UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CHRIS WRIGHT,
Plaintiff, Civil Action No. 15-218 v. Chief Judge Beryl A. Howell ADMINISTRATION FOR CHILDREN AND FAMILIES, (U.S. Department of Health and Human Services),
Defendant.
MEMORANDUM OPINION
The plaintiff, Chris Wright, who is proceeding pro se, brings this lawsuit under the
Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, against the defendant Administration for
Children and Families (“ACF”), which is a division of the U.S. Department of Health and
Human Services (“HHS”), challenging the agency’s response to his request for “information for
use in news stories about unaccompanied alien children1 . . . and the government’s shelter
program.” Compl. ¶ 3, ECF No. 1; Answer ¶ 4, ECF No. 9. Having already granted partial
summary judgment to HHS, pursuant to the parties’ Joint Stipulation of Issues to be Briefed,
ECF No. 12, see Order (Aug. 3, 2015), ECF No. 13, pending before the Court is HHS’s Motion
for Summary Judgment (“Def.’s Mot.”), ECF No. 16, on the four remaining issues in the case.
For the reasons set out below, HHS’s motion is granted.
1 “Unaccompanied alien children” refers to “unaccompanied foreign children who illegally enter the United States from countries that do not border the United States,” for whom “[t]he U.S. Department of Health and Human Services is required by law to take custody . . . and provide care . . . .” Def.’s Mot., Ex. 1, Decl. of Kimberly Epstein (“Epstein Decl.”) ¶¶ 7, 10, ECF No. 16–1; see also Def.’s Statement Material Facts (“Def.’s SMF”) ¶¶ 1–3, ECF No. 16.
1 I. BACKGROUND
The plaintiff explains that “[t]his case relates to the ‘border surge’ in the summer of 2014,
the high-profile influx of [unaccompanied alien children] which generated voluminous news
coverage.” Pl.’s Mem. P. & A. Opp’n Def.’s Mot. Summ. J. (“Pl.’s Opp’n”) at 1, ECF No. 19.
In a FOIA request transmitted via email on October 24, 2014, the plaintiff requested records
from ACF regarding fifteen categories of information (“Items 1–15”) related to “grant award
90ZU0102 in the amount of $190,707,505,” made to Baptist Children and Family Services (now
BCFS Health and Human Services) (“BCFS”) for the provision of residential shelter services to
unaccompanied alien children. Compl. Ex. 1 (“Pl.’s Request”) at 1–2, ECF No. 1. Relevant
here, one of those fifteen categories of information was described by the plaintiff as “[n]arrative
status reports” (“Item 1”). Id. at 1. The plaintiff also requested five broader categories of
information (“Items 16–20”) “[w]ith respect to BCFS and related entities in general,” regarding
(a) “discussions of why these organizations maintain an office, employees, or agents outside of
the United States”; (b) “BCFS’ grants or assistance to foreign governments, organizations, and
individuals”; (c) “BCFS’ grants or assistance to governments, organizations and individuals in
the United States for Education Training Vouchers [ETVs]”; (d) “BCFS’ grants or assistance to
governments, organizations and individuals in the United States for ORR allowance grants”; and
(e) “discussion of BCFS’ failure to properly report lobbying expenditures on its tax forms.” Id.
at 2.
On December 10, 2014, an ACF Freedom of Information Officer acted upon the
plaintiff’s email request by requesting a search for responsive records from the ACF Office of
Refugee Resettlement (“ACF-ORR”), which “has jurisdiction over funding the unaccompanied
minors residential services program and monitors grantee performance,” and the ACF Office of
2 Grants Management (“ACF-OGM”), which “has jurisdiction over financial management and
reporting for all ACF grant programs.” Def.’s Mot., Ex. 1, Decl. of Kimberly N. Epstein
(“Epstein Decl.”) ¶¶ 10–11.
As of February 12, 2015, when the plaintiff filed the Complaint in this action, HHS had
released no documents or information to the plaintiff in response to his request. See generally
Compl.; Epstein Decl. ¶ 28. Between March 2, 2015, and September 2, 2015, however, HHS
made fourteen separate releases of information in response to the plaintiff’s request, totaling
many hundreds of pages. Epstein Decl. ¶ 28; Pl.’s Opp’n at 2–3. These releases included, inter
alia, financial reports, Performance Progress Reports (“PPRs”), Situation Reports, monitoring
reports, internal memoranda, and emails among various ORR and ACF staff and executives
regarding BCFS’s grant award 90ZU0102. Epstein Decl. ¶ 28.
HHS construed the plaintiff’s request for “narrative status reports” (Item 1), a term HHS
does not itself use in categorizing its documents, as a request for PPRs and Situation Reports in
connection with BCFS’s grant award 90ZU0102. Id. ¶¶ 15–16. Employing that construction of
the term, HHS released to the plaintiff, inter alia, “all [PPRs] concerning BCFS for grant number
90ZU0102” produced between July 7, 2014, the date the grant was awarded, and December 10,
2014, the date the search for responsive records commenced, Def.’s SMF ¶¶ 9, 16, as well as all
Situation Reports sent by BCFS to ACF-ORR Federal Field Specialists during that time frame,
id. ¶¶ 19–22.
With respect to the plaintiff’s requests for more generalized information regarding BCFS’
domestic and foreign operations (Items 16–20), “OGM and ORR officials advised [the ACF
FOIA Officer] that ACF does not routinely collect or maintain information responsive to [Items
16–20] as they are outside the scope of the relationship with the grantee.” Epstein Decl. ¶ 26.
3 Nevertheless, an electronic search of the ACF-OGM and ACF-ORR files containing grantee
records and programmatic and financial reports was performed, using key words drawn from the
request, i.e., “lobbying,” “ETV,” and “foreign government.” Id. ¶¶ 23–24. According to HHS,
no responsive documents were found. Id.
