Hainey v. United States Department of the Interior ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ROSEMARY MCBRIDE HAINEY,
Plaintiff,
v. Civil Action No. 11-cv-1725 (RLW)
UNITED STATES DEPARTMENT
OF THE INTERIOR,
Defendant.
MEMORANDUM OPINION
Plaintiff Rosemary McBride Hainey (“Hainey”) brings this action challenging the United
States Department of the Interior’s response to her request under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552. This matter is now before the Court on the parties’ Cross-Motions for
Summary Judgment (Dkt. Nos. 12, 14). Upon careful consideration of the parties’ briefing and
the entire record in this case, the Court concludes, for the reasons set forth herein, that Hainey’s
Motion will be DENIED and that the Department’s Motion will be GRANTED.
BACKGROUND
According to her Complaint, Hainey “has established a web-sharing webpage which is
used as a repository for all Freedom of Information Act records obtained from the federal
government,” through which she aims to “promote public understanding and debate of issues
concerning key current public policy issues, focusing on the hiring and employment ethics in the
federal government.” (Dkt. No. 1 (“Compl.”) at ¶ 7). On February 13, 2011, she submitted a
FOIA request to the Department of Interior’s Office of the Secretary, requesting:
[A]ll non-exempt documents relating to vacancy announcements within your
Department from January 1, 2008 through January 31, 2011. The records
1
requested includes [sic] but is [sic] not limited to all vacancy announcements, job
analyses, applicant ratings, position descriptions (Form OF-8), applicant
questionnaires, certificates sent to selecting officials, selections made, and any
pass-over requests. This FOIA also requests all non-exempt internal
communications relating to hiring reform and your efforts from January 1, 2009
through January 31, 2011.
(Dkt. No. 17, ECF pp. 28-115 (“Hainey Decl.”), Ex. 1 (“FOIA Request”)). 1 Hainey also sought
a fee waiver in connection with her request, under FOIA’s public interest exception, 5 U.S.C. §
552(a)(4)(A)(iii). 2 (Id.).
The Department received Hainey’s request on February 14, 2011, which meant that,
under the statute, the Department’s response was due on or before March 15, 2011. (Dkt. No.
17, ECF pp. 9-10 (“Pl.’s Facts”) at ¶¶ 2-3). On March 30, 2011, the Department sent its
response letter to the mailing address that Hainey provided in her FOIA request. (Dkt. No. 14,
ECF pp. 3-7 (“Def.’s Facts”) at ¶ 4). Therein, the Department advised Hainey that her fee
waiver was denied, and it also provided its preliminary cost estimate for responding to her
request—but only with respect to information held within the Bureau of Ocean Energy
Management, Regulation, and Enforcement (“BOEMRE”), one of nine separate bureaus that
comprise the Interior Department. 3 (Id. ¶¶ 3-4). In total, the Department estimated that, as to
that particular subset of documents, it would take between 2,373 and 3,164 hours of search time
1
Because Hainey filed her opposition brief and all supporting documents and exhibits as a
single file, rather than as separate attachments through the electronic filing system, for clarity’s
sake, the Court cites to the ECF page numbers within the overall document.
2
This exception provides that documents shall be furnished without charge “if disclosure
of the information is in the public interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government and is not primarily in the
commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii).
3
Along with BOEMRE, the Department of the Interior is also made up of the Bureau of
Indian Affairs, the Bureau of Land Management, the Bureau of Reclamation, the Bureau of
Safety and Environmental Enforcement, the National Park Service, the Office of Surface Mining,
Reclamation and Enforcement, the U.S. Fish and Wildlife Service, and the U.S. Geological
Survey. (Dkt. No. 14-1 (“Lohr Decl.”) at ¶ 5). BOERME houses the Department’s Office of the
Secretary, the Interior Department component to which Hainey submitted her FOIA request.
2
to compile the information Hainey sought, at a cost between $99,666.00 and $132,888.00. (Id.).
