Fraternal Order of Police, Metropolitan Police Labor Committee v. The District of Columbia

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 12-CV-1476
FRATERNAL ORDER OF POLICE, METROPOLITAN POLICE LABOR COMMITTEE,
APPELLANT,
V.
THE DISTRICT OF COLUMBIA, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(11-CAB-6032)
(Hon. Todd E. Edelman, Trial Judge)
(Argued September 25, 2013 Decided November 7, 2013)
Barbara E. Duvall, with whom Paul A. Fenn was on the brief, for appellant.
Jason Lederstein, with whom Irvin B. Nathan, Attorney General for the
District of Columbia, Todd S. Kim, Solicitor General, and Donna M. Murasky,
Deputy Solicitor General, were on the brief, for appellee.
Before GLICKMAN and BECKWITH, Associate Judges, and NEBEKER, Senior
Judge.
GLICKMAN, Associate Judge: The Fraternal Order of Police, Metropolitan
Police Labor Committee (―FOP‖) appeals the trial court‘s partial award of
summary judgment to the District of Columbia in its civil action stemming from a
2
request under the D.C. Freedom of Information Act (―FOIA‖). FOP argues that
the court erred in (1) upholding the District‘s assertion of the deliberative process
privilege with respect to certain requested documents, (2) sanctioning an
inadequate search for responsive documents, and (3) ruling that the District‘s
response to its FOIA request was timely. For the reasons that follow, we reverse
the court‘s judgment in part and remand for further proceedings to determine the
availability of the deliberative process privilege and the adequacy of the District‘s
document search.
I. Factual and Procedural Background
On July 23, 2010, FOP made a FOIA request for all documents ―in
possession, custody, or control of the Metropolitan Police Department (MPD)‖
relating to the MPD‘s involvement with an organization known as Peaceoholics.1
1
FOP asked for the following categories of documents:
1) Any and all documents from January 1, 2007 to July
17, 2010 related or referring in any manner to the MPD
providing Peaceoholics with money, grant money or
police services that involve MPD manpower, vehicles,
facilities or any other MPD resource.
2) Any and all documents from January 1, 2007 to July
17, 2010 related or referring in any manner to
Peaceoholics requesting money, including, but not
(continued…)
3
The District had fifteen work days, or until August 13, 2010, to respond to this
request by making the records ―accessible‖ to FOP or specifying what documents
it had determined to withhold and ―the reasons therefor.‖2 On August 10, 2010,
(continued…)
limited to, grant money, from MPD or requesting police
services from MPD that involved manpower, vehicles,
facilities or any other MPD resource.
3) Any and all documents from January 1, 2007 to July
17, 2010 related or referring in any manner to any non-
overtime or overtime costs associated with the matters set
forth in Request No. 2 that were borne by MPD
personnel to fulfill Peaceoholics‘ requests.
4) Any and all e-mails and attachments sent from any
other District agencies, including, but not limited to, the
Mayor‘s office to the MPD from January 1, 2007 to July
17, 2010, requesting that MPD provide assistance of any
kind to, including, but not limited to, the provision of any
MPD resource to Peaceoholics.
5) Any and all documents from January 1, 2007 to July
17, 2010 indicating or referring in any manner to the type
of work performed, or activities engaged in, by
Peaceoholics.
6) Any and all documents from January 1, 2007 to July
17, 2010 rating or evaluating in any manner the work
performed, or activities engaged in, by Peaceoholics.
7) Any and all documents from January 1, 2007 to July
17, 2010 indicating or referring in any manner to any
awards for or achievements of Peaceoholics made by
MPD.
2
D.C. Code § 2-532 (c) (2012 Repl.).
4
however, before the District‘s response was due, FOP filed a FOIA action against
the District in Superior Court to compel it to produce the requested documents.
FOP apparently jumped the gun in the mistaken belief that the statutory deadline
for a response from the District had passed.
Three days later, the District answered FOP‘s FOIA request. It informed
FOP that 120 pages of responsive documents were available for pick up, and it
provided a so-called Vaughn index3 listing approximately 300 documents being
withheld in whole or part (the ―First Production‖). The District asserted the
deliberative process privilege as its reason for not producing many of the withheld
documents.4 A few months later, though, the District voluntarily produced all but
six of those documents (the ―Second Production‖). The District also explained that
it had looked for documents responsive to the FOIA request by searching the
electronic communications of seventeen named MPD employees (and the hard
3
A Vaughn index, first described in Vaughn v. Rosen, 484 F.2d 820 (D.C.
Cir. 1973), is composed of ―detailed indexes itemizing each item withheld, the
exemptions claimed for that item, and the reasons why the exemption applies to
that item.‖ Lykins v. Dep’t of Justice, 725 F.2d 1455, 1463 (D.C. Cir. 1984).
4
This was not the only ground the District invoked for withholding or
redacting requested records. The District also invoked the attorney-client privilege
and the personal privacy exemption. See D.C. Code § 2-534 (a)(2), (a)(4), and (e)
(2012 Repl.). Its assertion of these other grounds is not challenged in this appeal.
5
drives and paper files of two of them), using several search terms (such as
―peaceoholics and grant‖ and ―peaceoholics and evaluation‖).
Meanwhile, the District moved to dismiss FOP‘s lawsuit as having been
filed prematurely. In April 2011, the trial court granted the District‘s motion and
dismissed the FOIA action without prejudice.
FOP commenced the current action three months later by filing a new
complaint challenging the adequacy of the District‟s response to its FOIA request.