Many of the documents released to the plaintiff were partially redacted pursuant to FOIA
Exemptions 4, 5, 6, and 7(C). 2 Id. ¶ 28. In August and September 2015, upon the determination
that Exemption 5 did not actually apply, HHS voluntarily released full, non-redacted versions of
two documents that were initially released to the plaintiff with redactions under FOIA
Exemption 5. Id. The two documents that remain partially redacted under Exemption 5, as
listed in the agency’s Vaughn Index, consist of emails compiled from the accounts of various
agency officials, with redactions on about half, or nineteen, of the thirty-nine total pages. Def.’s
Mot. Ex. 3, Vaughn Index, ECF No. 16-3. Larger portions of these documents were redacted
when initially released on July 20, 2015 and July 22, 2015, but those were later supplemented
with versions containing fewer redactions, released on July 27, 2015 and August 18, 2015,
respectively, to “provide consistent disclosure.” Epstein Decl. ¶ 28.
II. LEGAL STANDARD
Congress enacted the FOIA as a means “to open agency action to the light of public
scrutiny,” ACLU v. U.S. Dep’t of Justice, 750 F.3d 927, 929 (D.C. Cir. 2014) (quoting Dep’t of
Air Force v. Rose, 425 U.S. 352, 361 (1976)), and “to promote the ‘broad disclosure of
Government records’ by generally requiring federal agencies to make their records available to
2 The plaintiff does not contest any of the redactions made pursuant to Exemptions 4, 6, or 7(C), which protect “trade secrets and commercial or financial information obtained from a person and privileged or confidential;” “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;” and “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(4)–(7).
4 the public on request,” DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (citing U.S.
Dep’t of Justice v. Julian, 486 U.S. 1, 8 (1988)). As the Supreme Court has “consistently
recognized[,] . . . the basic objective of the Act is disclosure.” Chrysler Corp. v. Brown, 441
U.S. 281, 290 (1979). At the same time, the statute represents a “balance [of] the public’s
interest in governmental transparency against legitimate governmental and private interests [that]
could be harmed by release of certain types of information.” United Techs. Corp. v. U.S. Dep’t
of Def., 601 F.3d 557, 559 (D.C. Cir. 2010) (internal quotation marks and citations omitted).
Reflecting that balance, the FOIA contains nine exemptions set forth in 5 U.S.C. § 552(b), which
“are explicitly made exclusive and must be narrowly construed.” Milner v. U.S. Dep’t of Navy,
562 U.S. 562, 565 (2011) (internal quotation marks and citations omitted) (citing FBI v.
Abramson, 456 U.S. 615, 630 (1982)); see Murphy v. Exec. Office for U.S. Attys., 789 F.3d 204,
206 (D.C. Cir. 2015); Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice
(“CREW”), 746 F.3d 1082, 1088 (D.C. Cir. 2014); Pub. Citizen, Inc. v. Office of Mgmt. &
Budget, 598 F.3d 865, 869 (D.C. Cir. 2010). “[T]hese limited exemptions do not obscure the
basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Rose, 425 U.S. at
361.
The agency invoking an exemption to the FOIA has the burden “to establish that the
requested information is exempt.” Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443
U.S. 340, 352 (1979); see U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489
U.S. 749, 755 (1989); DiBacco, 795 F.3d at 195; CREW, 746 F.3d at 1088; Elec. Frontier
Found. v. U.S. Dep’t of Justice, 739 F.3d 1, 7 (D.C. Cir. 2014), cert. denied sub nom. Elec.
Frontier Found. v. Dep’t of Justice, 135 S. Ct. 356 (2014); Assassination Archives & Research
Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003). To carry this burden, an agency must submit
5 sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents,3 or
both, to demonstrate that the government has analyzed carefully any material withheld, to enable
the court to fulfill its duty of ruling on the applicability of the exemption, and to enable the
adversary system to operate by giving the requester as much information as possible, on the basis
of which the requester’s case may be presented to the trial court. See Oglesby v. U.S. Dep’t of
Army (Oglesby II), 79 F.3d 1172, 1176 (D.C. Cir. 1996) (“The description and explanation the
agency offers should reveal as much detail as possible as to the nature of the document, without
actually disclosing information that deserves protection . . . [which] serves the purpose of
providing the requestor with a realistic opportunity to challenge the agency’s decision.” (citation
omitted)); see also CREW, 746 F.3d at 1088 (“The agency may carry that burden by submitting
affidavits that ‘describe the justifications for nondisclosure with reasonably specific detail,
demonstrate that the information withheld logically falls within the claimed exemption, and are
not controverted by either contrary evidence in the record nor by evidence of agency bad faith.’”
(quoting Larson v. U.S. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). While “an agency’s
task is not herculean[,]” it must “describe the justifications for nondisclosure with reasonably
specific detail and demonstrate that the information withheld logically falls within the claimed
exemption.” Murphy, 789 F.3d at 209 (internal quotation marks omitted) (citing Larson, 565
F.3d at 862).
The FOIA provides federal courts with the power to “enjoin the agency from withholding
agency records and to order the production of any agency records improperly withheld from the
complainant,” 5 U.S.C. § 552(a)(4)(B), and “directs district courts to determine de novo whether
non-disclosure was permissible,” Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 777
3 “A Vaughn index describes the documents withheld or redacted and the FOIA exemptions invoked, and explains why each exemption applies.” Prison Legal News v. Samuels, 787 F.3d 1142, 1145 n.1 (D.C. Cir. 2015).
6 F.3d 518, 522 (D.C. Cir. 2015). A district court must review the Vaughn index and any
supporting declarations “to verify the validity of each claimed exemption.” Summers v. U.S.
Dep’t of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). Moreover, a district court has an
“affirmative duty” to consider whether the agency has produced all segregable, non-exempt
information. Elliott v. U.S. Dep’t of Agric., 596 F.3d 842, 851 (D.C. Cir. 2010) (referring to
court’s “affirmative duty to consider the segregability issue sua sponte ”) (quoting Morley v.
CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007)); see Stolt–Nielsen Transp. Grp. Ltd. v. United
States, 534 F.3d 728, 734 (D.C. Cir. 2008) (“[B]efore approving the application of a FOIA
exemption, the district court must make specific findings of segregability regarding the
documents to be withheld.”) (quoting Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116
(D.C. Cir. 2007)); Trans–Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028
(D.C. Cir. 1999) (“[W]e believe that the District Court had an affirmative duty to consider the
segregability issue sua sponte . . . even if the issue has not been specifically raised by the FOIA
plaintiff.”); see also 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.”).
Summary judgment is appropriate when “there is no genuine dispute as to any material
fact.” Fed. R. Civ. P. 56. “In FOIA cases, summary judgment may be granted on the basis of
agency affidavits 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.” Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C.
Cir. 2013) (internal quotation marks omitted) (quoting Consumer Fed’n of Am. v. U.S. Dep’t of
Agric., 455 F.3d 283, 287 (D.C. Cir. 2006)). “Ultimately, an agency’s justification for invoking
7 a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Judicial Watch, Inc. v. U.S.
Dep’t of Def., 715 F.3d 937, 941 (D.C. Cir. 2013) (quoting ACLU v. U.S. Dep’t of Def., 628 F.3d
612, 619 (D.C. Cir. 2011)); Larson, 565 F.3d at 862 (quoting Wolf v. CIA, 473 F.3d 370, 374–75
(D.C. Cir. 2007)).
III. DISCUSSION
The plaintiff’s requests for Item 1 and Items 16–20 are the only requests that remain at
issue following this Court’s Order granting partial summary judgment to HHS. Order ¶¶ 1–2.
For these Items in his original request, the plaintiff contends that summary judgment should be
denied because: (1) HHS failed to perform an adequate search for responsive materials; and (2)
the deliberative process privilege does not warrant redaction of the documents produced. Pl.’s
Reply Supp. Mot. Opp’n (“Pl.’s Reply”) at 2–4, 7–9, ECF No. 21. The discussion that follows
addresses these issues seriatim.
A. ADEQUACY OF THE AGENCY’S SEARCH
The plaintiff criticizes the adequacy of the search conducted by ACF for responsive
documents for several reasons. First, the plaintiff complains that the search did not include
ACF-ORR “[r]egional offices” in Texas and Oklahoma; the “Office of the Secretary”; “former
employees”; “consultations with agency personnel concerning the grant and controversies in
question”; and “[o]ther record systems.” Pl.’s Opp’n at 3–5. Second, the plaintiff asserts that the
methods used to search email accounts, and the “lack of description in the FOIA Officer’s
Declaration of what is meant by searches of email accounts,” support a finding of inadequacy.
Id. at 6–7. Relatedly, the plaintiff argues that the personal communications of relevant personnel
are subject to the FOIA and requests sworn declarations from all relevant agency personnel
attesting “they did not use personal email, instant messaging, or text accounts to conduct official
8 business” related to his request. Id. at 8–11. Finally, the plaintiff contends that Items 16–20
“extend to all BCFS entities, not just BCFS HHS, and is not limited to the grant otherwise at
issue in this case,” but that HHS improperly searched only for records relating to BCFS HHS and
grant award 90ZU0102. Id. at 3–7. HHS defends its “search for responsive records [as] both
adequate and reasonable,” because “a comprehensive search was performed for documents
responsive to [the plaintiff’s] request, including of the email boxes of all persons copied on
responsive emails.” Def.’s Mem. Supp. Def.’s Mot. Summ. J. (“Def.’s Mem.”) at 7, ECF No.
16.
1. Applicable Legal Principles
Upon receiving a FOIA request, federal agencies are “required to perform more than a
perfunctory search” to identify potential responsive records, Ancient Coin Collectors Guild v.
U.S. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011), and must demonstrate “a ‘good faith
effort to conduct a search using methods which can be reasonably expected to produce the
information requested,’” DiBacco, 795 F.3d at 188 (internal alterations omitted) (quoting
Oglesby v. U.S. Dep’t of Army (Oglesby I), 920 F.2d 57, 68 (D.C. Cir. 1990)). To meet this
burden, the agency must “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) (quoting Truitt v. U.S. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir.
1990)). At the summary judgment stage, an agency may meet this 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.’” Ancient Coin Collectors Guild, 641 F.3d at 514 (quoting Valencia–Lucena, 180 F.3d
at 326). Such an affidavit must “‘explain in reasonable detail the scope and method of the search
9 conducted by the agency.’” See Morley, 508 F.3d at 1121 (quoting Perry v. Block, 684 F.2d 121,
127 (D.C. Cir. 1982)).
Although an agency “has a duty to construe a FOIA request liberally,” Nation Magazine
v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995), the FOIA “demands only a reasonable
search tailored to the nature of a particular request.” Campbell v. U.S. Dep’t of Justice, 164 F.3d
20, 28 (D.C. Cir. 1998), as amended (Mar. 3, 1999). “[I]t is long settled that the failure of an
agency to turn up one specific document in its search does not alone render a search inadequate.
. . . Rather, the adequacy of a FOIA search is generally determined not by the fruits of the search,
but by the appropriateness of the methods used to carry out the search.” Iturralde v. Comptroller
of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (citations omitted). Thus, “[t]here is no
requirement that an agency search every record system,” although “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 I, 920 F.2d at 68. Furthermore, agencies are not obligated to search
“beyond ‘the four corners of the request,’ nor are they ‘required to divine a requester's intent.’”
Am. Chemistry Council, Inc. v. U.S. Dep't of Health & Human Servs., 922 F. Supp. 2d 56, 62
(D.D.C. 2013) (quoting Landmark Legal Found. v. EPA, 272 F. Supp. 2d 59, 64 (D.D.C. 2003)).
If an agency has made a prima facie showing of the adequacy of its search, “[t]he
plaintiff may then provide ‘countervailing evidence’ as to the adequacy of the agency’s search.