The letter also advised that, given the denial of her fee waiver, Hainey would be responsible for
the costs of processing her FOIA request beyond the initial 2 hours of search time and the first
100 pages produced. (Lohr Decl., Ex. B). Finally, the Department’s letter indicated that, if
Hainey did not submit an amended FOIA request or an agreement to cover the processing fees
within twenty business days, the Department would assume that she was no longer interested in
pursuing her request and would close its files. (Id.).
As it happens, the Department’s response did not reach Hainey and was returned to the
Department as “unclaimed” on April 26, 2011. (Def.’s Facts at ¶ 6). The Department attempted
to send its response to Hainey a second time, on May 11, 2011, but that letter was also returned
to the Department as “unclaimed” on June 13, 2011. (Id. ¶¶ 7-9).
Meanwhile, having received no response on her end, Hainey had already filed an appeal
of her FOIA request on March 25, 2011. (Pl.’s Facts at ¶ 5). Apparently, it took the Department
almost six months to process that appeal, but ultimately, the Department denied her appeal on
September 19, 2011, explaining, in relevant part:
Upon receipt of your appeal, the Department contacted the OS [Office of the
Secretary] to ascertain why it has not responded to your FOIA request. The OS
has advised that it sent to you a letter dated March 30, 2011, responding to your
FOIA request on two separate occasions (copy attached). The OS sent the March
30, 2011, letter to you at the address you provided in your FOIA request and this
appeal, however, both were returned by the U.S. Postal Service as being
“unclaimed” (copies of the mailing envelopes are attached). Because the OS’s
March 30, 2011, letter to you was returned on two separate occasions and you did
not otherwise resolve the defects with your requests that the OS presented in its
March 30, 2011, letter to you, the OS properly closed its files on your request.
Should you continue to want copies of the documents you seek in your February
13, 2011, FOIA request, you must submit a new FOIA request to the OS.
However, please be sure to provide a return address by which the OS can
successfully communicate with you and resolve all of the defects that the OS
identified in its March 30, 2011, letter.
3
(Lohr Decl., Ex. B). One week later, on September 26, 2011, Hainey filed her Complaint
initiating this lawsuit. 4
After this action was filed, the Department renewed their attempts to respond to Hainey’s
FOIA request. To this end, the Department confirmed the estimate originally received from
BOEMRE and gathered similar estimates from the Department’s other Bureaus. (Id. ¶ 11).
Overall, the Department determined that, during the time period covered by Hainey’s request, it
had posted more than 30,000 vacancy announcements, and that those vacancy announcements
had garnered approximately 3.8 million applications. (Id. ¶¶ 11-12). According to the
Department, a conservative estimate of the scope of those materials could “easily exceed” 11
million pages. (Id. ¶ 13).
On November 21, 2011, counsel for the Department contacted Hainey and
communicated, among other issues, the Department’s concerns about the scope of her FOIA
request. (Id., Ex. F) (“[T]here are likely over a million people who applied for these vacancies
and your request asks for all related documents.”) (emphasis in original). Hainey responded to
the Department’s message the following day, at which time she produced a spreadsheet she had
received from the Energy Department in response to “the very same FOIA request,” stating that:
As you can see from the attached, all pertinent information relating to each
vacancy announcement is included. I have accepted the Department of Energy’s
timely response as fully responsive to the exact same FOIA request.
(Id.). Several weeks later, after considering Hainey’s response, the Department’s Office of the
Secretary sent her another letter on December 23, 2011, regarding the status and scope of her
FOIA request. Therein, the Department indicated that, in its view, a total search in response to
4
Hainey’s Complaint asserts five separate counts against the Department: (1) Failure to
Respond to FOIA Request Within 20 days; (2) Failure to Provide Written Notice of Intent to
Take 10-Day Extension; (3) Improper Extension of Time to Determine Fee Waiver; (4) Failure
to Timely Respond to FOIA Appeal; and (5) Failure to Apply Statutory Waiver of Search Fees.
(See generally Compl.).
4
her request would be “unreasonably burdensome,” but the Department did propose several
options for narrowing her request. (Id., Ex. H).
