UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
DEMOCRACY FORWARD FOUNDATION,
Plaintiff,
v. Civil Action No. 17-1877 U.S. DEPARTMENT OF JUSTICE, (EGS/GMH) Defendant.
MEMORANDUM OPINION
I. Introduction
Plaintiff Democracy Forward Foundation (“Democracy
Forward”) has sued Defendant U.S. Department of Justice (“DOJ”)
under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,
to obtain communications between the Trump Administration
Transition Team (“the Transition Team”) and the Executive Office
for United States Attorneys (“EOUSA”). See Compl., ECF No. 1 ¶
26.
On January 19, 2018, DOJ moved for summary judgment on the
issue of the adequacy of its search for responsive records. See
Def.’s Mot. Summ. J., ECF No. 10; Mem. P. & A. in Supp. of
1 Def.’s Mot. Summ. J., ECF No. 10-2 at 4. 1 On June 7, 2018, the
matter was referred to Magistrate Judge Harvey for a Report and
Recommendation (“R. & R.”). Magistrate Judge Harvey has since
issued an R. & R. recommending that the Court deny DOJ’s Motion
for Summary Judgment without prejudice. See R. &. R., ECF No. 16
at 14.
Pending before the Court are Democracy Forward’s Objections
to Magistrate Judge Harvey’s R. & R., see Pl.’s Objs. Magistrate
Judge’s Proposed Findings & Recommendations (“Pl.’s Objs.”), ECF
No. 18; and DOJ’s Objections to Magistrate Judge Harvey’s R. &
R., see Def.’s Objs. Magistrate Judge’s R. & R. (“Def.’s
Objs.”), ECF No. 19. Upon careful consideration of the R. & R.,
the objections, oppositions, and reply thereto, the applicable
law, and the entire record herein, the Court hereby ADOPTS the
R. & R, see ECF No. 16; and DENIES DOJ’s Motion for Summary
Judgment, see ECF No. 10.
II. Background
A. Factual
On June 2, 2017, Democracy Forward submitted a FOIA request
to EOUSA seeking all communications sent to or from 67 named
members of the Transition Team between November 9, 2016 and
1 When citing electronic filings throughout this Opinion, the Court refers to the ECF page numbers, not the page numbers of the filed documents. 2 January 21, 2017. See Def.’s Statement of Material Facts as to
Which There is No Genuine Issue & Pl.’s Statement of Genuine
Issues in Opp’n to Def.’s Statement of Material Facts (“SOMF”),
ECF No. 14 ¶ 1. Although EOUSA acknowledged receipt of this
request on June 7, 2017, it did not at that time provide any
substantive response. See id. ¶ 3. Democracy Forward thus filed
this lawsuit on September 13, 2017. Id. ¶ 4.
At some point after receiving the FOIA request, EOUSA began
to search for responsive records. Id. ¶ 6 (citing Jolly Decl.,
ECF No. 10-3 ¶ 7). The agency’s search efforts are detailed by a
declaration submitted by Mr. Vinay Jolly (“Mr. Jolly”), an
attorney advisor in EOUSA’s FOIA unit. Mr. Jolly explains that
the agency located one responsive record based on searches it
conducted pursuant to other FOIA requests: the “Briefing Book
Transition Team.” Id. ¶ 7 (citing Jolly Decl., ECF No. 10-3 ¶
7). On October 13, 2017, after this litigation began, EOUSA
released 129 pages of the Briefing Book in full and 20 pages in
part to Democracy Forward. Id. ¶ 8 (citing Jolly Decl., ECF No.
10-3 ¶¶ 6, 7).
In the meantime, EOUSA continued to search for responsive
records. Id. ¶ 9. Mr. Jolly avers that the Office of the
Director (“Director’s Office”) was the only EOUSA component
likely to have responsive records because “the Director’s Office
would be the only component to have authority to communicate
3 with the Transition Team.” Jolly Decl., ECF No. 10-3 ¶¶ 7-8. Mr.
Jolly explains that he made this determination based on his nine
years of experience in the FOIA unit. SOMF, ECF No. 14 ¶¶ 10-12
(citing Jolly Decl., ECF No. 10-3 ¶ 8). EOUSA thereafter
forwarded Democracy Forward’s request to the Director’s Office.