. . . ‘If a review of the record raises substantial doubt, particularly in view of well defined
requests and positive indications of overlooked materials, summary judgment is inappropriate.’”
Iturralde, 315 F.3d at 314 (internal quotation marks omitted) (quoting Founding Church of
Scientology of Washington, D.C., Inc. v. Nat’l Sec. Agency, 610 F.2d 824, 836 (D.C. Cir. 1979);
then quoting Valencia-Lucena, 180 F.3d at 326).
10 2. Analysis
The plaintiff’s first criticism of the agency’s search is that certain locations, such as
regional offices, the Office of the Secretary, unnamed former employees, and other record
systems, were not searched for records responsive to Items 1 and 16-20. Evaluating whether the
search conducted by the agency was properly and reasonably focused to uncover responsive
records turns on the nature of the request. See Campbell, 164 F.3d at 28 (“[The] FOIA demands
only a reasonable search tailored to the nature of a particular request.”). The plaintiff’s request
in Item 1 for “narrative status reports,” which is not a term used by the agency, regarding the
identified grant to BCFS was construed liberally, with HHS identifying categories of records
believed to be within the intent of the plaintiff’s request. Epstein Decl. ¶ 15. Specifically, this
term was construed to refer to PPRs, quarterly and annual reports provided to the agency by
grantees, and Situation Reports, which “were sent [to the agency] by BCFS-HHS via email . . . to
provide updates on the emergency situation of providing residential services to the sudden large
influx of unaccompanied children during the summer of 2014.” Id. at ¶ 15–16. Based on this
construction of Item 1, HHS then identified the two offices where “the requested records were
most likely to be located,” id. ¶ 10, and searched their electronic databases as well as the
“individual email accounts” of relevant personnel, id. ¶ 14; hired an outside consultant to retrieve
responsive documents identified as outstanding, id. ¶ 20; and ultimately released, over the course
of several disclosures, more than seventy PPRs and Situation Reports to the plaintiff, id. ¶¶ 15–
21.
In regard to Items 16–20, which sought categories of information “[w]ith respect to
BCFS-HHS and related entities in general,” Pl.’s Request at 2, the ACF FOIA Officer explains
that she consulted a number of officials at OGM and ORR regarding “other locations that should
11 be searched” for responsive documents. Epstein Decl. ¶ 25. She avers those officials “advised
[her] that ACF does not routinely collect or maintain information responsive to these items as
they are outside the scope of the relationship with the grantee.” Id. ¶ 26. Nevertheless, OGM
and ORR performed searches for responsive documents but, consistent with the information that
no such records are kept by the agency, the search uncovered no responsive records. Id. ¶ 22–24.
The plaintiff complains that the search for documents responsive to his requests for Item
1 and Items 16–20 was inadequate because the agency did not search all the locations he thinks
should have been searched. See Pl.’s Opp’n at 3–5. 4 To the contrary, an agency’s failure to take
every step desired by a requester does not automatically render the search not “reasonably
calculated to uncover all relevant documents.” Valencia-Lucena, 180 F.3d at 325 (internal
quotation marks omitted). With respect to Item 1, the ACF FOIA officer has explained that all
responsive PPRs and Situation Reports were identified, specifically noting that the “OGM
maintains PPRs in the Grant Notes section of grantee files,” that it “provided the BCFS-HHS
PPRs for grant number 90ZU0102” to the plaintiff, and that “all Situation Reports that were
responsive were provided to the requester.” Epstein Decl. ¶¶ 17–21. The plaintiff has not
pointed to any “positive indications of overlooked materials,” nor has he shown that the “agency
has reason to know that certain places [not searched] may contain” additional documents
responsive to Item 1. Valencia-Lucena, 180 F.3d at 326–27.
Similarly, with respect to Items 16–20, HHS has demonstrated that the scope of its search
of offices, records systems, and employees was adequate. The ACF FOIA Officer attests she
4 The cases relied upon by the plaintiff do not dictate a result in his favor. For example, in Church of Scientology v. IRS, 792 F.2d 146 (D.C. Cir. 1986), cited by the plaintiff, see Pl.’s Opp’n at 3, the D.C. Circuit concluded that the plaintiff was not entitled to its requested search of regional offices of the IRS in view of the requester’s failure to comply with the IRS’s rules requiring such requests be made to the regional offices directly. Church of Scientology, 792 F.3d at 150. At best, the cited cases demonstrate no more than that the locations plaintiff identifies may in some circumstances properly be searched in response to a FOIA request.
12 was advised by OGM and ORR officials that “ACF is unlikely to have responsive records as
these matters lie outside the scope of ACF’s relationship with its grantees.” Epstein Decl. ¶ 22.
Specifically, she notes that applicable regulations “state that an agency may solicit only the
standard, OMB-approved government-wide data elements for collection of financial
information,” which would bar the collection of the information requested in Items 16–20. Id. ¶
26. On that basis, the ACF FOIA Officer “determined that ACF is not reasonably likely to be in
possession of records responsive to Items 16–20 of the request.” Id. Notwithstanding this
conclusion, the OGM and ORR identified the files they deemed most likely to contain responsive
documents, if any existed, and searched those files using parameters derived from the plaintiff’s
request. See id. ¶ 23–24.
Having attested to the unlikelihood of the existence of any responsive agency records,
HHS was not required to perform the more exhaustive search the plaintiff apparently demands. 5
On the contrary, an agency is only required to search record systems “likely” to yield responsive
documents. See, e.g., Ancient Coin Collectors Guild, 641 F.3d at 514 (noting agency must
“aver[] that all files likely to contain responsive materials (if such records exist) were searched”
(quoting Valencia–Lucena, 180 F.3d at 326)). Consequently, courts have found searches
adequate where no search was performed of entities “unlikely” to possess responsive documents.
See All Party Parliamentary Grp. on Extraordinary Rendition v. U.S. Dep’t of Def., 134 F. Supp.
