Judicial Watch, Inc. v. U.S. Department of Justice ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
v. Civil Action No. 1:19-cv-0879 (CJN)
UNITED STATES DEPARTMENT OF
JUSTICE,
Defendant.
MEMORANDUM OPINION
Judicial Watch, Inc. seeks certain documents from the Department of Justice under the
Freedom of Information Act, 5 U.S.C. §§ 552, et seq. DOJ produced many documents, some
redacted. But the cross-motions for summary judgment do not deal with these redactions. Instead,
the Parties dispute only the adequacy of the government’s search. The Court concludes that most,
but not all, of the searches were adequate. The Court thus grants in part and denies in part
Defendant’s Motion for Summary Judgment, ECF No. 24, and grants in part and denies in part
Plaintiff’s Cross-Motion for Summary Judgment, ECF No. 27.
I. Background
The Court finds no genuine dispute over these facts:
In July 2018, Judicial Watch submitted a FOIA request to the Department of Justice and
its component agency, the Federal Bureau of Investigation. Pl.’s Resp. to Def.’s Statement of
Material Facts (“Facts”), ECF No. 26 at ¶ 1. It sought:
• Any and all records regarding, concerning, or related to the April 2017 meeting
between Department of Justice and FBI personnel and reporters, editors, and/or
other individuals employed by and/or representing the Associated Press. This
request includes, but it is not limited to, any and all notes, reports, memoranda,
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briefing materials, or other records created in preparation for, during, and/or
pursuant to the meeting.
• Any and all records of communication between any official, employee, or
representative of [DOJ] and any of the individuals present at the aforementioned
meeting.
Id. “For purposes of clarification,” Plaintiff continued, “the meeting that is the subject of [t]his
request was reported on by Politico on June 29, 2018.” Id. The request included a hyperlink to
that article, titled “Associated Press May Have Led FBI to Manafort Storage Locker.” Id. Plaintiff
filed this lawsuit eight months later. Id. ¶ 2.
Three DOJ components—the Criminal Division, FBI, and the Office of Information
Policy—responded to Plaintiff’s request. Id. ¶ 3. The search efforts of each are relevant to the
present dispute.
Criminal Division
Start with the Criminal Division. As a result of a search for documents responsive to a
similar FOIA request regarding the April 2017 meeting, it was known that Andrew Weissman, the
former Chief of the Fraud Section, had attended that meeting, id. ¶ 4., and thus that the Fraud
Section potentially had responsive documents, id. ¶ 5. The Office of the Assistant Attorney
General, as well as the Money Laundering and Asset Recovery Section, were also identified as
offices within the Criminal Division that might have relevant information. Id. ¶¶ 6–7. Search
requests were thus sent to each of these offices. Id. ¶ 8.
The Office of the Assistant Attorney General identified four potential custodians of
relevant records: Andrew Weismann, Bruce Swartz (a Deputy Assistant Attorney General),
Kendall Day (a former Acting Deputy Assistant Attorney General), and Ann Brickley (a Money-
Laundering Section trial attorney). Id. ¶ 10. The Money-Laundering Section subsequently
provided to the Criminal Division a set of Brickley’s emails that it thought responsive. Id. ¶ 11.
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After reviewing these emails and discussing the matter with Brickley, the Criminal
Division identified additional individuals who might have sent or received emails regarding the
meeting: Deborah Connor (the Chief of the Money-Laundering Section), Mary Butler (the Chief
of the Money-Laundering Section’s International Unit), and Bruce Ohr (of the Office of the Deputy
Attorney General). Id. ¶ 12. Brickley also confirmed in these conversations that she did not have
any physical records responsive to Plaintiff’s request. Id.The Criminal Division thus conducted a search of the email accounts for seven employees:
Weissmann, Swartz, Day, Ohr, Connor, Butler, and Brickley. Id. ¶ 13. It searched the Money-
Laundering Section’s shared electronic drives, too. Id. For these searches it employed the
following search terms:
• “AP” with “meeting”;
• “Associated Press” with “meeting”;
• “Eric Tucker”;
• “Jeff Horwitz”;
• “Ted Bridis”;
• Jack Gillum”;
• “etucker@ap.org”;
• “jhorwitz@ap.org”; and
• “tbridis@ap.org”.
Id. ¶ 14. (Tucker, Horwitz, Bridis, and Gillum1 were the AP reporters present at the 2017 meeting.
