American Oversight v. U.S. General Services Administration ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN OVERSIGHT,
Plaintiff
v.
Civil Action No. 18-2419 (CKK)
U.S. GENERAL SERVICES
ADMINISTRATION, et al.,
Defendants
MEMORANDUM OPINION
(April 20, 2020)
This lawsuit arises from Freedom of Information Act (“FOIA”) requests that Plaintiff
American Oversight made to Defendants General Services Administration (“GSA”), Department
of Justice (“DOJ”), Office of Management and Budget (“OMB”), and Federal Bureau of
Investigation (“FBI”). Plaintiff requested all meeting notes, agendas, informational material,
readouts, and follow-up conversation notes from White House meetings—occurring on
December 20, 2017, January 24, 2018, and June 15, 2018—concerning the FBI Headquarters
Consolidation Project. The parties have filed cross-motions for summary judgment on the issues
of whether or not Defendants’ searches, withholding of documents, and redactions violated
FIOA.
Upon consideration of the pleadings,1 the relevant legal authorities, and the record as it
currently stands, the Court GRANTS IN PART and DENIES WITHOUT PREJUDICE IN PART
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The Court’s consideration has focused on the following documents:
• Defs.’ Mot. for Summary Judgment, ECF No. [22] (“Defs.’ Mot.”);
• Pl.’s Cross-Mot for Summary Judgment, ECF No. [23] (“Pl.’s Mot.”);
• Defs.’ Mem. in Opp’n to Pl.’s Cross-Mot. for Summary Judgment, and in Reply to Pl.’s
Opp’n to Defs.’ Mot. for Summary Judgment, ECF No. [27] (“Defs.’ Reply”); and
• Reply in Support of Pl.’s Cross-Mot. for Summary Judgment, ECF No. [29] (“Pl.’s
Reply”).
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Plaintiff’s Motion for Summary Judgment and DENIES WITHOUT PREJUDICE Defendants’
Motion for Summary Judgment. The Court concludes that Defendants’ searches conducted in
response to Plaintiff’s FOIA requests were inadequate. As such, the Court GRANTS IN PART
Plaintiff’s Motion. In an effort to avoid piecemeal litigation, the Court otherwise DENIES
WITHOUT PREJUDICE Plaintiff’s and Defendants’ motions so that Defendants can conduct
adequate searches and identify, disclose, redact, or withhold any additional records prior to the
Court’s resolution of the remaining issues.
I. BACKGROUND
On August 30, 2018, Plaintiff submitted three FOIA requests to Defendant GSA, three
FOIA requests to Defendant OMB, two FOIA requests to Defendant DOJ, and two FOIA
requests to Defendant FBI. Pl.’s Statement of Undisputed Material Facts (“Pl.’s Statement”),
ECF No. 23-4, ¶ 1. All requests concerned materials relating to White House meetings which
were held to discuss the FBI Headquarters Consolidation Project. Id.
With regard to a December 20, 2017 White House meeting, Plaintiff requested from
Defendant GSA and Defendant OMB,
All meeting notes, agendas, informational material, readouts, and follow-up conversation
notes related to the FBI Headquarters Consolidation Project from any White House
meetings that may have addressed the topic and that took place on or about December 20,
2017, with GSA Administrator Emily Murphy, White House Chief of Staff John Kelly,
OMB Director Mick Mulvaney, and/or GSA Public Buildings Service Commissioner
Daniel Mathews in attendance.
Compl., ECF No. 1, ¶ 14. With regard to a January 24, 2018 White House meeting, Plaintiff
requested from all four Defendants,
All meeting notes, agendas, informational material, readouts, and follow-up conversation
notes related to the FBI Headquarters Consolidation Project from any White House
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
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meetings—both in Chief of Staff John Kelly’s office and in the Oval Office—that may
have addressed the topic and that took place on or about January 24, 2018, with GSA
Administrator Emily Murphy, White House Chief of Staff John Kelly, OMB Director
Mick Mulvaney, Deputy Attorney General Rod Rosenstein, FBI Director Christopher
Wray, and/or President Donald Trump in attendance.
Id. at ¶ 17. And, finally, with regard to a June 15, 2018 White House meeting, Plaintiff requested
from all four Defendants
All meeting notes, agendas, informational material, readouts, and follow-up conversation
notes related to the FBI Headquarters Consolidation Project from any White House
meetings that may have addressed the topic and that took place on or about June 15,
2018, with GSA Administrator Emily Murphy, White House Chief of Staff John Kelly,
Deputy Attorney General Rod Rosenstein, FBI Director Christopher Wray, OMB Deputy
Director Russ Vought, White House Counsel Don McGahn, White House Director of
Legislative Affairs and Assistant to the President Marc Short, and/or President Donald
Trump in attendance.
Id. at ¶ 22.