First, with respect to the “vacancy announcement” portion of her request, the Department
offered to produce spreadsheets similar to the Department of Energy sample Hainey forwarded,
and it even included a sample spreadsheet listing what the Department perceived to be the
pertinent “vacancy announcement” information from the Bureau of Reclamation. (Id.). With
respect to the other aspect of Hainey’s request—the “hiring reform” component—the
Department explained that, because it had previously convened a 25-employee task force to work
on hiring reform efforts, a full search for responsive records would be burdensome and
prohibitive, insofar as it would require reviewing more than two years’ worth of email
correspondence for 25 different employees. (Id.). Instead, the Department proposed to narrow
that portion of Hainey’s FOIA request to the following documents: “(a) Proposed actions plans
from each Bureau submitted to the Hiring Reform Task Force; (b) Initial action plan PowerPoint
submitted to OMB; (c) Action plan detailing 180 actions taken by the Department; (d)
Scorecards on the action plans; (e) Status reports submitted to OMB regarding [the
Department’s] progress; and (f) Reports related to time-to-hire improvements.” (Id.). The letter
advised that, if Hainey agreed to limit production to those documents, the Department would
“happily provide them as quickly as possible.” (Id.). The Department also forwarded a copy of
that letter to Hainey via email message on December 28, 2011. (Id., Ex. J).
Hainey responded on January 1, 2012, rejoining that “[t]he statutory time for the
agency’s response has expired,” and that “the proposed Hiring Reform modification/substitution
does not remotely provide the level of detail requested in the initial FOIA request.” (Id.). With
respect to the vacancy announcement portion of her FOIA request, however, she asked to receive
5
an electronic copy of the Bureau of Reclamation spreadsheet so that she could more
meaningfully review the issue. (Id.). The Department sent a copy of that report on January 4,
2012. (Id.). Subsequently, after several follow-up attempts by the Department, Hainey
ultimately responded on January 20, 2012, claiming that the spreadsheet was insufficient;
instead, she again referenced the Department of Energy spreadsheet, which she confirmed was
“an adequate substitute for the individual documents that could be responsive to the FOIA
request.” (Id.). After some additional back-and-forth, the Department inquired of Hainey
whether, “if Interior makes a spreadsheet, similar to Dep’t of Energy, that includes all of the
information you requested, it would not be responsive to your FOIA request?” (Id., Ex. M)
(emphasis in original).
Hainey responded and apparently took issue with the Department’s approach, asserting
that “creating a document that does not exist violates the Freedom of Information Act,” and that
she was “merely cautioning [the Department] on creating a document for the express purpose of
responding to a FOIA request.” (Id.). Persisting, the Department again attempted to confirm
whether Hainey would consider “a report similar to the one done by Energy . . . [as] responsive
to [her] FOIA request.” (Id.). Hainey did not immediately respond. The Department sent
another message on January 24, 2012, explaining that, “[r]egarding the FOIA request, the report
is generated based on various search terms . . . . [I]f you want a report similar to the one you
received from Energy, please confirm all of the fields you want and a search can be done and a
report will be generated.” (Id., Ex. N) (emphasis in original). The Department sent Hainey at
least four additional email messages during the ensuing weeks that went unreturned, until, on
February 27, 2012, she finally responded as follows:
I am not sure I can devote the time to constantly review the submissions as timely
as you would like. To reduce this constant back and forth, please use the sample I
6
forwarded to you in December. If the sample is somehow unclear, please let me
know.
(Id.) (emphasis added). In a separate message sent on the same date, Hainey reiterated: “please
provide all of the fields from the Energy sample I sent you.” (Id., Ex. N).
Thereafter, on April 18, 2012, the Department produced to Hainey forty-eight (48)
separate spreadsheets totaling more than 30 megabytes in size. The spreadsheets contained fields
identical or equivalent to the fields contained in the Department of Energy sample Hainey had
provided. (Id. ¶ 22-25, Ex. O). At that point, because the Department believed it had produced
all the information requested through the “narrowed” scope of Hainey’s request, it considered
her FOIA request closed. (Id. ¶ 26). Notably, the Department did not assess Hainey any fees in
connection with the processing or production of this information.
