MEMORANDUM OPINION
CHRISTOPHER R. COOPER, UNITED STATES DISTRICT JUDGE.
In
November 2017, American Oversight filed a Freedom of
Information Act (“FOIA”) request that sought
records of any guidance Department of Justice
(“DOJ”) officials had provided to United States
Attorney John W. Huber in his investigation of certain issues
related to the 2016 presidential election. Rather than
immediately conduct an electronic search for documents,
DOJ's Office of Information Policy (“OIP”)
staff reached out to a liaison in the Office of the Attorney
General (“OAG”) to communicate the request. This
liaison subsequently discussed the FOIA request with senior
leadership within OAG and the Office of the Deputy Attorney
General (“ODAG”), and eventually with Huber
himself. Exactly what was said in these conversations is
unknown, but they led to an initial determination that no
responsive records existed-largely because the individuals
interviewed maintained that the guidance American Oversight
sought was never reduced to writing but was instead
communicated orally.
And
yet, when Huber finally saw for himself the reply brief DOJ
was set to file in this case-and presumably the actual text
of American Oversight's request-he readily located a
responsive email record. DOJ thereafter conducted a
supplemental email search, which did not turn up any
additional responsive documents. The agency now claims it has
fulfilled its FOIA obligations and moves for summary
judgment. American Oversight says the agency's search was
inadequate in several ways. It further contends that the
DOJ's initial person-to-person search was carried out in
bad faith, and asks the Court's permission to conduct
limited discovery, unusual as it may be in FOIA cases, to
better examine the agency's search efforts. After careful
review of the parties' submissions, and for the reasons
that follow, the Court will grant DOJ's motion for
summary judgment and deny American Oversight's
cross-motion for summary judgment and its request for
discovery.
I.
Background
In July
2017, twenty members of the House Judiciary Committee,
including Chairman Robert Goodlatte, sent a letter to
then-Attorney General Jeff Sessions and then-Deputy Attorney
General Rod Rosenstein asking them “to appoint a second
special counsel to investigate a plethora of matters
connected to the 2016 election and its aftermath.”
Declaration of Vanessa R. Brinkmann (“First Brinkmann
Decl.”), Ex. A, ECF No. 16-3, at 12. Congressman
Goodlatte and his cosigners expressed the view that the
then-existing special counsel investigation into the 2016
election focused too narrowly on “Russian influence on
the election and connections with the Trump campaign.”
Id. at 12. To correct for this purported
“[p]olitical gamesmanship, ” they asked that a
second special counsel be appointed to investigate
“actions taken by previously public figures like
Attorney General Loretta Lynch, FBI Director James Comey, and
former Secretary of State Hillary Clinton.”
Id. Congressman Goodlatte and 13 other House
Judiciary members followed up with a second, similar letter
in September 2017. Id. at 19.
In
November 2017, the Assistant Attorney General for the Office
of Legislative Affairs, Stephen E. Boyd, responded to
Congressman Goodlatte and his colleagues' request.
Id. at 23. Boyd reported that “the Attorney
General has directed senior federal prosecutors to evaluate
certain issues raised in your letters” and to
“make recommendations as to whether any matters not
currently under investigation should be opened [and] whether
any matters currently under investigation require further
resources[.]” Id.
Roughly
one year later, American Oversight filed four FOIA requests
related to DOJ's decision to act on Congressman
Goodlatte's invitation. See First Brinkmann
Decl., Ex. B, at 30- 71. Three of these requests have been
resolved by the parties during the course of this litigation:
the “Drafting FOIA” request seeking records
“relating to the drafting” of DOJ's response
to the Goodlatte letters, Compl., ECF No. 1 ¶ 18; the
“Prosecutors FOIA” request seeking identification
of those “senior federal prosecutors” DOJ tasked
to “evaluate certain issues” raised in the
Goodlatte letters, id. ¶ 10; and the
“Recusal FOIA” request seeking records reflecting
“any analysis of government or legal-ethics issues or
evaluating any recusal obligations” related to former
Attorney General Session's participation in the matter,
id. ¶ 7.
American
Oversight's fourth FOIA request presents the sole
remaining battleground in this case. See First
Brinkmann Decl., Ex. B, at 66-71. In what the parties call
the “Guidance FOIA, ” American Oversight sought
[a]ll guidance or directives provided to the senior federal
prosecutors who have been directed to evaluate certain issues
raised in Congressman Robert Goodlatte's letters, as
indicated in the Department of Justice's November 13,
2017 response signed by Assistant Attorney General Stephen
Boyd, attached for your convenience, regarding their
performance of that task.
