Cole v. May

• Court: District Court, District of Columbia
• Decided: December 21, 2021
• Docket: Civil Action No. 2015-1991
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DAVID COLE,

Plaintiff, Civ. Action No. 15-1991 (EGS/GMH) v.

WALTER G. COPAN, 1 et al.

Defendants.

MEMORANDUM OPINION

Plaintiff David Cole (“Mr. Cole” or “Plaintiff”) has sued

Defendants, the National Institute of Standards and Technology

(“NIST”) and the Federal Emergency Management Agency (“FEMA”),

under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552.

See Complaint, ECF No. 1. Mr. Cole’s lawsuit arises from a May

20, 2011, FOIA request for certain records related to the

collapse of the World Trade Center (“WTC”) buildings on

September 11, 2001, and alleges that defendants have made an

inadequate search for, and disclosure of, responsive records. On

January 7, 2019, Judge Sullivan referred the case to a

Magistrate Judge for full case management and on January 9,

1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Acting Director of the National Institute of Standards and Technology, Walter G. Copan, is substituted as Defendant for former Director of the National Institute of Standards and Technology, Willie E. May. See Fed. R. Civ. P. 25(d).

1 2019, the case was randomly referred to Magistrate G. Michael

Harvey. See ECF No. 36.

Pending before the Court are Defendants’ Motion for Summary

Judgment, see Mot. for Summ. J. (“Defs.’ Mot.”), ECF No. 23; and

Mr. Cole’s Combined Motion For Limited Discovery and For Summary

Judgment, see Pl.’s Combined Motion Pursuant to Rule 56 for

Leave to Conduct Limited Discovery Before a Response to

Defendants’ Summary Judgement Motion is Required, and For

Summary Judgment (“Pl.’s Mots.”), ECF No. 30.

Magistrate Judge Harvey issued a Report and Recommendation

(“R. & R.”) recommending that this Court deny both the Motions

for Summary Judgment, and grant Mr. Cole’s Motion for Limited

Discovery. See R. & R., ECF No. 37. The defendants raise several

objections to Magistrate Judge Harvey’s R. & R. See generally

Defendants’ Objections to Magistrate Judge’s Proposed Findings

and Recommendations (“Defs.’ Objections”), ECF No. 43. In

addition, Mr. Cole also raises an objection to the R & R. See

Pl. David Cole’s Objection to Magistrate Judge’s R. & R. (“Pl.’s

Objection”), ECF No. 44.

Upon careful consideration of the R. & R., the objections

of both parties and opposition thereto, the applicable law, and

the entire record herein, the Court hereby ADOPTS IN PART AND

REJECTS IN PART the R. & R., see ECF No. 37; DENIES Defendants’

Motion for Summary Judgment, see ECF No. 23; GRANTS Plaintiff’s

2 Combined Motion for Limited Discovery, see ECF No. 30; and

DENIES Plaintiff’s Motion for Summary Judgment, see id.

I. Background 2

A. Factual Background

On May 20, 2011, Mr. Cole submitted a FOIA request to FEMA

for certain documents related to the collapse of the WTC

buildings on September 11, 2001. See Statement of Material Facts

Not in Dispute (“SMF”), ECF No. 23-1 at 6. Specifically, he

requested “all background or raw data” used for the FEMA 403 3 Building Performance Study (“BPS”) regarding the WTC buildings,

“including photographs, video, audio, field notes, memoranda,

lab samples, and lab results.” Id. On May 26, 2011, FEMA sent

Mr. Cole a letter acknowledging his request, and tasked the

search for responsive records to three of its offices: (1)

External Affairs, the office that controls FEMA’s Photo Library;

(2) the Federal Insurance and Mitigation Administration

(“Mitigation”); and (3) the Region II Office (“Region II”), the

regional office that covers New York. Id.; Decl. of Eric

Neuschaefer with Exhibits (“Neuschaefer Decl.”, ECF No. 23-2 at

¶¶ 20, 25. By December 19, 2011, all three offices had finished

their searches and found that they possessed no responsive

2 The Factual Background section, as well as a large part of the Procedural Background, reflects Magistrate Judge Harvey’s R. & R. See ECF No. 37, Section I. 3 records. See SMF, ECF No. 23-1 at 6; Neuschaefer Decl., ECF No.

23-2 at 6, 49, 52, 55.

At some point during the searches of External Affairs,

Mitigation, and Region II, FEMA determined that it had sent all

BPS-related records to NIST around May 2002 (“May 2002

Documents”) and that it had retained no physical or electronic

copies of those records. See SMF, ECF No. 23-1 at 6–7, 10;

Neuschaefer Decl., ECF No. 23-2 at 3–4, 20–21. Accordingly, on

December 23, 2011, FEMA forwarded Mr. Cole’s request to NIST.

See SMF, ECF No. 23-1 at 7; Neuschaefer Decl. ECF No. 23-2 at

63. On that same day, FEMA also sent Mr. Cole a letter informing

him that NIST would be handling his request going forward. See

SMF, ECF No. 23-1 at 6–7; Neuschaefer Decl., ECF No. 23-2 at 60.

NIST received Mr. Cole’s request from FEMA on December 28,

2011. See Decl. of Catherine S. Fletcher with Attachments

(“Fletcher Decl.”), ECF No. 23-3 at 1–2. Shortly thereafter, it

determined that the only NIST office likely to contain

responsive records was the Engineering Laboratory, which had

received all WTC-related records from FEMA during the May 2002

transfer. See id. ¶ 6. According to NIST, the Engineering

Laboratory searched “all files and locations likely to contain

responsive documents,” and it found 70 documents comprising

3,947 pages that were potentially responsive to Mr. Cole’s

request. Id. ¶¶ 6– 7. On January 19, 2012, NIST sent those

4 documents to FEMA’s Disclosure Branch—the office tasked with

managing FOIA requests—for further review, and FEMA examined

those documents with a subject-matter expert (“SME”). See SMF,

ECF No. 23-1 at 8; Fletcher Decl., ECF No. 23-3 at 29. By June

29, 2012, FEMA had determined that, of the potentially

responsive records it had received from NIST— 3,950 pages by

FEMA’s count—3,789 pages were “releasable in whole or in part,”

three pages were “not responsive,” and 158 pages potentially

fell under the purview of the Department of Energy (“DOE”). See

Neuschaefer Decl., ECF No. 23-2 at 77–78. With respect to the

158 pages potentially under DOE’s purview, FEMA recommended

sending them to DOE “for direct reply to [NIST] or [Mr. Cole].”

Id. at 78. It is unclear whether any of those pages were ever

sent to DOE or ever produced to Mr. Cole. See generally id.;

Fletcher Decl., ECF No. 23-3.

