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

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff Civil Action No. 18-2071 (CKK) v. GENERAL SERVICES ADMINISTRATION, Defendant

MEMORANDUM OPINION (July 29, 2019) This lawsuit arises from a Freedom of Information Act (“FOIA”) request that Plaintiff

Citizens for Responsibility and Ethics in Washington made to Defendant General Services

Administration (“GSA”). Plaintiff requested all communications from January 20, 2017 to July

30, 2018 between GSA and the White House concerning the renovation of the Federal Bureau of

Investigation (“FBI”) headquarters. Following Defendant’s initial search, Defendant notified

Plaintiff that no documents were found. However, Defendant later conducted another search

using terms and parameters suggested by Plaintiff. Ultimately, Defendant located 52 pages of

responsive records, 25 pages of which were released with certain redactions. The parties have

filed cross-motions for summary judgment on the issues of whether or not Defendant’s search,

withholding of documents, and redactions violated FIOA.

Upon consideration of the pleadings,1 the relevant legal authorities, and the record as it

currently stands, the Court GRANTS IN PART and DENIES WITHOUT PREJUDICE IN PART

1 The Court’s consideration has focused on the following documents: • Def.’s Mot. for Judgment on the Pleadings, to Dismiss and for Summary Judgment, ECF No. [18] (“Def.’s Mot.”);

1 Plaintiff’s Cross-Motion for Summary Judgment and DENIES WITHOUT PREJUDICE

Defendant’s Motion for Summary Judgment. The Court concludes that Defendant’s search

conducted in response to Plaintiff’s FOIA request was inadequate. As such, the Court GRANTS

IN PART Plaintiff’s Motion. In an effort to avoid piecemeal litigation, the Court otherwise

DENIES WITHOUT PREJUDICE Plaintiff’s and Defendant’s motions so that Defendant can

conduct an adequate search and identify, disclose, redact, or withhold any additional records

prior to the Court’s resolution of the remaining issues.

I. BACKGROUND

In its July 30, 2018 FOIA request, Plaintiff sought to acquire “all communications from

January 20, 2017 to [July 30, 2018] between GSA and the White House concerning the

renovation of the FBI headquarters.” Pl.’s Statement of Undisputed Material Facts (“Pl.’s

Statement”), ECF No. 19-9, ¶¶ 1-2; Def.’s Res. to Pl.’s Statement of Undisputed Material Facts

(“Def.’s Res.”), ECF No. 22, ¶¶ 1-2. Following Plaintiff’s request, on August 27, 2018, the

GSA’s Office of the Inspector General released a “Review of GSA’s Revised Plan for the

Federal Bureau of Investigation Headquarters Consolidation Project” which described meetings

between GSA and the White House as well as specific emails concerning those meetings. Id. at

¶¶ 3-5; Id. at ¶¶ 3-5.

• Mem. in Support of Pl.’s Cross-Mot. for Summary Judgment and Opp’n to Def.’s Mot. for Judgment on the Pleadings, to Dismiss and for Summary Judgment, ECF No. [19-1] (“Pl.’s Mot.”); • Reply in Support of Def.’s Mot. on the Pleadings, to Dismiss and for Summary Judgment and Opp’n to Pl.’s Cross-Mot. for Summary Judgment, ECF No. [22] (“Def.’s Reply”); and • Reply in Support of Pl.’s Cross-Mot. for Summary Judgment, ECF No. [24] (“Pl.’s Reply”). In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f).

2 After Defendant failed to respond to Plaintiff’s request within the statutory deadline,

Plaintiff filed this lawsuit on September 4, 2018. A little over a month later, on October 18,

2018, the United States House Committee on Oversight and Reform (“House Oversight

Committee”) publicly released at least three emails concerning the renovation of the FBI

headquarters. Id. at ¶ 7; Id. at ¶ 7. First, a January 25, 2018 email exchange between a White

House Official and a GSA official concerned the “path forward for the new FBI Headquarters

announcement” which the “President” had “signed off on.” Id. at ¶ 8a; Id. at ¶ 8a. Second, a

January 28, 2018 email between GSA officials asked that the “DOJ/FBI” “memoraliz[e] what

was decided in the meeting with POTUS” regarding the FBI headquarters. GSA requested that

the memorialized document “recap the oval meeting with what POTUS directed everyone to do”

and “then ask Emily [Murphy with GSA] to execute POTUS’s orders.” Id. at ¶ 8b; Id. at ¶ 8b.

