Citizens for Responsibility and Ethics in Washington v. General Services Administration

• Court: District Court, District of Columbia
• Decided: December 17, 2018
• Docket: Civil Action No. 2018-0377
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

Plaintiff, Case No. 18-cv-377 (CRC) v.

UNITED STATES GENERAL SERVICES ADMINISTRATION,

Defendant.

MEMORANDUM OPINION AND ORDER

Few structures in Washington D.C. are more maligned than the J. Edgar Hoover FBI

building. Architecture critics pan its brutalist design, D.C. denizens bemoan its uninviting

presence on Pennsylvania Avenue, and, most relevant to this case, the FBI itself considers it too

small and unsafe to continue to function as the bureau’s headquarters. For the better part of a

decade, the General Services Administration (“GSA”)—the federal agency responsible for

acquiring and maintaining government facilities—has been exploring relocation and renovation

options. Until last year, one proposal appeared likely to materialize: the FBI would offer the

Hoover Building (and cash) to a real estate firm that would, in return, lead the construction of a

new headquarters elsewhere in the region. GSA identified three potential building sites and

began soliciting proposals from developers. But those efforts came to an abrupt halt in July

2017, and in early 2018, the FBI announced that it planned instead to rebuild its headquarters at

the present location.

Plaintiff Citizens for Responsibility and Ethics in Washington (“CREW”) wants an

explanation for GSA’s about-face. Among other concerns, CREW suspects that President

Trump put the kibosh on the swap-relocation plan because he feared that commercial development at the Hoover Building site might compete with the neighboring Trump

International Hotel. To substantiate its suspicions, CREW filed a Freedom of Information Act

(“FOIA”) request with GSA. It sought records explaining the decision to abort the swap-

relocation plan and related communications between GSA brass and other government officials,

including the White House. The agency has responded to that request and claims it is now

entitled to summary judgment. CREW opposes, objecting to the adequacy of GSA’s search and

the propriety of its withholdings. For the reasons that follow, the Court largely agrees with

CREW and will deny GSA’s motion for summary judgment.

I. Background

For the last several years, GSA has been on the hunt for a new FBI headquarters—one

that could accommodate a consolidation of the FBI workforce and provide beefed-up security.

Compl. ¶ 6. After publicizing a proposal that would involve the FBI swapping its current home,

the J. Edgar Hoover building on Pennsylvania Avenue, in exchange for a newly built one in

either Maryland or Virginia, id., GSA announced on July 11, 2017 that it was cancelling the

“new FBI headquarters consolidation project,” id. ¶ 7 (quoting GSA Statement on FBI

Headquarters, July 11, 20171). Questions immediately arose as to why GSA had abandoned the

project. Id. ¶ 8; see, e.g., Jonathan O’Connell, Robert McCartney & Jenna Portnoy, Fallout from

FBI Headquarters Decision Leaves Losers All Around, Wash. Post, July 11, 2017.2

1 Available at https://www.gsa.gov/node/87972. 2 Available at https://www.washingtonpost.com/business/economy/fallout-from-fbi- headquarters-decision-leaves-losers-all-around/2017/07/11/7571b362-664a-11e7-8eb5- cbccc2e7bfbf_story.html?utm_term=.335ab28241e9.

2 The very next day, on July 12, 2017, CREW joined the chorus of inquisitors. It

submitted a FOIA request to GSA seeking the following six categories of records:

• “copies of all records from January 20, 2017 to the present explaining the decision of GSA, announced on July 11, 2017, to cancel the procurement for the new FBI headquarters consolidation project. This request includes, but is not limited to, records from GSA Public Buildings Service, GSA Office of the Administrator, and the National Capital Region”;

• “copies of communications between GSA Regional Commissioner Mary Gibert and GSA Administrator Tim Horne from January 20, 2017 to the present concerning GSA’s decision to cancel the procurement for the new FBI headquarters consolidation project”;

• “copies of email communications between either Mary Gibert and Tim Horne and any individual at the eop.gov domain from January 20, 2017 to the present concerning GSA’s decision to cancel the procurement for the new FBI headquarters consolidation project”;

• “copies of communications between FBI officials and GSA concerning GSA’s decision to cancel the procurement for the new FBI headquarters consolidation project”;

• “copies of communications between the Office of Management and Budget and GSA concerning GSA’s decision to cancel the procurement for the new FBI headquarters consolidation project”; and

• “copies of records sufficient to show the amount of federal funds expended to evaluate the final three locations designated by GSA as possible sites for the new FBI headquarters in Fairfax, Virginia and Prince George’s County, Maryland.”

