MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE
The
Brady Center to Prevent Gun Violence (“Brady
Center”) brings this Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, action against the
U.S. Department of Justice and one of its components, the
Bureau of Alcohol, Tobacco, Firearms, and Explosives
(“ATF”), seeking the release of records it claims
Defendants have improperly withheld. Dkt. 1 (Compl.). The
Brady Center submitted two FOIA requests to the ATF-one
seeking records relating to a paper written by a senior ATF
official about ways to reduce gun regulations (“White
Paper Request”), and the other seeking records relating
to ATF inspections of federally-licensed gun dealers
(“Warning Letters Request”). Dkt. 1-2; Dkt. 1-3.
As required by order of this Court, the ATF released records
responsive to the White Paper Request, but withheld certain
records in whole or in part, and started releasing records
responsive to the Warning Letters Request, but with
substantial redactions. Although the ATF’s response to
the Warning Letters Request is not yet complete, the Court
granted the Brady Center’s request for a briefing
schedule on (1) the adequacy of the ATF’s response to
the White Paper Request, and (2) the lawfulness of the
ATF’s redaction of certain information from records
responsive to the Warning Letters Request. Minute Order (June
25, 2018).
Consistent
with that scheduling order, the parties filed cross-motions
for partial summary judgment addressing those issues. Dkt.
16; Dkt. 17. For the reasons explained below, the Court will
grant in part and deny in part the parties’ respective
cross-motions. With respect to the White Paper Request, the
Court holds that the ATF did not conduct an adequate search
for responsive records; that the ATF lawfully concluded that
unrelated attachments to responsive emails were outside the
scope of the FOIA request; and that the parties’
dispute regarding assertion of the deliberative process
privilege has been resolved by the Brady Center’s
acquiescence in certain withholdings and the ATF’s
decision to release other previously withheld records. With
respect to the Warning Letters Request, the Court holds that
the ATF lawfully redacted certain information but that,
without a Vaughn index or additional information
regarding the specifics of each redaction, the Court cannot
determine whether each redaction was permissible.
I.
BACKGROUND
The
Brady Center submitted the first of the two FOIA requests at
issue here on March 29, 2017. Dkt. 1-2. That request-the
White Paper Request-sought:
(1) All communications between ATF employees related to the
January 20, 2017 White Paper titled “Federal Firearm
Regulations-Options to Reduce or Modify Firearms
Regulations[;]”
(2) All communications between ATF employees and members of
the Presidential Transition Team related to the January 20,
2017 White Paper . . . [;]
(3) All communications between ATF employees and
non-government employees, including but not limited to
representatives from gun manufacturers or the National Rifle
Association, related to the January 20, 2017 White Paper . .
. [; and]
(4) All other documents, including drafts, related to the
January 20, 2017 White Paper . . . .
Dkt 1-2 at 2. By the time the Brady Center filed suit six
months later, the ATF had yet to make a final determination
with respect to the White Paper Request. Dkt. 1 at 2.
The
Brady Center submitted the second of the requests at
issue-the Warning Letters Request-on August 7, 2017. Dkt.
1-3. That request sought:
(1) All warning letters, warning conference notices, and the
underlying reports of violations and firearms inspection
narrative reports, issued to federal firearms licensees from
July 1, 2015 through June 30, 2017[; and]
(2) All notices of revocation of license and the accompanying
ATF Form 4500s issued to federal firearms licensees from July
1, 2015 through June 30, 2017.
Dkt. 1-3 at 2. As with the White Paper Request, the ATF
failed to make a final determination with respect to the
Warning Letters Request by the time the Brady Center brought
suit.
At an
initial status conference, the ATF explained that it had
gathered many-but not all-of the records responsive to the
White Paper Request for the purpose of responding to a
similar request made by the House Committee on Oversight and
Government Reform. Minute Entry (Dec. 21, 2017). The Court,
accordingly, directed that the ATF promptly release any
non-exempt records that it had already gathered and that the
parties file a joint status report addressing the remaining
issues. The ATF subsequently released 1, 134 pages responsive
to the White Paper Request and provided the Brady Center with
a Vaughn index regarding its withholdings, and the
parties agreed to a briefing schedule to address their
remaining differences regarding the ATF’s response to
the White Paper Request. In the meantime, the ATF started to
release records responsive to the Warning Letters Request,
albeit with substantial redactions. Many of those redactions
were made pursuant to FOIA Exemption 3 on the ground that the
ATF was precluded from releasing the redacted information by
an appropriation’s rider, known as the Tiahrt Rider,
which precludes the ATF from expending any funds to disclose
“any information required to be kept by [federal
firearms] licensees pursuant to [18 U.S.C. §] 923(g) . .