Id. ¶ 10.
EOUSA describes its search efforts in the Director’s Office
with a declaration from Mr. Norman Wong (“Mr. Wong”), the Deputy
Director and Counsel to the Director at EOUSA. Mr. Wong explains
that DOJ’s Justice Management Division (“JMD”) facilitated a
meeting between EOUSA employees Mr. Wong, Director Monty
Wilkinson (“Mr. Wilkinson”), Deputy Director Suzanne L. Bell
(“Ms. Bell”), and Chief Financial Officer Jonathan Pelletier
(“Mr. Pelletier”) and members of the Transition Team on December
2, 2016. Id. ¶ 14 (citing Wong Decl., ECF No. 10-4 ¶ 4). Mr.
Wong explains that JMD “closely coordinated” communications
between EOUSA and the Transition Team, including setting up the
December 2016 meeting. Id. ¶¶ 14-17 (citing Wong Decl., ECF No.
10-4 ¶ 4). He claims that he is “unaware of any other contact
between EOUSA leadership and any Transition Team Members,” and
that, apart from the December 2016 meeting, “EOUSA did not
communicate directly with the Transition Team.” Wong Decl., ECF
No. 10-4 ¶ 4.
4 Upon receiving Democracy Forward’s FOIA request, Mr. Wong
determined that he, Mr. Wilkinson, Ms. Bell, and Mr. Pelletier
were “the only custodians likely to have responsive records.”
SOMF, ECF No. 14 ¶ 19 (citing Wong Decl., ECF No. 10-4 ¶ 4). He
then spoke with and exchanged emails with those individuals to
inquire about “the extent of all written and oral communications
that [they] had with the Transition Team at any point from its
formation until [they] became aware of the instant FOIA
request.” Id. ¶ 20 (citing Wong Decl., ECF No. 10-4 ¶ 5). Each
custodian confirmed that “(1) they had no contact with the
Transition Team during the requested timeframe (except . . . at
the December 2 meeting), (2) they neither sent nor received any
email or other written correspondence to or from any Transition
Team member during the requested timeframe . . . , and (3) the
only responsive record in [EOUSA’s] office is the Briefing
Book.” Id. ¶ 21 (citing Wong Decl., ECF No. 10-4 ¶ 5). Mr. Wong
also avers that “there is no other location in the Director’s
Office where any other records that might be responsive to this
request are likely to be located.” Id. ¶ 23 (citing Wong Decl.,
ECF No. 10-4 ¶ 6).
B. Procedural
issue of the adequacy of its search. See Def.’s Mot. Summ. J.,
ECF No. 10; Mem. P. & A. in Supp. of Def.’s Mot. Summ. J., ECF
5 No. 10-2 at 4. Democracy Forward filed its brief in opposition
on February 27, 2018, see Pl.’s Opp’n Def.’s Mot. Summ. J., ECF
No. 12; and DOJ filed a reply on March 22, 2018, see Reply in
Supp. of Def.’s Mot. Summ. J., ECF No. 13.
The Court referred DOJ’s Motion for Summary Judgment to
Magistrate Judge Harvey for an R. & R. See Minute Order (July 5,
2018). On August 29, 2019, Magistrate Judge Harvey issued his R.
& R. recommending that the Court deny DOJ’s Motion for Summary
Judgment. See R. & R., ECF No. 16 at 14.
On September 19, 2019, both Democracy Forward and DOJ filed
objections to the R. & R. See Pl.’s Objs., ECF No. 18; Def.’s
Objs., ECF No. 19. Democracy Forward submitted its response in
opposition to DOJ’s objections on October 3, 2019, see Pl.’s
Opp’n Def.’s Objs. (“Pl.’s Opp’n”), ECF No. 20; and DOJ filed
its response in opposition to Democracy Forward’s objections the
same day, see Def.’s Resp. Pl.’s Objs. Magistrate Judge’s R. &
R. (“Def.’s Opp’n”), ECF No. 21. Democracy Forward filed its
reply in support of its objections on October 10, 2019. See
Pl.’s Reply in Supp. of Objs. (“Pl.’s Reply”), ECF No. 22. The
objections and the motion are ripe and ready for adjudication.