All four Defendants acknowledged receipt of Plaintiff’s requests. Pl.’s Stat., ECF No. 23-
4, ¶ 2. However, as of the date this lawsuit was filed on October 23, 2018, all Defendants had
failed to notify Plaintiff of any determinations regarding the FOIA requests or to produce the
requested records. Compl., ECF No. 1, ¶ 27.
Following the initiation of this lawsuit, each Defendant conducted searches for
potentially responsive records. Ultimately, Defendant GSA located 52 pages of responsive
records and released 23 pages with redactions under various FOIA Exemptions and withheld 29
pages in full under Exemption 5. Defs.’ Mot., ECF No. 22, 3. Defendant OMB located 19
responsive records and withheld each record in full under FOIA Exemption 5. Id. Defendant
DOJ located 6 pages of responsive records and released each page in full. Id. Defendant FBI
located 38 pages of responsive records, released 10 pages in full, released 7 pages with
redactions under various FOIA Exemptions and withheld 21 pages in full under Exemption 5. Id.
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Following the production of responsive, non-exempt information, Defendants filed for
summary judgment on November 4, 2019. ECF No. 22. On December 4, 2019, Plaintiff also
filed for summary judgment. ECF No. 23. In requesting summary judgment and opposing
Defendants’ Motion, Plaintiff argued that Defendants’ searches were inadequate for multiple
reasons and that Defendant FBI and OMB had wrongfully withheld information under FOIA
Exemption 5. Id.
Following Plaintiff’s Motion, all Defendants, except Defendant FBI, conducted
supplemental searches for responsive records. As a result of the supplemental searches,
Defendant OMB located three additional responsive records and Defendant DOJ located one
additional responsive record. Sec. Dec. of Heather Walsh, ECF No. 28-4, ¶ 9; Sec. Dec. of
Vanessa Brinkmann, ECF No. 28-1, ¶ 8. Based on these supplemental searches, Plaintiff
withdrew some of its grounds for challenging Defendants’ searches but still challenges the
adequacy of each search.
II. LEGAL STANDARD
Congress enacted FOIA to “pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.” Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976)
(citation omitted). Congress remained sensitive to the need to achieve balance between these
objectives and the potential that “legitimate governmental and private interests could be harmed
by release of certain types of information.” FBI v. Abramson, 456 U.S. 615, 621 (1982). To that
end, FOIA “requires federal agencies to make Government records available to the public,
subject to nine exemptions.” Milner v. Dep't of Navy, 562 U.S. 562, 562 (2011). Ultimately,
“disclosure, not secrecy, is the dominant objective of the Act.” Rose, 425 U.S. at 361. For this
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reason, the “exemptions are explicitly made exclusive, and must be narrowly construed.” Milner,
562 U.S. at 565 (citations omitted).
When presented with a motion for summary judgment in this context, the district court
must conduct a “de novo” review of the record, which requires the court to “ascertain whether
the agency has sustained its burden of demonstrating the documents requested are ... exempt
from disclosure under the FOIA.” Multi Ag Media LLC v. U.S. Dep't of Agriculture, 515 F.3d
1224, 1227 (D.C. Cir. 2008) (citation omitted). The burden is on the agency to justify its
response to the plaintiff's request. 5 U.S.C. § 552(a)(4)(B). “An agency may sustain its burden by
means of affidavits, but only 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.” Multi Ag Media, 515 F.3d at 1227 (citation omitted).
“If an agency's affidavit describes the justifications for withholding the information with specific
detail, demonstrates that the information withheld logically falls within the claimed exemption,
and is not contradicted by contrary evidence in the record or by evidence of the agency's bad
faith, then summary judgment is warranted on the basis of the affidavit alone.” Am. Civil
Liberties Union v. U.S. Dep't of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011) (citations omitted).
“Uncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the
exemption are likely to prevail.” Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d
504, 509 (D.C. Cir. 2011). Summary judgment is proper when the pleadings, the discovery
materials on file, and any affidavits or declarations “show[ ] 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).
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III. DISCUSSION
Plaintiff begins by challenging the adequacy of Defendants’ searches conducted in
response to Plaintiff’s FOIA requests. Plaintiff presents multiple grounds as to why each
Defendants’ search was not reasonably calculated to find all responsive records. For the reasons
discussed below, the Court agrees that Defendants’ searches were inadequate.
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. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (internal quotation marks omitted). “At
summary judgment, 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 (if such records exist) were searched.” Ancient Coin Collectors Guild, 641 F.3d at 514
(internal quotation marks omitted). “The agency cannot limit its search to only one or more
places if there are additional sources that are likely to turn up the information requested.”