CREW’s FOIA Request, ECF No. 16-2, Ex. A.

GSA determined that GSA’s Office of the Chief Information Officer (“OCIO”) was the

office most likely to have records responsive to CREW’s first five requests, Declaration of

Travis Lewis (“Lewis Decl.”), ECF No. 16-2 ¶ 6, and that its Public Building Service (“PBS”)

would have records responsive to CREW’s sixth request, id. ¶ 11. In March 2018, GSA notified

CREW that it had found zero records responsive to its first five requests and one responsive to its

sixth. Id., Ex. B. After realizing that it inadvertently searched for “Mary Gilbert” rather than

3 “Mary Gibert” pursuant to CREW’s second request, OCIO performed a follow-up search with

the correct name and produced to CREW an additional 28 responsive pages in July 2018. Id. ¶¶

14-15; id. at Ex. C. GSA also withheld records that it determined were subject to the deliberative

process privilege under FOIA Exemption 5 and redacted agency employees’ signatures and

cellphone numbers under FOIA Exemption 6. Id. ¶ 19; Ex. D.

GSA believes it has fulfilled its FOIA obligations and has moved for summary judgment,

Def’s Mot. Summ. J., ECF No. 16, which CREW opposes, Pl’s Opp. ECF No. 17. The Court

held a hearing on December 12, 2018, and the motion is now 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 appropriately granted 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).

Under FOIA, an agency must adequately search for any responsive records. Rodriguez v.

U.S. Dep’t of Def., 236 F. Supp. 3d 26, 34 (D.D.C. 2017). When a FOIA requester challenges

the adequacy of an agency’s search, the agency must show “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) (quoting Valencia-Lucena v. U.S. Coast

Guard, 180 F.3d 321, 325 (D.C. Cir. 1999)) (internal quotation omitted). In reviewing an

agency’s search, courts examine the methods, not the fruits, of the search. Rodriguez, 236 F.

Supp. 3d at 34. An agency “must show that it made a good faith effort to conduct a search for

the 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).

4 Agencies can make this showing through affidavits 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 affidavits 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) (quotation

omitted).

In addition to demonstrating that it conducted an adequate search, the agency must also

justify any withholdings it has made pursuant to a FOIA exemption. See, e.g., Larson v. Dep’t

of State, 565 F.3d 857, 862 (D.C. Cir. 2009). An agency may justify its withholdings through

sufficiently detailed affidavits. See, e.g., id. But because the primary purpose of FOIA is

disclosure, courts construe exemptions narrowly. See, e.g., DiBacco v. U.S. Army, 795 F.3d

178, 183 (D.C. Cir. 2015).

III. Analysis

CREW disputes the adequacy of GSA’s search and its justification for withholding

records. The Court addresses each issue in the order CREW raises them.

A. Facial Implausibility

CREW’s first argument hinges more on intuition than law. It asserts that GSA’s claim to

have found only 28 pages of records responsive to CREW’s first five requests “defies

credibility.” Pl’s Opp. at 16. Given that GSA and the FBI have “engaged in over a decade of

planning and discussions concerning a new FBI headquarters,” CREW says the agency’s paltry

response is “facially and patently unreasonable.” Id.

While the Court admits some surprise at the paucity of records, the reasonableness of an

agency’s search “is generally determined by evaluating the methods used to carry out the search,

5 not by examining the search results.” Rodriguez, 236 F. Supp. 3d at 34; see Iturralde v.

Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (search adequacy determined “not

by the fruits of the search, but by the appropriateness of the methods used to carry out the

search”). And though it is true that in some cases “a court may place significant weight on the

fact that a records search failed to turn up a particular document,” Iturralde, 315 F.3d at 315

(emphasis added), CREW points to no such document in this case.

