Jason Welsh v. United States Department of State ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JASON WELSH,
Plaintiff,
v. Civil Action No. 21-1380 (TJK)
U.S. DEPARTMENT OF STATE,
Defendant.
MEMORANDUM OPINION
Under the Freedom of Information Act, Jason Welsh requested from the Department of
State a list of all posts filled by a specific type of U.S. personnel that had international travel
restrictions imposed on them. The State Department, after considering records in over six offices
and searching several databases, found no such list. Welsh sued the State Department for, among
other things, improperly withholding records responsive to his request. The State Department now
moves for summary judgment. Because the Court finds there is no genuine dispute of material
fact that the State Department’s search for responsive records was adequate, the Court will grant
that motion.
I. Background
The Court assumes familiarity with its prior Memorandum Opinion and Order, in which
the Court dismissed Welsh’s due process claim, leaving only his Freedom of Information Act, or
FOIA, claim under 5 U.S.C. § 552. See Welsh v. U.S. Dep’t of State, No. 21-cv-1380 (TJK), 2022
WL 343552 (D.D.C. Feb. 4, 2022). As relevant to the remaining FOIA claim, Welsh submitted a
FOIA request to the State Department via email seeking:
A list of all Department posts that have or had international travel restrictions im-
posed on U.S. Direct Hire (USDH) personnel, either currently or at any time since
January 2020. This list should specify the time period of travel restrictions, identify
whether the restrictions were imposed by the local government or the Department,
and specify the total number of affected USDH personnel.
For example: U.S. Embassy Manila
- Local government-imposed international travel restrictions: March 15 –
May 31, 2020;
- Department-imposed international travel restrictions: June 1 – November
25, 2020;
- 276 USDH personnel affected.
ECF No. 23-3 at 12; see also SMF ¶¶ 1–2.1
Upon receipt of Welsh’s request, the State Department’s Office of Information Programs
and Services (“Information Office”) evaluated how to process it. SMF ¶ 4. The Information Of-
fice determined that, should any records responsive to Welsh’s request exist, they would reside
with these six offices: (1) the Office of Management Strategy and Solutions; (2) the Bureau of
Global Talent Management; (3) the Bureau of Medical Services; (4) the Office of the Executive
Director in the Bureau of Consular Affairs; (5) the Directorate of Overseas Citizen Services in the
Bureau of Consular Affairs; and (6) the Office of Policy Coordination and Public Affairs in the
Bureau of Consular Affairs. Weetman Decl. ¶¶ 9–11; SMF ¶ 5. At the same time, the Information
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In resolving this motion, the Court relies in part on the State Department’s Statement of Material
Facts as to Which There Is No Genuine Issue. ECF No. 23-2 (“SMF”). Welsh has not filed a
competing “concise statement of genuine issues to which it is contended there exists a genuine
issue,” so the Court “may assume that facts identified by the moving party in its statement of
material facts are admitted.” LCvR 7(h)(1); see also Fed. R. Civ. P. 56(e) (2) (“[I]f a party . . .
fails to properly address another party’s assertion of fact as required by Rule 56(c), the court
may: . . . consider the fact undisputed for purposes of the motion.”). The Court also relies on the
declarations of: Susan C. Weetman, the Deputy Director of the State Department’s Office of In-
formation Programs and Services, ECF No. 23-3 (“Weetman Decl.”); and Eric F. Stein, the Deputy
Assistant Secretary for the Office of Global Information Systems and the former director of the
Office of Information Programs and Services, ECF No. 26-1 (“Stein Decl.”). Reliance on these
declarations is proper where, as here, they are “relatively detailed, nonconclusory and not im-
pugned by evidence in the record of bad faith on the part of the agency.” McGehee v. CIA, 697
F.2d 1095, 1102 (D.C. Cir. 1983); SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir.
1991) (“Agency affidavits are accorded a presumption of good faith.”).
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Office determined, no other State Department offices were reasonably likely to have responsive
records. Weetman Decl. ¶ 12.
The Information Office instructed each of these six offices to search for records responsive
to Welsh’s request. Weetman Decl. ¶ 12. None found any. SMF ¶ 6. Except for the Office of
Management Strategy and Solutions, each office reported that it either did not maintain “list[s]”
like that requested by Welsh or that, given the nature or mission of the office’s work, it would not
have any responsive records. Id. ¶¶ 9–13; see also Weetman Decl. ¶¶ 18–28.
The Office of Management Strategy and Solutions, for its part, searched the State Depart-
ment’s Diplomacy Strong database, but that search revealed no fully responsive records. SMF
¶¶ 7–8; Weetman Decl. ¶ 16. More precisely, the Office of Management Strategy and Solutions
found no document “organized into a single record containing the exact information sought by
[Welsh] in his FOIA request.” Weetman Decl. ¶ 16. And it also determined it could not generate
a list with the requested information. SMF ¶ 7. The senior analyst in charge of the search, how-
ever, still queried Diplomacy Strong for certain categories of information sought by Welsh and
created a spreadsheet with a list of travel restrictions that local governments had imposed on State
Department posts. Weetman Decl. ¶ 16. This document detailed the posts and countries affected,
the authority that imposed each restriction, the number of personnel affected, and the estimated
start and end date of each restriction. Id. The State Department later made the “discretionary
decision” to release this record to Welsh even though it was not directly responsive to his FOIA
request. SMF ¶ 8.
The State Department also searched its own electronic records system, the eRecords Ar-
chive, which contains all cables, emails, and attachments sent to or from state.gov email addresses.
SMF ¶ 15; Weetman Decl. ¶ 29. A lead government information specialist ran a search in the
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eRecords Archive for records between January 1, 2020, and April 4, 2021, using the search terms
“international travel restriction*” AND (“list” OR “chart”) AND (“U.S. Direct Hire” OR
“USDH”). See SMF ¶ 16; Weetman Decl. ¶ 30; Stein Decl. ¶¶ 5–6. That search returned 3,000
pages of potentially responsive records. SMF ¶ 17. Upon review, however, the State Department
determined none were responsive. Id.On March 4, 2022, the State Department notified Welsh that it had found no records re-
sponsive to his FOIA request. SMF ¶ 18; ECF No. 23-3 at 17. Even so, on April 26, 2022, the
Department released to Welsh the document that the Office of Management Strategy and Solutions
had created with some information that would have been contained within a responsive record.
SMF ¶ 19; Weetman Decl. ¶¶ 8, 16.
II. Legal Standards
The Court must grant a motion for summary judgment “when, viewing the evidence in the
light most favorable to the non-movants and drawing all reasonable inferences accordingly,” Lopez
v. Council on Am.-Islamic Relations Action Network, Inc., 826 F.3d 492, 496 (D.C. Cir. 2016),
“the movant shows 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). The moving party “bears the initial re-
sponsibility of informing the district court of the basis for its motion.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). And although Welsh has litigated his case pro se, “when faced with a
motion for summary judgment, even a pro se plaintiff must comply with the Federal Rules of Civil
Procedure and this Court’s local rules, including this Court’s rules regarding responding to state-
ments of material fact and marshalling record evidence that establishes each element of his claim
for relief.” Hedrick v. FBI, 216 F. Supp. 3d 84, 93 (D.D.C. 2016) (citations omitted).
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“[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v.
Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). “[A] district court reviewing a
motion for summary judgment conducts a de novo review of the record, and the responding federal
agency bears the burden of proving that it has complied with its obligations under . . . FOIA.”
Roseberry-Andrews v. DHS, 299 F. Supp. 3d 9, 18 (D.D.C. 2018) (quoting MacLeod v. DHS,
No. 15-cv-1792 (KBJ), 2017 WL 4220398, at *6 (D.D.C. Sept. 21, 2017)). A district court deter-
mining whether an agency has made a sufficient showing may rely on relatively detailed and non-
conclusory affidavits provided by that agency. McGehee, 697 F.2d at 1102. The presumption of
good faith afforded to such affidavits “cannot be rebutted by ‘purely speculative claims about the
existence and discoverability of other documents.’” SafeCard Servs., 926 F.2d at 1200 (citation
omitted).
III. Analysis
The State Department has satisfied its burden to show that its search was adequate under
FOIA, and it is therefore entitled to summary judgment. The language Welsh used in crafting his
FOIA request compels this result, and none of the side issues he tries to inject into this dispute
changes that outcome.
To merit summary judgment on a FOIA claim, an agency must show that it “conducted a
search reasonably calculated to uncover all relevant documents.” Machado Amadis v. U.S. Dep’t
of State, 971 F.3d 364, 368 (D.C. Cir. 2020) (quoting Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C.