III. Legal Standard
A. Objections to a Magistrate Judge’s R. & R.
Pursuant to Federal Rule of Civil Procedure 72(b), a party
may file specific written objections once a magistrate judge has
6 entered a recommended disposition. Fed. R. Civ. P. 72(b)(2). A
district court “may accept, reject, or modify the recommended
disposition.” Id. 72(b)(3); see also 28 U.S.C. § 636(b)(1)(C)
(“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
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. Dist. of
Columbia, No. CV 16-1920 (CKK), 2019 WL 4345712, at *3 (D.D.C.
Sept. 12, 2019) (citation and 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 the objection.” LCvR 72.3(b). “[O]bjections
which merely rehash an argument presented 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.
7 2d 1, 8 (D.D.C. 2013) (citation and internal quotation marks
omitted). The Court reviews Plaintiff’s and Defendant’s
objections de novo.
B. Summary Judgment
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. Off. 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).
Generally, summary judgment is warranted “if the movant
shows [by affidavit or other admissible evidence] 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).
A party opposing a summary judgment motion must show that a
genuine factual issue exists by “(A) citing to particular parts
8 of materials in the record . . . or (B) showing that the
materials cited do not establish the absence . . . of a genuine
dispute.” Fed. R. Civ. P. 56(c). Any factual assertions in the
moving party’s affidavits will be accepted as true unless the
opposing party submits his own affidavits or other documentary
evidence contradicting the assertion. See Neal v. Kelly, 963
F.2d 453, 456 (D.C. Cir. 1992). However, “the inferences to be
drawn from the underlying facts . . . must be viewed in the
light most favorable to the party opposing the motion.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (citation and internal quotation marks
omitted).
C. 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.” Reps. 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)
9 (adequacy depends on the “appropriateness of the methods used”
rather than the “fruits of the search”).
The agency may meet its burden 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.” Reps. 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 (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]
10 search specifically yielded.’” Otero v. DOJ, 292 F. Supp. 3d
245, 251 (D.D.C. 2018) (quoting Reps. Comm., 877 F.3d at 402).
IV. Analysis
A. EOUSA Properly Confined Its Search for Responsive Records
To determine whether an agency conducted an adequate search
for responsive records, the Court “must first ascertain the
scope of the request itself.” Nation Mag., Wash. Bureau v. U.S.
Customs Serv., 71 F.3d 885, 889 (D.C. Cir. 1995). The agency
must “read [the request] as drafted,” Urb. Air Initiative, Inc.
v. Env’t Prot. Agency, 271 F. Supp. 3d 241, 255–56 (D.D.C. 2017)
(quoting Miller v. Casey, 730 F.2d 773, 777 (D.C. Cir. 1984));
and “may not narrow the scope of a FOIA request to exclude
materials reasonably within the description provided by the
requester,” id. (citing Nation Mag., 71 F.3d at 889–90, 892).
Democracy Forward first objects that DOJ “improperly
construed Plaintiff’s search as limited to ‘authorized’
communications between the Transition Team and EOUSA.” Pl.’s
Objs., ECF No. 18 at 4-5. The organization clarifies that it
requested “all incoming and outgoing communications between the
named members of the Transition Team and all of EOUSA.” Pl.’s
Objs., ECF No. 18 at 5. This request included unauthorized
communications, which “could well be the most informative and
11 revealing records concerning the relationship between the
Transition Team and EOUSA.” Id.
Democracy Forward raises this objection in the context of
its challenge to the adequacy of EOUSA’s search, and so “the
factual question it raises is whether the search was reasonably
calculated to discover the requested documents.” SafeCard
Servs., 926 F.2d at 1201. EOUSA’s search meets this standard.
The agency considered the scope of Democracy Forward’s request—
all communications between the named Transition Team members and
EOUSA—and reasonably determined that the only records likely to
exist are authorized communications. See Def.’s Opp’n, ECF No.
21 at 3. Indeed, DOJ admits in its briefing that EOUSA
understood that it was to search for all communications. See
Def.’s Opp’n, ECF No. 21 at 3. The briefing, bolstered by Mr.