CREW does highlight a statement in a GSA Inspector General (“IG”) report on the FBI

headquarters project that the IG “reviewed over 50,000 GSA documents and emails concerning

the FBI headquarters consolidation project.” Pl’s Opp. at 23 (quoting Review of GSA’s Revised

Plan for the Federal Bureau of Investigation Headquarters Consolidation Project3 (“IG Report”)

at 1). CREW queries: how can it be that GSA found only 28 pages of responsive records when

the IG Report found at least 50,000 documents pertaining to the consolidation project? But

remember, CREW’s FOIA request was not for all records “concerning the FBI headquarters

consolidation project”—what the IG Report surveyed—but instead for records from January 20,

2017 onward concerning the decision to “cancel the procurement for the new FBI headquarters

consolidation project.” CREW’s FOIA Request, ECF No. 16-2, Ex. A (emphasis added). That

means many records that the IG Report reviewed would reasonably be excluded from CREW’s

request—because they either predated January 20, 2017, or concerned the consolidation project,

but not the decision to call it off. Nor would CREW’s request capture records concerning GSA’s

subsequent decision to renovate the Hoover Building rather than relocate, as the agency has

explained. Second Declaration of Travis Lewis (“2d Lewis Decl.”) ¶ 4 (stating that agency’s

3 Available at https://www.gsaig.gov/content/review-gsa’s-revised-plan-federal-bureau- investigation-headquarters-consolidation-project.

6 cancellation decision was “a wholly separate matter from GSA’s decision to renovate the current

FBI headquarters”).

Without some hard evidence that the agency’s search unreasonably missed a particular

document, CREW’s “facially and patently unreasonable” argument amounts to “speculation that

as yet uncovered documents may exist.” SafeCard Servs., 926 F.2d at 1201. And speculation

alone does not provide an adequate basis to order a subsequent search.4

B. Adequacy of the Search

CREW next argues that GSA has not met its burden to show “beyond material doubt that

its search was reasonably calculated to uncover all relevant documents.” Ancient Coin

Collectors Guild, 641 F.3d 504, 514 (D.C. Cir. 2011) (quotation omitted). It takes particular aim

at the declaration the agency provided in support of its summary judgment motion. CREW

argues the agency failed to specify the time frame used in its search, failed to search certain

locations and for non-electronic documents, and failed to use sufficiently inclusive search terms.

Pl’s Opp. 18-22. The Court takes these in turn.

1. Time Frame

CREW faults the declaration for failing to “identify the date or dates of the search the

agency conducted.” Pl’s Opp. at 18. Without knowing “the date on which the agency

conduct[ed] its search,” CREW says the “Court has no way to assess whether the agency

employed a reasonable time-period in searching for responsive records.” Id.

4 To be sure, CREW later in its brief does home in on some particular documents that a reasonable GSA search ought to have revealed. But CREW highlights those documents in support of its more detailed adequacy-of-the-search argument, and so the Court will address them in its analysis of that claim.

7 While GSA’s first declaration did not make clear the date on which the agency conducted

the search, it did provide the time frame for the search (January 20, 2017 to February 23, 2018),

Lewis Decl. ¶ 14, and clarified in its second declaration that it conducted the search on February

23, 2018, 2d Lewis Decl. ¶ 5. Starting the search at January 20, 2017 is obviously reasonable,

since that is what CREW’s FOIA request explicitly requested. And CREW has already

conceded in its opposition that the date on which the search is conducted is a reasonable end-date

for a FOIA request. Pl’s Opp. at 18 (citing Pub. Citizen v. Dep’t of State, 276 F.3d 634, 644

(D.C. Cir. 2002) (holding that “date-of-search cut-off” was more reasonable since it might return

more responsive records)). The agency’s supplemental declaration therefore takes care of

CREW’s date-of-search complaint.

2. Locations searched

CREW next criticizes GSA’s explanation of where it searched for the requested records.

Specifically, though GSA says it sent the first five requests to OCIO “because OCIO . . . has

access to all of the agency’s electronic records,” Lewis Decl. ¶ 6, CREW notes that its request

was not limited to electronic records but instead sought “records of any kind, including paper

records, electronic records, audiotapes, videotapes, photographs, data, and graphical material.”

CREW’s FOIA Request, ECF No. 16-2, Ex. A.5 GSA responds that an electronic records search

would capture all records, since the agency’s “record retention policy” ostensibly requires paper

records to be stored electronically. Lewis Decl. ¶ 9.6

5 Though one of those five requests did request email communications specifically, the other four by their plain terms are not so limited. 6 The declaration cites to a document with the subject “GSA Records Management Program,” available at

8 The trouble for GSA is that CREW happened to read the “record retention policy” GSA

alludes to, and it appears to stand for directly the opposite proposition: that records are kept in a

variety of media. The policy notes, for instance, that “every GSA employee creates records in a

variety of media” and contemplates that they will be kept in various formats, as when it warns

employees that they “may never remove records, regardless of media, from GSA.” As CREW

puts it: “This policy on which GSA relies to justify its limited search not only does not, contrary

to Mr. Lewis’s representations, require all employees to store all paper records electronically, but

it expressly recognizes and addresses the management of paper records in their original media.”