5 The plaintiff asserts that “[g]iven the [d]efendant’s credibility problems, the court should not rely on [its] pronouncement. . . . It is not credible that there is no record of any discussion with a politically-connected CEO or other BCFS representative concerning the controversy about BCFS’ lobbying expenditures or its foreign activities . . . .” Pl.’s Opp’n at 5. Yet, “[a]gency 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. S.E.C., 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)); see also Hayden v. Nat'l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1387 (D.C. Cir. 1979) ("The sufficiency of the affidavits is not undermined by a mere allegation of agency misrepresentation or bad faith, nor by past agency misconduct in other unrelated cases"). The plaintiff’s assertions amount to nothing more than speculation, and, accordingly, cannot overcome the agency’s attestation as to the likelihood of the existence of documents to Items 16–20.
13 3d 201, 206 (D.D.C. 2015) (“The NSA . . . argues that, because its function is limited solely to
signals intelligence, it is unlikely to possess any [responsive] documents . . . and is not required
to search its records. . . . The Court agrees and concludes that a search for the documents
requested would be futile . . . .”); Reyes v. EPA, 991 F. Supp. 2d 20, 26 (D.D.C. 2014) (“Where
the Government’s declarations establish that a search would be futile[,] the reasonable search
required by FOIA may be no search at all.” (quoting Amnesty Int’l USA v. CIA, No. 07-Civ.-
5435, 2008 WL 2519908, at *11 n.17 (S.D.N.Y. June 19, 2008))); Brehm v. Dep’t of Defense,
593 F. Supp. 2d 49, 50 (D.D.C. 2009) (finding search adequate based on, inter alia, the
declarant’s “conclusion that ‘it is unlikely that other CIA directorates would possess records
responsive to Plaintiff’s request’”); cf. Am. Immigration Council v. U.S. Dep’t of Homeland
Sec., 21 F. Supp. 3d 60, 72 (D.D.C. 2014) (“[A]n attestation that the agency searched filing
systems ‘likely to contain responsive records’ also requires an accompanying averment that ‘it is
unlikely that other directorates would possess records responsive to Plaintiff’s request.’”
(quoting Am. Immigration Council v. U.S. Dep’t of Homeland Sec., 950 F. Supp. 2d 221, 230
(D.D.C. 2013) (alterations omitted)).
The plaintiff next complains that summary judgment should be denied “because of a lack
of description in the FOIA Officer’s Declaration of what is meant by searches of email
accounts,” id. at 6, urging that more detail, e.g., information regarding “[h]ow . . . Boolean
operators [were] treated,” id., should have been included. Contrary to the plaintiff’s assertion,
the ACF FOIA Officer sufficiently described the manner in which email accounts were searched,
noting that the agency searched “the email boxes of the Federal Field Specialists and any other
individuals assigned to BCFS-HHS” for Situation Reports and, upon discovering that twenty-two
Situation Reports “remained outstanding,” hired a consultant, which searched “six mailboxes of
14 central office staff and Federal Field Specialists,” using the search terms “‘BCFS’ plus ‘SitRep’
(the short-hand term BCFS-HHS used for Situation Reports) plus ‘Ft. Sill’ and/or ‘Lackland’
and/or ‘Juliet’ and/or ‘Kilo’ (the short-hand terms BCFS-HHS used for the Ft. Sill and Lackland
sites)” and identifying the dates of the missing Situation Reports. Epstein Decl. ¶ 17–20; see
Ancient Coin Collectors Guild, 641 F.3d at 514 (explaining “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 . . . were searched”) (emphasis added).
Accordingly, the Court is not persuaded that the criticisms raised by the plaintiff of the
agency’s searches for documents responsive to Item 1 and Items 16–20 raise sufficient genuine
issues of material fact to deny summary judgment to HHS.
3. Personal Email Accounts of Agency Officials
The plaintiff’s FOIA request specifically asked that HHS search, among other records,
“electronic mail (including from personal accounts)” for responsive materials. Pl.’s Request at 1.
In support of that search, the plaintiff asserts a “substantial likelihood that personal accounts
were used to evade public scrutiny in this case,” citing the lack of responsive information found
as to Items 16–20 as support for his theory of intentional evasion. Pl.’s Opp’n at 10.
Alternatively, the plaintiff seeks an order “requir[ing] all agency officials involved with
administering the grant in question or with any BCFS entity more generally to submit a sworn
declaration that they did not use personal email, instant messaging, or text accounts to conduct
official business with respect to the oversight of grant award 90ZI0102 or Items 16–20 of [the
plaintiff’s] FOIA request,” a request which “extends up to and include[s] the Secretary of HHS
and all other political appointees.” Id. at 11; see Pl.’s Reply at 7.
15 HHS takes exception to the plaintiff’s requested form of relief, asserting that the “FOIA
does not provide a statutory mechanism to evaluate whether agency employees are complying
with rules requiring them to conduct agency business on their official email accounts instead of
personal accounts.” Def.’s Reply Supp. Def.’s Mot. Summ. J. (“Def.’s Reply”) at 10, ECF No.
20. Moreover, HHS points out that employees’ personal accounts “are not within an agency’s
possession or control and thus are not part of an agency’s search obligation,” and that “the proper
mechanism for reviewing the employee’s conduct would be an administrative proceeding under
the Federal Records Act, not FOIA.” Id. at 10–11.
Indisputably, the FOIA extends only to materials qualifying as “agency records.” 5
U.S.C. § 552(a)(4)(B); see U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 141 (1989)
(noting 5 U.S.C. § 552(a)(4)(B) “confers jurisdiction in the district courts when ‘agency records’
have been ‘improperly withheld’”). The Supreme Court has explained that “agency records”
include only those records “either create[d] or obtain[ed]” by an agency and subject to its control
“at the time the FOIA request is made.” Tax Analysts, 492 U.S. at 144–45. “Control” means
“that the materials have come into the agency’s possession in the legitimate conduct of its
official duties,” although “the term ‘agency records’ is not so broad as to include personal
materials in an employee’s possession, even though the materials may be physically located at
the agency.” Id. at 145. Thus, generally speaking, personal communications of agency
employees are not subject to the FOIA.