Id.) The date range for each search was March 1 through June 30, 2017. Id. ¶ 15.
Upon review of the records returned from this first round of searches, the Criminal Division
determined that supplemental searches from additional custodians were necessary. These included
Kenneth Blanco (former Acting Assistant Attorney General), James Mann (former Chief of Staff),
1
Defendant contends that Brickley’s emails did not include Gillum’s email address, Facts at ¶ 14
n.2; Plaintiff disputes the implication that Defendant did not have it available from other sources,
id. ¶ 14.
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and Trevor McFadden (former Deputy Assistant Attorney General). Id. ¶ 16. These email
accounts were searched using fewer search terms:
• “AP” with “meeting”;
• “Eric Tucker”;
• “Jeff Horwitz”;
• “Ted Bridis”; and
• Jack Gillum”.
Id. ¶ 17.
These searches revealed that Blanco, Mann, and McFadden, along with Day,
communicated with the FBI and DOJ’s Office of Public Affairs regarding the 2017 meeting. Id.
¶ 18. The Division thus conducted a separate search of those four employees’ emails, using new
terms: “siflores@usdoj.gov” (the email address of Sarah Flores, former DOJ spokeswoman and
head of the Office of Public Affairs), and the email address of a nonpublic-facing employee who
worked in the FBI’s Office of Public Affairs. Id. ¶ 19.2
Following these additional searches, the Criminal Division conducted a responsiveness
review and processed all responsive documents. Id. ¶ 20. It ended up producing 351 pages in part
and withholding 54 pages in full. Id. ¶ 21.
Federal Bureau of Investigation
In response to a typical FOIA request, the FBI conducts an index search of its Central
Records System (CRS). Id. ¶ 23. It eventually did so here. Id. ¶ 24. But since the request sought
2
The Criminal Division later learned that it had used an incorrect email address for Flores. Pl.’s
Resp. to Def.’s Supp. Statement of Material Facts (“Supp. Facts”), ECF No. 31 at ¶ 69. It thus
conducted a supplemental search, using the same terms, but with Flores’s correct email addresses.
Id. That search yielded eighty-seven pages of responsive documents, eighty-six of which were
duplicative. Id. ¶ 70. (Plaintiff denies this fact “as to the use of the term ‘duplicative,’ ” id., but
its citation for this objection—ECF 30-1 at ¶ 16—explains that “eighty-six of these pages were
duplicative.”) The one new page was produced to Plaintiff. Supp. Facts at ¶ 70.
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information about a specific meeting, the FBI began its search by identifying the Special Agent
present at the meeting, Special Agent Pfeiffer, and requesting that he search for responsive records.
Id. Pfeiffer searched his email archives using a combination of the terms “FBI,” “DOJ,” and/or
“AP April 2017 meeting,” but did not locate any responsive records. Id. ¶ 25. He also searched
his computer hard drives using the same search terms, as well as his paper files. Id. ¶ 26. Again,
he found nothing responsive. Id. But he did recall taking handwritten notes during the meeting
and creating an electronic memorandum memorializing the meeting, id. ¶ 27; he believed he added
both to the CRS file for the Manafort investigation, id. ¶ 28. He also suggested that additional
information from the meeting could be found in the Manafort investigation file in CRS, as well as
in the Special Counsel’s Office’s case files, which are separately maintained in CRS. Id. ¶ 29.
Using this information, the FBI conducted an index search in CRS. Id. ¶ 30. It used the
search terms “Associated Press” and “AP meeting.” Id. From these results, the FBI concluded
that 28 pages were responsive. Id. ¶ 31. Those pages included Pfeiffer’s memorandum and
handwritten notes, as well as other memoranda and notes created by FBI personnel who attended
the meeting. Id.The FBI then conducted a search of the Special Counsel’s Office’s investigatory files,
using the same search terms. Id. ¶ 32. It confirmed that the only responsive documents were
duplicates of ones it had already identified. Id. ¶ 33.
During this same time, the FBI received a separate FOIA request from a different requester,
which sought “records concerning the issuance of a complaint about the March or April 2017
meeting involving Justice and FBI officials with reporters from the Associated Press.” Id. ¶ 34.
The FBI thought this complaint would be responsive to the request here, so it instructed its Office
of Public Affairs to search for records concerning the filing of the alleged complaint. Id. ¶ 36.
