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Heffernan v. Azar

United States District Court, District of Columbia

October 16, 2019

HENRY G. HEFFERNAN, Plaintiff,
v.
ALEX AZAR, in his official capacity as Secretary of the United States Department of Health and Human Services, Defendant.

          MEMORANDUM OPINION

          REGGIE B. WALTON UNITED STATES DISTRICT JUDGE

         The plaintiff, Henry G. Heffernan, initiated this civil action against the defendant, Alex Azar, in his official capacity as Secretary of the United States Department of Health and Human Services (“HHS”), alleging multiple violations of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2018). See generally Complaint (“Compl.”). Currently pending before the Court are (1) the Defendant's Renewed Motion for Summary Judgment (“Def.'s Mot.”) and (2) the Plaintiff's Opposition to Summary Judgment and Cross-Motion for Summary Judgment (“Pl.'s Mot.”). Upon careful consideration of the parties' submissions, [1] the Court concludes for the following reasons that it must grant the defendant's renewed motion for summary judgment and deny the plaintiff's renewed cross-motion for summary judgment.

         I. BACKGROUND

         The Court previously set forth the factual background of this case in its June 27, 2018 Memorandum Opinion, see Heffernan v. Azar, 317 F.Supp.3d 94, 101-03 (D.D.C. 2018) (Walton, J.), and therefore will not reiterate it again here. The Court will, however, set forth the procedural background of this case, which is pertinent to the resolution of the pending motions.

         The parties previously filed cross-motions for summary judgment on the plaintiff's Complaint. See id. at 101. On June 27, 2018, the Court granted in part and denied without prejudice in part the defendant's motion for summary judgment and denied the plaintiff's cross-motion for summary judgment. See id. at 134. Relevant to the pending motions, the Court denied without prejudice the defendant's motion for summary judgment with respect to (1) the adequacy of “the defendant's searches for the fall 2007 Chief Operating Officer Power[]Point presentation, ” id. at 134; (2) the adequacy of “the defendant's searches for . . . John Poll[a]ck's[2] response to a July 27, 2009 e[]mail, ” id.; (3) the propriety of the defendant's “with[olding] [of the] pre-final draft press release, ” id.; and (4) the propriety of the defendant's segregability analysis, see id., and granted the motion in all other respects, see id. The Court also ordered the defendant to “file a renewed motion for summary judgment addressing the deficiencies in the declarations submitted and the segregability analysis conducted as outlined in the [Court's June 27, 2018] Memorandum Opinion.” Order at 1 (June 27, 2018), ECF No. 39.

         In response to the Court's June 27, 2018 decision, the defendant filed his renewed motion for summary judgment, see generally Def.'s Mot., and the plaintiff filed his renewed cross-motion for summary judgment, see generally Pl.'s Mot., which are the subjects of this Memorandum Opinion.

         II. STANDARD OF REVIEW

         The Court must “grant summary judgment if the movant shows that 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 ruling on a Rule 56 motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. See Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). The Court must therefore draw “all justifiable inferences” in the non-moving party's favor and accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The non-moving party, however, cannot rely on “mere allegations or denials.” Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248). Thus, “[c]onclusory allegations unsupported by factual data will not create a triable issue of fact.” Pub. Citizen Health Research Grp. v. Food & Drug Admin., 185 F.3d 898, 908 (D.C Cir. 1999) (Garland, J., concurring) (alteration in original) (quoting Exxon Corp. v. Fed. Trade Comm'n, 663 F.2d 120, 126-27 (D.C. Cir. 1980)). If the Court concludes that “the non[-]moving party has failed to make a sufficient showing on an essential element of h[is] case with respect to which h[e] has the burden of proof, ” then the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). At bottom, “in ruling on cross-motions for summary judgment, the [C]ourt shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed.” Shays v. Fed. Election Comm'n, 424 F.Supp.2d 100, 109 (D.D.C. 2006).

         “FOIA cases typically are resolved on a motion for summary judgment.” Ortiz v. U.S. Dep't of Justice, 67 F.Supp.3d 109, 116 (D.D.C. 2014); see Defs. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). “[The] FOIA requires federal agencies to disclose, upon request, broad classes of agency records unless the records are covered by the statute's exemptions.” Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001). In a FOIA action, the defendant agency has “[the] burden of demonstrating that the withheld documents are exempt from disclosure.” Boyd v. Crim. Div. of U.S. Dep't of Justice, 475 F.3d 381, 385 (D.C. Cir. 2007). The Court will grant summary judgment to the government in a FOIA case only if the agency can prove “that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester.” Friends of Blackwater v. U.S. Dep't of Interior, 391 F.Supp.2d 115, 119 (D.D.C. 2005) (quoting Greenberg v. U.S. Dep't of Treasury, 10 F.Supp.2d 3, 11 (D.D.C. 1988)). Thus, in a lawsuit brought to compel the production of documents under the FOIA, “an agency is entitled to summary judgment if no material facts are in dispute and if it demonstrates ‘that each document that falls within the class requested either has been produced . . . or is wholly[, or partially, ] exempt from [disclosure].'” Students Against Genocide, 257 F.3d at 833 (first alteration in original) (quoting Goland v. Cent. Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978)).