Finally, the House Oversight Committee released a January 28, 2018 email exchange in which

GSA officials forwarded an email from the Office of Management and Budget (“OMB”)

explaining that the FBI headquarters project is “a demolition/new construction [project] per the

President’s instructions.” Id. at ¶ 8c; Id. at ¶ 8c.

Later, on the same day that the House Oversight Committee released these emails, the

parties conducted a teleconference during which Defendant explained that its search had

uncovered no records responsive to Plaintiff’s FOIA request. Id. at ¶ 9; Id. at ¶ 9. Plaintiff

responded by alleging that the emails released by the House Oversight Committee appeared to be

responsive to its FOIA request, thus casting doubt on the adequacy of Defendant’s search. Id. at

¶ 10; Id. at ¶ 10.

3 On October 25, 2018, Defendant agreed to conduct another search using terms and

parameters suggested by Plaintiff based on the language from the publicly released emails. Id. at

¶ 11; Id. at ¶ 11. Plaintiff provided Defendant with the following search proposal:

• Date range: January 20,2017 to July 30,2018 • Custodians: emails between any GSA email address and any White House/EOP email address • Search terms: o headquarters o HQ o demoli! o renov! o rebuild o demo! W/3 rebuild [explanation: looking for all variations of demo! within three words of rebuild] o "demolish rebuild'' o remodel! o "construction project" o “new construction” o President W/10 order! OR direct! OR instruct! OR decide! OR want! [explanation: looking for all variations of these words within 10 words of President] o POTUS W/10 order! OR direct! OR instruct! OR decide! OR want! [explanation: looking for all variations of these words within 10 words of POTUS] o operating lease o leaseback o PA Ave!

Ex. 2, ECF No. 18-2, 1-2.

On December 7, 2018, Defendant informed Plaintiff that it had completed the additional

search and determined that all responsive documents were exempt from disclosure under FOIA.

Pl.’s Statement, ECF No. 19-9, ¶ 12; Def.’s Res., ECF No. 22, ¶ 12. Plaintiff responded by

asking Defendant for more specific information on the number of withheld pages and on the

grounds for the withholdings. Id. at ¶ 13; Id. at ¶ 13. Defendant stated that 52 pages of

responsive records had been located. Of the 52 pages, 25 pages were being withheld pursuant to

FOIA Exemption 5 under the presidential communications privilege and the deliberative process

4 privilege and FOIA Exemption 7(c) based on the potential for the information to constitute an

unwarranted invasion of personal privacy. The remaining 27 responsive pages were withheld

pursuant to only FOIA Exemption 5 under the deliberative process privilege. Id. at ¶ ¶ 14-15; Id.

at ¶ ¶ 14-15.

Approximately three months later, on March 15, 2019, Defendant decided to release with

certain redactions the 25 pages that had originally been withheld under the presidential

communications privilege. Id. at ¶ 16; Id. at ¶ 16. Neither Defendant’s pleadings, Declaration, or

Vaughn index provide any indication that the emails which were publicly released by the House

Oversight Committee were included in the 52 pages of documents which were located.

On March 28, 2019, Defendant moved for summary judgment, asking the Court to

conclude that it did not violate FOIA in responding to Plaintiff’s request. And on April 29, 2019,

Plaintiff cross-moved for summary judgment, asking the Court to conclude that Defendant

violated FOIA based on its search, its withholdings, and its redactions. These motions are

currently before the Court.2

II. LEGAL STANDARD

Congress enacted FOIA to “pierce the veil of administrative secrecy and to open agency

action to the light of public scrutiny.” Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976)

(citation omitted). Congress remained sensitive to the need to achieve balance between these

objectives and the potential that “legitimate governmental and private interests could be harmed

2 Defendant contends that Plaintiff violated Local Civil Rule 7(h) by failing to properly controvert or dispute Defendant’s Statement of Facts. Def.’s Reply, ECF No. 22, 3. While Plaintiff’s Response to Defendant’s Statement of Facts is not an archetype of good pleading, the Court concludes that it should exercise its discretion to consider Plaintiff’s Response. See Gardels v. Cent. Intelligence Agency, 637 F.2d 770, 773 (D.C. Cir. 1980) (explaining that courts have discretion to consider pleadings that do not comply with the local rules).