ANALYSIS
A. Standard of Review
Summary judgment is appropriate when the moving party demonstrates that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law. FED. R. CIV. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Moore
v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). “FOIA cases typically and appropriately are
decided on motions for summary judgment.” Defenders of Wildlife v. U.S. Border Patrol, 623 F.
Supp. 2d 83, 87 (D.D.C. 2009). In a FOIA action to compel production of agency records, the
agency “is entitled to summary judgment if no material facts are in dispute and if it demonstrates
‘that each document that falls within the class requested either has been produced . . . or is
wholly exempt from the [FOIA’s] inspection requirements.’” Students Against Genocide v.
Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352
(D.C. Cir. 1978)). Summary judgment may be based solely on information provided in an
7
agency’s supporting affidavits or declarations if they are relatively detailed and when they
describe “the documents and 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.”
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).
B. Hainey’s Challenges to the Declaration of Gabriel Lohr
Given that Hainey devotes a substantial portion of her opposition brief attacking the
agency declaration submitted in support of the Department’s cross-motion, the Court begins
here. The Department relies on the declaration of Gabriel Lohr, an Attorney-Advisor in the
Department’s Branch of General Legal Services. (Lohr Decl. at ¶ 1). According to Mr. Lohr, he
“provide[s] legal advice to the Office of the Secretary’s FOIA Office,” “assist[s] the OS FOIA
Office with FOIA litigation,” and was assigned to this case involving Hainey’s FOIA request.
(Id. ¶¶ 2-3). Hainey argues that Mr. Lohr’s declaration is “patently defective” because, in her
view: (1) his assertions are not based upon his personal knowledge; (2) his declaration is “riddled
with inadmissible hearsay”; (3) he fails to aver that he is “competent” to testify to the facts
alleged; and (4) he failed to affirm that his declaration was provided under penalty of perjury,
under 28 U.S.C. § 1746. (Dkt. No. 17, ECF pp. 1-15 (“Pl.’s Opp’n”) at 1-3). None of these
arguments is meritorious.
First, the Court finds that Mr. Lohr sufficiently established his personal knowledge of the
facts contained in his declaration, as well as his “competency” to address those facts. To start
with, Mr. Lohr clearly and unequivocally sets forth his competency and personal knowledge in
the text of his affidavit—he expressly states that he has “personal knowledge of this case because
[he] was assigned to it on or about October 18, 2011,” and he expressly confirms that “[a]ll of
8
the information set forth in [his] declaration is based upon [his] personal knowledge or upon
information furnished to [him] in [his] official capacity.” (Lohr Decl. at ¶ 3-4). Hainey’s
arguments in this regard essentially boil down to the contention that, because Mr. Lohr was not
“assigned to” her case from February through October 2011, he cannot have personal knowledge
of the events that transpired during that time period. She also suggests that, because Mr. Lohr
was not copied or included on particular email messages regarding her FOIA request, he lacks
personal knowledge of the contents of those messages and the overall communications between
herself and the Department. (Pl.’s Opp’n at 2-3, 8-15). These arguments are unavailing.
In the FOIA context, a declarant satisfies the personal knowledge requirement of Federal
Rule of Civil Procedure 56(e) if, “in his declaration, [he] attest[s] to his personal knowledge of
the procedures used in handling [a FOIA] request and his familiarity with the documents in
question.” Hall v. Dep’t of Justice, 63 F. Supp. 2d 14, 16 n.1 (D.D.C. 1999) (quoting Spannaus
v. Dep’t of Justice, 813 F.2d 1285, 1289 (4th Cir. 1987)) (brackets in original); Schoenman v.
FBI, 575 F. Supp. 2d 166, 171-72 (D.D.C. 2008) (same). In addition, it is well settled that
“FOIA declarants may include statements in their declarations based on information they have
obtained in the course of their official duties.” Barnard v. Dep’t of Homeland Sec., 598 F. Supp.
2d 1, 19 (D.D.C. 2009); Thompson v. Exec. Office for United States Attorneys, 587 F. Supp. 2d
202, 208 n.4 (D.D.C. 2008). Mr. Lohr’s declaration readily satisfies these standards, rendering
Hainey’s personal knowledge, competency, and hearsay objections without merit.
Otherwise, Hainey argues that Mr. Lohr’s declaration must be rejected because he failed
to sign the declaration under penalty of perjury, pursuant to 28 U.S.C. § 1746. Simply put, this
assertion is not true. At the conclusion of Mr. Lohr’s original declaration, he expressly avers:
“In accordance with 28 U.S.C. § 1746, I declare that the foregoing is true and correct to the best
9
of my knowledge.” (Lohr Decl., at p. 10). To the extent Hainey is complaining about Mr.
Lohr’s use of the qualifying phrase “to the best of my knowledge,” the Court rejects that
argument because Mr. Lohr’s certification “substantially compl[ies] with the verification
requirements of § 1746.” Am. Mgmt. Servs., LLC v. Dep’t of the Army, 842 F. Supp. 2d 859, 868
n.6 (E.D. Va. 2012); Hamilton v. Mayor & City Council of Baltimore, 807 F. Supp. 2d 331, 353
(D. Md. 2011) (finding affirmation that statements were “true and accurate to the best of [my]
knowledge and belief” sufficient under § 1746); Kersting v. United States, 865 F. Supp. 669,
676-77 (D. Haw. 1994). 5 Accordingly, Mr. Lohr’s declaration is fully admissible.
C. Hainey’s Claims Surrounding the Timeliness of the Department’s Response
As Hainey makes clear in her summary judgment briefing, her legal challenges in the
case stem almost exclusively from the Department’s delay in responding to her initial FOIA
request and her FOIA appeal—“this case challenges the timing of the agency responses to
plaintiff’s FOIA request and FOIA appeal.” (Dkt. No. 12 (“Pl.’s Mem.”) at 1). According to
Hainey, the Department’s “failure to respond within the statutory timeframe whether it would
grant or deny the fee waiver request and its decision to release or withhold records responsive to
the FOIA request demonstrates that this Court must grant summary judgment in plaintiff’s
favor.” (Id. at 1-2). She therefore seeks relief based solely on the timing and delay of the
5
Hainey’s objection on this ground is further undermined by the fact that Mr. Lohr
submitted a revised declaration with the Department’s reply brief, removing the above-described
“qualifying” language from the affidavit. (Dkt. No. 19-1 at 10) (“In accordance with 28 U.S.C. §
1746, I declare under penalty of perjury that the foregoing is true and correct.”). Therefore,
while the Court reiterates that Mr. Lohr’s original affidavit satisfied the requirements of § 1746,
the unequivocal statement in his revised declaration removes any and all doubt. Relatedly,
although Mr. Lohr’s two declarations are otherwise substantively identical, for clarity’s sake, the
Court’s references herein to the “Lohr Declaration” should be understood to mean Mr. Lohr’s
original declaration, appearing at Docket Entry 14-1.
10
Department’s response—indeed, the entirety of the arguments set forth in her summary judgment
briefing relate to these issues. (See generally id.). 6
While the Court agrees that the Department’s responses were untimely under the statute,
the Department’s untimely responses, in and of themselves, do not entitle Hainey to judgment in
her favor. Richardson v. Dep’t of Justice, 730 F. Supp. 2d 225, 231-32 (D.D.C. 2010) (“The
timing of an agency’s release of records responsive to a FOIA request does not determine
whether the agency has complied with its obligations under the FOIA.”); Jacobs v. Fed. Bureau
of Prisons, 725 F. Supp. 2d 85, 89 (D.D.C. 2010) (“The BOP’s untimely response does not
entitle plaintiff to judgment in his favor.”); Landmark Legal Found. v. EPA, 272 F. Supp. 2d 59,
68 (D.D.C. 2003) (“[A] lack of timeliness or compliance with FOIA deadlines does not preclude
summary judgment for an agency, nor mandate summary judgment for the requester.”). Stated
another way, “whether the search was completed before or after the requestor files a lawsuit, the
remedy available to the plaintiff is the same: access to the documents to which [s]he is entitled
under the law.” Richardson, 730 F. Supp. 2d at 232; Tunchez v. Dep’t of Justice, 715 F. Supp.