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The Office of Public Affairs searched both its unclassified and classified email systems for “FBI
Complaint,” “Associated Press,” “AP/DOJ Meeting,” and “April 2017.” Id. ¶ 37. But it did not
find anything responsive. Id. It did, however, suggest that the FBI check with the Criminal
Investigation Division, International Corruption Unit, which would be the most likely FBI unit to
have such records (if they existed). Id. ¶ 38.
The International Corruption Unit thus searched its electronic record file system for “FBI
Complaint,” “Associated Press,” “AP/DOJ Meeting,” and “April 2017.” Id. ¶ 39. It found no
responsive documents. Id. ¶ 40. In addition, a Supervisor Special Agent of the Unit spoke with
current and former personnel who attended the April 2017 meeting, or were familiar with the
details of it. Id. These efforts did not yield any additional information, either. Id.Office of Information Policy
Both the Criminal Division and the FBI referred Plaintiff’s FOIA request to the Office of
Information Policy. Id. ¶ 44. They did so because, while the FBI’s records system includes
investigative files of the Special Counsel’s Office, the Office of Information Policy has access to
the noninvestigative records. Id. ¶ 45.
OIP conducted three searches. The first focused on emails. OIP used responsive
documents that had already been located and processed by the FBI to identify two attendees of the
2017 meeting who went on to work for the Special Counsel’s Office: Weissmann and Pfeiffer. Id.
¶ 47. OIP then searched their email accounts, using the date range of May 18, 2017 (the earlier
start date at the Special Counsel’s Office of the two men) through October 11, 2017 (six months
after the meeting). Id. ¶ 48. It used two searches: (“Associated Press” AND “locker) and (“AP”
AND “locker”). Id. (The meeting participants had allegedly discussed a storage locker owned by
Manafort. Id.) No responsive records were found. Id. ¶ 49.
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OIP also searched the Special Counsel’s Office’s electronic files. Id. ¶ 50. The Politico
article referenced in Plaintiff’s FOIA request mentioned a binder used at a hearing in the Manafort
case. Id. And since the Special Counsel’s Office was involved in the Manafort prosecution, OIP
assessed that this binder might have responsive material. Id. ¶ 51.
The Parties debate whether the relevant documents were locatable or searchable at first.
See id. ¶¶ 52–60. But in the fall of 2020, OIP learned that many boxes from the Special Counsel’s
Office’s investigation had been assigned “box lists”—lists identifying the subject matters covered
by the records in each box. Id. ¶ 61. OIP reviewed the box lists and identified one box—which
included material listed as “Manafort Trial Binder: Locker Search SW Witness”—that could
potentially have responsive documents. Id. ¶ 62-63. OIP reviewed every document in that box,
but it did not locate any such binder, nor any other responsive documents. Id. ¶ 64.
OIP later performed another supplemental search. Supp. Facts ¶ 71. It searched the email
accounts of Flores and Peter Carr, a Public Affairs Specialist detailed to the Special Counsel’s
Office at the time. Id. ¶ 72. It utilized the same date range and search terms utilized in the first
search. Id. It found no responsive records. Id.When the Criminal Division later informed OIP that a responsive record involving Flores
was located in the Criminal Division’s supplemental search, OIP decided to manually review all
of Flores’s emails from April 11 through April 21, 2017—that is, the date of the alleged meeting
through the end of the following week. Id. ¶ 73. This additional review uncovered fourteen
additional pages of supplemental records responsive to Plaintiff’s request. Id. ¶ 74. Each was
provided to Plaintiff. Id.* * *
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Plaintiff contends that, notwithstanding these efforts, DOJ did not conduct an adequately
thorough search. It contends that DOJ failed to search known custodians, offices, and record
systems likely to possess potentially responsive documents. Pl.’s Mem. in Opp. to Def.’s Mot. for
Sum. Judg. and in Supp. of Pl.’s Cross Mot. (“Pl.’s Mot.”), ECF No. 26 at 7–10. It further argues
that DOJ failed to demonstrate that it used adequate search terms and date ranges. Id. at 10–13.
Finally, it suggests that the search for the “trial binder” was inadequate. Id. at 13–15.
DOJ disagrees on all points. See generally Def.’s Mem. in Supp. of its Mot. for Sum. Judg.
(“Def.’s Mot.”), ECF No. 24-1; Def.’s Reply Mem. in Supp. of its Mot. for Sum. Judg. and in Opp.
to Pl.’s Cross Mot. (“Def.’s Reply”), ECF No. 29.
