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American Oversight v. United States Department of Justice

United States District Court, District of Columbia

July 30, 2019




         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 ...

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