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Citizens for Responsibility and Ethics in Washington v. General Services Administration

United States District Court, District of Columbia

July 29, 2019

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

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.

         This lawsuit arises from a Freedom of Information Act (“FOIA”) request that Plaintiff Citizens for Responsibility and Ethics in Washington made to Defendant General Services Administration (“GSA”). Plaintiff requested all communications from January 20, 2017 to July 30, 2018 between GSA and the White House concerning the renovation of the Federal Bureau of Investigation (“FBI”) headquarters. Following Defendant's initial search, Defendant notified Plaintiff that no documents were found. However, Defendant later conducted another search using terms and parameters suggested by Plaintiff. Ultimately, Defendant located 52 pages of responsive records, 25 pages of which were released with certain redactions. The parties have filed cross-motions for summary judgment on the issues of whether or not Defendant's search, withholding of documents, and redactions violated FIOA.

         Upon consideration of the pleadings, [1] the relevant legal authorities, and the record as it currently stands, the Court GRANTS IN PART and DENIES WITHOUT PREJUDICE IN PART Plaintiffs Cross-Motion for Summary Judgment and DENIES WITHOUT PREJUDICE Defendant's Motion for Summary Judgment. The Court concludes that Defendant's search conducted in response to Plaintiffs FOIA request was inadequate. As such, the Court GRANTS IN PART Plaintiffs Motion. In an effort to avoid piecemeal litigation, the Court otherwise DENIES WITHOUT PREJUDICE Plaintiffs and Defendant's motions so that Defendant can conduct an adequate search and identify, disclose, redact, or withhold any additional records prior to the Court's resolution of the remaining issues.

         I. BACKGROUND

         In its July 30, 2018 FOIA request, Plaintiff sought to acquire “all communications from January 20, 2017 to [July 30, 2018] between GSA and the White House concerning the renovation of the FBI headquarters.” Pl.'s Statement of Undisputed Material Facts (“Pl.'s Statement”), ECF No. 19-9, ¶¶ 1-2; Def's Res. to Pl.'s Statement of Undisputed Material Facts (“Def's Res.”), ECF No. 22, ¶¶ 1-2. Following Plaintiffs request, on August 27, 2018, the GSA's Office of the Inspector General released a “Review of GSA's Revised Plan for the Federal Bureau of Investigation Headquarters Consolidation Project” which described meetings between GSA and the White House as well as specific emails concerning those meetings. Id. at ¶¶ 3-5; Id. at ¶¶ 3-5.

• Mem. in Support of Pl.'s Cross-Mot. for Summary Judgment and Opp'n to Def's Mot. for Judgment on the Pleadings, to Dismiss and for Summary Judgment, ECF No. [19-1] (“Pl.'s Mot.”);
• Reply in Support of Def's Mot. on the Pleadings, to Dismiss and for Summary Judgment and Opp'n to Pl.'s Cross-Mot. for Summary Judgment, ECF No. [22] (“Def's Reply”); and
• Reply in Support of Pl.'s Cross-Mot. for Summary Judgment, ECF No. [24] (“Pl.'s Reply”).

         In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f).

         After Defendant failed to respond to Plaintiff's request within the statutory deadline, Plaintiff filed this lawsuit on September 4, 2018. A little over a month later, on October 18, 2018, the United States House Committee on Oversight and Reform (“House Oversight Committee”) publicly released at least three emails concerning the renovation of the FBI headquarters. Id. at ¶ 7; Id. at ¶ 7. First, a January 25, 2018 email exchange between a White House Official and a GSA official concerned the “path forward for the new FBI Headquarters announcement” which the “President” had “signed off on.” Id. at ¶ 8a; Id. at ¶ 8a. Second, a January 28, 2018 email between GSA officials asked that the “DOJ/FBI” “memoraliz[e] what was decided in the meeting with POTUS” regarding the FBI headquarters. GSA requested that the memorialized document “recap the oval meeting with what POTUS directed everyone to do” and “then ask Emily [Murphy with GSA] to execute POTUS's orders.” Id. at ¶ 8b; Id. at ¶ 8b. Finally, the House Oversight Committee released a January 28, 2018 email exchange in which GSA officials forwarded an email from the Office of Management and Budget (“OMB”) explaining that the FBI headquarters project is “a demolition/new construction [project] per the President's instructions.” Id. at ¶ 8c; Id. at ¶ 8c.

         Later, on the same day that the House Oversight Committee released these emails, the parties conducted a teleconference during which Defendant explained that its search had uncovered no records responsive to Plaintiff's FOIA request. Id. at ¶ 9; Id. at ¶ 9. Plaintiff responded by alleging that the emails released by the House Oversight Committee appeared to be responsive to its FOIA request, thus casting doubt on the adequacy of Defendant's search. Id. at ¶ 10; Id. at ¶ 10.

         On October 25, 2018, Defendant agreed to conduct another search using terms and parameters suggested by Plaintiff based on the language from the publicly released emails. Id. at ¶ 11; Id. at ¶ 11. Plaintiff provided Defendant with the following search proposal:

Date range: January 20, 2017 to July 30, 2018
Custodians: emails between any GSA email address and any White House/EOP email address
Search terms:
o headquarters
o HQ
o ...

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