II. Legal Standards
Rule 56 of the Federal Rules of Civil Procedure allows this Court to grant summary
judgment when the pleadings, discovery, affidavits, and other material on file show no genuine
dispute of material fact and that the moving party is entitled to judgment as a matter of law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). “[T]he vast majority of FOIA cases
can be resolved on summary judgment.” Brayton v. Office of U.S. Trade Representative, 641 F.3d
521, 527 (D.C. Cir. 2011).
The burden of proof in FOIA cases is flipped: It is up to the defendant in a FOIA matter
to show that its search for responsive records was adequate. Light v. DOJ, 968 F. Supp. 2d 11, 23
(D.D.C. 2013). This will depend on the individual circumstances of each case. See Truitt v. Dep’t
of State, 897 F.2d 540, 542 (D.C. Cir. 1990). But in all cases the “agency must show that it made
a good faith effort to conduct a search for the requested records, using methods which can be
reasonably expected to produce the information requested.” Oglesby v. U.S. Dep’t of Army, 920
F.2d 57, 68 (D.C. Cir. 1990). This can be met by providing a “reasonably detailed affidavit, setting
8
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.” Id.The touchstone of a search’s adequacy is thus reasonableness. See Mobley v. CIA, 806
F.3d 568, 583 (D.C. Cir. 2015). “When a request does not specify the locations in which an agency
should search, the agency has discretion to confine its inquiry to a central filing system if additional
searches are unlikely to produce any marginal return.” Campbell v. U.S. Dep’t of Justice, 164 F.3d
20, 28 (D.C. Cir. 1998). “The agency is [also] not required to speculate about potential leads.”
Kowalczyk v. Dep’t of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996). “If . . . the requester clearly
states that he wants all agency records on a subject, i.e., regardless of their location, but fails to
direct the agency’s attention to any particular office other than the one receiving the request, then
the agency need pursue only a lead it cannot in good faith ignore, i.e., a lead that is both clear and
certain.” Id.Throughout all of this analysis, the Court must keep in mind that “FOIA, requiring as it
does both systemic and case-specific exercises of discretion and administrative judgment and
expertise, is hardly an area in which the courts should attempt to micro manage [sic] the executive
branch.” Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 662 (D.C Cir. 2003) (quoting Johnson
v. Exec. Off. for U.S. Att’ys., 310 F.3d 771, 776 (D.C. Cir. 2002)).
III. DOJ Undertook a Mostly Adequate Search
Plaintiff raises several challenges to the adequacy of DOJ’s search. Most but not all fail.
A. DOJ properly searched offices and record systems reasonably likely to possess
potentially responsive records
Plaintiff contends that Defendant failed to search offices and record systems likely to
possess potentially responsive records. Pl.’s Mot. at 7–10. But the undisputed facts tell a different
story.
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In particular, Plaintiff notes that records produced by DOJ showed that many individuals
communicated with DOJ’s Public Affairs Office regarding the April 2017 meeting. Id. at 9–10.
Plaintiff therefore argues that DOJ must search that entire office, not simply Flores’s emails. Id.
at 10. Plaintiff also argues that the Criminal Division was required to search the shared drives
belonging to the Office of the Assistant Attorney General and the Fraud Section. Id.
Both objections fall short. Start with Flores and the Public Affairs Office. At first blush,
it appears that Plaintiff’s argument is well-founded. DOJ’s affidavits reflect that individuals at the
April 2017 meeting communicated with individuals in the Public Affairs Office: “The review of
the first electronic records search independently revealed that certain custodians . . . had
communicated with the Federal Bureau of Investigation and DOJ’s Office of Public Affairs
regarding the April 2017 meeting.” Decl. of Courtney J. O’Keefe (“First O’Keefe Decl.”), ECF
No. 24-4 at ¶ 24. Nothing in those initial declarations suggests that these communications were
limited to, or always included, Flores. DOJ nevertheless searched only her emails. Id.
(“Accordingly, a separate electronic records search of those custodians . . . was independently
conducted, using the following search terms: “siflores@usdoj.gov” . . . .”).3 Without additional
information, the Court would conclude that a search of additional Public Affairs Office records
was “a lead that is both clear and certain,” and thus needed to be followed. Kowalczyk, 73 F.3d at
389.