Id. at 67 (internal quotation marks and alteration
omitted). The “senior federal prosecutors” turned
out to be just one federal prosecutor, namely the United
States Attorney for the District of Utah, John W. Huber.
First Brinkmann Decl., Ex. B, at 27. The request, therefore,
sought all “guidance or directives” that had been
given to Huber regarding the Goodlatte investigation.
Upon
receiving the request, OIP “determined that a direct
inquiry to knowledgeable staff in [OAG] would be the most
logical and effective search method.” First Brinkmann
Decl. ¶ 14. OIP consulted with the Counselor to the
Attorney General in OAG to “ascertain . . . what
guidance or directives, if any, were issued.”
Id. The Counselor to the Attorney General
“then conferred with other Department officials with
direct knowledge of the subject matter, ” id.,
who reported that “no written guidance or directives
were issued to Mr. Huber in connection with” his
assignment to investigate the matters raised in Congressman
Goodlatte's letters, id. ¶ 15.
Based
on those representations, OIP concluded that “further
searches would be unlikely to identify records relevant to
[American Oversight's] request, ” id., and
moved for summary judgment, see Def's Mot. Summ.
J., ECF No. 16. American Oversight, in turn, filed its own
motion for summary judgment, and briefing in the case
continued. See Pl's Cross-Mot. Summ. J., ECF No.
18.
The
twist in this saga occurred on the day DOJ's reply brief
was due, February 28, 2019. Second Declaration of Vanessa R.
Brinkmann (“Second Brinkmann Decl.”), ECF No.
26-1, ¶ 15. While reviewing DOJ's draft reply brief,
Huber “brought to the attention of the then-ODAG point
of contact that it appeared that drafters of the brief were
not aware of the letter to him from Attorney General Sessions
at the initiation of his assignment.” Id. The
letter was delivered to Huber as an attachment to a November
22, 2017 email from Matthew Whitaker, then serving as
Attorney General Sessions' Chief of Staff. Id.
When the email made its way to OIP, “[i]t was
immediately apparent that this material was responsive to the
Guidance Request”-so DOJ that same day notified
American Oversight of its discovery and asked this Court for
more time to determine whether additional responsive records
existed. Id.
Recognizing
that the discovery of the email “raised questions about
the adequacy” of the agency's initial search, DOJ
decided to search “the emails of the senior leadership
officials overseeing Mr. Huber's evaluation, ”
including Sessions, two of Sessions' personal assistants,
Whitaker, Rosenstein, and former Principal Associate Deputy
Attorney General Robert Hur. Id. ¶ 17. In this
search, DOJ used keywords to identify any correspondence that
was transmitted to Huber, or on which Huber was copied, in
light of the agency's interpretation of the Guidance FOIA
request as seeking “[a]ll guidance or directives
[actually] provided” to Huber. Id. ¶
20.[1]The email search did not turn up any
responsive documents beyond the attachment Huber had already
located and which had already been produced to American
Oversight. Id. ¶ 26. Believing it had
discharged its duties under FOIA, DOJ reasserted its call for
summary judgment. See Def.'s Reply in Supp. of
Def.'s MSJ (“Def.'s MSJ Reply”), ECF No.
26, at 10.
American
Oversight did not wait to learn of the fruits of this
supplemental search. Instead, seizing on DOJ's error, it
promptly moved to stay summary judgment briefing and demanded
discovery. See Pl's Mot. Stay Summ. J. Briefing
& Mot. Discovery (“Pl's Mot. Discovery”),
ECF No. 25-1. In asking for discovery, American Oversight
intones that DOJ's late-in-the-game discovery of the
responsive letter “raised grave questions regarding
both the thoroughness of [DOJ's] search and whether [DOJ]
has complied in good faith with its duties under FOIA.”
Id. at 7. It insists that discovery is necessary to
determine “whether the misrepresentations contained in
the initial declaration resulted from negligence or a lack of
good faith” by DOJ in its response to the Guidance
FOIA. Decl. of Counsel in Supp. Mot. Discovery, ECF No. 25-2,
¶ 40. In addition to its discovery demand, American
Oversight maintains that the agency's search was
inadequate for a variety of reasons and argues that it, not
the agency, is entitled to summary judgment. See
Pl's Reply in Supp. of Cross-Mot. for Summ. J
(“Pl's MSJ Reply”), ECF No. 29.
With
briefing now complete, the motions are 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 warranted 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).