         III. ANALYSIS

         The defendant argues that he is entitled to summary judgment because he “has satisfied all of [his] obligations with respect to the [ ] issues” identified in the Court's June 27, 2018 decision. Def.'s Mem. at 2. Specifically, the defendant contends that he has (1) run “[a]dditional searches for documents responsive to the fall 2007 Chief Operating Officer Power[]Point presentation, ” id.; (2) run “[a]dditional searches for . . . Poll[a]ck's [r]esponse to a July 27, 2009 email, ” id.; (3) submitted a supplemental declaration “explain[ing] in greater detail why the draft press release was withheld, ” id.; and (4) “provide[d] greater information concerning why there is no reasonably segregable information that can be released to [the] plaintiff, ” id. The plaintiff responds that the defendant “still has been unable to comply with the requirements of [the] FOIA” and that “[t]he Court should order the [defendant] to re-search [his] records, produce the draft press release in full, and release any and all factual information from otherwise redacted materials which has not properly been segregated per [the] FOIA.” Pl.'s Mem. at 1.

         The Court will address in turn whether the defendant has satisfied each of his remaining obligations previously identified by the Court regarding the plaintiff's FOIA request.

         A. Whether the Defendant Adequately Searched for the Fall 2007 Chief Operating Office PowerPoint Presentation

         In its June 27, 2018 decision, the Court found that the defendant's search for the Chief Operating Officer's fall 2007 PowerPoint presentation was not adequate because “the defendant's declarations, taken together, do not provide the Court the minimum information needed for the Court to conclude that the defendant conducted a search ‘reasonably calculated to uncover all relevant documents.'” Heffernan, 317 F.Supp.3d at 113 (quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999)). The Court reasoned that “[a]lthough the defendant's declarations sufficiently identify the search terms used, they do not provide the requisite averment that all locations likely to contain responsive documents were searched, ” id. (citations and internal quotation marks omitted), because “[t]he defendant's declarants simply state[d] that [Maureen] Gormley was the person [ ] most likely [to] have maintained or have access to the [requested PowerPoint] presentation, ” id. (fifth and sixth alterations in original) (internal quotation marks omitted), when he was instead “required to submit reasonabl[y] detailed declarations averring that all files likely to contain responsive materials (if such records exist) were searched, ” id. (internal quotation marks omitted). The Court reserved its ruling as to the adequacy of the defendant's search terms until the defendant filed his renewed motion for summary judgment. See id. at 115 n.13.

         The defendant argues that “[f]ollowing this Court's decision, [he] performed another search for records responsive to [the] plaintiff's request for the fall 2007 Chief Operating Officer Power[]Point presentation, ” Def.'s Mem. at 4 and submitted a declaration “mak[ing] clear that ‘[a]s a result of these latest searches, all files likely to contain responsive materials, if such records exist, have been searched . . . [, ]'” id. (second alteration in original) (quoting 2d Garcia-Malene Decl. ¶ 8). The plaintiff responds that the search performed by the defendant was not adequate because the defendant (1) used compound search terms, i.e., search terms utilizing more than one word, rather than individual search terms, see Pl.'s Mem. at 4; (2) failed to utilize certain search terms in his search, see id. at 5; and (3) “failed to search all reasonable potential custodians and locations for the 2007 Power[]Point [presentation], ” id. The Court will address each purported deficiency identified by the plaintiff in turn.

         1. Use of Compound Search Terms

         The plaintiff argues that the defendant's use of compound search terms in his search for the PowerPoint presentation was not reasonable because “[t]he search results [are] necessarily [ ] limited by those records which only contained all words, rather than any such keyword, making this the opposite of a reasonable search.” Id. at 4. The defendant responds that “[c]ontrary to [the] plaintiff's claims, a search using compound terms is not prohibited, ” Def.'s Opp'n at 3, and that “to have searched each word individually, as [the] plaintiff suggests, would have been absurd, ” id. at 5, and significantly overinclusive, see, e.g., id. (“For example, in looking for the 2007 [Chief Operating Officer] Power[]Point [presentation], a search was done of ‘Fall 2007.' Yet [the] plaintiff seems to suggest that [the] defendant should have searched for ‘Fall' by itself, and ‘2007' by itself . . . . A search of ‘2007' by itself presumably would have returned every document with the date ‘2007' in it, regardless of whether it had anything to do with the PowerPoint being sought.” (citations omitted)).