. or required to be reported [to the ATF] pursuant to
paragraphs (3) and (7) of such section.” Consolidated
and Further Continuing Appropriations Act of 2012, Pub. L.
No. 112-55, 125 Stat. 552, 609 (2011).
Against
this backdrop, the Brady Center filed a motion requesting
that the Court set a briefing schedule to address (1) the
adequacy of the ATF’s search for records responsive to
the White Paper Request; (2) the ATF’s decision to
withhold attachments to responsive emails as “out of
scope” of the FOIA request; (3) the ATF’s
withholding of records responsive to the White Paper Request
based on the deliberative process privilege; and (4) the
ATF’s redactions of records responsive to the Warning
Letters Request based on the Tiahrt Rider. Dkt. 13.
In
response, the ATF agreed that the parties should brief the
issues relating to the White Paper Request but argued that
the Brady Center’s request for an opportunity to
address the ATF’s application of the Tiahrt Rider was
premature because the ATF was still processing records
responsive to the Warning Letters Request. Dkt. 14 at 2.
Following a status conference held to address these and other
issues, the Court set a schedule for the parties to file
cross-motions for summary judgment addressing (1) all issues
posed by the ATF’s responses to the White Paper
Request, and (2) the application of the Tiahrt Rider to the
ATF’s responses to the Warning Letters Request. Minute
Order (June 25, 2018). The Court held oral argument on the
parties’ cross-motions for partial summary judgment on
September 11, 2019, and the parties subsequently filed
supplemental briefs addressing questions posed at oral
argument, Dkt. 31; Dkt. 32.
II.
LEGAL STANDARD
To
prevail on a motion for summary judgment, the moving party
must “show that there is no genuine dispute as to any
material fact and . . . [that it] is entitled to judgment as
a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). In a FOIA action,
this means that “the agency must demonstrate that it
has conducted a ‘search reasonably calculated to
uncover all relevant documents.’” Steinberg
v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C.
Cir. 1994) (quoting Weisberg v. Dep’t of
Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). To make
this showing, the agency must provide 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.” Oglesby v. U.S. Dep’t of
Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Agencies may
withhold responsive documents uncovered in that search only
if those documents fall within one of the exemptions
enumerated in 5 U.S.C. § 552(b). Insofar as the agency
withholds responsive records pursuant to those exemptions, it
must provide an index of that information and the
justification that supports withholding each record.
Vaughn v. Rosen, 484 F.2d 820, 827–28 (D.C.
Cir. 1973).
III.
ANALYSIS
The
pending cross-motions address all issues posed by the
ATF’s responses to the White Paper Request and address
one, discrete issue posed by the ATF’s (not yet
complete) responses to the Warning Letters Request. The Court
will address each set of issues in turn.
A.
White Paper Request
The
Brady Center initially identified three alleged deficiencies
in the ATF’s responses to the White Paper Request: the
adequacy of the ATF’s search for responsive records;
the ATF’s invocation of FOIA Exemption 5 to withhold
purportedly deliberative records; and the ATF’s
determination that otherwise non-responsive attachments to
responsive emails fell outside the scope of the FOIA request.
Dkt. 13. The second of these alleged deficiencies is no
longer contested, however. The Brady Center has now withdrawn
its objection to the ATF’s withholding of drafts of
materials relating to inquiries from the House Oversight and
Government Reform Committee, and the ATF has now released
previously withheld drafts of the White Paper. Dkt. 31 at 2;
Dkt. 32 at 2. As a result, the ATF is entitled to summary
judgment with respect to the agency’s assertion of FOIA
Exemption 5, with the exception of the Brady Center’s
challenge to the ATF’s withholding of the drafts of the
White Paper, which is now moot in light of the ATF’s
release of the records at issue.
The
Court will, accordingly, limit its analysis of the White
Paper Request to two issues: the adequacy of the search and
the ATF’s “out of scope” determination.
1.
Adequacy of the Search
The
Brady Center lodges two distinct challenges to the adequacy
of the search the ATF conducted: the first concerns the
adequacy of the search done by the author of the White Paper,
former Acting Deputy Director (“ADD”) Ronald
Turk, of his own personal email for responsive records, and
the second concerns the search conducted by the ATF of its
electronic and other files. Dkt. 17-2.
a.
Acting Deputy Director Turk’s Search of ...