Valencia-Lucena, 180 F.3d at 326 (internal quotation marks omitted). Ultimately, the adequacy
of a search is “determined not by the fruits of the search, but by the appropriateness of [its]
methods.” Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (citation
omitted); see also Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)
(“[T]he issue to be resolved is not whether there might exist any other documents possibly
responsive to the request, but rather whether the search for those documents was adequate.”
(emphasis in the original)).
Plaintiff challenges the adequacy of Defendants’ searches in many respects. Plaintiff first
brought these issues to light in its Motion for Summary Judgment. Following the filing of that
Motion, all Defendants except Defendant FBI conducted supplemental searches. These
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supplemental searches addressed some of Plaintiff’s complaints but not all of Plaintiff’s
complaints. The Court finds that Plaintiff has established that Defendants’ searches, including
any supplemental searches, were not reasonably calculated to uncover all relevant documents.
A. Defendant GSA’s Search
Plaintiff contends that Defendant GSA’s search was inadequate because the search terms
used were all linked to email addresses. By linking each search term to an email address,
Defendant GSA effectively restricted responsive records to only emails.
In Defendant GSA’s initial search, Defendant GSA identified GSA Administrator Emily
Murphy as the custodian of potentially responsive records from all three meetings. Dec. of Travis
Lewis, ECF No. 22-2, ¶ 6. Defendant GSA also identified Daniel Mathews, GSA’s then-Public
Buildings Service Commissioner, as an additional custodian of records relating to the December
20, 2017 meeting. Id. GSA then conducted a search for documents from these custodians based
on the following search terms:
• “@omb.eop.gov” and “FBI”
• “@omb.eop.gov” and “HQ”
• “@omb.eop.gov” and “Consolidat”
• “@fbi.gov” and “FBI”
• “@fbi.gov” and “HQ”
• “@fbi.gov” and “Consolidat”
• “@who.eop.gov” and “FBI”
• “@who.eop.gov” and “HQ”
• “@who.eop.gov” and “Consolidat”
• “FBI HQ” and “Emily.murphy@gsa.gov”
• “FBI Consolidat” and “Emily.murphy@gsa.gov”
• “FBI HQ” and “daniel.mathews@gsa.gov”
• “FBI Consolidat” and “daniel.mathews@gsa.gov”
Id. at ¶ 7. Additionally, Defendant GSA conducted searches of each of the custodians’ paper
records, electronic work folders, and shared network drives. And, the custodians searched their
personal work spaces for any paper records. Id. at ¶ 12. Defendant GSA also reviewed
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documents it located from prior searches for records in connection with two other, similar FOIA
requests. Id. at ¶ 8.
In its Motion, Plaintiff challenged the sufficiency of GSA’s search on multiple grounds.
First, Plaintiff argued that Defendant GSA improperly linked its search terms to email addresses
and failed to search for obvious synonyms of the requested subject matter such as “Hoover
Building” and “JEH.” Pl.’s Mot., ECF No. 23, 12-16. Plaintiff further challenged Defendant
GSA’s limited choice of custodians of records. Id. at 18. Finally, Plaintiff argued that, while
Defendant GSA alleged that it searched for paper records, the email-based search terms
effectively limited its results only to email records. Id. at 26.
Following Plaintiff’s challenges to Defendant GSA’s search, Defendant GSA conducted
a supplemental search. For its supplemental search, GSA designated Ms. Murphy, Mr. Mathews,
and Michael Gelber, then-GSA Public Buildings Service Deputy Commissioner, as custodians of
records for each request. Sec. Dec. of Travis Lewis, ECF No. 28-3, ¶ 5. Additionally, Defendant
GSA “expanded the list of search terms to include ‘Hoover Building’ and ‘JEH.’” Id. at ¶ 6.
Following this supplemental search, Plaintiff withdrew its challenges to Defendant
GSA’s initial choice to omit reasonable synonyms and to Defendant GSA’s choice of custodians.
Plaintiff only challenges Defendant GSA’s decision to link its search terms to email addresses,
thus limiting the responsive records to email records. Pl.’s Reply, ECF No. 29, 2-3.
In its initial Motion, Plaintiff challenged Defendant GSA’s search as being completely
linked to email addresses thus restricting responsive records to email records only. Defendant
GSA failed to respond to this deficiency in its supplemental search. Defendant GSA conducted a
supplemental search for the terms “Hoover Building” and “JEH.” However, from Defendant
GSA’s declaration, it is not clear if these search terms were likewise deficient in that they were
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linked to email addresses. Moreover, Defendant GSA gave no indication as to the parameters
given to the custodians in their searches of their paper records and personal workspaces. Insofar
as the custodians used the designated search terms, their searches were also unreasonably limited
to email records. Defendant GSA failed to respond to this deficiency either through its
supplemental search or its supplemental declaration.