         Although some courts have found that the use of compound search terms may render an agency search inadequate, see, e.g., Nat'l Day Laborer Organizing Network v. U.S. Immigration & Customs Enf't Agency, 877 F.Supp.2d 87, 107 (S.D.N.Y. 2012) (“Boolean operators[3] are also consequential: a search for ‘secure communities opt-out' may yield no results while a search for ‘‘secure communities' and ‘opt-out'' yields ten thousand.”); Families for Freedom v. U.S. Customs & Border Prot., 837 F.Supp.2d 331, 335 (S.D.N.Y. 2011) (“In order to determine adequacy, it is not enough to know the search terms. The method in which they are combined and deployed is central to the inquiry.), “[t]h[ose] requirements . . . exceed those imposed by the ‘reasonableness' standard followed in this Circuit, ” Bigwood v. U.S. Dep't of Def., 132 F.Supp.3d 124, 141, 142 (D.D.C. 2015) (rejecting the plaintiff's “argu[ment] that the inclusion of compound phrases in a search is generally an ineffective search strategy that can yield incomplete results depending upon the type of search used” and finding that the compound search terms employed by the agency were reasonable (internal quotation marks omitted)). Rather than adopting a blanket rule requiring the defendant to use individual search terms, as the plaintiff would have the Court do, the Court will evaluate the search terms used by the defendant in the context of the search for documents responsive to the plaintiff's FOIA request. In that specific context, the Court finds that the defendant has sufficiently demonstrated why the use of certain compound search terms was appropriate. See, e.g., 2d Garcia-Malene Decl. ¶ 9 (“deem[ing] other individual search words already used in previous searches, e.g., ‘Fall' and ‘2007' from the previous searches for ‘Fall 2007', as too broad and unreasonably burdensome for another round of searches as individually separate terms”). Moreover, in instances where the defendant concluded that the use of compound search terms was not appropriate, he ran additional searches utilizing individual search terms, see id. ¶ 9 (“[The defendant] selected [certain] individual words for an additional round of independent searches in good faith to address [the] [p]laintiff's concern about the use of full names, and because [the defendant] deemed them relatively unique.”), evidencing good faith on the part of the defendant, see Heffernan, 317 F.Supp.3d at 107 (“[T]he [ ] Circuit has held that the performance of additional responses following an agency's initial response to a FOIA request not only does not discredit the original search, but to the contrary, actually indicates good faith and suggest[s] a stronger . . . basis for accepting the integrity of the search.” (alterations in original) (internal quotation marks omitted) (quoting Airaj v. United States, Civ. Action No. 15-983 (ESH), 2016 WL 1698260, at *7 (D.D.C. Apr. 27, 2016))). Accordingly, the Court finds that the defendant's selective use of compound search terms does not render his search for the fall 2007 Chief Operating Officer PowerPoint presentation inadequate.

         2. Failure to Utilize Certain Search Terms

         The plaintiff argues that the defendant's search for the PowerPoint presentation was also inadequate because “[t]he [defendant] inexplicably failed to include any of the following words in its search: ‘NIH, Clinical Center, September Advisory, Advisory Board, Clinical Research, findings, team, report, or recommendations, '” “despite the fact that this document was presented as a summary of the findings of the Operational Review Team to the [National Institutes of Health (‘NIH')] Advisory Board for Clinical Research at its September 21, 2007 meeting.” Pl.'s Mem. at 5. The defendant responds that the plaintiff is not entitled to choose the search terms that the defendant must utilize to search for documents responsive to the plaintiff's FOIA request. See Def.'s Mem. at 5.

         As the defendant correctly notes, see id.,

a FOIA petitioner cannot dictate the search terms for his or her FOIA request. Rather, a federal agency has discretion in crafting a list of search terms that [it] believe[s] to be reasonably tailored to uncover documents responsive to the FOIA request. Where the search terms are reasonably calculated to lead to responsive documents, a court should neither micromanage nor second guess the agency's search.