Pl’s Opp. 20. Tellingly, neither the agency’s reply nor its supplemental declaration bothers to

address this point.

The Court therefore has no choice but to order GSA to conduct a fresh search of its non-

electronic records. In doing so, the agency must search beyond OCIO; in addition to any other

component entity likely to have responsive records, GSA must search the records of the GSA

Public Buildings Service, the GSA Office of the Administrator, and the National Capital Region,

as CREW expressly requested. CREW’s FOIA Request, ECF No. 16-2, Ex. A. As the Court

indicated at the hearing, agencies frequently conduct decentralized paper-record searches by

identifying components and/or particular personnel that are reasonably likely to have responsive

records and asking them to search their files and produce any resulting material.

https://www.gsa.gov/cdnstatic/OAS_P_1820.1_Records_Management_Directive_%28signed_3- 7-2014%29.pdf.

9 3. Search Terms

CREW’s third contention is that the agency’s search terms were under-inclusive. Pl’s

Opp. at 21. GSA used the following keywords: “FBI”; “FBI Headquarters”; “FBI Headquarters

procurement”; “Mary Gilbert and Tim Horne and eop.gov”; “Mary Gilbert and Tim Horne and

fbi.gov”; “Mary Gilbert and Tim Horne and omb.gov”; and “procurement for the new FBI

Headquarters consolidation.”7 Lewis Decl. ¶ 7. CREW says that these search terms came up

short in two ways: first, the agency should have included “JEH” and “the Hoover Building” since

they are “commonly used terms within the FBI and GSA for the FBI headquarters building”; and

second, the agency should have expanded its search for communications beyond those sent to or

from GSA employees Gibert and Horne. Pl’s Opp. at 21. CREW is correct on both counts.

First, the headquarters-synonym argument. An agency’s search must be “reasonably

calculated to uncover all relevant documents.” Ancient Coin Collectors Guild, 641 F.3d at 514

(quotation omitted). “Although a requester must reasonably describe the records sought, an

agency also has a duty to construe a FOIA request liberally.” Nation Magazine, Washington

Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) (alteration, citation, and

quotation omitted). Part of liberally construing a request is searching for “synonyms” and

“logical variations” of the words used in the request; an agency may not fish myopically for a

“direct hit on the records” using only “the precise phrasing” of the request. Gov’t Accountability

Project v. U.S. Dep’t of Homeland Sec., No. 1:17-CV-2518, 2018 WL 4954149, at *2 (D.D.C.

Oct. 12, 2018) (Cooper, J.). Here, it strikes the Court as rather likely that “JEH” and “the

Hoover Building”—referring to the current headquarters—would be used in communications and

7 GSA later corrected “Mary Gilbert” to “Mary Gibert,” which led to it producing additional responsive documents.

10 records regarding the headquarters consolidation project; a search reasonably calculated to

uncover all documents responsive to CREW’s request therefore ought to include these rather

obvious synonyms. See id., 2018 WL 4954149, at *2. GSA’s response is a non-starter. It

contends these additional search terms would not yield more returns, citing the fact that those

words “JEH” and “Hoover” do not appear often in the 28 pages of responsive documents. But

this misses the point: perhaps the words “JEH” and “Hoover” were not used in records that also

used the words “FBI headquarters,” but they may have been used in other records—particularly

informal records like emails—as a replacement or shorthand for “FBI headquarters.”

Second, the email address issue. The agency reasonably searched specifically for the

Gibert and Horne email addresses given that two of CREW’s requests expressly sought their

email communications. CREW’s FOIA Request (requests two and three), ECF No. 16-2, Ex. A.

But the agency erred by apparently applying the expressio unius est exclusio alterius canon of

statutory construction—which holds that when one thing of a class is expressly mentioned, all

others of the same class are excluded. Yes, CREW asked specifically for Gibert and Horne’s

communications with one another and with the White House, but its fourth and fifth requests

seek communications between GSA officials generally and the FBI and the Office of

Management and Budget (“OMB”). Yet the agency searched only for emails between Gibert

and Horne, on the one hand, and fbi.gov and omb.gov addresses, on the other. A search more

faithful to CREW’s broad request would have searched instead for communications between .gsa

and .fbi/.omb email addresses. The agency offers only a blanket rebuttal, asserting that it “used

reasonable and appropriate search terms” and citing to a portion of the declaration that does not

squarely engage with CREW’s argument that GSA’s search was inappropriately confined to

Gibert and Horne’s email addresses. See Def’s Reply at 3 (citing 2d Lewis Decl. ¶ 6).