Despite FEMA’s June 29, 2012, determination that 3,789

pages of the May 2002 Documents were releasable in whole or in

part, NIST, for some reason that remains unclear, did not

disclose any records to Mr. Cole but rather “continued its

attempts to work with FEMA to process FEMA’s referral” of his

FOIA request between July and September 2012. Neuschaefer Decl.,

ECF No. 23-2 at 77; SMF, ECF No. 23-1 at 8; Fletcher Decl., ECF

No. 23-3 ¶ 10. NIST avers that, “[t]hrough these discussions,”

it concluded—at some point that remains unspecified—that it was

5 unable to determine the responsiveness of any of the May 2002

Documents because it could not determine which of them FEMA had

used in the BPS. Fletcher Decl., ECF No. 23-3 ¶ 10. NIST also

“determined that it was not the proper authority to withhold any

of FEMA’s records under FOIA and therefore could not issue a

final determination” regarding releasability. Id. ¶ 11.

Meanwhile, by August 2012, FEMA believed that it had

addressed all issues with respect to NIST’s referral and that

NIST would make the final response to Mr. Cole’s request. See

SMF, ECF No. 23-1 at 9; Neuschaefer Decl., ECF No. 23-2 ¶¶ 33–

34. On August 3, 2012, FEMA sent a letter to NIST stating that

FEMA “considered its work on the case complete and that NIST

should make the final determinations” regarding Mr. Cole’s

request. Neuschaefer Decl., ECF No. 23-2 ¶ 33. According to

Defendants, “[a]s a result of this mix-up”— i.e., each agency

believing that the other would issue the final response to Mr.

Cole—no responsive documents—other than 2,435 images, 83 video

files, and 269 pages of documents that NIST identified in the

public domain and which NIST disclosed to Mr. Cole in February

2012 and February 2013—were disclosed to Mr. Cole at that time.

See Fletcher Decl., ECF No. 23-3 at ¶¶ 8, 12.

FEMA’s last communication with Mr. Cole before this lawsuit

commenced was an August 30, 2012, letter in which FEMA indicated

that NIST would be making all disclosures of responsive records.

6 See Neuschaefer Decl., ECF No. 23-2 at 89 (“It is our

understanding the records you have been (or will be) provided by

NIST were retrieved from all of the available records FEMA

transferred to NIST.”). In that letter, FEMA also informed Mr.

Cole that it had determined there were approximately 490,000

pages of “supplemental” WTC-related records in storage at the

National Archives and Records Administration (“NARA”). Id.

Although the inventory of the NARA records did not “readily

indicate any additional responsive material,” FEMA stated that

Mr. Cole could submit a new FOIA request if he was “interested

in searches being conducted” on those records. Id. There is no

indication that Mr. Cole ever submitted such a request or that

FEMA ever searched the NARA records. See generally ECF Nos. 23,

23-2, 23-3, 30.

On March 22, 2013, FEMA asked NIST to return all remaining

May 2002 Documents for further review. Fletcher Decl., ECF No.

23-3 at 3, 47–49. On April 10, 2013, NIST complied with this

request, and it sent FEMA a letter informing it that, because it

could not “determine which of the FEMA records received [ ] were

‘used’ for the completion of the [BPS],” it was “referring all

records [it] received on behalf of FEMA to [FEMA’s] attention

for review and direct reply to [Mr. Cole].” Id. at 51. On that

7 same day, NIST sent a letter to Mr. Cole informing him that FEMA

would provide the final response to his FOIA request. Id. at 55.

B. Procedural Background

Having received no responsive records or further

communication from Defendants in the ensuing two-and-a-half

years, Mr. Cole filed this lawsuit on November 12, 2015. See

Complaint, ECF No. 1. At some point after this lawsuit

commenced, FEMA’s Disclosure Branch conducted another search

within Region II and consulted with an SME, through which it

confirmed that the only responsive records FEMA possessed were

the May 2002 Documents that NIST had sent to FEMA. See

Neuschaefer Decl., ECF No. 23-2 ¶ 37; Exhibit 4, ECF No. 30-8 at

2–4. On April 20, 2016, FEMA sent Mr. Cole portions of the May

2002 Documents in an amount that remains unspecified in the

record. April & September 2016 Correspondence to Plaintiff, ECF

No. 23-4 at 1. Invoking 5 U.S.C. § 552(b)(6) (“Exemption 6”),

FEMA withheld certain personally identifying information from

those records in the interest of maintaining the privacy of

individuals who could potentially be identified. SMF, ECF No.

23-1 at 12–13; ECF No. 23-2 at 9, ¶¶ 38– 43; see 5 U.S.C. §

552(b)(6) (permitting the government to withhold “files the

disclosure of which would constitute a clearly unwarranted

invasion of personal privacy”). FEMA also claims that pursuant

to 5 U.S.C. § 552(b), it “segregated and disclosed non-exempt

8 information.” Defs.’ Mot., ECF No. 23 at 10 (citing 5 U.S.C. §

552(b) (“Any reasonably segregable portion of a record shall be

provided to any person requesting such record after deletion of

the portions which are exempt under this subsection.”)).

Mr. Cole reviewed the April 20, 2016, disclosures, and on

June 7, 2016, his counsel sent an email to Defendants’ counsel

identifying a list of missing records that were referenced in

the disclosures. Exhibit 1, ECF No. 30-2 at 1–3. For example,

Mr. Cole’s counsel noted that, although a document produced by

FEMA showed that a set of WTC-related drawings had been sent to

a FEMA contractor, FEMA had failed to produce those drawings.

Id. at 1. He also cited an inventory of BPS- related records

that FEMA had sent to NIST in 2002, and which listed CDs, a

video, and other drawings that he believed were responsive to

Mr. Cole’s request, but which were absent from the records that

Mr. Cole had received. Id. at 1–2.

Defendants’ counsel responded by email on August 23, 2016,

stating that FEMA had been unable to locate those missing

records. See Exhibit 2, ECF No. 30-6 at 1–2. Defendants’ counsel

also stated that some of those records might be located in

Region II’s local archives and that FEMA would be “willing to

send two of its personnel to the warehouse to perform a

reasonable search” for them. Id. In an October 11, 2016, email,

9 Mr. Cole’s counsel requested that FEMA search Region II’s local

archives. Exhibit 3, ECF No. 30-7 at 3, 4.

On November 22, 2016, Defendants’ counsel responded by

email that: (1) FEMA had sent Mr. Cole all responsive records in

its possession; (2) despite its search and consultation with an

SME, FEMA could not locate the missing records that Mr. Cole’s

counsel had identified; and (3) this served as Defendants’ final

response to Mr. Cole. Exhibit 4, ECF No. 30-8 at 2–4. In that

email, Defendants’ counsel also repeatedly stated that

“responsive records were not sent to the NARA archives” and that

FEMA had “determined that there is no FEMA Region II archive.”