The D.C. Circuit recently clarified the scope of the FOIA’s “agency record” requirement
in Competitive Enterprises Institute v. Office of Science & Technology Policy, 827 F.3d 145
(D.C. Cir. 2016). In that case, the plaintiff requested from the Office of Science and Technology
Policy (“OSTP”) “all policy/OSTP-related email sent to or from” OSTP’s director’s “nonofficial
16 [email] account.” Id. at 146. The district court granted the agency’s motion to dismiss on the
ground that the requested emails were not “agency records” because they were “not under the
control of the agency.” Id. at 147. The D.C. Circuit reversed, see id. at 150, rejecting the
agency’s argument that the requested records “were in an account that is under the control of . . .
a private organization” on the basis that “the [account’s] user . . . maintains the account,” not the
domain host, id. at 147 (emphasis added) (internal quotation marks omitted). The Court
explained that “an agency always acts through its employees and officials. If one of them
possesses what would otherwise be agency records, the records do not lose their agency
character just because the official who possesses them takes them out the door . . . .” Id. at 149.
Consequently, the Court concluded that “[i]f the agency head controls what would otherwise be
an agency record, then it is still an agency record and still must be searched or produced.” Id.
Thus, Competitive Enterprises established that agency employees’ communications on
non-agency accounts may constitute “agency records” subject to the FOIA. Nevertheless, “a
FOIA requestor is not entitled to a search of files specified by the requestor, but rather to a
search of files ‘that are likely to turn up the information requested.’” Tunchez v. U.S. Dep’t of
Justice, 715 F. Supp. 2d 49, 54 (D.D.C. 2010) (quoting Oglesby I, 920 F.2d at 68). With respect
to official communications created on agency employees’ personal accounts, throughout the
period of time for which documents generated are subject to the plaintiff’s request, federal law
has required that such communications be preserved within and by the agency. See 36 C.F.R. §
1236.22(b) (effective Nov. 2, 2009) (“Agencies that allow employees to send and receive official
electronic mail messages using a system not operated by the agency must ensure that Federal
records sent or received on such systems are preserved in the appropriate agency recordkeeping
system.”); see also 44 U.S.C. § 2911(a) (effective Nov. 26, 2014) (prohibiting agency
17 employees from “creat[ing] or send[ing] a record using a non-official electronic messaging
account,” unless they properly document said record with the agency). In view of this
requirement, the presumption applies that agency employees comply with applicable law and,
consequently, that agency records responsive to a FOIA request would unlikely be located solely
in their personal email accounts, rendering a search of those accounts unnecessary. See, e.g.,
Bracy v. Gramley, 520 U.S. 899, 909 (1997) (“Ordinarily, we presume that public officials have
‘properly discharged their official duties.’” (quoting United States v. Armstrong, 517 U.S. 456,
464 (1996)); Stone v. Stone, 136 F.2d 761, 763 (D.C. Cir. 1943) (“In an action which challenges
the conduct of a public officer, a presumption of law is indulged in his favor that his official
duties were properly performed.”).
This presumption may be subject to rebuttal, but the plaintiff concedes that he “has no
specific information that agency personnel conducted official business through personal email in
this case” and, in fact, explains that the agency’s “former counsel . . . advised [the plaintiff] that
he had consulted agency personnel and had no reason to believe they used personal email to
conduct official business.” Pl.’s Opp’n at 8–9. Nevertheless, the plaintiff contends that “it
cannot be the law that representations of government counsel are dispositive of the issue.” Id. at
9. The plaintiff misconstrues the nature of his burden to submit “countervailing evidence” to
raise a “substantial doubt” as to the adequacy of the agency’s search. See Iturralde, 315 F.3d at
314. In other words, the requester bears the burden of rebutting the presumption of good faith
required to be accorded to the agency’s declarations, and the plaintiff has not overcome the
presumption that agency records are unlikely to exist on the agency employees’ personal
accounts. See Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013) (upholding agency response to
FOIA request where requester “has not presented sufficient evidence to rebut . . . presumption”
18 accorded to the agency’s averments); Chambers v. U.S. Dep’t of Interior, 568 F.3d 998, 1003
(D.C. Cir. 2009) (recognizing substantial weight traditionally accorded agency affidavits in
FOIA “adequacy of search” cases).
While Competitive Enterprises suggests that this presumption may be rebutted by, e.g.,
evidence “from a Vaughn Index in another, earlier FOIA litigation that the [agency employee’s
private email] address had apparently been used for some work-related correspondence,”
Competitive Enter. Inst., 827 F.3d at 146, the plaintiff has pointed to no such evidence in this
case. Accordingly, the plaintiff’s purely speculative contentions cannot render the agency’s
search inadequate. Moreover, in view of the limited remedies available pursuant to the FOIA,
the plaintiff’s request for sworn declarations from all agency officials must be rejected. See
Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 777 (D.C. Cir. 2002) (“FOIA
represents . . . a comprehensive scheme, which provides requesters with the potential for
injunctive relief only, either to enjoin the withholding of documents or to compel production of
agency records.”).
Accordingly, the Court finds that the agency’s search for responsive records was
adequate.
B. FOIA EXEMPTION 5: DELIBERATIVE PROCESS PRIVILEGE
Two of the documents released to the plaintiff were partially redacted under FOIA
Exemption 5, 5 U.S.C. § 552(b)(5), the “deliberative process privilege.” See Vaughn Index.
These documents were comprised of “emails between HHS staff,” which the agency asserts meet
the Exemption 5 criteria. Def.’s Mem. at 7. Citing HHS’s “lack of credibility,” the plaintiff
questions the veracity of the description of the withheld information provided by the agency in
its Vaughn Index. Pl.’s Opp’n at 7. Noting “[t]he deliberative process privilege is negated by
19 the government misconduct exception,” and thus does not protect “illicit discussions undertaken
with nefarious or political motives” from disclosure, id. at 7–8, the plaintiff asks this Court to
“review all redactions in camera,” id. at 7.
The deliberative process privilege, 5 U.S.C. § 552(b)(5), “protects ‘documents reflecting
advisory opinions, recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated,’” Loving v. Dep’t of Def., 550 F.3d 32, 38
(D.C. Cir. 2008) (quoting Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1,
8 (2001)), so as to encourage “open and frank discussion” among government officials, Klamath
Water, 532 U.S. at 9. “To qualify for the deliberative process privilege, an intra-agency
[communication] must be both pre-decisional and deliberative.” Abtew v. U.S. Dep’t of
Homeland Sec., 808 F.3d 895, 898 (D.C. Cir. 2015) (citing Coastal States Gas Corp. v. Dep’t of
Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)); Whitaker v. U.S. Dep’t of State, No. 14-5275, 2016
U.S. App. LEXIS 1086, at *3–4 (D.C. Cir. Jan. 21, 2016) (per curiam) (internal quotation marks
and citation omitted) (“To fall under the privilege’s penumbra, documents must be both pre-
decisional and deliberative.”).
In general, a “document is predecisional if it was ‘prepared in order to assist an agency
decisionmaker in arriving at his decision,’ rather than to support a decision already made.”
Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (quoting
Renegotiation Bd. v. Grumman Aircraft, 421 U.S. 168, 184 (1975)); see also Leopold v. CIA, 89
F. Supp. 3d 12, 19 (D.D.C. 2015) (quoting Petroleum Info. Corp., 976 F.2d at 1434). While the
D.C. Circuit has observed that the “term ‘deliberative’ does not add a great deal of substance to
the term ‘pre-decisional,’” Nat’l Sec. Archive v. CIA, 752 F.3d 460, 463 (D.C. Cir. 2014) (citing
20 Access Reports v. U.S. Dep’t of Justice, 926 F.2d 1192, 1195 (D.C. Cir. 1991)), “‘deliberative’ in
this context means, in essence, that the communication is intended to facilitate or assist
development of the agency’s final position on the relevant issue,” id. (citing Russell v. Dep’t of
the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982)).
The deliberative process privilege “does not protect documents in their entirety; if the
government can segregate and disclose non-privileged factual information within a document, it
must.” Loving, 550 F.3d at 38 (citing Army Times Publ’g Co. v. Dep’t of Air Force, 998 F.2d
1067, 1071 (D.C. Cir. 1993)). The D.C. Circuit has held that an agency may satisfy its
segregability obligations by (1) providing a Vaughn index that adequately describes each
withheld document and the exemption under which it was withheld; and (2) submitting a
declaration attesting that the agency released all segregable material. See, e.g., id. at 41 (stating
that “the description of the document set forth in the Vaughn index and the agency’s declaration
that it released all segregable material” are “sufficient for [the segregability] determination”);
Johnson, 310 F.3d at 776 (upholding agency’s segregation efforts based on “comprehensive
Vaughn index” and “the affidavits of” agency officials).
2. Analysis
“Here, portions of two documents comprised of emails totaling 39 pages [were] withheld
in part pursuant to the deliberative process privilege.” Epstein Decl. ¶ 31. As reflected in HHS’s
Vaughn Index, the redactions affect eight separate emails among members of ACF or HHS staff.
See Vaughn Index. The ACF FOIA officer attests that the first of the two documents, released to
the plaintiff on August 18, 2015, “discusses possible and optimal uses of unspent funds and the
effect of the unspent funds on requests for future funding for the ORR program,” and that “[t]he
redacted portions of the emails contain staff and grantee personnel opinions and proposals about
21 the funds before ACF made a final decision as to use of the funds and whether to request future
funding for the ORR program.” Id. ¶ 33. She further attests that the second document, released
to the plaintiff on July 27, 2015, “consists of an email exchange between HHS staff pertaining to
an incident involving an [unaccompanied child],” and that “the redacted portions cover[] a staff
discussion of relevant facts and recommendations relating to possible funding and cost savings in
the [unaccompanied alien children] program.” Id. ¶ 34. The Vaughn index reflects these
assertions and provides additional detail regarding the authors, recipients, and contents of each
redacted intra-agency email. Finally, the ACF FOIA Officer’s declaration attests to personal
review of all records in this case, and her belief that “all reasonably segregable, non-exempt
information has been released.” Id. ¶ 36.
The Court is satisfied that HHS has “provide[d] in its declaration and Vaughn index
precisely tailored explanations for each withheld record at issue,” Nat’l Sec. Counselors v. CIA,
960 F. Supp. 2d 101, 188 (D.D.C. 2013), and that those explanations adequately display the pre-
decisional and deliberative nature of each of the documents described therein.
The plaintiff appears to concede that Exemption 5 applies to the withheld information as
described by the agency, but nevertheless asserts he is entitled to in camera review of the
information withheld under Exemption 5 on two grounds. First, the plaintiff asserts a need to
test the veracity of the agency’s attestations, contending that a “lack of credibility is present in
the case at bar” such that “the [d]efendant cannot be trusted to provide accurate descriptions of
redactions listed in a Vaughn index.” Pl.’s Opp’n at 7. In support of this contention, he cites
Judicial Watch, Inc. v. Dep’t of the Army, 402 F. Supp. 2d 241, 248 (D.D.C. 2005), in which the
court conducted in camera review after learning that the agency had in an earlier Vaughn Index
mischaracterized information withheld from the plaintiff. The court explained that it could not
22 “be sure that the defendant’s error [in describing withheld information] was not repeated,” and
thus undertook the in camera review the defendant sought. Id. In this case, by contrast, no
reason has been presented by the plaintiff or the procedural history of this case to cast any doubt
on the agency’s descriptions of withheld information. Accordingly, in camera review of the
withheld information in this case is not warranted on the first ground advanced by the plaintiff.
