United States District Court, District of Columbia
HENRY G. HEFFERNAN, Plaintiff,
ALEX AZAR, in his official capacity as Secretary of the United States Department of Health and Human Services, Defendant.
B. WALTON UNITED STATES DISTRICT JUDGE
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,  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.
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.
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 PowerPoint
presentation, ” id. at 134; (2) the adequacy
of “the defendant's searches for . . . John
Poll[a]ck's response to a July 27, 2009 email,
” 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.
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
STANDARD OF REVIEW
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).
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.
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 PowerPoint 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.
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
Whether the Defendant Adequately Searched for the Fall 2007
Chief Operating Office PowerPoint
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.
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 PowerPoint 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 PowerPoint [presentation], ” id.
The Court will address each purported deficiency identified
by the plaintiff in turn.
Use of Compound Search Terms
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] PowerPoint
[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)).
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 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
Failure to Utilize Certain Search Terms
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.
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.
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)).
to Search All Reasonable ...