5 by release of certain types of information.” FBI v. Abramson, 456 U.S. 615, 621 (1982). To that

end, FOIA “requires federal agencies to make Government records available to the public,

subject to nine exemptions.” Milner v. Dep't of Navy, 562 U.S. 562, 562 (2011). Ultimately,

“disclosure, not secrecy, is the dominant objective of the Act.” Rose, 425 U.S. at 361. For this

reason, the “exemptions are explicitly made exclusive, and must be narrowly construed.” Milner,

562 U.S. at 565 (citations omitted).

When presented with a motion for summary judgment in this context, the district court

must conduct a “de novo” review of the record, which requires the court to “ascertain whether

the agency has sustained its burden of demonstrating the documents requested are ... exempt

from disclosure under the FOIA.” Multi Ag Media LLC v. U.S. Dep't of Agriculture, 515 F.3d

1224, 1227 (D.C. Cir. 2008) (citation omitted). The burden is on the agency to justify its

response to the plaintiff's request. 5 U.S.C. § 552(a)(4)(B). “An agency may sustain its burden by

means of affidavits, but only if they contain reasonable specificity of detail rather than merely

conclusory statements, and if they are not called into question by contradictory evidence in the

record or by evidence of agency bad faith.” Multi Ag Media, 515 F.3d at 1227 (citation omitted).

“If an agency's affidavit describes the justifications for withholding the information with specific

detail, demonstrates that the information withheld logically falls within the claimed exemption,

and is not contradicted by contrary evidence in the record or by evidence of the agency's bad

faith, then summary judgment is warranted on the basis of the affidavit alone.” Am. Civil

Liberties Union v. U.S. Dep't of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011) (citations omitted).

“Uncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the

exemption are likely to prevail.” Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d

504, 509 (D.C. Cir. 2011). Summary judgment is proper when the pleadings, the discovery

6 materials on file, and any affidavits or declarations “show[ ] 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).

III. DISCUSSION

Plaintiff begins by challenging the adequacy of Defendant’s search conducted in response

to Plaintiff’s FOIA request. Plaintiff faults Defendant for failing to locate the emails which had

been publicly released by the House Oversight Committee, despite the fact that Plaintiff flagged

those emails for Defendant prior to Defendant’s supplemental search. Plaintiff contends that this

failure casts doubt on the adequacy of Defendant’s search. The Court agrees.

An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt

that its search was “reasonably calculated to uncover all relevant documents.” Valencia-Lucena

v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (internal quotation marks omitted). “At

summary judgment, a court may rely on [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.” Ancient Coin Collectors Guild, 641 F.3d at 514

(internal quotation marks omitted). “The agency cannot limit its search to only one or more

places if there are additional sources that are likely to turn up the information requested.”

Valencia-Lucena, 180 F.3d at 326 (internal quotation marks omitted). Ultimately, the adequacy

of a search is “determined not by the fruits of the search, but by the appropriateness of [its]

methods.” Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (citation

omitted); see also Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)

(“[T]he issue to be resolved is not whether there might exist any other documents possibly

7 responsive to the request, but rather whether the search for those documents was adequate.”

(emphasis in the original)).

Defendant has two arguments as to why its search was reasonable under the

circumstances. First, Defendant contends that Plaintiff narrowed its FOIA request when it

proposed specific search terms and parameters. Second, as to the existence of the emails released

by the House Oversight Committee, Defendant contends that the “mere fact that additional

documents have been discovered” does not mean that its search was inadequate. Barouch v. U.S.

Dep’t of Justice, 962 F. Supp. 2d 30, 53 (D.D.C. 2013). The Court will address each argument in

turn.

First, the Court concludes that Plaintiff’s proposal of specific search terms and

parameters did not narrow the underlying request. Defendant argues that the GSA emails

released by the House Oversight Committee are not responsive to Plaintiff’s FOIA request

because Plaintiff narrowed its request by suggesting specific search terms and parameters.

Defendant cites three cases in support of its argument; however, none are persuasive to the

Court.