As a second basis for in camera review of the withheld material, the plaintiff argues that
“[t]he deliberative process privilege is unavailable when government misconduct is present,”
invoking what he styles as an “exception” to Exemption 5’s protection for materials covered by
that privilege. Pl.’s Opp’n at 7–8. In support of the existence of that purported exception, he
cites Neighborhood Assistance Corp. of Am. v. U.S. Dep’t of Housing & Urban Dev., 19 F. Supp.
3d 1, 14 (D.D.C. 2013), which, after explaining that “our Court of Appeals has never squarely
applied [a government misconduct] exception,” went on to conclude that “to preclude application
of the deliberative process privilege in the FOIA context, the claimed governmental misconduct
must be severe enough to qualify as nefarious or extreme government wrongdoing.” Id. at 13–
14. Neighborhood Assistance cites two other district court opinions finding that a “narrow[]”
“government-misconduct exception” applies and can overcome the deliberative process privilege
otherwise available under the FOIA. See Nat’l Whistleblower Ctr. v. Dep’t of Health & Human
Servs., 903 F. Supp. 2d 59, 66, 69 (D.D.C. 2012); ICM Registry, LLC v. U.S. Dep’t of
Commerce, 538 F. Supp. 2d 130, 133 (D.D.C. 2008). These cases rely, in turn, upon the D.C.
Circuit’s decision in In Re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997), in which the Court stated
that “where there is reason to believe . . . documents sought may shed light on government
misconduct, the [deliberative process] privilege is routinely denied.” Id. at 738 (internal
quotation marks omitted).
23 This Court is not persuaded that the so-called “government misconduct” exception
suggested in In Re Sealed Case applies in the FOIA context. In Re Sealed Case did not involve
consideration of the FOIA, addressing instead the scope of the “common law” deliberative
process privilege where the White House withheld documents in response to a grand jury
subpoena. See id. at 734, 737. Nor did that decision suggest that its discussion of alleged
government misconduct and the deliberative process privilege applied in the context of the
FOIA. On the contrary, In Re Sealed Case specifically notes that any ability of the deliberative
process privilege to be overcome by a demonstrated need “is not an issue in FOIA cases because
the courts have held that the particular purpose for which a FOIA plaintiff seeks information is
not relevant in determining whether FOIA requires disclosure.” Id. at 737 n.5.
This reading of In Re Sealed Case is in accordance with an understanding of the FOIA
well-established in this Circuit: Exemption 5’s protection of privileged materials is not subject to
the same exceptions to which the common law privilege is susceptible. As the D.C. Circuit has
explained, “Exemption 5 ‘protects only those memoranda which would not normally be
discoverable in civil litigation against an agency,’” and thus, the exemption protects from
disclosure some materials that, if the common law privilege were at issue, might be disclosed
pursuant to “case-specific exceptions.” Stonehill v. IRS, 558 F.3d 534, 539 (D.C. Cir. 2009)
(emphasis added) (quoting Ryan v. Dep’t of Justice, 617 F.2d 781, 790 (D.C. Cir. 1980)); see
also Williams & Connolly v. SEC, 662 F.3d 1240, 1244 (D.C. Cir. 2011) (noting under the
FOIA, a party’s “notes not turned over in [a] criminal trial still remain . . . work product material
not ordinarily discoverable in civil proceedings” and thus protected by the FOIA, even though
“[i]n criminal trials, evidentiary privileges may give way for any number of reasons”).
Accordingly, the Court concludes that the government misconduct exception recognized in In Re
24 Sealed Case cannot overcome an otherwise valid withholding pursuant to Exemption 5. For this
reason, the plaintiff’s request for in camera review on the ground of a government misconduct
exception to Exemption 5 is rejected.
The plaintiff further contends that “a finding of bad faith is not a prerequisite to in
camera review,” Pl.’s Reply at 4, citing Meeropol v. Meese, 790 F.2d 942, 958 (D.C. Cir. 1986),
in which the D.C. Circuit explained that “a trial judge may order such an inspection ‘on the basis
of an uneasiness, on a doubt he wants satisfied before he takes responsibility for a de novo
determination,’” id. (quoting Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978)). Yet, while
district courts generally enjoy broad discretion in determining whether to conduct in camera
review in FOIA proceedings, the D.C. Circuit has cautioned that “when the agency meets its
burden by means of affidavits, in camera review is neither necessary nor appropriate.” Larson,
565 F.3d at 870 (internal quotation marks omitted); see also ACLU v. U.S. Dep’t of Justice, 640
Fed. App’x 9, 12 (D.C. Cir. 2016) (per curiam) (“find[ing] it unnecessary to review the
documents to determine whether the information has been properly withheld” given the
sufficiency of the agency declaration). In light of HHS’s thorough declaration and Vaughn Index
appropriately describing the bases for invoking the deliberative process privilege and satisfying
its segregability obligations, in camera review is “neither necessary nor appropriate.” Larson,
565 F.3d at 870. 6
Consequently, this Court declines to review the redacted documents in camera.
IV. CONCLUSION
As explained above, the Court finds that the agency conducted an adequate search for
records responsive to requests in Items 1 and 16–20 and appropriately invoked the deliberative
6 The ACF FOIA Officer’s declaration as to the segregability of the information contained within the two documents at issue additionally satisfies the agency’s segregability obligations. See Loving, 550 F.3d at 41.
25 process privilege under FOIA Exemption 5 to withhold information in a small part of the
produced records. Accordingly, the agency’s Motion for Summary Judgment is GRANTED.
Date: October 11, 2016 Digitally signed by Hon. Beryl A. Howell DN: cn=Hon. Beryl A. Howell, o=U.S. District Court for the District of Columbia, ou=Chief Judge, email=Howell_Chambers@ dcd.uscourts.gov, c=US Date: 2016.10.11 10:51:43 -04'00' __________________________ BERYL A. HOWELL Chief Judge