Id. FEMA has provided no further explanation regarding its

counsel’s statement that “responsive records were not sent to

the NARA archives.” Id.; see generally ECF Nos. 23, 23-2.

However, with respect to the assertion that “there is no FEMA

Region II archive,” Exhibit 4, ECF No. 30-8 at 2-4; FEMA has

explained in an affidavit that, “[i]n consulting with Region II,

. . . it had appeared that there were local archives for New

York documents. Upon further inquiry, the Disclosure Branch and

its counsel learned that the only local archives were temporary

locations that were rented to house information pertaining to

the Hurricane Sandy disaster. No FEMA archives exist in New York

10 that may contain documents responsive to [Mr. Cole’s] FOIA

request.” Neuschaefer Decl., ECF No. 23-2 at 8, ¶ 37.

Dissatisfied with those responses, Mr. Cole moved for

limited discovery on March 27, 2017. See Motion for Discovery,

ECF No. 15. In support of that motion, he argued that

Defendants’ searches and disclosures were inadequate and that

there was evidence of bad faith on Defendants’ part in

processing his FOIA request. See Pl. David Cole’s Mem. of P. &

A. in Supp. of Mot. for Leave to Conduct Limited Discovery, ECF

No. 15-1 at 2–8, 10–11, 13–15. On January 3, 2018, this Court

denied Mr. Cole’s motion, holding that discovery was premature

because Defendants had not yet moved for summary judgment. See

Mem. Op. and Order, ECF No. 19 at 2; see also Cole v. Rochford,

285 F. Supp. 3d 73, 77–78 (D.D.C. 2018). Nevertheless, this

Court noted that Mr. Cole had “raised significant questions as

to whether FEMA [had] processed documents in good faith in

response to [his] FOIA request” and that it was “troubled by

multiple aspects of the government’s actions,” including FEMA’s

delay in disclosing responsive records until April 2016 despite

its June 2012 determination that 3,789 pages of documents were

releasable in whole or in part. Mem. Op., ECF No. 19 at 8. This

Court was also “troubled by the government’s inconsistent, even

contradictory, responses to [Mr. Cole’s] inquiries regarding his

FOIA request.” Id. at 9. For example, this Court pointed to the

11 discrepancies between FEMA’s initial representations that there

were 490,000 pages of potentially responsive records at NARA and

that there might be responsive records in Region II’s local

archives, and its subsequent assertions that no responsive

records had been sent to NARA and that no local archives

existed. Id.

On April 5, 2018, Defendants moved for summary judgment.

See Def.’s Mot., ECF No. 23. In support of their motion, they

argue that they have conducted adequate searches for responsive

records, that they have released all responsive records in their

possession to Mr. Cole, that they have properly withheld certain

information pursuant to Exemption 6, and that they have complied

with FOIA’s segregability requirement. See id. at 4–10. On June

13, 2018, Mr. Cole filed a combined motion for limited discovery

and for summary judgment. See Pl.’s Mots., ECF No. 30. In

support of his motion, Mr. Cole once again contends that

Defendants’ searches and disclosures have been inadequate and

that there is evidence of bad faith on Defendants’ part in

processing his FOIA request. See id. at 12–43. Mr. Cole,

however, does not challenge whether FEMA has properly invoked

Exemption 6 or complied with FOIA’s segregability requirement.

See Pl.’s Mots., ECF No. 30 at 12–43.

Pursuant to Local Rule 72.2, the case was referred to

Magistrate Judge G. Michael Harvey, up to but excluding trial,

12 including the preparation of a report and recommendation with

respect to any potentially dispositive motions. See Min. Order,

Jan. 7, 2019. Magistrate Judge Harvey has issued an R. & R.

recommending that this Court deny the Defendants’ Motion for

Summary Judgment, grant the Plaintiff’s Motion for Discovery,

and deny the Plaintiff’s Motion for Summary Judgment as

premature. See R. & R., ECF No. 37. Both parties have raised

objections to Magistrate Judge Harvey’s R. & R. See Defs.’

Objections, ECF No. 43; Pl.’s Objection, ECF No. 44. The motions

are fully briefed and ripe for adjudication.

II. Legal Standard

A. Objections to a Magistrate Judge's Report and Recommendation

Pursuant to Federal Rule of Civil Procedure 72(b), a party

may file specific written objections once a magistrate judge has

entered a recommended disposition. Fed. R. Civ. P. 72(b)(1)-(2).

A district court “may accept, reject or modify the recommended

disposition.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. §

636(b)(1) (“A judge of the court may accept, reject, or modify,

in whole or in part, the findings or recommendations made by the

magistrate judge.”). A district court “must determine de novo

any part of the magistrate judge's disposition that has been

properly objected to.” Fed. R. Civ. P. 72(b)(3). “If, however,

the party makes only conclusory or general objections, or simply

13 reiterates his original arguments, the Court reviews the [R. &

R.] only for clear error.” Houlahan v. Brown, 979 F. Supp. 2d

86, 88 (D.D.C. 2013) (citation omitted). “Under the clearly

erroneous standard, the magistrate judge's decision is entitled

to great deference” and “is clearly erroneous only if on the

entire evidence the court is left with the definite and firm

conviction that a mistake has been committed.” Buie v. D.C., No.

CV 16-1920 (CKK), 2019 WL 4345712, at *3 (D.D.C. Sept. 12, 2019)

(citing Graham v. Mukasey, 608 F. Supp. 2d 50, 52 (D.D.C. 2009))

(internal quotation marks omitted).

Objections must “specifically identify the portions of the

proposed findings and recommendations to which objection is made

and the basis for objection.” LCvR 72.3(b). “[O]bjections which

merely rehash an argument presented to and considered by the

magistrate judge are not ‘properly objected to’ and are

therefore not entitled to de novo review.” Shurtleff v. EPA, 991

F. Supp. 2d 1, 8 (D.D.C. 2013) (quoting Morgan v. Astrue, No.

08-2133, 2009 WL 3541001, at *3 (E.D. Pa. Oct. 30, 2009)).

B. Summary Judgment

Federal Rule of Civil Procedure 56 provides that summary

judgment motions must be 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); see also Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The moving party

14 bears the initial burden “of informing the district court of the

basis for its motion, and identifying those portions of ‘the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,’ which

it believes demonstrate the absence of a genuine issue of

material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986); see also Fed. R. Civ. P. 56(c)(1). This burden “may be

discharged by ‘showing’ . . . that there is an absence of

evidence to support the nonmoving party’s case.” Celotex, 477

U.S. at 325.

In evaluating a summary judgment motion, “[t]he evidence of

the non-movant is to be believed, and all justifiable inferences

are to be drawn in his favor.” Liberty Lobby, 477 U.S. at 255

(quoting Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59

(1970)). Summary judgment turns on “whether the evidence

presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail

as a matter of law.” Id. at 251-52. “[I]f the evidence is such

that a reasonable jury could return a verdict for the nonmoving

party”–and thus a “genuine” dispute over a material fact exists–

then summary judgment is not available. Id. at 248.

For purposes of summary judgment, materiality is determined

by the substantive law of the action. Id. Accordingly, the

substantive law identifies “which facts are critical and which

15 facts are irrelevant,” and “[o]nly disputes over facts that

might affect the outcome of the suit under the governing law

will properly preclude the entry of summary judgment.” Id.

Similarly, the applicable substantive evidentiary standards of

the action guide “whether a given factual dispute requires

submission to a jury.” Id. at 255. The Court’s role at the

summary judgment stage “is not . . . to weigh the evidence and

determine the truth of the matter but to determine whether there

is a genuine issue for trial.” Id. at 249.

C. FOIA

FOIA is based on the recognition that an informed citizenry

is “vital to the functioning of a democratic society, needed to

check against corruption and to hold the governors accountable

to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S.

214, 242 (1978). It was enacted to “pierce the veil of

administrative secrecy and to open agency action to the light of

public scrutiny,” and it favors “full agency disclosure.” Dep’t

of the Air Force v. Rose, 425 U.S. 352, 360–61 (1976) (quoting

Rose v. Dep’t of the Air Force, 495 F.2d 261, 263 (2d Cir.

1974)). FOIA cases are usually resolved on motions for summary

judgment. Brayton v. Office of the U.S. Trade Rep., 641 F.3d

521, 527 (D.C. Cir. 2011). The agency has the burden of

justifying its response to the FOIA request it received, and the

court reviews its response de novo. 5 U.S.C. § 552(a)(4)(B).

16 D. Adequate Search

To prevail on summary judgment in a FOIA case, the agency

must show that it conducted an adequate search for records

responsive to the plaintiff’s FOIA request. See Morley v. CIA,

508 F.3d 1108, 1114 (D.C. Cir. 2007). To make a prima facie

showing of adequacy, the agency must demonstrate that it made a

good-faith effort to search for responsive records “using

methods which can be reasonably expected to produce the

information requested.” Reporters Comm. for Freedom of Press v.

FBI, 877 F.3d 399, 402 (D.C. Cir. 2017) (quoting Oglesby v. U.S.

Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)); see Iturralde

v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)

(adequacy depends on the “appropriateness of the methods used”

rather than the “fruits of the search”).

It may do so by submitting “[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.”

Reporters Comm., 877 F.3d at 402 (quoting Oglesby, 920 F.2d at

68). Such affidavits “are accorded a presumption of good faith,

which 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)

(quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771

17 (D.C. Cir. 1981)). However, “[a]t a bare minimum, the agency’s

affidavits need to specify ‘what records were searched, by whom,

and through what process.’” Rodriguez v. DOD, 236 F. Supp. 3d

26, 38 (D.D.C. 2017) (quoting Steinberg v. DOJ, 23 F.3d 548, 552

(D.C. Cir. 1994)).

“The agency fails to meet this burden such that summary

judgment is inappropriate when the agency fails to set forth the

search terms and the type of search performed with specificity

or otherwise provides ‘no information about the search

strategies of the [agency] components charged with responding to

[a] FOIA request’ and ‘no indication of what each [component’s]

search specifically yielded.’” Otero v. DOJ, 292 F. Supp. 3d

245, 251 (D.D.C. 2018) (quoting Reporters Comm., 877 F.3d at

402).

E. Discovery

“It is well established that discovery is rare in FOIA

cases.” Cole, 285 F. Supp. 3d at 76; see Thomas v. FDA, 587 F.

Supp. 2d 114, 115 n.2 (D.D.C. 2008) (noting that “discovery is

an extraordinary procedure in a FOIA action”). “Where an

agency’s declarations are insufficient to support a finding that

its search was adequate, courts ‘generally will request that an

agency supplement its supporting declarations rather than order

discovery.’” Landmark Legal Found. v. EPA, 959 F. Supp. 2d 175,

183 (D.D.C. 2013) (quoting Wolf v. CIA, 569 F. Supp. 2d 1, 10

18 (D.D.C. 2008)). “However, discovery may be granted when [a]

plaintiff has made a sufficient showing that the agency acted in

bad faith, has raised a sufficient question as to the agency’s

good faith, or when a factual dispute exists and the plaintiff

has called the affidavits submitted by the government into

question.” Citizens for Responsibility and Ethics in Wash. v.

DOJ, No. Civ. 05- 2078 (EGS), 2006 WL 1518964, at *3 (D.D.C.

June 1, 2006) [hereinafter “CREW”] (internal citations omitted).

III. Analysis

In their summary judgment motion, Defendants NIFT and FEMA

argue that they conducted a reasonable search for the records

Mr. Cole requested, and complied with FOIA’s segregability

requirement, and should therefore be granted summary judgment

because there are no genuine disputes of material fact. See

Defs.’ Mot., ECF No. 23 at 2-3. Mr. Cole responds that summary

judgment is unwarranted and that he should be “granted leave

under Rule 56(d) to conduct limited discovery” because “genuine

disputes of material fact exist regarding whether Defendants

have made a complete disclosure of responsive documents.” Pl.’s

Mots., ECF No. 30 at 13.

Magistrate Judge Harvey finds that “Defendants have not

shown that their searches were adequate due to their failure to

provide this Court with sufficient details about their

methodologies” and consequently recommends denying the motion

19 for summary judgment. R. & R., ECF No. 37 at 11. He further

finds that “Defendants’ conduct—engaging in lengthy delays and

inconsistent representations and failing to adequately explain

them despite this Court’s clear expressions of concern,”

warrants limited discovery for Mr. Cole regarding the adequacy

of the government’s searches. Id. at 19. As a result, he

recommends denying Mr. Cole’s motion for summary judgment as

premature. Id. at 20.

Defendants FEMA and NIST object to Magistrate Judge

Harvey’s report, arguing that: (1) they conducted a reasonably

adequate search; and (2) the remaining issues should be

addressed through supplemental declarations, rather than

discovery. See Defs.’ Objections, ECF No. 43 at 1-2. Mr. Cole

raises a third objection, arguing that discovery should also

include the “fact question” of whether responsive records could

have been stored in a FEMA Region II local archive.

The Court discusses the appropriate standard of review for

each of the three objections before considering the substantive

merits. The Court does not discuss the parts of Magistrate

Harvey’s R. & R. to which no objection is raised, including

20 whether the Defendants have satisfied FOIA’s segregability

requirement.

A. The Standard of Review for Magistrate Judge Harvey’s R. & R. Varies Based on the Objection

Pursuant to Federal Rule of Civil Procedure 72(b), once a

magistrate judge has entered a recommended disposition, a party

may file specific written objections. The district court “must

determine de novo any part of the magistrate judge’s disposition

that has been properly objected to,” and “may accept, reject or

modify the recommended disposition.” Fed. R. Civ. P. 72(b)(3).

Proper objections “shall specifically identify the portions of

the proposed findings and recommendations to which objection is

made and the basis for objection.” Local R. Civ. P. 72.3(b); see

also Means v. District of Columbia, 999 F. Supp. 2d 128, 132

(D.D.C. 2013).

“If, however, the party makes only conclusory or general

objections, or simply reiterates his original arguments, the

Court reviews the [R. & R.] only for clear error.” Houlahan, 979

F. Supp. 2d at 88 (internal citation omitted). “Under the

clearly erroneous standard, the magistrate judge's decision is

entitled to great deference” and “is clearly erroneous only if

on the entire evidence the court is left with the definite and

21 firm conviction that a mistake has been committed.” Buie, No. CV

16-1920 (CKK), 2019 WL 4345712, at *3.

1. Magistrate Judge Harvey’s R. & R. is Reviewed Only For Clear Error For Defendants’ Objections Related to the Adequacy of Their Search

Defendants FEMA and NIST first argue that contrary to

Magistrate Judge Harvey’s conclusion, they conducted a

reasonably adequate search for the records requested by Mr.

Cole. See Defs.’ Objections, ECF No. 43 at 2. Defendants make no

new arguments not presented in their motion for summary

judgment, other than calling attention to the preexisting

record. See id. at 3 (arguing that the declaration of Eric

Letvin, who at the time was the Deputy Assistant Administrator

for Mitigation, “is mentioned only in a footnote and the

significance of his testimony appears not to have been

appreciated by the Magistrate Judge.”). In essence, the

Defendants reiterate that FEMA requested a search by its

External Affairs, Federal Insurance and Mitigation

Administration, and FEMA Region II (the regional office that

covers New York) divisions, all three of which responded that

they did not have the requested records. See Def.’s Objections,

ECF No. 43 at 3; Def.’s Mot., ECF No. 23 at 5-6. Since

22 Defendants present no new argument, their objection is reviewed

only for clear error. See Houlahan, 979 F. Supp. 2d at 88/

Defendants next “object to any finding or recommendation in

the Report predicated on the possibility that some records were

not retained.” Defs.’ Objections, ECF No. 43 at 4 (referring to

R. & R., ECF No. 37 at 18). The Court finds that this objection

is conclusory and general, since it fails to point to any

specific findings or recommendations in the R. & R. that were in

fact based on non-retention of records. See generally id. The

objection also incorrectly captures Magistrate Harvey’s

position. Although the R. & R. states that “[t]he insufficiency

[of FEMA’s search] is further exacerbated by FEMA’s repeated

failures to locate missing records,” the “failures” it

references are not non-retention of generic records. Rather, the

R. & R. points out “FEMA’s repeated failures to locate missing

records that are undisputedly referenced in its disclosures, as

well as by its cursory explanations for its inability to locate

those missing records and, more generally, the inadequate

descriptions of its searches.” R. & R., ECF No. 37 at 18

(emphasis added). Selectively picking sentence fragments does

not make for a valid objection that the Court can consider.

Defendants also object to the R. & R.’s conclusion that

NIST’s declaration is deficient because it fails to set forth

sufficient detail about its search. See Defs.’ Objections, ECF

23 No. 43 at 4-5 (citing R. & R., ECF No. 37 at 15). Here too the

Defendants do not present new arguments, but simply highlight

information in the preexisting record. See id. at 5-6. In

addition, Defendants challenge some of the R. & R.’s reasoning,

specifically the R. & R.’s observation that “[d]espite FEMA’s

June 29, 2012, determination that 3,789 pages” in NIST’s

possession were releasable in whole or in part, “NIST, for some

reason that remains unclear, did not disclose any records to

Plaintiff.” Id. at 6. Other than highlighting the reason for

NIST’s non-disclosure, however, which Magistrate Judge Harvey

himself pointed out, Defendants do not present an objection. See

id. The Court is hard pressed to interpret any of the areas the

Defendants present as “aspects of the Report that Defendants

believe would benefit from further clarification” as specific

and proper objections to the R. & R. The Court concludes that

all of Magistrate Judge Harvey’s findings related to whether the

Defendants conducted a reasonably adequate search are reviewable

only for clear error. See Houlahan, 979 F. Supp. 2d at 88.

2. Magistrate Judge Harvey’s R. & R. is Partly Reviewed De Novo, and Partly for Clear Error, For Defendants’ Objections Challenging a Grant of Discovery to Mr. Cole

Defendants object to Magistrate Judge Harvey’s

recommendation that Mr. Cole be granted limited discovery based

on his finding that FEMA “provided no explanation for its delay”

24 between April 2013 and April 2016 in disclosing responsive

records. See Defs.’ Objections, ECF No. 43 at 7 (internal

citation omitted). However, the argument Defendants present,

that there was an oversight by the agencies, is the same

argument as in their summary judgment motion. Compare Defs.’

Objections, ECF No. 43 at 7 with Defs.’ Mot., ECF No. 23 at 6

(both stating that “NIST apparently made the determination that

it was unable to properly determine the responsiveness of the

records and was not the proper authority to withhold FEMA’s

records under FOIA, and therefore could not issue a final

determination. FEMA thought that its response to NIST’s referral

completed its obligations and that NIST would be making the

final determinations and response to the requestor”) (internal

citations omitted). The argument is therefore reviewed only for

clear error. See Houlahan, 979 F. Supp. 2d at 88.

Defendants also object to the R. & R. citing “as a reason

for discovery the fact that “FEMA failed to explain its

significant change in position over the existence of potentially

responsive documents stored at NARA.” Defs.’ Objections, ECF No.

43 at 7 (citing R. & R., ECF No. 37 at 17). Defendants assert

that the record does not support “an interpretation of a

“reversal” of FEMA’s position on the potential for WTC-related

documents to be stored at NARA.” Id. Because this objection is

25 specific and provide a valid basis for objection, the Court

reviews it de novo. See Local R. Civ. P. 72.3(b).

Defendants next object to the R. & R.’s observation that

they failed to adequately explain discrepancies despite the

Court’s expressions of concern. See Defs.’ Objections, ECF No.

43 at 8; see also R. & R., ECF No. 37 at 18 (stating that

“Defendants were on notice about this Court’s concerns over

their delays and inconsistencies, and they were given the

opportunity to avoid discovery by addressing those concerns in

reasonably detailed affidavits in support of a motion for

summary judgment”). Defendants assert that although they can

“appreciate how more attention could have been directed to those

concerns,” “the appropriate remedy is to order Defendants to

provide supplemental declarations or affidavits addressing the

areas that the Magistrate Judge found to be deficient or

unclear.” Defs.’ Objections, ECF No. 43 at 8-9. The Court

concludes that Defendants present a properly specific objection

that will be reviewed de novo. See Local R. Civ. P. 72.3(b).

3. Magistrate Judge Harvey’s R. & R. is Reviewed De Novo For Mr. Cole’s Objection to Limited Discovery

Mr. Cole in turn raises an objection to the R. & R.,

arguing that discovery should include the question of whether

responsive records might have been stored in a FEMA Region II

local archive. See Pl.’s Objections, ECF No. 44 at 1. Mr. Cole

26 asserts that even though Magistrate Judge Harvey concludes that

Defendants have adequately explained the major discrepancy in

their representations to Plaintiff regarding Region II warehouse

storage, the explanation was “based on hearsay from unidentified

personnel, which prevents any meaningful assessment of the

credibility or accuracy of this latter representation.” Id. at

2. The Court concludes that it will review this objection de

novo, since it specifically identifies “the portions of the

proposed findings and recommendations to which objection is made

and the basis for objection.” Local R. Civ. P. 72.3(b).

B. Defendants FEMA and NIST Did Not Conduct a Reasonably Adequate Search

As discussed supra, see § III(A)(1), Magistrate Judge

Harvey’s R. & R. is reviewed only for clear error for

defendants’ objections related to the adequacy of their search.

Magistrate Judge Harvey finds that FEMA’s declaration is

deficient “because it ‘gives no details about the scope or

methods of the searches conducted in these three locations.’” R.

& R., ECF No. 37 at 11 (citing Defs. of Wildlife v. U.S. Border

Patrol, 623 F. Supp. 2d 83, 92 (D.D.C. 2009)). Defendants FEMA

and NIST object that they conducted a reasonably adequate search

for the records requested by Mr. Cole. See Defs.’ Objections,

27 ECF No. 43 at 2. The Court finds no clear error in Magistrate

Judge Harvey’s conclusion.

As Magistrate Judge Harvey explains, FEMA has failed to

explain both how its searches were carried out and what files

the searches covered. Id. at 11-12. The testimony FEMA

references from Mr. Letvin and Mr. Tertell, asserting that all

records were turned over to NIST, does not provide any detail on

the search conducted, see Defs.’ Objections’, ECF No. 43 at 3;

nor does the Neushchaefer Declaration make up for enough of

these deficits. See R. & R., ECF No. 37 at 11. Without more

information, “even if the Court can make ‘reasonable guesses

about the answers to those questions,’ the Court cannot award

the agency summary judgment on the adequacy of its search.” R. &

R., ECF No. 37 at 12 (citing Davidson v. U.S. Dep’t of State,

206 F. Supp. 3d 178, 191 (D.D.C. 2016)).

Defendants FEMA and NIST also object to the R. & R.’s

conclusion that NIST’s declaration is deficient because it fails

to set forth sufficient detail about its search. See Defs.’

Objections, ECF No. 43 at 4-5 (citing R. & R., ECF No. 37 at

15). Defendants argue that it is “important to recognize that

NIST is involved in this FOIA litigation only because FEMA had

transferred the responsive documents to it in 2002” and

accordingly, “there would be no need for NIST to perform any

search beyond what is necessary to locate the files transferred

28 by FEMA.” Id. at 5. Again, the Court finds no clear error in

Magistrate Harvey’s R. & R.

Like FEMA, NIST fails to lay out its search terms or

methodology in any detail. See Valencia-Lucena v. U.S. Coast

Guard, 180 F.3d 321, 326 (D.C. Cir. 1999). For the purposes of

FOIA, this Court’s concern is not how or why NIST came to be in

possession of the records that Mr. Cole seeks; the Court’s focus

is simply on whether NIST has adequately searched for the

records transferred to it rather than leaving the Court to

speculate. See Wilson, 192 F. Supp. 3d at 128. The Court can

appreciate the added complexity of searching records that an

agency did not create itself, for which “it doesn’t already have

a listing of potentially responsive material,” Defs.’

Objections, ECF No. 43 at 5; but that does not excuse NIST’s

failure to explain how it went about its search.

Defendants reply that “[e]xpecting a list of search terms

misses the point that NIST had lists or logs of the responsive

BPS material in its possession that were transferred by FEMA and

that NIST used those lists or logs to guide its search for the

BPS material.” Defs.’ Reply in Supp. of Objections, ECF No. 46

at 3. The Court can certainly appreciate how the log would be a

useful basis for the BPS material search, but Defendants

continue to miss the point that they have not explained how the

lists guided their search, and what their methodology was when

29 searching the log. NIST has established that it does indeed have

(1) a “database listing of all items received by FEMA in May 29,

2002, that had been digitized by the time the FOIA request was

received in December 2011”; and (2) a “comprehensive listing of

all records in NIST’s possession that were identified as

potentially responsive to the request, i.e. all locatable

records received from FEMA on May 29, 2002.” Id. What the Court

is missing is how the records were searched. The Court finds

that Magistrate Harvey did not clearly err in concluding that

NIST’s “blanket assurance” that it searched “all files and

locations likely to contain responsive documents” is

insufficient. See R. & R., ECF No. 37 at 15.

C. The Remaining Issues Are Properly Addressed Through Discovery Rather Than Supplemental Declarations

Magistrate Judge Harvey recommends that Mr. Cole be granted

limited discovery because “Defendants’ conduct—engaging in

lengthy delays and inconsistent representations and failing to

adequately explain them despite this Court’s clear expressions

of concern—'raises a question’ as to whether Defendants have

‘been diligent and expeditious in complying with [their] FOIA

obligations.’” R. & R., ECF No. 37 at 19 (citing quoting CREW,

2006 WL 1518964, at *5). Defendants object that: (1) they have

provided an explanation for their delay, namely “an oversight by

the agencies”; (2) they have explained the inconsistencies in

30 their representations; and (3) the Court’s remaining concerns

should be addressed through supplemental declarations. Defs.’

Objections, ECF No. 43 at 7-9. As discussed supra § III(A)(2),

for the first objection to granting discovery, which reiterates

Defendants’ summary judgment argument, the R. & R. is reviewed

only for clear error. The R. & R. is reviewed de novo for the

second and third objections.

Defendants first reason that the delay in response was

occasioned by each agency thinking the other would be issuing

the final response. Id. Admittedly, as Magistrate Judge Harvey

explains in the R. & R., this explanation is “problematic”

because after FEMA sent a letter to NIST stating that it

“considered its work on the case complete and that NIST should

make the final determinations,” it then asked NIST several

months later to return all the remaining May 2002 documents for

further review. R. & R., ECF No. 37 at 16 (internal citations

omitted). After complying with this request, NIST then sent FEMA

a letter stating that it could not “determine which of the FEMA

records received [ ] were ‘used’ for the completion of the

[BPS],” it was “referring all records [it] received on behalf of

FEMA to [FEMA’s] attention for review and direct reply to [Mr.

Cole].” Fletcher Decl., ECF No. 23-3 at 51. Magistrate Judge

Harvey correctly points out that “FEMA knew or should have known

that NIST believed FEMA would be issuing the final response,” R.

31 & R., ECF No. 37 at 16. However, FEMA acknowledges this mistake,

admitting there was “an oversight by the agencies.” Defs.’

Objections, ECF No. 43 at 7. As the Defendants concede, the

proffered explanation is far from a satisfying one. See id.

Sleeping on its FOIA obligations for several years makes for a

glaring lack of oversight by FEMA. It does, however, nonetheless

provide an explanation. While the Court finds a clear error on

this narrow issue, it does not prevent a grant of discovery, as

discussed below.

In support of their argument against discovery, Defendants

also object to the R. & R. citing “as a reason for discovery the

fact that ‘FEMA failed to explain its significant change in

position over the existence of potentially responsive documents

stored at NARA.’” Defs.’ Objections, ECF No. 43 at 7 (quoting R.

& R., ECF No. 37 at 17). FEMA initially represented to Mr. Cole

that there were approximately 490,000 pages of “supplemental”

WTC-related documents in storage at NARA. See Neuschaefer Decl.,

ECF No. 23-2 at 89. However, FEMA’s counsel then stated in an

email over four years later that “responsive records were not

sent to the NARA archives.” ECF No. 30-8 at 2–4. Magistrate

Judge Harvey concludes that “[t]his statement is plainly

insufficient to explain FEMA’s reversal.” R. & R., ECF No. 37 at

17. Defendants argue that the later letter from FEMA’s counsel

is not inconsistent with FEMA’s earlier representation because

32 it “nowhere states that the BPS background or raw data sought by

Plaintiff was sent to NARA; the letter plainly states that other

WTC records reside in NARA storage.” Defs.’ Objections, ECF No.

43 at 8.

Although Mr. Cole does not specifically address any of the

Defendants’ other objections discussed thus far, he strongly

weighs in on Defendants’ argument here. He asserts that “[t]he

Defendants’ handling of this issue of the 490,000 pages of

agency 9/11 records sent to NARA reflects bad faith, because:

(1) Defendants did not even identify these 490,000 pages of

records to Plaintiff in their initial response to his FOIA; (2)

Defendants then did not conduct a search of these files once

their existence was disclosed; (3) Defendants then required,

contrary to law, Plaintiff to file an additional FOIA request if

he wanted these files searched to determine if they contained

responsive records; (4) Defendants then made a false

representation to Plaintiff which clearly misrepresented that

the 490,000 pages of 9/11 files sent to NARA were known to

contain no responsive records, contrary to their initial

representation; and (5) finally Defendants argued to this Court,

see Defendants’ Objections at 7-8, that the Magistrate erred on

this issue in concluding there was an inconsistency in

Defendants’ representations, without disclosing to this Court

the complete language of Defendants’ initial representation that

33 made this inconsistency apparent.” Pl.’s Resp. to Defs.’

Objections, ECF No. 45 at 4. The Court agrees with Mr. Cole,

even reviewing the R. & R. de novo.

FEMA’s initial 2012 representation to Mr. Cole stated, as

FEMA concedes, that there were approximately 490,000 pages of

“supplemental” WTC-related records in storage at NARA, although

the “inventory description of the NARA records does not readily

indicate any additional responsive material for your specific

WTC requests.” Neuschaefer Decl., ECF No. 23-2 at 89. FEMA tries

to distinguish between the BPS background or raw data sought by

Plaintiff, and the “other WTC records” residing in NARA storage,

see Defs.’ Objections, ECF No. 43 at 8; but the Court is unable

to see how, unless FEMA went through and searched the pages,

which it does not assert that it did, it can state with

certainty that “responsive records were not sent to the NARA

archives.” ECF No. 30-8 at 2–4.

The Court is cognizant that searching through 490,000 pages

is an onerous task. However, granting discovery in this case for

records FEMA itself identified as supplemental does not

“effectively penalize FEMA for being more transparent,” Defs.’

Objections, ECF No. 43 at 8; instead, it ensures FEMA meets its

legal duty and conducts an adequate search for a FOIA request

that it improperly ignored for several years. Contrary to FEMA’s

assertion, Mr. Cole is not advancing “purely speculative claims

34 about the existence and discoverability of other documents.” see

Defs.’ Reply in Supp. of Objections, ECF No. 46; he is asking

for FEMA to search supplemental records it itself identified.

Defendants’ final challenge to discovery stems from the R.

& R.’s observation that they failed to adequately explain

discrepancies despite the Court’s expressions of concern. See

Defs.’ Objections, ECF No. 43 at 8; see also R. & R., ECF No. 37

at 18 (stating that “Defendants were on notice about this

Court’s concerns over their delays and inconsistencies, and they

were given the opportunity to avoid discovery by addressing

those concerns in reasonably detailed affidavits in support of a

motion for summary judgment.”). Magistrate Judge Harvey

concludes that, based on the record, “it should have been plain

to Defendants that they would not be given another opportunity

to address this Court’s concerns if they failed to do so in

their motion for summary judgment and its accompanying

affidavits.” R. & R., ECF No. 27 at 19. FEMA and NIST, however,

state that they “do not read this Court’s 2018 Opinion (ECF No.

19) as indicating that Defendants would not be given another

opportunity to address issues raised by the Court or that after

summary judgment Defendants have now exhausted their

opportunities to provide written testimony.” Defs.’ Objections,

ECF No. 43 at 8. They add that since Magistrate Judge Harvey did

not find that they acted in bad faith, discovery is not

35 appropriate. Id. Mr. Cole responds that “[t]he alternative to

discovery suggested by the government, of permitting the

government the opportunity to simply provide further

declarations, is likely to simply lead to more delay as these

declarations are likely to again prove inadequate and just lead

to further, time-consuming motion practice.” Pl.’s Resp., ECF

No. 45 at 8. The Court agrees.

Discovery is generally limited to whether “the plaintiff

has made a sufficient showing that the agency acted in bad

faith.” Voinche v. FBI, 412 F. Supp. 2d 60, 71 (citing Carney v.

U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir.1994)).

“However, discovery may be granted when [a] plaintiff has made a

sufficient showing that the agency acted in bad faith, has

raised a sufficient question as to the agency’s good faith, or

when a factual dispute exists and the plaintiff has called the

affidavits submitted by the government into question.” CREW,

2006 WL 1518964, at *3. Here, as Magistrate Judge Harvey

astutely observes, “[d]efendants’ conduct—engaging in lengthy

delays and inconsistent representations and failing to

adequately explain them despite this Court’s clear expressions

of concern—'raises a question’ as to whether Defendants have

‘been diligent and expeditious in complying with [their] FOIA

36 obligations.’” R. & R., ECF No. 37 at 19 (quoting CREW, 2006 WL

1518964, at *5).

This Court had previously noted that Mr. Cole “has raised

significant questions as to whether FEMA has processed documents

in good faith in response to [his] FOIA request,” and that it

was “troubled by the government’s inconsistent, even

contradictory, responses to [Mr. Cole’s] inquiries regarding his

FOIA request.” Cole, 285 F. Supp. 3d at 77. However, the Court

denied Mr. Cole’s first motion for limited discovery precisely

because FEMA and NIST had not “submitted any declarations

setting forth details related to [their] search.” Id. at 77-78.

The Court further stated that if Mr. Cole believed the

declarations were insufficient to show an adequate search, he

could oppose the government’s motion for summary judgment on

that ground, and “[i]f the Court agrees with [Plaintiff], it may

reconsider [Plaintiff’s] request for discovery at the summary-

judgment stage.” Id. at 78. Based on the continued lack of

details in the affidavits provided by FEMA, the Court concludes

that this is the rare case where discovery, rather than

supplemental declarations, is warranted as to the Defendants’

searches. The Court finds it unnecessary to address the scope of

discovery at this juncture and will direct the parties to submit

37 a proposed plan for obtaining discovery limited to the adequacy

of the Defendants’ searches.

D. The Grant of Discovery To Mr. Cole Should Be Limited as Recommended in the R. & R.

Magistrate Judge Harvey concludes in his R. & R. that

although FEMA has not explained the discrepancy regarding the

490,000 pages in storage at NARA, it has sufficiently explained

the other major discrepancy, i.e., whether certain missing

records might be in Region II’s local archives. See R. & R., ECF

No. 37 at 17 n.16. In its August 23, 2016, email to Plaintiff,

Defendants’ counsel had initially stated that certain missing

records might be in Region II’s local archives and that the

agency would be “willing to send two of its personnel to the

warehouse to perform a reasonable search” for them. Exhibit 2,

ECF No. 30-6 at 1–2. FEMA subsequently asserted that, “[u]pon

further inquiry, the Disclosure Branch and its counsel learned

that the only local archives were temporary locations that were

rented to house information pertaining to the Hurricane Sandy

disaster. No FEMA archives exist in New York that may contain

documents responsive to [Plaintiff’s] FOIA request.” Neushaefer

Decl., ECF No. 23-2 ¶ 37. Magistrate Judge Harvey observed that

“[w]hile this explanation is not a model of thoroughness and

clarity, it suffices for purposes of explaining why Region II’s

38 local archives would be unlikely to contain records responsive

to Plaintiff’s FOIA request.” R. & R., ECF No. 37 at 17 n.16.

Mr. Cole objects that “the explanation offered was based on

hearsay from unidentified personnel, which prevents any

meaningful assessment of the credibility or accuracy of this

latter representation,” and that “[t]here is no way under the

circumstances, other than discovery,” for him to determine

whether this hearsay is “trustworthy.” Pl.’s Objection, ECF No.

44 at 2. FEMA and NIST respond that “supposedly missing

documents does [sic] not render a search inadequate as FOIA only

obligates an agency to disclose those records which the agency

has retained.” Def.’s Reply in Support of Objections, ECF No. 46

at 6 (referencing Kissinger v. Reporters Comm. for Freedom of

the Press, 445 U.S. 136, 151–52 (1980)). The Court agrees with

the Defendants and Magistrate Judge Harvey that discovery is

unnecessary with regard to Region II’s local archives.

The question for the Court is not whether Mr. Cole finds

FEMA’s explanation and sources trustworthy; the legal standard

is that the agency must demonstrate that it made a good-faith

effort to search for responsive records “using methods which can

be reasonably expected to produce the information requested.”

Reporters Comm. for Freedom of Press, 877 F.3d at 402. FEMA has

demonstrated its good-faith effort regarding the Region II

archives, and its affidavits are “accorded a presumption of good

39 faith . . .,’” SafeCard Servs., Inc., 926 F.2d at 1200; such

that the Court has no reason to question their trustworthiness

as long as they satisfy the relevant legal standard. Here, the

agency’s affidavits must specify “what records were searched, by

whom, and through what process.’” Rodriguez, 236 F. Supp. 3d at

38 (internal quotation and citation omitted). Contrary to Mr.

Cole’s assertion, FEMA does explain that the Region II local

archives were searched by “the Disclosure Branch and its

counsel,” who “learned that the only local archives were

temporary locations that were rented to house information

pertaining to the Hurricane Sandy disaster.” Neushaefer Decl.,

ECF No. 23-2 ¶ 37. Mr. Cole does not refer the Court to any

authority that requires FEMA to provide the names of every

employee involved in the search. See generally Pl.’s Objection,

ECF No. 44.

The Court concludes that FEMA has satisfied its burden with

respect to the Region II local warehouse search, and discovery

on this issue is unwarranted. 3

IV. Conclusion

For the foregoing reasons, Magistrate Judge Harvey’s

R. & R., see ECF No. 37, is ADOPTED IN PART and REJECTED IN

3 Neither party contests Magistrate Judge Harvey’s finding that a grant of summary judgment to Mr. Cole would be premature given the grant of discovery. See R. & R., ECF No. 37 at 2. The Court accordingly does not discuss Mr. Cole’s summary judgment motion. 40 PART. The only portion of the R. &. R that is rejected is

Magistrate Judge Harvey’s finding that Defendants have not

adequately explained their delay in responding to Mr. Cole’s

FOIA request. See R. & R., ECF No. 37 at 16-17. Defendants FEMA

and NIST’s Motion for Summary Judgment, see ECF No. 23; is

DENIED. Mr. Cole’s Combined Motion, see ECF No. 30, is DENIED IN

PART as to summary judgment as premature and GRANTED IN PART as

to limited discovery.

The parties shall submit, by no later than January 7, 2022,

a Joint Status Report with a proposed plan for obtaining

discovery limited to the adequacy of the Defendants’ searches,

excluding the question of whether responsive records were stored

in the Region II warehouses.

An appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge December 21, 2021