Jolly and Mr. Wong’s affidavits, adequately explains that the
agency found it likely that only authorized communications exist
and confined its search accordingly. See R. & R., ECF No. 16 at
6-9; Jolly Decl., ECF No. 10-3 ¶¶ 7-9 (basing this determination
on his nine years of experience); Wong Decl., ECF No. 10-4 ¶¶ 4-
6 (reasoning based on his knowledge that only participants in
the December 2016 meeting had any contact with the Transition
Team).
The cases Democracy Forward cites in its briefing are
distinguishable. In Urban Air Initiative, the affidavits did not
12 support a conclusion that the agency conducted an adequate
search because they did “not aver that no other custodians were
likely to possess responsive documents.” Urb. Air Initiative,
Inc., 271 F. Supp. 3d at 256 (citing Oglesby, 920 F.2d at 68).
By contrast, here, the affidavits state that only authorized
communications and no other communications are likely to exist.
Mr. Wong makes clear that he, Mr. Wilkinson, Ms. Bell, and Mr.
Pelletier “would have been the only EOUSA individuals to
communicate with any Transition Team members” and that “[o]ther
than at [the December 2016] meeting, EOUSA did not communicate
directly with the Transition Team.” Wong Decl., ECF No. 10-4 ¶ 4
(emphasis added). Mr. Jolly explains the same, averring that “no
. . . EOUSA component” other than the Director’s Office “would
be likely to have responsive records.” Jolly Decl., ECF No. 10-3
¶ 8.
Utahamerican Energy, Inc. v. Mine Safety & Health Admin.,
725 F. Supp. 2d 78 (D.D.C. 2010) provides even less support.
There, the court held that the agency’s search was inadequate
because the agency “centered the search around [other] requests
for documents, and not around [the plaintiff]’s FOIA request.”
725 F. Supp. 2d at 82. Since Democracy Forward does not allege
that EOUSA conducted a search responsive to FOIA requests other
than its own, see generally Pl.’s Objs., ECF No. 18; this case
is not instructive.
13 Moreover, FOIA does not require an agency to “make hopeless
and wasteful efforts to locate” documents that would not “have
been created in the normal course.” SafeCard Servs., 926 F.2d at
1201. Unauthorized communications would not have been created in
the normal course. See Wong Decl., ECF No. 10-4 ¶¶ 4-6.
Democracy Forward offers only “[m]ere speculation that as yet
uncovered documents may exist.” SafeCard Servs., 926 F.2d at
1201. It reasons that unauthorized communications between EOUSA
and the Transition Team must exist because: “multiple federal
law enforcement agencies were investigating President Trump and
his associates before, during, and after the transition”;
President “Trump attempted to influence those investigations”;
“President Trump had recently fired 46 U.S. Attorneys, including
one investigating a cabinet official”; and “congressional
investigators were simultaneously attempting to obtain
information about illicit contacts.” Pl.’s Reply, ECF No. 22 at
2 (citations omitted). Whatever evidence there may be of other
illegal activity, that evidence does not provide enough support
for the charge that EOUSA possesses unauthorized communications—
particularly in the face of EOUSA’s declarations to the
contrary. See Light v. Dep’t of Just., 968 F. Supp. 2d 11, 23
(D.D.C. 2013) (“An agency’s declarations are accorded ‘a
presumption of good faith, which cannot be rebutted by purely
14 speculative claims about the existence and discoverability of
other documents.’” (quoting SafeCard Servs., 926 F.2d at 1200)).
Democracy Forward also objects to Magistrate Judge Harvey’s
conclusion that EOUSA properly cabined its search to the
individuals who participated in the December 2016 meeting. See
Pl.’s Objs., ECF No. 18 at 6-8. It contends that EOUSA “‘cannot
limit its search to only one record system if there are others
that are likely to turn up the information requested.’” Id. at
7-8 (quoting Nation Mag., 71 F.3d at 890). And other systems are
likely to have responsive records, it continues, because
“[g]overnment officials do not always stay within the bounds of
their lawful authority, particularly with respect to the rules
governing authorized and unauthorized communications.” Pl.’s
Objs., ECF No. 18 at 6-7.
The Court disagrees. First, there is significant caselaw
suggesting that “in the absence of clear evidence to the
contrary, courts presume that [government officials] have
properly discharged their official duties.” United States v.
Chem. Found., 272 U.S. 1, 14–15 (1926). Second, FOIA
declarations “are accorded a presumption of good faith”
regardless of the underlying government conduct. SafeCard
Servs., 926 F.2d at 1200. Because Democracy Forward does not
cite any caselaw to support its position and does not allege
that EOUSA acted in bad faith, the Court rejects this argument.
15 At base, Democracy Forward speculates—based on other
actions of the Transition Team and other investigations—that
there may be unauthorized communications between EOUSA and
certain members of the Transition Team. But under FOIA, the
Court assesses whether the agency’s search “can be reasonably
expected to produce the information requested” and will prohibit
the agency from “limit[ing] its search to only one record system
if there are others that are likely to turn up the information
requested.” Nation Mag., 71 F.3d at 890 (citations omitted).
Democracy Forward has not shown that EOUSA’s search was
unreasonably limited or that other EOUSA employees were likely
to have responsive records. For these reasons, the Court agrees
with Magistrate Judge Harvey that EOUSA properly confined its
search to authorized communications between the named members of
the Transition Team and the individuals in the Director’s Office
who participated in the December 2016 meeting.
B. EOUSA’s Failure to Search the December 2016 Meeting Participants’ Records Was Unreasonable
“[R]easonableness is the hallmark of an adequate FOIA
search, and must be decided on the facts of the case.” Landmark
Legal Found. v. E.P.A., 272 F. Supp. 2d 59, 64 (D.D.C. 2003)
(citing Weisberg v. U.S. Dep’t of Just., 745 F.2d 1476, 1485
(D.C. Cir. 1984)). FOIA does not require that the agency’s
search “take any particular form.” Toensing v. U.S. Dep’t of
16 Just., 890 F. Supp. 2d 121, 144 (D.D.C. 2012). “However, the
agency cannot limit its search to only one record system if
there are others that are likely to turn up the information
requested.” Oglesby, 920 F.2d at 68.
DOJ objects to Magistrate Judge Harvey’s conclusion that
EOUSA’s search was inadequate for its failure to search the
email records and other written correspondence of the December
2016 meeting participants. Def.’s Objs., ECF No. 19 at 5-10. The
agency refers to Mr. Wong’s declaration, which explains that he
“personally spoke with and exchanged emails with” the other
December 2016 meeting participants and, based on those
conversations, determined that “they neither sent nor received
any email or other written correspondence to or from any
Transition Team member during the requested timeframe.” Id. at 6
(citing Wong Decl., ECF No. 10-4 ¶ 5). In other words, DOJ
argues that Mr. Wong’s conversations with the other meeting
participants constitutes a search and that the search was
adequate because “it was not reasonable to believe that
responsive records existed in those email accounts.” Id. at 7
(citing Wong Decl., ECF No. 10-4 ¶ 6).
The Court agrees with Magistrate Judge Harvey that Mr.
Wong’s conversations with the other likely custodians of
responsive records “are no substitute for actually searching
those employees’ records.” R. & R., ECF No. 16 at 11. The facts
17 here are analogous to those in Toensing, where the court held
the “search” to be “clearly inadequate” when the declarant
acknowledged that “she spent ‘[n]o additional search time’
because she and her colleagues ‘kn[ew] there were no
tapes/transcripts responsive to the request.’” Toensing, 890 F.
Supp. 2d at 143. Here, Mr. Wong attests that he did not conduct
any further searches after discussing the matter with the other
December 2016 meeting participants. See Wong Decl., ECF No. 10-4
¶ 6. Mr. Wong at no point claims that he or any of the other
meeting participants performed any search of their own records
to support their representations. See generally id. ¶¶ 4-6.
Although the Court presumes good faith here, FOIA still requires
that the agency conduct some search and forbids it from relying
on “professed personal knowledge that no responsive records
exist.” Toensing, 890 F. Supp. 2d at 143.
The cases DOJ cites do not counsel differently because in
each case, the agency actually reviewed its records. In James
Madison Project v. Dep’t of Justice, 267 F. Supp. 3d 154 (D.D.C.
2017), the court held the search to be adequate because the
agency “identif[ied] the individuals likely to have responsive
records,” “interview[ed] them to determine where all records
relevant . . . would be located,” and “review[ed] each of those
records individually.” 267 F. Supp. 3d at 160. In Schrecker v.
U.S. Dep’t of Justice, 217 F. Supp. 2d 29 (D.D.C. 2002), aff’d,
18 349 F.3d 657 (D.C. Cir. 2003), the court accepted the search as
adequate where the agency searched the three records systems
with “the greatest possibility of containing responsive
documents.” 217 F. Supp. 2d at 35. And in American Chemistry
Council, Inc. v. U.S. Dep’t of Health & Human Services, 953 F.
Supp. 2d 120 (D.D.C. 2013) as well as Walston v. U.S. Dep’t of
Defense, 297 F. Supp. 3d 74 (D.D.C. 2018), the courts concluded
that the agencies performed adequate searches because the
“search of an alternate source” suggested by the plaintiffs
“would be duplicative of a search that ha[d] already been
conducted.” Am. Chemistry Council, Inc., 953 F. Supp. 2d at 127;
see Walston, 297 F. Supp. 3d at 78-79.
“Although agencies have discretion in crafting their
searches,” Walston, 297 F. Supp. 3d at 79; they cannot decline
to actually search for responsive records, see Morley, 508 F.3d
at 1114. Agencies, of course, may use interviews with likely
custodians to determine what search methods are “reasonably
Servs., 926 F.2d at 1201. However, they may not use those
interviews to avoid searching their records altogether.
Toensing, 890 F. Supp. 2d at 143. The Court therefore concludes
that EOUSA did not perform an adequate search because it failed
to search the email and other records of the December 2016
meeting participants.
19 C. The Court Orders DOJ to Supplement the Record
In a footnote, Democracy Forward objects to Magistrate
Judge Harvey’s recommendation that the Court permit DOJ to
supplement the record by explaining why any further search would
be burdensome. See Pl.’s Objs., ECF No. 18 at 3-4 n.1. The Court
possesses the authority to order that a record be supplemented.
See Discepolo v. U.S. Dep’t of Just., No. 16-CV-2351 (DLF/GMH),
2018 WL 504655, at *12 (D.D.C. Jan. 19, 2018) (requiring an
agency that failed to search an email account to “supplement its
declaration to fill this gap in its demonstration of the
adequacy of its search, either by searching [the email account]
or by explaining why such a search is unnecessary”), report and
recommendation adopted, No. CV 16-2351 (DLF/GMH), 2018 WL
5024921 (D.D.C. May 8, 2018), reconsideration denied, No. 16-CV-
2351 (DLF), 2018 WL 6620465 (D.D.C. Nov. 2, 2018); see also
Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d
504, 515 (D.C. Cir. 2011) (remanding case and requiring
defendant to provide “further clarification . . . about the
seeming gaps” in its search). This supplementation is
particularly appropriate here as DOJ explained in its briefing
that a search through the four meeting participants’ email
records may be burdensome. See Def.’s Objs., ECF No. 19 at 9-10
(explaining that the agency will have “to expend resources to
comb through for responsiveness”); see id. at 10 (describing
20 that a search for communications with former Attorney General
Jeff Sessions is likely to result in a large number of
nonresponsive “hits” because he was “the ultimate boss of EOUSA
during the relevant timeframe”).
V. Conclusion
For the foregoing reasons, the Court ADOPTS Magistrate
Judge Harvey’s R. & R., ECF No. 16; and DENIES DOJ’s Motion for
Summary Judgment as to the adequacy of EOUSA’s search, ECF No.
10.
The Court orders DOJ to supplement the record by: (a)
searching the email and other records of the four individuals in
the Director’s Office who participated in the December 2016
meeting with the Transition Team, using the names from Democracy
Forward’s FOIA request; (b) submitting an affidavit explaining
that those individuals have already conducted those searches; or
(c) submitting an affidavit detailing with specificity why the
search would be overly burdensome.
An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge November 23, 2022