11 That is not all, CREW says. It looks at the fruits of the second search—the one that

corrected “Gilbert” to “Gibert”—and asks why that search turned up responsive records that the

first one did not. Even with the misspelling, several documents produced by the second search

contained the terms “FBI” and “FBI Headquarters”—two terms GSA included in its initial

search—and clearly concerned the cancellation of the consolidated headquarters project. See

Pl’s Opp. at 22 (citing, inter alia, a 13-page explanation for the cancellation and a question and

answer sheet regarding the project). GSA did not provide those documents after its first search,

yet it stands to reason that it should have if it had adequately searched for “FBI” and “FBI

Headquarters,” and if it had fully reviewed the search returns to determine whether they fit

within CREW’s request. CREW is right that this offers further reason to question the agency’s

search, even if it goes more to the agency’s determination of what qualified as responsive, rather

than the reasonableness of the search inputs themselves. And again, the agency fails to address

CREW’s critique. Nowhere in its reply or in the attached supplemental declaration does it

explain this anomaly.

For all these reasons, the Court will deny without prejudice GSA’s motion for summary

judgment and will order the agency to conduct a supplemental search. The agency must (1)

conduct a search of any non-electronic records that it determines are likely to contain responsive

documents, and must expand that search to include the GSA component offices listed in

CREW’s first request; (2) add the keywords “JEH” and “Hoover building” to its electronic

search terms; (3) expand its search for relevant communications between GSA personnel and the

FBI and OMB, as described in CREW’s fourth and fifth requests; and (4) provide the Court a

supplemental declaration explaining how it determined whether potentially responsive records

were in fact responsive.

12 C. Justification for Withholdings

CREW also questions the legitimacy of GSA’s withholdings. GSA shielded several

responsive documents from disclosure by claiming the deliberative-process privilege under

FOIA Exemption 5. “To establish that a document is covered by the privilege, the government

must show that it is both ‘predecisional’ and ‘deliberative.’” Protect Democracy Project, Inc. v.

U.S. Dep’t of Def., 320 F. Supp. 3d 162, 176 (D.D.C. 2018) (quoting Coastal States Gas Corp. v.

Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)). “A predecisional communication is one

that ‘occurred before any final agency decision on the relevant matter.’” Id. (quoting Nat’l Sec.

Archive v. CIA, 752 F.3d 460, 463 (D.C. Cir. 2014)). “A deliberative communication is one that

“reflects the give-and-take of the consultative process.” Id. (quoting Coastal States, 617 F.2d at

866). Agencies provide explanations for their withholdings through a Vaughn index, “a system

of itemizing and indexing that would correlate statements made in the [agency’s] refusal

justification with the actual portions of the document[.]” Vaughn v. Rosen, 484 F.2d 820, 827

(D.C. Cir. 1973).

CREW contends, and the Court agrees, that GSA’s Vaughn index is patently inadequate.

To start, the index divides withheld documents into two “batches,” but fails to indicate which

documents fall into which batch. See Vaughn Index, ECF No. 16-2, Ex. D at 1-2. The agency

compounds this confusion by providing page numbers but failing to correlate those page

numbers to any particular produced or withheld document. Id. Thus, quite apart from whether

the agency’s justifications for withholding documents are substantively adequate, the Vaughn

index here fails even to “correlate statements made in the [agency’s] refusal justification with the

actual portions of the document[.]” Vaughn, 484 F.2d at 827.

13 But even if these easily correctable problems did not plague the Vaughn index, a more

fundamental defect does: the description of the withheld documents is so vague as to make

impossible any meaningful evaluation of the appropriateness of the deliberative-process

privilege. In “Batch #1,” the agency withheld “[d]raft documents of communications and talking

points for GSA, OMB and FBI prior to the final determination and talking points being decided

upon as the rationale for the decision to cancel the FBI Headquarters Consolidation Plan.”

Vaughn Index, ECF No. 16-2, Ex. D at 1. In “Batch #2,” the agency withheld “[i]nformation

compiled for purpose of the agency’s deliberative process prior to the final determination to

cancel the FBI Headquarters Consolidation Plan.” Id. at 2.

Start with the easier point: the obvious inadequacy of the Batch #2 explanation. The

agency makes no attempt to describe the withheld documents. It does not say who drafted them

or for whom they were intended, nor does it say what type of information they contained.