In its FOIA request, Plaintiff requested “all meeting notes, agendas, informational
material, readouts, and follow-up conversation notes” related to three White House meetings
discussing the FBI Headquarters Consolidation Project. Compl., ECF No. 1, ¶¶ 14, 17, 22.
“[N]othing in plaintiff's . . . request suggests any intent to restrict the scope of [the] request to
email only.” Pulliam v. U.S. Envtl. Prot. Agency, 235 F. Supp. 3d 179, 188 (D.D.C. 2017)
(internal quotation marks omitted) (finding that the defendant’s limiting of its search to emails
was not reasonable). Given the breadth of Plaintiff’s request, and lacking justification from
Defendant GSA, the Court finds that the decision to link all search terms with email addresses
unreasonably excluded other, non-email records. Accordingly, the Court finds that Defendant
GSA’s search was not reasonably calculated to discover all responsive documents.
B. Defendant DOJ’s Search
Plaintiff contends that Defendant DOJ’s search was inadequate because of the selection
of custodians. In a supplemental search, Defendant DOJ searched then-Deputy Attorney General
Rod Rosenstein’s email records using the terms “Hoover” and “JEH.” That supplemental search
identified an email relating to the January 2018 White House meeting. Sec. Dec. of Vanessa
Brinkmann, ECF No. 28-1, ¶ 8. The email was sent from then-Principal Associate Deputy
Attorney General Robert Hur to Mr. Rosenstein on January 21, 2018, copying then-Associate
Deputy Attorney General Zachary Terwilliger. Sec. Dec. of Hart Wood, ECF No 29-1, Ex. C.
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The email was titled “Re: We need an agenda for the Wednesday WH meeting.” In the email,
Mr. Hur wrote, “Per WHCO, topic is Hoover building reno proposal. Heads of GSA and OMB
will be there to discuss $ and nuts/bolts. We will find some time on Tuesday for Chris to bring
you up to speed.” Id. Despite the fact that this email identified two custodians of records integral
to the preparation for the meeting at issue, Mr. Hur and Mr. Terwilliger, Defendant DOJ did not
search Mr. Hur or Mr. Terwilliger’s records for other responsive material.
Defendant DOJ initiated its search by identifying Mr. Rosenstein as the custodian of
records. Dec. of Vanessa Brinkmann, ECF No. 22-4, ¶ 14. Defendant DOJ canvassed other staff
and determined that there were no additional custodians of records. Id. Defendant DOJ searched
Mr. Rosenstein’s email and electronic files for the term “FBI” within the date ranges of a one-
week interval before and after each White House meeting. Id. at ¶¶ 15, 16.
In its Motion, Plaintiff challenged Defendant DOJ’s search on multiple grounds. First,
Plaintiff contended that Defendant DOJ failed to search for obvious synonyms of the subject
matter such as “Hoover” and “JEH.” Pl.’s Mot., ECF No. 23, 12-16. Plaintiff also challenged
Defendant DOJ’s selection of Mr. Rosenstein as the only custodian of records. Id. at 18. Finally,
Plaintiff argued that Defendant DOJ unreasonably restricted its search to electronic records. Id.
at 24-25.
Following Plaintiff’s challenges to its search, Defendant DOJ conducted a supplemental
search and filed a supplemental declaration. In the supplemental declaration, Defendant DOJ
made clear that it had conducted a search for paper records but had not located any responsive
paper records. Sec. Dec. of Vanessa Brinkmann, ECF No. 28-1, ¶ 7. Defendant DOJ also
conducted a supplemental search within Mr. Rosenstein’s email and electronic records using the
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search terms “Hoover” and “JEH.” Id. at ¶ 8. Through this search, Defendant DOJ discovered the
one additional responsive email record which was disclosed to Plaintiff. Id.
Following Defendant DOJ’s supplemental search, Plaintiff withdrew its challenges to the
search terms and to the types of records searched. Pl.’s Reply, ECF No. 29, 4. However, Plaintiff
still challenges Defendant DOJ’s choice of Mr. Rosenstein as the only custodian of records.
As previously stated, in its supplemental search of Mr. Rosenstein’s records, Defendant
DOJ discovered an additional email record. The email was sent from then- Principal Associate
Deputy Attorney General Hur to Mr. Rosenstein on January 21, 2018, copying then-Associate
Deputy Attorney General Terwilliger. Sec. Dec. of Hart Wood, ECF No 29-1, Ex. C. The email
was titled “Re: We need an agenda for the Wednesday WH meeting.” In the email, Mr. Hur
wrote, “Per WHCO, topic is Hoover building reno proposal. Heads of GSA and OMB will be
there to discuss $ and nuts/bolts. We will find some time on Tuesday for Chris to bring you up to
speed.” Id.
Defendant DOJ’s initial decision to search the records of only Mr. Rosenstein may have
been reasonable. However, courts “evaluate[] the reasonableness of an agency’s search based on
what the agency knew at its conclusion rather than what the agency speculated at its inception.”
Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998). Following Defendant DOJ’s
supplemental search of Mr. Rosenstein’s records, Defendant DOJ discovered a record
demonstrating that at least two other individuals could have information responsive to Plaintiff’s
FOIA requests. In the newly discovered record, Mr. Hur sent an email to Mr. Rosenstein,
copying Mr. Terwilliger, discussing the need for an agenda for the January 24, 2018 White
House meeting on the FBI Headquarters Consolidation Project. This email reflects that more
individuals that Mr. Rosenstein were involved in preparing for the meeting and could have
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agendas, informational material, readouts, and follow-up conversation notes related to the
meeting. Based on the information disclosed in this email, showing the involvement of
individuals other than Mr. Rosenstein, Defendant DOJ was required to “revise its assessment of
what [was] ‘reasonable’ … to account for leads that emerge[d] during its inquiry.” Campbell,
164 F.3d at 28.
Defendant DOJ argues that “[a]s Mr. Rosenstein was the sole DOJ official in attendance
at the White House meetings, all communications related to the meeting are reasonably likely to
have directly involved him.” Sec. Dec. of Vanessa Brinkmann, ECF No. 28-1, ¶ 10. Therefore,
Defendant DOJ was not required to designate other officials, such as Mr. Hur or Mr. Terwiliger
as additional custodians. Id. However, even if Mr. Rosenstein was the sole attendant of the
meeting, the disclosed email makes clear that he did not work alone in preparing for the meeting
and may not have worked alone in the meeting’s follow-up. In conducting its search, Defendant
DOJ was not permitted to “ignore clear leads … [that] may indicate … other offices that should
have been searched” such as “records custodians who should have been consulted.” Coleman v.
Drug Enf’t Admin., 134 F. Supp. 3d 294, 301 (D.D.C. 2015) (internal quotation marks omitted);
see also Valencia-Lucena, 180 F.3d at 326-27 (reversing grant of summary judgment for the
defendant agency where “the record itself reveals positive indications of overlooked materials”
(internal quotation marks omitted)).
Based on the information disclosed in the responsive email, the Court finds that
Defendant DOJ’s decision to search the records of only Mr. Rosenstein was not reasonably
calculated to uncover all responsive documents.
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C. Defendant OMB’s Search
Plaintiff challenges Defendant OMB’s search due to its inadequate selection of search
terms. Even in its supplemental search, Defendant OMB used only the search term “FBI” within
50 words of “Headquarters.” Sec. Dec. of Heather Walsh, ECF No. 28-4, ¶ 8. Defendant OMB
refused to include obvious synonyms such as “JEH” and “Hoover Building.”
In conducting its search, Defendant OMB identified three custodians of responsive
records—then-OMB Director Mick Mulvaney, then-OMB Deputy Director Russ Vought, and
then-OMB Chief of Staff Emma Doyle. Dec. of Heather Walsh, ECF No. 22-3, ¶ 6. Defendant
OMB established time frames for responsive documents ranging from seven days before and
seven days after each of the White House meeting dates. Id. at ¶ 7. Defendant OMB then
conducted a proximity search for records to include documents with “FBI” within 50 words of
“headquarters.” Id. at ¶ 8. Defendant OMB further concluded that all responsive records would
be in electronic rather than in paper form. Id. at ¶ 9. So, Defendant OMB searched archives of
emails, email attachments, meeting invitations, and work folders. Id.
In its Motion, Plaintiff challenged Defendant OMB’s search on a number of grounds.
First, Plaintiff contended that Defendant OMB failed to search for obvious synonyms such as
“JEH” and “Hoover building.” Pl.’s Mot., ECF No. 23, 12-16. Plaintiff also faulted Defendant
OMB for designating an insufficient number of custodians of record. Id. at 18. Finally, Plaintiff
challenged Defendant OMB’s decision to limit its search to electronic records, excluding any
paper records. Id. at 22-24.
Following Plaintiff’s challenges, Defendant OMB conducted a supplemental search. In
conducting the supplemental search, Defendant OMB designated an additional custodian of
records, Andrew Abrams the Deputy Associate Director for Transportation, Homeland, Justice,
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and Services Division. Sec. Dec. of Heather Walsh, ECF No. 28-4, ¶ 7. This supplemental search
led to the discovery of three additional responsive agency records. Id. at ¶ 9. Also, in response to
Plaintiff’s challenges, Defendant OMB conducted an additional search for potentially responsive
paper records. Id. at ¶ 10. Defendant OMB reports that this search led to no additional records,
but this point is disputed by Plaintiff. Id. at ¶ 11.