When
faced with a challenge to the adequacy of its FOIA search,
the agency must demonstrate “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)
(internal quotation marks omitted) (quoting
Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321,
325 (D.C. Cir. 1999)). The adequacy of an agency's search
depends on the reasonableness of its methods, not the
quantity or quality of documents it unearths. See CREW v.
U.S. Gen. Servs. Admin., No. 18-cv-377, 2018 WL 6605862,
at *2-3 (D.D.C. Dec. 17, 2018). An agency must show that it
made “a good faith effort to conduct a search for
requested records, using methods which can be reasonably
expected to produce the information requested.”
Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68
(D.C. Cir. 1990). That showing can be made through
declarations that detail “what records were searched,
by whom, and through what process.” Steinberg v.
U.S. Dep't of Justice, 23 F.3d 548, 552 (D.C. Cir.
1994). Agency declarations are “accorded a presumption
of good faith” and “cannot be rebutted by purely
speculative claims about the existence and discoverability of
other documents.” SafeCard Servs., Inc. v.
SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal
quotation marks omitted).
“Discovery
in FOIA is rare and should be denied where an agency's
declarations are reasonably detailed, submitted in good faith
and the court is satisfied that no factual dispute
remains.” Schrecker v. U.S. Dep't of
Justice, 217 F.Supp.2d 29, 35 (D.D.C. 2002),
aff'd, 349 F.3d 657 (D.C. Cir. 2003). Because an
“agency may establish the adequacy of its search by
submitting reasonably detailed, nonconclusory affidavits
describing its efforts, ” Baker & Hostetler LLP
v. U.S. Dep't of Commerce, 473 F.3d 312, 318 (D.C.
Cir. 2006), district courts “ha[ve] discretion to
forego discovery and award summary judgment on the basis of
affidavits, ” Freedom Watch, Inc. v. Nat. Sec.
Agency, 783 F.3d 1340, 1345 (D.C. Cir. 2015) (quoting
Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978))
(internal quotation marks omitted). “Even if an
agency's affidavits regarding its search are deficient,
courts generally do not grant discovery but instead direct
the agency to supplement its affidavits.” Flowers
v. IRS, 307 F.Supp.2d 60, 68 (D.D.C. 2004) (citing
Judicial Watch, Inc. v. Dep't of Justice, 185
F.Supp.2d 54, 65 (D.D.C. 2002)).
III.
Analysis
American
Oversight contends that DOJ's efforts to process the
Guidance FOIA request was technically flawed and carried out
in bad faith. It therefore argues that the Court should not
only order a supplemental search, but should also grant
American Oversight the right to conduct limited discovery to
probe DOJ's compliance with its FOIA obligations. While
American Oversight's bad-faith argument directly
undergirds its request for discovery, it also colors its
attack on the adequacy of the agency's search. Because
that issue pervades the entire case, the Court begins its
analysis there. Beyond the bad-faith question, American
Oversight identifies four discrete deficiencies in DOJ's
search. First, it alleges that DOJ failed to identify,
consult, or search all relevant custodians. Second, it claims
that DOJ did not search all locations or systems of records
where responsive files might exist. Third, it argues that DOJ
adopted an interpretation of the Guidance FOIA that is
“improperly cramped” and inconsistent with the
general rule that FOIA requests are to be liberally
construed. Finally, it says that DOJ cabined its search to an
artificially truncated timeframe. Pl's MSJ Reply at 1.
The Court will turn to those arguments second.
A.
Whether DOJ's Declarations Warrant Deference
To
support the adequacy of its searches in response to the
Guidance FOIA, DOJ provides two declarations from Vanessa R.
Brinkmann, Senior Counsel in OIP. The first declaration sets
forth the rationale for, and mechanics of, the initial
person-to-person oral inquiry. The second declaration,
meanwhile, explains how DOJ's eleventh-hour discovery of
the Whitaker email spurred it to conduct a broader email
search, and then details the specifics of that search.
Because American Oversight alleges the agency responded to
its FOIA request in bad faith, the Court will recount
DOJ's process in more detail than is usual in the typical
FOIA case. Some of what follows was set forth in Part I of
this opinion, but bears repeating here.
Start
with the initial search, which the agency conducted before it
filed its motion for summary judgment. OIP determined the
most effective response to the Guidance FOIA was a
“direct inquiry to knowledgeable staff in the Office of
the Attorney General (OAG)” to, first, identify whom
the Attorney General directed to evaluate the issues raised
in Congressman Goodlatte's letters and, second, find out
“what guidance or directives, if any, were
issued.” First Brinkmann Decl. ¶ 14. After
relaying the request to the Counselor to the Attorney
General, who in turn conferred with “other Department
officials with ...