Judicial Watch, Inc. v. United States Office of Special Counsel , 78 F. Supp. 3d 39 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
v. Civil Action No. 14-724 (JEB)
UNITED STATES OFFICE OF SPECIAL
COUNSEL,
Defendant.
MEMORANDUM OPINION
Plaintiff Judicial Watch, Inc., filed a Freedom of Information Act request with the United
States Office of Special Counsel seeking any records related to an investigation of former senior
White House officials Jim Messina and Rahm Emanuel. After a thorough and comprehensive
search, OSC released numerous responsive records in full and withheld all or parts of others.
Believing Defendant’s search to be inadequate, Judicial Watch brought this suit, and OSC now
moves for summary judgment. As the search was plainly sufficient, the Court will grant the
Motion.
I. Background
Usually, a FOIA case starts with a FOIA request. This one, however, starts a bit further
back. In June 2010, Judicial Watch submitted a complaint to OSC requesting an investigation of
Messina and Emanuel for potential violations of the Hatch Act, which regulates partisan political
activity by executive-branch officials. See Opp., Exh. 1 (June 15, 2010, letter from Thomas
Fitton to William Reukauf). After three years without any word from Defendant, Plaintiff sent a
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letter inquiring what, if any, action had been taken on its request. See id., Exh. 2 (May 23, 2013,
letter from Thomas Fitton to Carolyn Lerner). A week later, the agency responded, explaining
that because Emanuel and Messina were no longer employed by the federal government, the
complaints against them “ha[d] been closed without further action.” Id., Exh. 3 (May 30, 2103,
letter from Carolyn Lerner to Thomas Fitton).
In response, Judicial Watch submitted a FOIA request to Defendant seeking “[a]ny and
all records concerning, or related to the request for investigation filed by Judicial Watch with the
Hatch Act Unit on June 15, 2010 concerning federal employees Jim Messina and Rahm
Emanuel.” Def. Statement of Undisputed Facts, ¶ 1. A year later, on May 25, 2014 – before
OSC had released any responsive records – Plaintiff filed this Complaint. See ECF No. 1. On
September 22, 2014, during the pendency of this action, the agency responded to Judicial
Watch’s request: it identified 645 pages of responsive records, 260 of which were withheld in
full, 233 released in part, and 152 released in full. See Mot., Exh. 3 (Vaughn Index).
OSC now moves for summary judgment. In opposition, Plaintiff does not object to any
of Defendant’s withholdings. See Opp. at 3. Judicial Watch does, however, challenge the scope
of OSC’s search for responsive records. The Court turns to that claim now.
II. Legal Standard
Summary judgment may be granted if “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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the
substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict
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for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477
U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely
disputed must support the assertion” by “citing to particular parts of materials in the record” or
“showing that the materials cited do not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
FOIA cases typically and appropriately are decided on motions for summary judgment.
See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case,
the Court may grant summary judgment based solely on information provided in an agency’s
affidavits or declarations when they “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.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)
(citation omitted). Such affidavits or declarations “are accorded a presumption of good faith,
which cannot be rebutted by purely speculative claims about the existence and discoverability of
other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal
quotation marks omitted).
III. Analysis
Congress enacted FOIA in order to “pierce the veil of administrative secrecy and to open
agency action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361
(1976) (citation omitted). “The basic purpose of FOIA is to ensure an informed citizenry, vital to
the functioning of a democratic society, needed to check against corruption and to hold the
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governors accountable to the governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146,
152 (1989) (citation omitted). The statute provides that “each agency, upon any request for
records which (i) reasonably describes such records and (ii) is made in accordance with
published rules . . . shall make the records promptly available to any person.” 5 U.S.C.
§ 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order
the production of records that an agency improperly withholds. See 5 U.S.C. § 552(a)(4)(B);
Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989).
“Unlike the review of other agency action that must be upheld if supported by substantial
evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to
sustain its action’ and directs the district courts to ‘determine the matter de novo.’” Reporters
Comm., 489 U.S. at 755 (quoting 5 U.S.C. § 552(a)(4)(B)). “At all times courts must bear in
mind that FOIA mandates a ‘strong presumption in favor of disclosure’ . . . .” Nat’l Ass’n of
Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Dep’t of State v. Ray, 502
U.S. 164, 173 (1991)).
“An agency fulfills its obligations under FOIA if it can demonstrate beyond material
doubt that its search was ‘reasonably calculated to uncover all relevant documents.’” Valencia-
Lucena v. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep’t of State, 897
F.2d 540, 542 (D.C. Cir. 1990)); see also Steinberg v. Dep’t of Justice, 23 F.3d 548, 551 (D.C.
Cir. 1994). The adequacy of an agency’s search for documents under FOIA “is judged by a
standard of reasonableness and depends, not surprisingly, upon the facts of each case.”
Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). To meet its burden, the
agency may submit affidavits or declarations that explain the scope and method of its search “in
reasonable detail.” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). Absent contrary
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evidence, such affidavits or declarations are sufficient to show that an agency complied with
FOIA. Id.To establish the sufficiency of its search here, Defendant submitted the declaration of
Christopher Kurt, a FOIA Information Officer for OSC. See Mot., Declaration of Christopher
Kurt, ¶ 1. According to Kurt, he first located the investigative files of Messina and Emanuel
using the unique case numbers that had been generated in response to Plaintiff’s 2010 request.