Bigwood, 132 F.Supp.3d at 140 (citations and internal quotation marks omitted); see Johnson v. Exec. Office for U.S. Att'ys, 310 F.3d 771, 776 (D.C. Cir. 2002) (“[The] FOIA, requiring as it does both systemic and case-specific exercises of discretion and administrative judgment and expertise, is hardly an area in which the courts should attempt to micro manage the executive branch.”). “Agencies generally have ‘discretion in crafting a list of search terms' as long as they are ‘reasonably tailored to uncover documents responsive to the FOIA request, ” Tushnet v. U.S. Immigration & Customs Enf't, 246 F.Supp.3d 422, 434 (D.D.C. 2017) (quoting Bigwood, 132 F.Supp.3d at 140-41), and “in responding to a FOIA request, an agency is only held to a standard of reasonableness; as long as this standard is met, [the] [C]ourt need not quibble over every perceived inadequacy in an agency's response, however slight, ” Physicians for Human Rights v. U.S. Dep't of Def., 675 F.Supp.2d 149, 164 (D.D.C. 2009).

         Accompanying his renewed motion for summary judgment, the defendant provided the Court with a list of the search terms that he used to locate documents responsive to the plaintiff's request with respect to the PowerPoint presentation, see 1st Garcia-Malene Decl. ¶ 4 (indicating which search terms were used in searching for the PowerPoint presentation), and in response to the plaintiff's opposition to the defendant's renewed motion for summary judgment, he ran additional searches using additional search terms, see 2d Garcia-Malene Decl. ¶ 8 (indicating which additional search terms were used to search for the PowerPoint presentation). After comparing the search terms used and what was sought in the plaintiff's FOIA request, compare Pl.'s 1st Mot., Exhibit (“Ex.”) 4 (Letter from Cathy A. Harris to Deshawn Riddick (Mar. 19, 2014)) at 3 ¶ 7 (requesting “PowerPoint slides used by members of the Clinical Center in a presentation to employees in the Department of Spiritual Ministry in approximately September 2007 regarding the [ ] Advisory Board meeting”), and the supplement to his FOIA request, see id., Ex. 12 (Letter from Juliette Niehuss and Cathy A. Harris to Marina Utgoff Braswell (Sept. 9, 2016)) at 2 ¶ 1 (requesting production of “[t]he Chief Operating Officer's [P]ower[][P]oint presentation on the [o]perational review, presented to the Department's chaplains approximately a week or so after the September [Advisory Board for Clinical Research] meeting, in which the findings of the Operational Review Team's report were presented, and the Clinical Center Director's decisions on implementing certain recommendations of the Review Team”), with 1st Garcia-Malene Decl. ¶ 4 (regarding the PowerPoint presentation, “using [the] individual keywords ‘Dominic Ashkar', ‘Diana Gomez de Molina', ‘Dana Kelley', ‘Owen Fitzgerald', [‘]Spiritual Ministry', ‘Operational Review', ‘Fall 2007', ‘Spiritual Ministry Operational Review', ‘Maureen Gormley', ‘Staff assigned departments', ‘Walter Jones', and ‘Staff meetings'”), and 2d Garcia-Malene Decl. ¶ 8 (regarding the PowerPoint presentation, using the additional search terms “‘Ashkar', ‘Gomez', ‘de Molina', and ‘Gormley'”), the Court concludes that the “[d]efendant[] properly exercised [his] discretion in crafting [a] list[] of search terms that [he] believed to be reasonably tailored to uncover documents responsive to the FOIA request.” Physicians for Human Rights, 675 F.Supp.2d at 164. Moreover, the defendant has explained why the use of other search terms suggested by the plaintiff is not reasonable. See 2d Garcia-Malene Decl. ¶ 10 (explaining that search terms suggested by the plaintiff, “such as ‘NIH', ‘Clinical Center', ‘team', ‘Power Point' [sic], and ‘September[, ]'” “particularly when carried out by the NIH Clinical Center in an agency that carries out the vast majority of its work on Microsoft programs like PowerPoint, are simply so broad as to not inform a reasonable search for responsive records” (first alteration in original)). Accordingly, because “the [defendant's] search terms are reasonable, the Court will not second guess the [defendant] regarding whether other search terms might have been superior, ” Tushnet, 246 F.Supp.3d at 434 (quoting Liberation Newspaper v. U.S. Dep't of State, 80 F.Supp.3d 137, 146 (D.D.C. 2015)), and finds that the defendant's failure to utilize certain search terms proposed by the plaintiff does not render the defendant's search for the fall 2007 Chief Operating Officer PowerPoint presentation inadequate, see Physicians for Human Rights, 675 F.Supp.2d at 164 (finding “no support for the proposition that a FOIA claimant can dictate the search terms to be used as the benchmark for determining whether an agency's search is reasonable” (internal quotation marks omitted)).

         3.Failure to Search All Reasonable ...


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