Cir. 1984)). An “agency’s obligation to search is limited to the four corners of the request.” Land-
mark Legal Found. v. EPA, 272 F. Supp. 2d 59, 64 (D.D.C. 2003). For a court considering a
summary-judgment motion, the question is “not the result of the search” but the search’s
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“adequacy.” Id.; see also SafeCard Servs., 926 F.2d at 1201 (An adequate search need not “actu-
ally uncover[] every document extant.”).
“Adequacy ‘is judged by a standard of reasonableness and depends, not surprisingly, on
the facts of each case.’” Landmark, 272 F. Supp. 2d at 62 (quoting Weisberg, 745 F.2d at 1485).
Thus, Courts assessing the adequacy of a search consider whether an agency “sets forth the meth-
odology of the search process; details the agency’s rationale in identifying the specific subcompo-
nents with potentially responsive records; indicates the types of searches performed . . . ; lists the
various databases searched; and specifies the search terms used.” Bigwood v. U.S. Dep’t of Def.,
132 F. Supp. 3d 124, 139 (D.D.C. 2015); see also Kilmer v. U.S. Customs & Border Prot., No. 17-
cv-1566 (CKK), 2021 WL 1946392, at *9 (D.D.C. May 14, 2021) (finding search adequate when
agency “conducted multiple searches of its relevant electronic databases” and “explained the scope
and contents of the databases searched”).
Importantly, FOIA “does not obligate agencies to create or retain documents; it only obli-
gates them to provide access to those which it in fact has created and retained.” Kissinger v.
Reporters Comm. for Freedom of the Press, 445 U.S. 136, 142 & n.7 (1980). And “an agency
need not conduct research in response to a FOIA request.” Landmark, 272 F. Supp. 2d at 64. In
other words, agencies are not required to “dig out all the information that might exist, in whatever
form or place it might be found, and to create a document that answers plaintiff’s questions.”
Frank v. U.S. Dep’t of Justice, 941 F. Supp. 4, 5 (D.D.C. 1996). Typically, an agency “is not
obliged to look beyond the four corners of the request . . . .” Kowalczyk v. Dep’t of Justice, 73
F.3d 386, 389 (D.C. Cir. 1996).
Against this backdrop, the State Department’s search for records responsive to Welsh’s
request was adequate. The State Department began with the six offices the Information Office
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identified as reasonably likely to have a responsive list, should any exist. SMF ¶ 5. Welsh does
not contend that the State Department should have focused on any other offices. The Information
Office tasked each office with searching all files likely containing relevant documents and relied
on the “knowledge and expertise” of the employees in each office to determine what files would
be responsive, where they would be, and how best to find them. Weetman Decl. ¶¶ 12–13.
Despite their efforts, no office located any list responsive to Welsh’s request. SMF ¶ 6. In
the main, each office determined that it did not maintain the type of lists Welsh requested. Id.¶¶ 7–13. The Bureau of Global Talent Management stated it does not maintain “list[s] of all De-
partments posts that have or had international travel restrictions imposed on U.S. Direct Hire
(USDH) personnel, either currently or at any time since January 2020.” Id. ¶ 9. Several other
offices explained that they would not have records that would contain even the underlying infor-
mation Welsh’s requested list contemplated. For instance, the Bureau of Medical Services said it
would not have responsive records because that office does not impose travel restrictions on USDH
personnel—though they searched the Bureau’s shared drive anyway. Id. ¶ 10. Similarly, the three
identified offices in the Bureau of Consular Affairs—the Office of the Executive Director, Direc-
torate of Overseas Citizen Services, and Office of Policy Coordination and Public Affairs—all
explained that their missions focused on information other than that covered by Welsh’s FOIA
request and so determined they would not have any responsive records. Id. ¶¶ 11–13. Like the
other five offices, the Office of Management Strategy and Solutions concluded it, too, would not
have any responsive records. Id. ¶ 8. That said, the office ran a search in the Diplomacy Strong
database to create a “partially responsive record” that the State Department later released to Welsh.
Weetman Decl. ¶ 17. The State Department has thus adequately shown that these six offices’
efforts, even if ultimately unfruitful, were adequate under FOIA.
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The State Department’s search of the eRecords Archive was also adequate. The State De-
partment explained the type of the search conducted, the databases searched, and search terms
used. See Bigwood, 132 F. Supp. 3d at 139. Welsh sought a very specific type of record—a “list.”
Weetman Decl. Ex. 1. And he sought a list with very specific information—“all Department posts
that have or had international travel restrictions imposed on U.S. Direct Hire (USDH) personnel.”
Id. Cabining its search to this request, the State Department accordingly used the search terms
“‘international travel restriction*’ AND (‘list’ OR ‘chart’) AND (‘U.S. Direct Hire’ OR
‘USDH’).” SMF ¶ 16; Weetman Decl. ¶ 31. The search yielded over 3,000 pages of records, but
none, the State Department determined, were responsive. SMF ¶ 17. This search, the State De-
partment has shown, was adequate as it was “reasonably calculated” to locate responsive records.
See Machado Amadis, 971 F.3d at 368.
In sum, the State Department engaged in a multi-office effort, explained its search meth-
odologies, identified and searched relevant databases (Diplomacy Strong and eRecords Archive),
and provided the search terms used. Under these circumstances, there is no genuine dispute that
this process was adequate. See Bigwood, 132 F. Supp. 3d at 139; Kilmer, 2021 WL 1946392, at
*9. That the State Department ultimately found no responsive records does not negate the ade-
quacy of its search. Landmark, 272 F. Supp. 2d at 64.
Welsh resists this conclusion for a few reasons, but none carry the day. First, Welsh argues,
“Although the Plaintiff’s FOIA request specifies how the requested information should be pro-
vided (in a list format), the Department has creatively interpreted these words to mean that it should
only provide information which is already in a list format.” ECF No. 25 at 3. But as explained
above, an “agency’s obligation to search is limited to the four corners of the request.” Landmark,
272 F. Supp. 2d at 64. Here, the plain, uncontested language of Welsh’s FOIA request sought a
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“list.” SMF ¶ 2; Weetman Decl. Ex. 1. The State Department then satisfied its obligation to search
for such a list by searching for precisely that—a list. SMF ¶ 16; see also Stein Decl. ¶ 6 (explaining
the lead government information specialist expanded the search to also include “chart[s]”).
Welsh also stresses that “the Department has shown that it can, in fact, provide information
which is not in a list format,” which, he suggests, means the State Department should provide such
a list even though none exists. See ECF No. 25 at 3. But an agency need not “create a document”
or “conduct research” in response to a FOIA request. See Landmark, 272 F. Supp. 2d at 64. The
D.C. Circuit has also explained that if a FOIA request is “not broadly drawn” and instead makes a
more “specific inquiry”—as Welsh did here—the responding agency is “bound to read it as
drafted, not as either agency officials or [the requester] might wish it was drafted.” Miller v. Casey,
730 F.2d 773, 777 (D.C. Cir. 1984). Indeed, requests for information rather than records are not
even considered proper FOIA requests. See Jean-Pierre v. Fed. Bureau of Prisons, 880 F. Supp.
2d 95, 103–04 (D.D.C. 2012). The State Department’s “discretionary decision” to go beyond its
FOIA obligations and create and provide Welsh a document that is partially responsive does not
change any of this. See SMF ¶ 8.
Next, Welsh challenges two of the search terms the State Department used when searching
the eRecords Archive. He first argues that the State Department should not have included the
Boolean connector “AND” before “‘list’ OR ‘chart.’” ECF No. 25 at 5. He asserts that this con-
nector “excluded many records which likely contain the information sought” in his request. Id.At this stage, Welsh must provide evidentiary support for this conclusion. SafeCard Servs., 926
F.2d at 1200 (determining the plaintiffs cannot rebut presumption of good faith of agency decla-
rations with “purely speculative claims about the existence and discoverability of other docu-
ments”); Hedrick, 216 F. Supp. 3d at 93 (requiring even pro se plaintiffs to “marshal[] record
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evidence that establishes each element of his claim for relief”). Thus, he cannot survive summary
judgment with his speculative conclusion that the inclusion of the search terms “‘list’ OR ‘chart’”
excluded records that “likely contain[ed]” responsive material. See ECF No. 25 at 5.
