American Center for Law and Justice (“ACLJ”) has
requested records from Defendant Department of Justice
(“DOJ”) under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552. The records relate
to a June 2016 meeting between then-Attorney General Loretta
Lynch and former President Bill Clinton that occurred on
board an airplane in Arizona. The parties have cross-moved
for summary judgment. After initially agreeing to limit the
scope of the instant motions to the issue of DOJ's
withholdings of certain material under FOIA's exemptions,
ACLJ now also argues that DOJ failed to conduct an adequate
search. DOJ argues that both its search and its withholdings
reasons explained below, DOJ's motion for summary
judgment will be granted in part and denied in part, and
ACLJ's cross-motion will be denied. DOJ shall make a
supplemental submission and renewed motion as set forth below
by October 9, 2018. ACLJ shall file any response and
cross-motion by October 23, 2018.
Factual and Procedural Background
to the complaint, on June 27, 2016, then-Attorney General
Lynch and former President Clinton met aboard a parked
airplane at Sky Harbor International Airport in Phoenix,
Arizona (the “airplane meeting”). See
ECF No. 1 (“Compl.”) ¶ 7. President
Clinton's wife Hillary Clinton, then a candidate for
President, was connected to an ongoing DOJ investigation at
the time. See ECF No. 23 (“Pl.'s
Br.”) at 2. Given that context, the airplane meeting
quickly became the subject of significant press attention.
See Id. at 10-11.
15, 2016, ACLJ filed a FOIA request with DOJ that sought
various categories of documents relating to the airplane
meeting. See ECF No. 22-1 (“Brinkmann
Decl.”) ¶ 3 & Ex. A. On November 2, 2016,
having not yet received any response from DOJ, ACLJ filed the
instant action. Compl. On November 18, 2016, DOJ acknowledged
receipt of the FOIA request. Brinkmann Decl. ¶ 5 &
Ex. B. In July and August 2017, DOJ made two productions
totaling 413 pages to ACLJ. See Id. ¶¶ 6-7
& Exs. C-D. The productions included redactions that DOJ
made pursuant to FOIA Exemptions 5, 6, and 7(C). See
Id. DOJ informed ACLJ that, in its view, these
productions satisfied its obligations under FOIA.
Id. ¶ 7 & Ex. D.
parties met and conferred to discuss the productions. ECF No.
20 (“9/27/17 Status Report”) ¶ 4. During the
meet-and-confer process, ACLJ identified several concerns
about DOJ's withholdings. See Id. ¶ 5. In
response, DOJ revised the redactions it had made to two
documents. Id. ¶ 6. ACLJ informed DOJ that it
continued to dispute DOJ's invocation of the
deliberative-process privilege under Exemption 5 for certain
documents, and that, more generally, it continued to
challenge DOJ's compliance with FOIA's segregability
requirement for the withholdings under Exemption 5.
See ECF No. 23-1 (“Southerland Decl.”)
¶ 3; ECF No. 23-3 (email between counsel for the
September 27, 2017, the parties filed a joint status report
that set forth an agreed-upon plan for further proceedings in
the case. 9/27/17 Status Report. The report explained that
the parties had “determined that motions practice will
be necessary to resolve Plaintiff's remaining objections
to Defendant's withholdings.” Id. ¶
7. The parties proposed a briefing schedule for motions for
summary judgment, which the Court adopted by minute order.
See id.; Minute Order of October 12, 2017.
parties then filed the instant motions and related briefing.
ECF No. 21; ECF No. 21-1 (“Def's Br.”);
Pl.'s Br.; ECF No. 25 (“Def's Reply”);
ECF No. 27 (“Pl.'s Reply”). In its opening
brief, DOJ sought only to support the redactions made to 11
documents, which it understood to be the only documents still
in dispute. Def's Br. at 2 & n.1. In its
cross-motion, ACLJ sought to broaden the dispute in two
respects. First, it explained that DOJ had misinterpreted the
scope of its objections to DOJ's withholdings, which
encompassed not only DOJ's Exemption 5 redactions in the
11 documents but also, more generally, whether DOJ had
adequately segregated “factual information” in
all redacted documents. Pl.'s Br. at 5 n.1. Second,
despite the parties' earlier agreement that only
DOJ's redactions were at issue, ACLJ argued that
DOJ's search was inadequate, as well. Id. at
11-12. ACLJ explained that, since the 9/27/17 Status Report,
it had received a document from another agency that it
believed DOJ should have produced in response to the FOIA
request. Id. In its reply, DOJ provided additional
information about its search terms and withholdings.
See Def's Reply; ECF No. 25-1 (“Second
Brinkmann Decl.”); ECF No. 25-2 (“Def's Ex.
Federal Rule of Civil Procedure 56, a court 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.P.
56(a). “Summary judgment is appropriately granted when,
viewing the evidence in the light most favorable to the
non-movants and drawing all reasonable inferences
accordingly, no reasonable jury could reach a verdict in
their favor.” Lopez v. Council on Am.-Islamic
Relations Action Network, Inc., 826 F.3d 492, 496 (D.C.
vast majority of FOIA cases can be resolved on summary
judgment . . . .” Brayton v. Office of U.S. Trade
Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). Congress
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)). “FOIA
‘mandates that an agency disclose records on request,
unless they fall within one of nine exemptions.'”
EPIC v. DHS, 777 F.3d 518, 522 (D.C. Cir. 2015)
(quoting Milner v. Dep't of Navy, 562 U.S. 562,
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)).
addition, if the agency has invoked any of FOIA's
exemptions, the “burden is on the agency to justify
withholding the requested documents, and the FOIA directs
district courts to determine de novo whether
non-disclosure was permissible.” EPIC, 777
F.3d at 522. “Summary judgment is warranted on the
basis of agency affidavits when the affidavits describe the
justifications for nondisclosure with reasonably specific
detail, demonstrate that the information withheld logically
falls within the claimed exemption, and are not controverted
by either contrary evidence in the record nor by evidence of
agency bad faith.” Larson v. Dep't of
State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting
Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir.
1984)). That is, the agency must provide a
“logical” or “plausible”
justification for the exemption. Id. (quoting
Wolf v. CIA, 473 F.3d 370, 375 (D.C. Cir. 2007)).
The agency cannot rely on “conclusory and generalized
allegations of exemptions.” Morley, 508 F.3d
at 1115 (quoting Founding Church of Scientology of Wash.,
D.C, Inc. v. NSA, 610 F.2d 824, 830 (D.C. Cir. 1979)).
further requires that “[a]ny reasonably segregable
portion of a record shall be provided to any person
requesting such record after deletion of the portions which
are exempt.” 5 U.S.C. § 552(b). Before approving
the government's withholdings, the court has an
affirmative duty to ensure that the segregability requirement
is satisfied, even if it must do so sua sponte. See
Morley, 508 F.3d at 1123.
reasons explained below, the Court will grant DOJ's
motion for summary judgment except as it relates to two
particular documents. The Court will order DOJ to provide
supplemental information justifying the redactions in those
two documents. ACLJ's motion will be denied.
The Adequacy of DOJ's Search
argues that DOJ's search was inadequate because the
search failed to turn up a responsive document that
subsequently came into ACLJ's possession via another FOIA
request. See Pl.'s Br. at 11-12. And ACLJ's
reply adds two additional grounds for this argument: that DOJ
(1) used search terms that were too limited, and (2)
improperly narrowed the time frame of certain searches.
See Pl.'s Reply at 8-9. The Court ...