But Defendant’s supplemental declarations clarified that a “records search revealed that
certain Criminal Division personnel had communicated with former Department Spokesperson
Sarah Isgur Flores regarding the April 2017 meeting. The FOIA/PA Unit determined that in the
3
Defendant later reviewed each of Flores’s emails individually, producing supplemental
documents. Second Decl. of Jonathan M. Breyan (“Second Breyan Decl.”), ECF No. 30-3 at ¶ 12.
10
records returned from the first electronic search, Ms. Flores was the only OPA employee with
whom the Criminal Division communicated regarding the April 2017 meeting.” Second Decl. of
Courtney J. O’Keefe (“Second O’Keefe Decl.”), ECF No. 30-1 at ¶ 13 (emphasis added). Thus,
because the lead only implicated Flores—not anyone else in the Office of Public Affairs—
Defendant acted reasonably in searching her emails alone. Since Plaintiff did not direct Defendant
to any particular locations within the DOJ where the records might be, Defendant needed only to
search its central filing system and follow any leads it could not ignore in good faith. Campbell,
164 F.3d at 28; Kowalczyk, 73 F.3d at 389. It did so here.
DOJ was also not required to search the shared drives belonging to the Office of the
Assistant Attorney General and the Fraud Section. The April 2017 meeting was not conducted by
the Fraud Section; it was handled by the Money Laundering Section. Second O’Keefe Decl. at
¶ 12. “Because Plaintiff’s FOIA request sought records regarding a meeting that was not tied to a
subject matter that the Fraud Section was investigating, the FOIA/PA Unit determined that a search
of the Fraud Section’s shared electronic drive was not necessary.” Id. And while DOJ searched
Weissman’s emails, and Weissman was the Chief of the Fraud Section, see Facts ¶ 4, 13, his emails
were searched because it was independently known that Weissman had attended the meeting. Yet
Weissman’s emails (and all other individuals’ emails) did not reveal any other Fraud Section
employees who might have responsive documents. See id. ¶¶ 16, 18. There were thus no further
leads within the Fraud Section for DOJ to follow.
B. DOJ failed to search the records of one individual likely to possess
potentially responsive records
Plaintiff argues that DOJ “did not even attempt to locate the records of all attendees of the
April 2017 meeting and others known to have communicated about the meeting and/or subject
matter of the meeting.” Pl.’s Resp. at 8. It names three individuals who attended the April 2017
11
meeting: Assistant United States Attorney Shreve Ariail and two FBI agents. Id. The argument
falls short with respect to the FBI agents, but not as to Ariail.
As to the agents, DOJ reasonably concluded that any responsive documents would have
been discovered in its Central Records System. It is worth quoting a declaration on this point at
length:
The FBI’s records management policy mandates that FBI personnel enter
all federal records into an authorized FBI recordkeeping system . . . . FBI
personnel must determine the record status for each electronic
communication and import the ones that are “non-transitory” records into
an electronic recordkeeping system such as Sentinel. FBI policy advises
that when doubt exists about whether an electronic communication is a non-
transitory record, it should be treated as a non-transitory record and
imported into Sentinel or a successor central recordkeeping system. . . .
Sentinel as well as other record-keeping systems are searchable through a
CRS index search.
. . . [A]ny records (including emails detailing investigatory activities of
investigatory importance deemed non-transitory) would have been
serialized within the investigation files containing the responsive records
processed for Plaintiff. Knowledgeable FBI SAs, RIDS, and OPA
personnel involved in the searches advised that there were no other
employees or locations where responsive records would be maintained in
the FBI concerning the requested subject matter.
Second Decl. of Michael G. Seidel (“Second Seidel Decl.”), ECF No. 29-2 at ¶¶ 19–20 (citations
omitted). Special Agent Pfeiffer—the agent whom the FBI did ask to review his own personal
documents, as he was named in the Politco article—confirmed that any relevant materials would
be maintained on CRS. Facts at ¶¶ 28–29.
Again, “[w]hen a request does not specify the locations in which an agency should search,
the agency has discretion to confine its inquiry to a central filing system if additional searches are
unlikely to produce any marginal return.” Campbell, 164 F.3d at 28. DOJ did more than that here.
It also discussed the question with Pfeiffer (the one Special Agent named in the Poltico article),
who confirmed that any relevant documents would be found in CRS. The agency has thus
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“show[n] that it made a good faith effort to conduct a search for the requested records, using
methods which can be reasonably expected to produce the information requested.” Oglesby, 920
F.2d at 68.