Following Defendant OMB’s supplemental search, Plaintiff withdrew its challenges to
Defendant OMB’s selection of custodians of records and to Defendant OMB’s initial decision
not to search paper records. Pl.’s Reply, ECF No. 29, 6. However, Plaintiff maintains its
challenge to Defendant OMB’s decision to use inadequate search parameters—“FBI” within 50
words of “headquarters.”
In its declaration, Defendant OMB stated that it refused to conduct a search with the
obvious synonyms “Hoover Building” and “JEH” because those terms “were simply not in
common usage by OMB to refer to the subject of the Requests.” Sec. Dec. of Heather Walsh,
ECF No. 28-4, ¶ 8. And, Defendant OMB reported that the synonyms were not in use by other
agencies when communicating with OMB staff. Id. Defendant OMB posited that conducting a
search with those terms would result in unresponsive records. Id. The Court finds this argument
to be unpersuasive.
First, Defendant OMB argues that the terms “JEH” and “Hoover Building” are not used
by the OMB or by other agencies in communications with the OMB. However, Plaintiff has
introduced evidence that other agencies use these terms to refer to the subject matter of
Plaintiff’s FOIA request. See, e.g., U.S. GEN. SERVS. ADMIN., About the Hoover Building,
https://www.gsa.gov/real-estate/gsa-properties/visiting-public-buildings/herbert-c-hoover-
federal-building/about-the-hoover-building (last visited April 17, 2020); U.S. GEN. SERVS.
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ADMIN., FBI Headquarters Consolidation, www.gsa.gov/fbihqconsolidation (last visited April
17, 2020) (“The project involves exchanging JEH for a new facility . . . .”); see also Dec. of Hart
Wood, ECF No. 23-2, Ex. B at 2 (FBI production excerpts (“Build New or Renovate JEH?”)).
So, it is reasonable to expect that other agencies may use these terms when communicating with
OMB even if OMB itself does not regularly use the terms.
Additionally, Defendant OMB argues that a search using the requested terms would
result in a number of unresponsive results. But, without more, the speculation that the search
terms may result in some unresponsive results is not a sufficient reason to exclude the search
terms. Popular Democracy v. Bd. of Governors of Fed. Reserve Sys., No. 16-cv-589, 2019 WL
3207829, at *7 (E.D.N.Y. July 15, 2019) (“Defendant also contends that the search terms
suggested by Plaintiff could yield a large number of false positives and burden the Board. . . . By
providing only speculation as to the potential burden of using additional and broader search
terms, Defendant has not met its burden of showing that the use of additional and obvious search
terms would be unreasonable.”); see also Ayuda, Inc. v. Fed. Trade Comm’n, 70 F. Supp. 3d 247,
275 (D.D.C. 2014) (requiring that an agency sufficiently explain why a search is unreasonable).
The Court finds that Defendant’s OMB’s search parameters—“FBI” within 50 words of
“headquarters”—were unreasonably narrow and not designed to uncover all responsive
documents. At least two other district courts within this Circuit, addressing FOIA requests
pertaining to similar subject matter, have come to the same conclusion. In Citizens for
Responsibility and Ethics in Washington v. United States General Services Administration, No.
18-cv-377, 2018 WL 6605862 (D.D.C. Dec. 17, 2018), the Court considered a FOIA request
which “sought records explaining the decision to abort the swap-relocation plan [for the FBI
building] and related communications between GSA brass and other government officials,
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including the White House.” Citizens for Responsibility and Ethics in Washington, 2018 WL
6605862, at *1. Defendant GSA had conducted a search for records omitting the search terms
“JEH” and “Hoover Building.” Id. at *5. The court concluded that Defendant GSA’s search
terms were unreasonable because it was “likely that ‘JEH’ and ‘the Hoover Building’—referring
to the current headquarters—would be used in communications and records regarding the
headquarters consolidation project; a search reasonably calculated to uncover all documents
responsive to [the plaintiff’s] request therefore ought to include these rather obvious synonyms.”
Id. And, in American Oversight v. Office of Management and Budget, No. 18-cv-2424, 2020 WL
1536186 (D.D.C. Mar. 31, 2020), the court was again addressing a FOIA request for records
reflecting conversations among OMB officials and the White House Office “regarding the FBI
headquarters consolidation project.” American Oversight, 2020 WL 1536186, at *1. Defendant
OMB conducted a search using primarily terms such as “FBI” and “Headquarters.” Id. at *4. The
court determined that the search was inadequate because “OMB’s search would not have
captured documents referring to the FBI headquarters by any name other than ‘FBI headquarters’
or ‘FBI HQ.’ Such a search could not be reasonably expected to produce all communications
regarding the FBI headquarters consolidation project’” Id. (internal quotation marks omitted).