Id., ¶¶ 7-8. He then reviewed these files line by line for responsive records and identified
documents and portions of documents that might need to be withheld. Id., ¶¶ 8-9. Kurt then
expanded his search. Because the subject of the request was a complaint under the purview of
OSC’s Hatch Act Unit, he sought hard-copy records from four pertinent parties there: the HAU
attorney assigned to the case, her immediate supervisor, the Deputy Chief of the HAU, and the
Administrative and Program Assistant for the HAU. Id., ¶ 10. Kurt asked each one – except the
assigned attorney, Mary Larsen (who had since left the agency) – to search for paper records
relating to the Messina and Emanuel cases, and he also confirmed that they would be the only
parties likely to possess responsive records. Id. The members of the HAU then searched for
relevant records in filing cabinets, desk drawers, a book case, and a credenza. Id.
Kurt’s search did not end there. He also asked OSC’s Information Technology Branch
(ITB) for any electronic records related to the HAU employees listed above. Id., ¶ 12. ITB
searched email folders, employee drives, and a shared drive, and it returned its results to Kurt.
Id., ¶¶ 12-13. These files were then submitted with suggested redactions to the Senior Attorney
within the Office of General Counsel for legal review. Id., ¶ 13. In addition to these efforts,
based on his knowledge of agency operations, Kurt tracked down paper and electronic leads
from several other persons in OSC’s senior leadership. Id., ¶¶ 14-16. After conducting these
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multiple searches and de-duplicating the located records, OSC segregated withheld material and
released what it could to Plaintiff.
Given these extensive efforts, the Court believes that OSC has easily cleared the bar for
an adequate search. It searched for responsive files in several formats, from several sources, in
several locations, and it confirmed that these would be the only places that any responsive files
might be found. Judicial Watch, for its part, does not claim that the search was made in bad
faith, nor does it challenge the search terms, the parameters of the search, or the sources
searched. What Plaintiff does allege is that there are records OSC should have previously
created, which then should have been produced along with the rest of the documents. See Opp.
at 4.
In more detail, Plaintiff’s challenge goes like this: Its June 15, 2010, complaint was made
pursuant to 5 U.S.C. § 1216, which provides that when OSC receives such an allegation, it
“may,” inter alia, “investigate and seek corrective action under section 1214 . . . in the same way
as if a prohibited personnel practice were involved.” Id. § 1216(c). Section 1214, in turn,
requires the agency to inform complainants of receipt of their allegations, provide frequent status
updates, inform them of actions taken, alert them to the termination of an investigation, and
provide a summary of facts ascertained during the investigation. See id. §§ 1214(a)(1)(A), (B),
(C), (D), and 1214(a)(2)(A). According to Judicial Watch, it received none of these required
communications in OSC’s production; because they are responsive to its FOIA request, their
absence in the production reveals that the agency “obviously did not conduct a search reasonably
calculated to uncover all relevant documents . . . .” Opp. at 5 (internal quotation marks omitted).
The Court is not persuaded. As a careful reader of the above-outlined argument will have
noticed, Plaintiff’s syllogism overlooks an important “may” in the statutory scheme. For
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allegations of Hatch Act violations, “[t]he Special Counsel may investigate and seek corrective
action under section 1214 . . . .” Id. § 1216(c) (emphasis added). That § 1214 has obligatory
provisions does not change the fact that for Hatch Act allegations, like Plaintiff’s, OSC is not
required to follow that statute. See, e.g., Russello v. United States, 464 U.S. 16, 23 (1983)
(“[W]here Congress includes particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.”) (citations omitted).
Laid bare, Plaintiff’s argument is nothing more than a red herring. An agency’s failure to
release documents it was never required to generate tells the Court nothing about the adequacy of
its search. In fact, it seems rather unlikely that these documents ever existed since Judicial
Watch received no § 1214 updates in response to its Hatch Act allegations. Plaintiff,
furthermore, could not contend that FOIA requires the creation of documents, see Yeager v.
Drug Enforcement Agency, 678 F.2d 315, 321 (D.C. Cir. 1982) (“It is well settled that an agency
is not required by FOIA to create a document that does not exist in order to satisfy a request.”),
and Judicial Watch cannot use a FOIA suit to enforce its interpretation of OSC’s obligations
under the Hatch Act. Even if Defendant had been required to create these records in 2010 and
did so, moreover, this would still not make Plaintiff’s case. Generally, identifying a handful of
documents that an agency failed to uncover does not, in itself, demonstrate that a search was
inadequate. See Boyd v. Criminal Div. of Dep’t of Justice, 475 F.3d 381, 391 (D.C. Cir. 2007)
(“[T]he fact that a particular document was not found does not demonstrate the inadequacy of a
search.”).
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In light of the search that OSC conducted, which was reasonably calculated to locate all
responsive records, the Court concludes that it has fulfilled its obligation under FOIA. Summary
judgment on this issue is thus warranted.
IV. Conclusion
For the foregoing reasons, the Court will grant Defendant’s Motion for Summary
Judgment. A contemporaneous Order will so state.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: January 13, 2015
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