What is more, the State Department has offered evidence affirmatively justifying its search-
term decisions. The lead government information specialist who conducted the search of the
eRecords Archive “assessed that a responsive record would likely include the word ‘list’ or ‘chart’
in the text of the record, the file name, or in an email or cable message transmitting the record.”
Stein Decl. ¶ 6. Further, the lead government information specialist determined that including the
terms “list” or “chart” was “necessary” given that Welsh specifically requested a “list.” Id. With
no evidence offered by Welsh to the contrary, the Court finds it was reasonable for the State De-
partment to use the “AND” connector with the terms “‘list’ OR ‘chart’” when searching for a “list”
per Welsh’s request. SMF ¶ 2.
Welsh also objects to the State Department using the search term “‘U.S. Direct Hire’ OR
‘USDH,’” because he maintains the State Department should have also included “broader terms”
like “employees,” “personnel,” “Americans,” “U.S. Citizens,” “AmCits,” and so forth. ECF
No. 25 at 5. But Stein, who reviewed the search parameters, determined that including these pro-
posed terms “would have been overbroad and would not [have] been reasonably likely to locate ‘a
list of Department posts that have or had international travel restrictions imposed on U.S. Direct
Hire (USDH) personnel . . . .” Stein Decl. ¶ 5. Again, Welsh points to no evidence of his own to
support his contrary conclusion, and “[l]itigation does not . . . give [him] the opportunity to rewrite
the request.” Am. Oversight v. U.S. Dep’t of Just., 401 F. Supp. 3d 16, 35 (D.D.C. 2019). The
Court otherwise agrees that the State Department’s effort was a reasonable approach to find the
kind of specific record that Welsh requested.
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Finally, after the State Department replied in support of its motion for summary judgment,
ECF No. 26, Welsh filed what he labelled as a “cross-reply,” ECF No. 27. Welsh never cross-
moved for summary judgment, however, such that he could file any cross-reply. The Court con-
strues this filing as a surreply, but Welsh also never moved for or received leave to file one. See
Robinson v. Detroit News, Inc., 211 F. Supp. 2d 101, 113 (D.D.C. 2002) (“A party seeking to file
a surreply must move the court for leave to file such a surreply.”). In any event, because the State
Department has not moved to strike this filing, the Court simply notes that none of the arguments
Welsh raises bear on his FOIA claim.2
* * *
Welsh contends “this case—at its core—is fundamentally very simple.” ECF No. 27 at 6.
The Court agrees, though not for the reasons Welsh offers. This case is about a single FOIA
request by Welsh. The State Department has shown the adequacy of its search in response to that
request. Welsh has identified no genuine disputes of material fact bearing on that issue. Instead,
2
Welsh first argues that the State Department “deprived [him] of personal liberty and freedom of
movement.” ECF No. 27 at 2. But the Court has already dismissed Welsh’s due process claim for
lack of subject-matter jurisdiction. Welsh, 2022 WL 343552, at *2–3. So all of that is immaterial
to his FOIA claim. Second, Welsh spills much ink about the State Department’s alleged “ongoing
retaliation” against him. ECF No. 27 at 2–4. But again, none of that has anything to do with his
FOIA claim. Finally, Welsh highlights for the Court that he has submitted two more FOIA re-
quests. ECF No. 27 at 5–6. But these new requests—which have not been processed much less
litigated—are not the subject of this suit. See James v. U.S. Secret Serv., 725 F. Supp. 2d 207, 209
(D.D.C. 2010) (“The proper vehicle for [the plaintiff’s] latest challenge”—about a FOIA request
“which was . . . not challenged in the original Complaint”—“is a new complaint.”); Judge Roten-
berg Educ. Ctr., Inc. v. U.S. Food & Drug Admin., No. 17-cv-02092 (BAH), 2022 WL 16845801,
at *2 (D.D.C. Nov. 1, 2022) (“If a party submits a FOIA request and is dissatisfied with the [gov-
ernment’s] response, the proper course is to institute a new lawsuit seeking to compel record pro-
duction, not endlessly supplement existing proceedings that arose out of entirely separate re-
quests.”).
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for the most part, he raises issues that have no bearing on his FOIA claim. Thus, the Court will
grant the State Department’s motion for summary judgment.
IV. Conclusion
For all these reasons, the State Department’s motion for summary judgment, ECF No. 23,
will be granted. A separate order will issue.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: March 8, 2023
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