While the FOIA requests in this case differ from those in the cases described above, all of
the FOIA requests involve the same general subject matter of the FBI headquarters consolidation
project. And, the Court is persuaded by the reasoning in both opinions. Generally, “omitting
from the search an alternative name by which the subject of the search is known renders the
search inadequate.” Utahamerican Energy, Inc. v. Mine Safety & Health Admin., 725 F. Supp. 2d
78, 84 (D.D.C. 2010); see also Gov’t Accountability Project v. United States Dep’t of Homeland
Sec., 335 F. Supp. 3d 7, 11 (D.D.C. 2018) (finding search unreasonable where the agency failed
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to include logical variations of the subject matter terms). Here, Defendant OMB omitted
recognized synonyms for the FBI headquarters, thus rendering its search inadequate.
By omitting obvious synonyms, Defendant OMB’s search was not reasonably calculated
to produce all responsive records. And, Defendant OMB has failed to satisfactorily justify its
decision to omit these search terms.
D. Defendant FBI’s Search
Plaintiff challenges Defendant FBI’s search in two regards. First, Plaintiff contends that
Defendant FBI’s search was inadequate due to the narrow selection of search terms. Defendant
FBI refused to search for obvious synonyms “JEH” and “Hoover” claiming that those variations
were overly broad and unreasonable. Sec. Dec. of David Hardy, ECF No. 28-2, ¶ 6. Second,
Plaintiff contends that Defendant FBI’s search was unreasonable because Defendant FBI failed
to search Director Christopher Wray’s paper records. From the declarations, it appears that
Defendant FBI conducted only an electronic search of Director Wray’s materials and did not
conduct any search of his paper records.
In response to Plaintiff’s FOIA requests, Defendant FBI conducted a search of its Central
Records System (“CRS”) for responsive documents. Dec. of David Hardy, ECF No. 22-5, ¶ 27.
Defendant FBI used the search terms, “Headquarters Relocation,” “FBI HQ Relocation,”
“Headquarters Consolidation,” and “FBI HQ Consolidation.” Id. The search located no
responsive records. Id. Defendant FBI then sought the assistance of the Finance and Facilities
Division (“FFD”), which was responsible for managing the FBI headquarters consolidation
project. Id. at ¶ 28. FFD coordinated with multiple points of contact in order to search for any
records related to the two meetings specified by Plaintiff. Id. at ¶ 29.
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In its Motion, Plaintiff challenged Defendant FBI’s search on multiple grounds. First,
Plaintiff argued that Defendant FBI’s search terms were too narrow. Pl.’s Mot., ECF No. 23, 12-
16. Second, Plaintiff contended that it was not clear whether or not Defendant FBI searched
records belonging to officials other than Director Wray. Id. at 18 n.8. Finally, Plaintiff
challenged Defendant FBI’s failure to search non-electronic records even though many of the
materials requested such as notes and informational materials may not be preserved in electronic
form. Id. at 25-26.
Following Plaintiff’s challenges, Defendant FBI filed a supplemental declaration.
Defendant FBI stated that its search terms were reasonable and the addition of “JEH” and
“Hoover Building” as additional search terms would have been “overly broad and unreasonable.”
Sec. Dec. of David Hardy, ECF No. 28-2, ¶ 6. Defendant FBI explained that searches for these
terms “would likely include a large volume of FBI correspondence, emails and other records
associated with investigative cases focused out of Headquarters, or the operations, maintenance,
and management of Headquarters, all of which are unrelated to the subject of Plaintiff’s
Requests.” Id. Defendant FBI further explained that its search of the CRS was not limited by any
custodian and covered all records stored electronically. Id. at ¶ 7.
Finally, Defendant FBI provided greater explanation of its search methodology.
Defendant FBI explained that it coordinated with many FFD points of contact including Douglas
Grant, then-Section Chief of the National Capital Region Section, the employee who served as
Unit Chief of the HQ Program Management Office, as well as others with relevant knowledge.
Id. at ¶ 9. These employees reviewed records they maintained in their possession, including
electronic and paper records. Id. As these records were reviewed manually, no search terms were
used. Id. Defendant FBI also contacted the FBI’s Special File Room for any relevant records
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from the Director’s Office. Id. at ¶ 10. A search of the internal database was conducted for any
responsive records using the following search terms: “FBI HQ Consolidation,” “FBI HQ
Consolidation Project,” “HQ Consolidation,” “HQ Consolidation Project,” “Meeting in Regards
to (the previous terms),” “Meeting Notes for (the previous terms),” or “FBI Move.” Id. Finally,
Defendant FBI contacted the Executive Offices of Associate Director Haley of FFD and
Associate Director Schlendorf of the Human Resources Division. Id. at ¶ 11. AD Haley
confirmed that primary custodians likely to have records had been searched. AD Schlendorf’s
Executive Office conducted a search for paper and electronic records but did not find any. Id.