As for Ariail, DOJ argues that neither the Criminal Division nor the FBI are custodians of
Ariail’s records; the Executive Office for U.S. Attorneys is. Def.’s Reply at 7 & n.3. But that
misses the point. Plaintiff submitted its request not to the Criminal Division or the FBI, but to
DOJ. That DOJ forwarded the request only to those two divisions was its own decision. That
decision did not relieve DOJ of its obligation to “pursue [ ] a lead it cannot in good faith ignore,
i.e., a lead that is both clear and certain.” Kowalczyk, 73 F.3d at 389; cf. Lawyers’ Comm. for Civil
Rights Under Law v. U.S. Dep’t of Justice, No. 18-cv-167, 2020 WL 7319365, at *11 (“The DOJ
Request did identify certain offices to be searched but did not include the Civil Division. However,
once [Plaintiff] informed the agency of the records at issue and identified by name and department
the DOJ attorneys who had them ‘in their possession,’ it provided ‘a lead that [was] both clear and
certain.’ ”). The information DOJ uncovered made it “clear and certain” that Ariail likely
possessed responsive documents, and DOJ was therefore obligated to search his records
(presumably through EOUSA).
C. DOJ used adequate search terms and date ranges
Plaintiff argues that DOJ used inadequate search terms and dates ranges. While the terms
and date ranges were not consistent, there was nothing unreasonable about them.
Plaintiff first argues that both the Criminal Division and the FBI used the names of
reporters as keywords, but the FBI used those terms only when searching its Public Affairs
Office—not CRS. Pl.’s Mot. at 11. While this might seem incongruous, the Second Siedel
Declaration explains why it was prudent. “[I]ndexing in the CRS is done at the discretion of the
FBI investigators when they have determined the particular ‘term’ of sufficient investigative
13
significance to warrant indexing for future retrieval.” Second Siedel Decl. at ¶ 14. And “the FBI
[ ] confirmed that, when indexing the responsive serialized records into the CRS for the Manafort
investigation, SA Pfeiffer (who serialized several of the relevant records in CRS . . . ) did not index
these records under the names and/or email addresses of any of the reporters who attended the
April 2017 meeting in question.” Id. This was because he determined that “such information was
not an investigatory matter of interest needing to be indexed for future retrieval.” Id. The Public
Affairs Office, on the other hand, does not sort their documents in this manner. See id. at ¶ 15.
Since that Office responds to inquiries from reporters and news agencies, its records were searched
using the reporters’ names, together with the April 2017 meeting. Id. The government has thus
justified its reason for using different search terms, and “[w]here the agency’s search terms are
reasonable, the Court will not second guess the agency regarding whether other search terms might
have been superior.” Liberation Newspaper v. U.S. Dep’t of State, 80 F. Supp. 3d 137, 146–47
(D.D.C. 2015).4
Plaintiff also argues that the email address for each AP reporter who attended the meeting
should have been used in all searches. Pl.’s Mot. at 11–12. This challenge, as it relates to the FBI,
has already been addressed. See supra. As to the Criminal Division, as the government notes, it
did use the email addresses of three reporters present at the meeting. See id. at 12. It did not use
the fourth reporter’s email address because it did not have it at the time of the search, but it did
search for his name. See First O’Keefe Decl. at ¶ 20 n.3. Further, a review of all emails about the
meeting between Criminal Division employees and Associated Press reporters showed that the
relevant documents “pertained only to the scheduling of this meeting.” Second O’Keefe Decl. at
4
For the same reasons, Plaintiff’s objection that the FBI did not search CRS using the email
addresses of the AP reporters at the meeting also fails. See Pl.’s Mot. at 11–12.
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¶ 10. Indeed, the only email communication from the reporter at issue—Jack Guillum—was one
that accepted an electronic calendar invitation from Criminal Division employees. Id. The issue
this court must resolve “is not whether there might exist any other documents possibly responsive
to the request, but rather whether the search for those documents was adequate.” Weisberg v. U.S.
Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984) (emphasis in original). The Court
concludes that it was.
As to OIP, Plaintiff’s argument dovetails with another of Plaintiff’s objections: that the
terms used by OIP to discover relevant emails from Weissman and Special Agent Pfeiffer were
unreasonably restrictive. Pl.’s Mot. 12. Both objections fall short. As DOJ correctly notes, “a
FOIA petitioner cannot dictate the search terms for his or her FOIA request.” Def.’s Reply at 22
(quoting Bigwood v. Dep’t of Defense, 132 F. Supp. 3d 124, 140 (D.D.C. 2015)). And the search
terms that the Office did utilize—(“Associated Press” AND locker) and (“AP” AND locker),
Second Breyan Decl. at ¶ 6—were eminently reasonable. As DOJ explains, “These terms were
chosen because . . . the meeting participants included representatives of the Associated Press, and
allegedly discussed a storage locker owned by Paul Manafort.” Id. Plaintiff counters that
“Manafort” might have been a better search term, as more was discussed at the meeting than just
a storage locker. Pl.’s Mot. at 12–13. But the Politico article cited in Plaintiff’s request stated that
the meeting “may have led the FBI to a storage locker the bureau raided.” Second Breyan Decl.
at ¶ 6. “With this in mind,” DOJ explains, “and the fact that OIP was conducting searches within
the [Special Counsel’s Office], which opened one month after the date of the meeting, OIP crafted
its search terms in an attempt to identifying records concerning the [Special Counsel’s Office] use
of the information about the storage locker.” Id. That was reasonable. And as the government
goes on to explain, “none of the searches conducted or records located by OIP indicate that using
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the term ‘Manafort’ or the names and/or email addresses of specific AP reporters would be more
likely to uncover responsive records than the search terms utilized.” Id. (emphasis added). DOJ’s
“burden was to show that its search efforts were reasonable and logically organized to uncover
relevant documents; it need not knock down every search design advanced by every requester.”
DiBacco, 795 F.3d at 191. It has met its burden here.
As to the date range, Plaintiff points out that both the Criminal Division and OIP “cut off
the search well before the date Plaintiff submitted the FOIA request or even before reports surfaced
about the April 2017 meeting.” Pl.’s Mot. at 13. It asks this Court to order DOJ to supplement its
searches through July 2018, when Politico published its article. See id. But this argument misses
the mark. Plaintiff’s request was targeted to “records regarding, concerning, or related to the April
2017 meeting.” Facts at ¶ 1. Both the Criminal Division and OIP thus reasonably focused its
search dates around the meeting. Indeed, both used ample time cushions: March 1, 2017 through
June 30, 2017 for the Criminal Division, and May 18, 2017 through October 11, 2017 for OIP.
(Recall that the OIP search related to two individuals within the Special Counsel’s Office, which
was not set up until a month after the meeting. Second Breyan Decl. at ¶ 6.) The date ranges were
thus reasonably tailored to Plaintiff’s request.
D. Defendant’s search for the Trial Binder was adequate
Plaintiff’s final challenge is to the adequacy of the search for the so-called “Trial Binder.”
Pl.’s Mot at 13–15. Specifically, Plaintiff notes that it cannot tell whether DOJ failed to locate the
contents of the trial binder, or if it did not think they were responsive because it took a narrow
view of Plaintiff’s FOIA request. See id. at 14. But the Second Breyan Declaration cleared up
any potential ambiguity:
OIP also conducted a targeted search of the SCO’s paper files, which are
stored in 180 boxes. The OIP Attorney-Advisor identified one box that
could potentially contain records responsive to Plaintiff’s FOIA request.
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However, after a manual, page-by-page review of all the paper files
contained in the identified box, OIP was unable to confirm whether the box
contained the contents of the binder discussed in the Political article.
Nevertheless, each document was also reviewed to determine whether—
again, irrespective of whether it was contained within the binder referenced
by the Politico article—it is responsive to Plaintiff’s FOIA [request]; none
are responsive.
Second Breyan Decl. ¶ 9. This is an adequate explanation and clears up the ambiguity.
Plaintiff appears to agree. Nowhere in its reply brief does it counter DOJ’s proffered
explanation. See generally Pl.’s Reply in Supp. of Cross-Mot. for Sum. Judg. (“Pl.’s Reply”), ECF
No. 31. The Court will thus treat this argument as conceded. See Hopkins v. Women’s Div., Gen.
Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well understood in this
Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain
arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to
address as conceded.”).
* * *
For the foregoing reasons, the Court grants in part and denies in part Defendant’s Motion
for Summary Judgment, ECF No. 24, and grants in part and denies in part Plaintiff’s Cross-Motion
for Summary Judgment, ECF No. 27. An appropriate order will accompany this opinion.
DATE: March 28, 2022
CARL J. NICHOLS
United States District Judge
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