First, in American Center for Law and Justice v. United States Department of Justice,

325 F. Supp. 3d 162 (D.D.C. 2018), the court explained that “where sophisticated parties to a

FOIA case have agreed to narrow the issues in a written status report, they generally may be held

to their agreement under traditional waiver principles.” 325 F. Supp. at 168-69. Here, the parties

never agreed to narrow the issues in a written status report filed with the Court. Instead,

following the failure of Defendant’s initial search, Plaintiff merely sent an email suggesting

search terms and parameters to Defendant based on the emails which had been released by the

House Oversight Committee.

8 Second, in Gilman v. Department of Homeland Security, 32 F. Supp. 3d 1 (D.D.C.

2014), the court held that the plaintiff had narrowed her FOIA request based on the parties’ joint

status report explaining how the defendant could satisfy the FOIA request. 32 F. Supp. 3d at 22-

23. Additionally, the Court had entered an Order effectuating the narrowing agreement. Id.

Again, here, the parties never filed a joint status report narrowing Plaintiff’s FOIA request and

the Court never entered an Order effectuating such a narrowing.

Third, in People for the American Way Foundation v. United States Department of

Justice, 451 F. Supp. 2d 6 (D.D.C. 2006), the court found that the plaintiff’s FOIA request had

been narrowed because the defendant “was a signatory to several Joint Status Reports during the

course of this litigation, in which the parties represented-unequivocally-that the FOIA request

had been narrowed.” 451 F. Supp. 2d at 11-12. The court further stressed that the plaintiff is the

“master” of its FOIA request. Id. Here, there were no joint status reports evidencing an

agreement to narrow Plaintiff’s FOIA request. Moreover, as the “master” of the request, Plaintiff

insists that the request was never narrowed.

Accordingly, the Court finds that Plaintiff’s mere proposal of search terms and

parameters was insufficient to narrow the scope of Plaintiff’s formally-made FOIA request.

However, even if the Court were to conclude that Plaintiff’s FOIA request was implicitly

narrowed by its search proposal, Defendant has still failed to explain why its narrowed search did

not discover at least two of the emails which the House Oversight Committee had released.

Defendant argues that the only email released by the House Oversight Committee that

would have potentially been found under Plaintiff’s search criteria is the January 25, 2018 email

exchange between a White House official and a GSA official concerning the “path forward for

the new FBI Headquarters announcement” which the “President” had “signed off on.” Ex. 3,

9 ECF No. 19-4, 2. Defendant argues that this email was not found because the email at the top of

the chain does not have any of the proffered terms and the term “headquarter” appears only

further in the email chain. However, Defendant provides no explanation as to why the fact that

the term “headquarter” appears “further in the email chain” would prevent the email from being

found in an adequate search. Def.’s Reply, ECF No. 22, 5.

Defendant also attempts to explain why its search failed to locate the January 28, 2018

email exchange in which GSA officials forwarded an email from the OMB explaining that the

FBI headquarters project is now “a demolition/new construction [project] per the President’s

instructions.” Ex. 3, ECF No. 19-4, 5-6. Defendant explains that this email was sent using an

OMB email address, with omb.eop.gov, not a White House email address, with who.eop.gov.

Def.’s Reply, ECF No. 22, 5. But, Plaintiff’s search parameters referenced any “White

House/EOP email address.” Ex. 2, ECF No. 18-2, 1. The use of a forward slash indicates that

Plaintiffs intended to include any White House or EOP email address. See Dictionary.com, How

to Use the Slash, available at https://www.dictionary.com/e/slash/ (explaining that a forward

slash indicates alternatives). An adequate search for emails between any GSA email address and

any White House or EOP email address would presumably have discovered the January 28, 2018

email as the email included the terms “demolition” and “new construction.” 3

3 The Court notes that the third email released by the House Oversight Committee and cited by Plaintiff does not appear to be responsive to Plaintiff’s initial FOIA request or to its proposed search parameters. The January 28, 2018 email between GSA officials asked that the “DOJ/FBI” “memoraliz[e] what was decided in the meeting with POTUS” regarding the FBI headquarters. GSA requested that the document “recap the oval meeting with what POTUS directed everyone to do” and “then ask Emily [Murphy with GSA] to execute POTUS’s orders.” Ex. 3, ECF No. 19-4, 3-4. This email appears to have been sent between GSA email addresses. And, Plaintiff’s FOIA request mentioned only “copies of all communications … between GSA and the White House.” Ex. 1, ECF No. 18-1, 2. As this communication was not between GSA and the White House, it does not appear to be responsive to Plaintiff’s request.