2d 49, 54 (D.D.C. 2010) (same).
Thus, given that the Department has now responded to Hainey’s request—a fact she does
not dispute—the only issue for the Court to consider at this point is whether the Department’s
response complies with its obligations under FOIA. Perry v. Block, 684 F.2d 121, 125 (D.C. Cir.
1982) (“[H]owever fitful or delayed the release of information under the FOIA may be, once all
requested records are surrendered, federal courts have no further statutory function to perform.”);
Crooker v. State Dep’t, 628 F.2d 9, 10 (D.C. Cir. 1980) (“Once the records are produced the
6
This has been Hainey’s approach since the inception of her lawsuit, as evidenced by
some of her earliest communications with the Department’s counsel in November 2011. (See,
e.g., Lohr Decl., at Ex. F) (“As you are aware, the complaint essentially charges the defendant
with failing to adhere to certain [FOIA] deadlines.”).
11
substance of the controversy disappears and becomes moot since the disclosure which the suit
seeks has already been made.”); Atkins v. Dep’t of Justice, Case No. 90-5095, 1991 WL 185084,
at *1, 1991 U.S. App. LEXIS 22309, at *1 (D.C. Cir. Sept. 18, 1991) (“The question whether
DEA complied with the Freedom of Information Act’s (FOIA) time limitations in responding to
Aaron Atkins’ request is moot because DEA has now responded to this motion.”).
Although Hainey does not challenge the sufficiency of the Department’s response
anywhere in either her Complaint or her moving papers, inasmuch as the Department seeks
summary judgment on the grounds that it fully and adequately responded to her FOIA request,
the Court will proceed to consider those issues nonetheless. 7
D. The Sufficiency of the Department’s Response
Both Hainey and the Department construe her FOIA request as two distinct requests
seeking two different categories of information: (1) “all non-exempt documents relating to
vacancy announcements within [the Department of Interior] from January 1, 2008 through
January 31, 2011”; and (2) “all non-exempt internal communications relating to hiring reform
and your efforts from January 1, 2009 through January 31, 2011.” (See, e.g., Lohr Decl., Ex. H)
(emphases added). Therefore, consistent with the parties’ approach, the Court will separate its
7
Hainey’s failure to challenge the adequacy of the Department’s response in her
Complaint is somewhat understandable, given that the only response she had received from the
Department as of the filing of this action on September 26, 2011, was the denial of her FOIA
appeal. But her failure to make any mention of those issues in her summary judgment motion is
significantly less excusable. By April 2012, Hainey had long since received the Department’s
original response to her FOIA request and her appeal denial. In addition, by that time, the
Department had engaged in months’ worth of substantial efforts to reasonably narrow the scope
of Hainey’s FOIA request and provide responsive documents. Inexplicably, Hainey failed to
include any mention of these developments whatsoever in her moving papers.
12
analysis accordingly, dealing first with Hainey’s “vacancy announcement” request, and then
turning to her “hiring reform” request.
1. Hainey’s “Vacancy Announcement” Request
The Court first concludes that the Department fully satisfied its FOIA obligations with
respect to Hainey’s “vacancy announcement” request. Originally, this component of Hainey’s
initial FOIA request sought “all non-exempt documents relating to vacancy announcements
within [the Department of Interior] from January 1, 2008 through January 31, 2011. The records
requested includes [sic] but is not limited to all vacancy announcements, job analyses, applicant
ratings, position descriptions (Form OF-8), applicant questionnaires, certificates sent to selecting
officials, selections made, and any pass-over requests.” (FOIA Request). Through its initial
response, the Department concluded that the estimated “search time” cost to compile only a
portion of the requested records—records produced by just one of the Interior Department’s nine
bureaus—would amount to nearly $100,000.00. (Lohr Decl., Ex. B). Of course, that response
never reached Hainey, and it was not until the Department rendered a determination on Hainey’s
FOIA appeal—and she subsequently initiated this lawsuit—that the Department was informed
that Hainey still sought those records.
Thereafter, in response to the Department’s concerns regarding the overbreadth of her
request, Hainey provided the Department with an exemplar spreadsheet she had previously
received from the Energy Department, which she considered to be “fully responsive” “to the
very same FOIA request.” (Id., Ex. F). Hainey confirmed that she was narrowing this aspect of
her FOIA request during subsequent communications with the Department, again asking the
Department to “use the [Energy Department] sample I forwarded to you in December,” and
“provide all of the fields from the Energy sample I sent you.” (Id., Ex. N). In turn, the
13
Department prepared and produced to Hainey on April 19, 2012, forty-eight (48) separate
spreadsheets using fields that were “identical or equivalent to” the parameters from the Energy
sample that Hainey herself provided. (Id. ¶ 21-25, Exs. O, P).
Hainey does not dispute these facts, nor does she contend that the Department’s
production is not fully responsive to this aspect of her FOIA request. Instead, she appears to
argue only that the Department has not complied with its obligations with respect to the “hiring
reform” component of her request. (See Pl.’s Opp’n at 7) (“The fact that the Agency’s belated
endeavors [sic] to produce partial records relating to vacancy announcements does not cancel the
part of the February 13, 2011 FOIA request seeking hiring reform efforts.”); (“[T]he Department
has not established that the Plaintiff is not entitled to the hiring reform records . . . .”).
Therefore, insofar Hainey apparently concedes that the Department fully satisfied its FOIA
obligations by producing the various spreadsheets in response to her “vacancy announcement”
request, the Court will grant summary judgment in the Department’s favor on these grounds.
Perry, 684 F.2d at 125; Crooker, 628 F.2d at 10. But even if Hainey were potentially arguing
that the Department should produce additional records in response to this portion of her
request—above and beyond the extensive spreadsheets produced by the Department—this
argument fails. The Department fully complied with Hainey’s modified request, and she cannot
now argue that she is entitled to additional records that fall outside the scope of the request as she
narrowed it. See Wilson v. Dep’t of Transp., 730 F. Supp. 2d 140, 152 (D.D.C. 2010) (holding
that the plaintiff, who agreed to narrow his FOIA request “cannot now argue that he meant
something else”); Kenney v. Dep’t of Justice, 603 F. Supp. 2d 184, 189 (D.D.C. 2009) (stating
14
that the “[p]laintiff cannot allege that the agency failed to produce responsive records, when the
records he now identifies fall outside the scope of his appropriately narrowed request”). 8
2. Hainey’s “Hiring Reform” Request
Turning to the “hiring reform” portion of Hainey’s FOIA request, the Court agrees that
the Department properly declined to respond to her request as unreasonably burdensome. It is
well established that “an agency need not honor a [FOIA] request that requires ‘an unreasonably
burdensome search.’” Am. Fed’n of Gov’t Employees, Local 2782 v. Dep’t of Commerce, 907
F.2d 203, 209 (D.C. Cir. 1990) (quoting Goland, 607 F.2d at 353); see also Nation Magazine v.
U.S. Customs Serv., 71 F.3d 885, 891-92 (D.C. Cir. 1995); Int’l Counsel Bureau v. Dep’t of
Defense, 723 F. Supp. 2d 54, 59-60 (D.D.C. 2010); Pub. Citizen, Inc. v. Dep’t of Educ., 292 F.
Supp. 2d 1, 6 (D.D.C. 2003). This is because “FOIA was not intended to reduce government
agencies to full-time investigators on behalf of requestors.” Assassination Archives & Research
Ctr., Inc. v. CIA, 720 F. Supp. 217, 219 (D.D.C. 1989). Accordingly, “it is the requester’s
responsibility to frame requests with sufficient particularity to ensure that searches are not
unreasonably burdensome.” Id. (citing Yeager v. DEA, 678 F.2d 315 (1982)); Judicial Watch,
Inc. v. Export-Import Bank, 108 F. Supp. 2d 19. 27-28 (D.D.C. 2000). Where an agency claims
that a search would be unreasonable, however, the burden falls on the agency to “provide
8
Hainey’s Complaint also asserted a claim surrounding the Department’s denial of her fee
waiver. (See Compl. at ¶¶ 30-32). But given the fact that Hainey failed to address this claim at
any point during the briefing on the parties’ cross-motions for summary judgment, the Court
presumes she has abandoned that aspect of her case. See, e.g., Ramirez v. Dep’t of Justice, 594
F. Supp. 2d 58, 61 (D.D.C. 2009). Moreover, the record establishes that the Department waived
any and all fees associated with the spreadsheets it did produce in response to Hainey’s FOIA
request—a fact that Hainey does not dispute. Accordingly, this component of her claims appears
moot in any event.