Instead, it states only that the withheld documents contain “[i]nformation compiled for purposes

of the agency’s deliberative process.” Id. This is akin to a plaintiff attempting to plead a claim

by reciting the legal elements but failing to provide any supporting facts. The Court need not

look to the case law for useful analogs; the deficiency of the agency’s explanation is plain on its

face.

The Batch #1 explanation inches closer to acceptability but likewise stops short. It

describes the withheld documents as “talking points,” suggesting the agencies were discussing

how best to communicate the cancellation decision to stakeholders and the public. Agencies

often withhold “talking points” under the deliberative-process privilege, and “courts have

generally found that documents created in anticipation of press inquiries are protected.” Protect

Democracy Project, 320 F. Supp. 3d at 177 (citing cases). Comparison to other cases, however,

14 reveals the inadequacy of GSA’s talking-points explanation here. In American Center for Law

& Justice v. U.S. Dep’t of Justice, the court accepted the agency’s talking-points claim, but that

was because the agency made clear that the withheld documents were “drafted before and in

preparation for communications with the press and public” and “reflect[ed] the drafters’ opinions

and analyses on specific topics and focus[ed] on how to best . . . respond to questions on these

topics.” No. 17-CV-01866, 2018 WL 4496306, at *5 (D.D.C. Sept. 19, 2018) (quoting agency

explanation for withholding). Here, by contrast, the agency has not explained why the withheld

documents constitute deliberative talking points.8 Still more telling is this Court’s conclusion in

Protect Democracy Project: despite a far more detailed explanation than GSA offers here, the

undersigned conducted an in camera review of the withheld talking-points documents to ensure

they qualified as predecisional and deliberative. 320 F. Supp. 3d at 177. In light of these

guideposts, the Court concludes that GSA’s talking-points explanation is inadequate. The

agency must either provide a more robust explanation or produce the documents in full.

CREW makes one final point. It contends that GSA wrongly redacted factual

information—including the number of responses it received to its request for information

regarding the swap-relocation proposal, the number of offerors GSA short-listed for the project,

and the appraised value of the Hoover Building—from a document the agency produced to

CREW. Pl’s Opp. at 29-30 (citing Findings and Determination, ECF No. 17-1, Ex. E). CREW

argues that the deliberative-process privilege does not apply to information like this, citing the

general rule “that factual material must be disclosed but advisory material, containing opinions

8 The Court recognizes that what was sufficient in American Center is not necessarily required in every other case. It nevertheless finds the difference between the explanations instructive.

15 and recommendations, may be withheld.” Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566

F.2d 242, 256 (D.C. Cir. 1977). GSA counters that the redacted factual information “reflects the

Agency’s deliberative process prior to reaching the decision to cancel the procurement” because

it “was ultimately part of the agency’s deliberations in deciding whether or not to cancel the

procurement.” 2d Lewis Decl. ¶ 10.

The Court, however, raised a separate question regarding the suitability of the

deliberative-process privilege: did the document containing the redactions qualify as

predecisional? Its title—“Findings and Determination”—and the date appearing on the

document—the same day the procurement cancellation was announced—strongly suggested it

was not. At a hearing convened by the Court to address this issue, government counsel indicated

that GSA was preparing a supplemental declaration to address the Court’s question. The Court

therefore agreed to defer judgment on that issue until it reviewed the agency’s declaration and

CREW’s response thereto.

IV. Conclusion

For the foregoing reasons, it is hereby

ORDERED that GSA’s motion for summary judgment is denied. It is further

ORDERED that the agency conduct a new search and provide a more comprehensive

justification for its withholdings. Specifically, the agency must (1) conduct a search of any non-

electronic records that it determines are likely to contain responsive documents, and must expand

that search to include the entities listed in CREW’s first request; (2) add the keywords “JEH” and

“Hoover building” to its search terms; (3) expand its search for communications between GSA

personnel and the FBI and OMB; (4) provide a supplemental declaration explaining how it

determined whether potentially responsive records were in fact responsive; and (5) provide a

16 more comprehensive Vaughn index explaining its withholdings, or else produce the withheld

documents in full.

The Court will reserve judgment on the agency’s redactions of the “Findings and

Determinations” document pending review of GSA’s supplemental declaration. GSA shall file

the declaration by December 24, 2018, and CREW shall file any response by January 9, 2019.

SO ORDERED.

CHRISTOPHER R. COOPER United States District Judge

Date: December 17, 2018