Following Defendant FBI’s supplemental declaration, Plaintiff refined its challenges to
Defendant FBI’s search. Plaintiff withdrew its challenge to Defendant FBI’s selection of
custodians. Pl.’s Reply, ECF No. 29, 8. However, Plaintiff continues to challenge Defendant
FBI’s failure to include necessary search terms such as “JEH” and “Hoover Building.” Id. at 9.
Additionally, Plaintiff challenges Defendant FBI’s failure to search Director Wray’s paper
records. Id. The Court will address each challenge in turn.
First, Plaintiff challenges Defendant FBI’s choice of search terms. Defendant FBI
determined that search terms and obvious synonyms “JEH” and “Hoover Building” were overly
broad and unreasonable because such a search would lead to a large volume of non-responsive
documents. However, this conclusory statement is insufficient to show that a search using these
terms is unreasonable. Ayuda, 70 F. Supp. 3d at 275 (“[W]hen an agency claims that complying
with a request is unreasonable, it bears the burden to ‘provide [a] sufficient explanation as to
why such a search would be unreasonably burdensome.’” (quoting Nation Magazine v. U.S.
Customs Serv., 71 F.3d 885, 892 (D.C. Cir. 1995))). Notably, Defendant FBI does not claim that
search terms “Hoover building” and “JEH” would be unlikely to locate records responsive to
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Plaintiff’s requests. Additionally, insofar as the searches would produce a plethora of
unresponsive documents, Defendant FBI failed to consider whether the terms could be combined
with restrictions such as a narrowed timeframe or other search terms such as “relocation” or
“consolidation” in order to lessen the number of unresponsive documents.
As such, the Court concludes that Defendant FBI’s failure to search for obvious
synonyms resulted in a search not reasonably calculated to find all responsive documents. The
Court has already addressed this issue in the context of Defendant OMB’s search. See Supra Sec.
III.C. And, at least two other courts in this Circuit have found insufficient the failure to include
the search terms “JEH” and “Hoover building” in response to FOIA requests relating to similar
subject matter. Citizens for Responsibility and Ethics in Washington, 2018 WL 6605862, at *5;
American Oversight, 2020 WL 1536186, at *4. For the reasons that have already been discussed,
the exclusion of these terms rendered Defendant FBI’s search inadequate.
Second, Plaintiff challenges Defendant FBI’s failure to search Director Wray’s paper
records. In its supplemental declaration, Defendant FBI clarified that it searched Director Wray’s
electronic records as well as the paper records of various potential custodians. However,
Defendant FBI failed to state that it searched Director Wray’s paper records. And, assuming that
those records were not searched, Defendant FBI failed to justify its decision not to search those
paper records.
An “agency bears the burden of establishing that any limitations on the search it
undertakes in a particular case comport with its obligation to conduct a reasonably thorough
investigation.” McGehee v. Central Intelligence Agency, 697 F.2d 1095, 1101 (D.C. Cir. 1983).
Again, Plaintiff’s FOIA requests asked for “[a]ll meeting notes, agendas, informational material,
readouts, and follow-up conversation notes” related to two White House meetings attended by
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Director Wray. Compl., ECF No. 1, ¶¶ 17, 22. As Director Wray was in attendance at these
meetings it is reasonable to think that he might have notes, handouts, or other material that are in
paper form and not electronically stored. Lacking adequate explanation, it was not reasonable for
Defendant FBI to fail to search Director Wray’s paper records. See Property of the People, Inc.
v. Dep’t of Justice, 405 F. Supp. 3d 99, 123 (D.D.C. 2019) (finding search inadequate where
“[n]either declarant indicates whether [defendant] searched its paper records”).
For the reasons explained above, the Court finds that Defendant FBI’s search in response
to Plaintiff’s FOIA requests was inadequate because it did not use obvious synonyms as search
terms and it did not include, or justify the failure to include, a search of Director Wray’s paper
records.
IV. CONCLUSION
Because the Court concludes that Defendants’ searches were inadequate, the Court
GRANTS IN PART Plaintiff’s Motion for Summary Judgment. The Court otherwise DENIES
WITHOUT PREJUDICE Plaintiff’s Motion and Defendants’ Motion.
At this time, the Court will not address the remaining issues pertaining to withholdings
and redactions. Instead, the Court ORDERS that Defendants conduct adequate searches. The
parties are ORDERED meet and confer to discuss Defendants’ additional searches. Defendants
are ORDERED to complete their new searches by no later than JUNE 30, 2020. If it is not
possible to complete the searches by that date, Defendants should file a Status Report prior to
MAY 29, 2020, informing the Court as to why the deadline cannot be met and proposing a new
deadline.
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Following Defendants’ new searches, if necessary, the parties can file renewed motions
for summary judgment addressing all disputed withholdings and redactions in order to avoid
piecemeal litigation. An appropriate Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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