15
sufficient explanation as to why such a search would be unreasonably burdensome.” Nation
Magazine, 71 F.3d at 892; see also Pub. Citizen, 292 F. Supp. 2d at 6.
Here, the “hiring reform” component of Hainey’s original FOIA request sought “all non-
exempt internal communications relating to hiring reform and [the Department’s] efforts from
January 1, 2009 through January 31, 2011.” (FOIA Request). By letter of December 23, 2011,
the Department explained to Hainey that, in June 2009, the Department “created a task force of
25 employees to work on hiring reform in the [Interior] Department.” (Lohr Decl., Ex. H).
Because of this, and because Hainey’s request sought all internal communications on the subject,
the Department concluded that responding to her request would require a search of every email
sent or received by 25 different employees throughout a two-year time period. (Id.). The
Department also added that it would need to individually review each potentially responsive
email to confirm its releasability. (Id.). In sum, the Department concluded that a search and
review along those lines would be “unreasonably burdensome.” (Id.). While the Department
previously offered to produce a more limited range of documents in response Hainey’s “hiring
reform” request, Hainey rejected that proposal and responded that, in her view, the Department’s
proposed modification “[did] not remotely provide the level of detail requested in the initial
FOIA request.” (Id., Ex. J). And even at this point, Hainey continues to insist that the
Department should be required to produce the full scope of records sought through her original
“hiring reform” request. (Pl.’s Opp’n at 7). 9 The Court does not agree.
As set forth above, the Department has demonstrated that responding to the full scope of
Hainey’s original “hiring reform” request would require the Department “to locate, review,
9
Hainey does not argue that the Department should at least be required to produce the
restricted scope of documents it previously offered, and therefore, the Court need not and does
not consider whether this would be an appropriate form of relief.
16
redact, and arrange for inspection of a vast quantity of material.” Am. Fed’n of Gov’t Employees,
Local 2782, 907 F.2d at 209. Hainey does not argue otherwise—indeed, she altogether fails to
respond to the Department’s burdensomeness arguments. She simply asserts that the Department
efforts as to her “vacancy announcement” request “are not factors to determine whether it
satisfied the unmodified portion of the February 13, 2011 FOIA request”—the portion related to
“hiring reform” efforts. (Pl.’s Opp’n at 7). That may be so. But that argument says nothing
about whether the Department can satisfy her “hiring reform” request absent an unreasonably
burdensome search and review process. Therefore, based on the Department’s “explanation as to
why such a search would be unreasonably burdensome,” Nation Magazine, 71 F.3d at 892, and
given the absence of any contrary argument on Hainey’s part, the Court finds that the
Department acted properly. The Court thus grants summary judgment for the Department with
respect to the “hiring reform” portion of Hainey’s FOIA request. 10
CONCLUSION
For the foregoing reasons, the Court concludes that Hainey’s Motion for Summary
Judgment will be DENIED and that the Department’s Cross-Motion for Summary Judgment will
be GRANTED. An appropriate Order accompanies this Memorandum Opinion.
Digitally signed by Judge Robert L.
Wilkins
Date: February 25, 2013 DN: cn=Judge Robert L. Wilkins,
o=U.S. District Court, ou=Chambers
of Honorable Robert L. Wilkins,
email=RW@dc.uscourt.gov, c=US
Date: 2013.02.25 14:02:45 -05'00'
ROBERT L. WILKINS
United States District Judge
10
In view of this holding, the Court need not reach the Department’s alternative argument
that it fully responded to the “hiring reform” request in any event, because Hainey agreed to
accept the spreadsheet documents in lieu of the “hiring reform” documents she requested as well.
17