10 Accordingly, the Court concludes that Plaintiff has presented evidence that Defendant

failed to find at least two emails which were responsive to Plaintiff’s FOIA request, both as

originally construed and as allegedly narrowed. These emails were publicly released and

presented to Defendant by Plaintiff prior to Defendant’s supplemental search. Despite

Defendant’s knowledge of these emails, Defendant failed to conduct a search sufficient to find

these emails or to follow leads which would have led to these emails.

However, Defendant argues that the proven existence of undiscovered emails responsive

to Plaintiff’s FOIA request is insufficient to “impugn the accuracy of the [agency] affidavits”

stating that the search was adequate. Barouch, 962 F. Supp. 2d at 53. Defendant submitted a

Declaration from Travis Lewis, the Director of GSA’s FOIA & Records Management Division.

In his Declaration, Mr. Lewis stated that he tasked GSA’s Office of the Chief Information

Officer (“OCIO”) with conducting a search for responsive records using Plaintiff’s proposed

search terms and parameters. Decl. of Travis Lewis, ECF No. 18-3, ¶ 6. Mr. Lewis further stated

that the OCIO “searches all agency employees' emails, calendar togs and shared drive files for

responsive electronic records via the search parameters requested by the FOIA requester.” Id.

Additionally, Mr. Lewis ensured that there were no paper records responsive to Plaintiff’s

request. Id. at ¶ 10. Defendant contends that the Court should rely on Mr. Lewis’s affidavit

concerning the search for records as evidence of the adequacy of the search.

The Court begins by noting that this is not a case where Defendant “uncovered additional

documents after its initial search.” Barouch, 962 F. Supp. 2d at 53 (emphasis added). Here,

Plaintiff presented Defendant with documents responsive to its FOIA request prior to

Defendant’s supplemental search. Despite knowing of the existence of these responsive records,

Defendant’s search did not locate the responsive records. And, Mr. Lewis’s Declaration provides

11 no explanation as to why these records were not located by the search. The fact that Defendant’s

search failed to yield responsive records, which Defendant knew existed prior to conducting its

search, casts substantial doubt on the adequacy of Defendant’s search. Such a failure leads the

Court to conclude that Defendant’s search was not reasonably calculated to discover all

documents responsive to Plaintiff’s request. See Valencia-Lucana, 180 F.3d at 326-27 (reversing

grant of summary judgment for the defendant agency where “the record itself reveals positive

indications of overlooked materials” (internal quotation marks omitted)); Campbell v. U.S. Dep’t

of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998) (explaining that an agency must revise its assessment

of what constitutes a reasonable search “to account for leads that emerge during its inquiry”);

Friends of Blackwater v. U.S. Dep’t of Interior, 391 F. Supp. 2d 115, 120-21 (D.D.C. 2005)

(finding the agency’s search inadequate “in light of evidence that responsive documents

originated in and are likely to be contained in the files” of the defendant agency but the

defendant’s search did not discover those documents); Boyd v. U.S. Marshals Serv., No. 99-

2712, 2002 U.S. Dist. LEXIS 27734, *3-4 (D.D.C. Mar. 15, 2002) (finding the defendant

agency’s search inadequate partly because the defendant failed to explain why its search did not

locate a record known to be responsive to the plaintiff’s FOIA request).

IV. CONCLUSION

Because the Court concludes that Defendant’s search was inadequate, the Court

GRANTS IN PART Plaintiff’s Cross-Motion for Summary Judgment. The Court otherwise

DENIES WITHOUT PREJUDICE Plaintiffs’ Motion and Defendant’s Motion.

At this time, the Court will not address the remaining issues pertaining to withholdings

and redactions. Instead, the Court ORDERS that Defendant conduct an adequate search. The

parties are ORDERED meet and confer to discuss Defendant’s additional search. Defendant is

12 ORDERED to complete its new search by no later than SEPTEMBER 5, 2019. If it is not

possible to complete the search by that date, Defendant should file a Status Report prior to

SEPTEMBER 5, 2019, informing the Court as to why the deadline cannot be met and proposing

a new deadline. Following Defendant’s new search, if necessary, the parties can file renewed

motions for summary judgment addressing all disputed withholdings and redactions in order to

avoid piecemeal litigation. An appropriate Order accompanies this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge