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Citizens for Responsibility and Ethics In Washington v. United states General Services Administration

United States District Court, District of Columbia

December 17, 2018

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff,
v.
UNITED STATES GENERAL SERVICES ADMINISTRATION, Defendant.

          MEMORANDUM OPINION AND ORDER

          CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE

         Few structures in Washington D.C. are more maligned than the J. Edgar Hoover FBI building. Architecture critics pan its brutalist design, D.C. denizens bemoan its uninviting presence on Pennsylvania Avenue, and, most relevant to this case, the FBI itself considers it too small and unsafe to continue to function as the bureau's headquarters. For the better part of a decade, the General Services Administration (“GSA”)-the federal agency responsible for acquiring and maintaining government facilities-has been exploring relocation and renovation options. Until last year, one proposal appeared likely to materialize: the FBI would offer the Hoover Building (and cash) to a real estate firm that would, in return, lead the construction of a new headquarters elsewhere in the region. GSA identified three potential building sites and began soliciting proposals from developers. But those efforts came to an abrupt halt in July 2017, and in early 2018, the FBI announced that it planned instead to rebuild its headquarters at the present location.

         Plaintiff Citizens for Responsibility and Ethics in Washington (“CREW”) wants an explanation for GSA's about-face. Among other concerns, CREW suspects that President Trump put the kibosh on the swap-relocation plan because he feared that commercial development at the Hoover Building site might compete with the neighboring Trump International Hotel. To substantiate its suspicions, CREW filed a Freedom of Information Act (“FOIA”) request with GSA. It sought records explaining the decision to abort the swap-relocation plan and related communications between GSA brass and other government officials, including the White House. The agency has responded to that request and claims it is now entitled to summary judgment. CREW opposes, objecting to the adequacy of GSA's search and the propriety of its withholdings. For the reasons that follow, the Court largely agrees with CREW and will deny GSA's motion for summary judgment.

         I. Background

         For the last several years, GSA has been on the hunt for a new FBI headquarters-one that could accommodate a consolidation of the FBI workforce and provide beefed-up security. Compl. ¶ 6. After publicizing a proposal that would involve the FBI swapping its current home, the J. Edgar Hoover building on Pennsylvania Avenue, in exchange for a newly built one in either Maryland or Virginia, id., GSA announced on July 11, 2017 that it was cancelling the “new FBI headquarters consolidation project, ” id. ¶ 7 (quoting GSA Statement on FBI Headquarters, July 11, 2017[1]). Questions immediately arose as to why GSA had abandoned the project. Id. ¶ 8; see, e.g., Jonathan O'Connell, Robert McCartney & Jenna Portnoy, Fallout from FBI Headquarters Decision Leaves Losers All Around, Wash. Post, July 11, 2017.[2]

         The very next day, on July 12, 2017, CREW joined the chorus of inquisitors. It submitted a FOIA request to GSA seeking the following six categories of records:

• “copies of all records from January 20, 2017 to the present explaining the decision of GSA, announced on July 11, 2017, to cancel the procurement for the new FBI headquarters consolidation project. This request includes, but is not limited to, records from GSA Public Buildings Service, GSA Office of the Administrator, and the National Capital Region”;
• “copies of communications between GSA Regional Commissioner Mary Gibert and GSA Administrator Tim Horne from January 20, 2017 to the present concerning GSA's decision to cancel the procurement for the new FBI headquarters consolidation project”;
• “copies of email communications between either Mary Gibert and Tim Horne and any individual at the eop.gov domain from January 20, 2017 to the present concerning GSA's decision to cancel the procurement for the new FBI headquarters consolidation project”;
• “copies of communications between FBI officials and GSA concerning GSA's decision to cancel the procurement for the new FBI headquarters consolidation project”;
• “copies of communications between the Office of Management and Budget and GSA concerning GSA's decision to cancel the procurement for the new FBI headquarters consolidation project”; and
• “copies of records sufficient to show the amount of federal funds expended to evaluate the final three locations designated by GSA as possible sites for the new FBI headquarters in Fairfax, Virginia and Prince George's County, Maryland.”

CREW's FOIA Request, ECF No. 16-2, Ex. A.

         GSA determined that GSA's Office of the Chief Information Officer (“OCIO”) was the office most likely to have records responsive to CREW's first five requests, Declaration of Travis Lewis (“Lewis Decl.”), ECF No. 16-2 ¶ 6, and that its Public Building Service (“PBS”)

         would have records responsive to CREW's sixth request, id. ¶ 11. In March 2018, GSA notified CREW that it had found zero records responsive to its first five requests and one responsive to its sixth. Id., Ex. B. After realizing that it inadvertently searched for “Mary Gilbert” rather than “Mary Gibert” pursuant to CREW's second request, OCIO performed a follow-up search with the correct name and produced to CREW an additional 28 responsive pages in July 2018. Id. ¶¶ 14-15; id. at Ex. C. GSA also withheld records that it determined were subject to the deliberative process privilege under FOIA Exemption 5 and redacted agency employees' signatures and cellphone numbers under FOIA Exemption 6. Id. ¶ 19; Ex. D.

         GSA believes it has fulfilled its FOIA obligations and has moved for summary judgment, Def's Mot. Summ. J., ECF No. 16, which CREW opposes, Pl's Opp. ECF No. 17. The Court held a hearing on December 12, 2018, and the motion is now ripe for the Court's resolution.

         II. Legal Standards

         FOIA cases are typically resolved on summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). Summary judgment is appropriately granted if “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).

         Under FOIA, an agency must adequately search for any responsive records. Rodriguez v. U.S. Dep't of Def., 236 F.Supp.3d 26, 34 (D.D.C. 2017). When a FOIA requester challenges the adequacy of an agency's search, the 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) (quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999)) (internal quotation omitted). In reviewing an agency's search, courts examine the methods, not the fruits, of the search. Rodriguez, 236 F.Supp.3d at 34. An agency “must show that it made a good faith effort to ...


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