In due course, the parties filed cross motions for summary judgment. On May 1,
2012, the trial court issued an order granting each party‟s motion in part. It upheld
the District‟s invocation of the deliberative process privilege, and it rejected FOP‟s
contention that the District‟s response to its FOIA request had been untimely. But
the court partly agreed with FOP that the District had not conducted a thorough
enough search for responsive documents; although the court was not persuaded
that the District should have searched the files of additional individuals or in
additional locations, it ruled that the District had utilized unduly narrow search
terms in carrying out its search. Accordingly, though the court refused to direct the
District to expand its search in other respects, it ordered the District to look for all
6
documents containing the word “Peaceoholics” and report the results within twenty
days.5
On May 15, 2012, before the District submitted its report, FOP moved the
court to reconsider its grant of partial summary judgment to the District and asked
the court to view in camera the documents for which the District had invoked the
deliberative process privilege.6 Six days later, on May 21, 2012, the District
produced documents discovered in the expanded search that the court had ordered
(the “Third Production”), along with a supplemental Vaughn index in which the
District invoked the deliberative process privilege to withhold parts of some sixty-
two of the newly found documents. After the District thereafter filed its opposition
to FOP‟s motion for reconsideration, the trial court granted leave for FOP to reply.
5
The court‘s ruling with respect to the search terms is not at issue in this
appeal.
6
In its motion for reconsideration, FOP mistakenly identified documents
that had been turned over in the District‘s Second Production as the ones for which
the District was still claiming the privilege. On appeal, the District argues that this
mistake amounted to a waiver by FOP of its claim with respect to the six
documents the District actually continued to withhold. We disagree. From the
outset, FOP consistently protested the District‘s invocation of the deliberative
process privilege with respect to any documents and it is clear that the trial court
understood which documents still were being withheld when FOP moved for
reconsideration. Thus, we shall consider whether the District properly invoked the
privilege with respect to those documents.
7
In its reply, FOP called the court‟s attention to the Third Production and
challenged the District‟s assertion of the deliberative process privilege to shield
additional documents found in the expanded search the court had ordered.
However, on July 31, 2012, the court affirmed its earlier rulings and declined to
view any of the withheld documents in camera.
II. Analysis
Our review of a grant of summary judgment is de novo: We “conduct an
independent review of the record and apply the same substantive standard used by
the trial court.”7 We view the record in the light most favorable to the party
opposing summary judgment.8 Thus, “summary judgment is appropriate only
when there are no material facts in issue and it is clear that the movant is entitled to
judgment as a matter of law.”9
7
Murphy v. Schwankhaus, 924 A.2d 988, 991 (D.C. 2007).
8
Id.9
Carter v. District of Columbia, 980 A.2d 1217, 1222 (D.C. 2009).
8
In this appeal, FOP claims that it is entitled to summary judgment on each of
the three issues it raised in the trial court. First, FOP contends that the trial court
erred in concluding that the District properly invoked the deliberative process
privilege to shield documents from disclosure. FOP argues that the District‟s
assertion of the privilege did not suffice to demonstrate its applicability to any of
the withheld documents, and further, that it is necessary for the head of the
department with control over the information to invoke the privilege, which did not
occur in this case. Second, FOP claims that the trial court erred in ruling, after the
Third Production, that the District had conducted an adequate search for responsive
documents. FOP argues it was unreasonable for the District to limit its search to
the electronic communications of only seventeen MPD employees and the hard
drive and paper files of only two of them. Third, FOP contends that the trial court
erred in concluding that the District‟s compliance with its FOIA obligations was
timely.
The Freedom of Information Act declares it to be “[t]he public policy of the
District of Columbia . . . that all persons are entitled to full and complete
information regarding the affairs of government and the official acts of those who
9
represent them as public officials and employees.”10 To that end, FOIA‟s
provisions are to “be construed with the view toward expansion of public access
and the minimization of costs and time delays to persons requesting information.”11
As we have noted before, this strong policy of disclosure is the reason FOIA “not
only places the burden on the administrative agency „to sustain its action,‟ but also
authorizes this court to review the agency‟s withholding of requested FOIA
information de novo.”12 Therefore, “the provisions of the Act giving citizens the
right of access are to be generously construed, while the statutory exemptions from
disclosure are to be narrowly construed, with ambiguities resolved in favor of
disclosure.”13 Because many provisions of the D.C. FOIA mirror provisions in the
federal Freedom of Information Act,14 we have found case law interpreting the
federal FOIA to be “instructive authority with respect to our own Act.” 15
10
D.C. Code § 2-531 (2012 Repl.).
11
Id.12
Padou v. District of Columbia, 29 A.3d 973, 980 (D.C. 2011) (citing D.C.
Code § 2–537 (b) (2012 Repl.)).
13
Riley v. Fenty, 7 A.3d 1014, 1018 (D.C. 2010) (internal quotation marks
omitted).
14
See 5 U.S.C. § 552 (2013).
15
Doe v. District of Columbia Metro. Police Dep’t, 948 A.2d 1210, 1220
(D.C. 2008).
10
A. The Deliberative Process Privilege
The D.C. FOIA lists fourteen categories of documents that may be exempt
from disclosure.16 Exemption 4 shields “[i]nter-agency or intra-agency
memorandums or letters, including memorandums or letters generated or received
by the staff or members of the Council, which would not be available by law to a
party other than a public body in litigation with the public body.”17 Explicitly
encompassed by that exemption are documents within the deliberative process
privilege.18
FOP challenges the District‟s invocation of the deliberative process privilege
with respect to both the six documents the District withheld from its First and
Second Productions and the additional, belatedly discovered documents it withheld
16
See D.C. Code § 2-534 (2012 Repl.).
17
Id. § 2-534 (a)(4). This exemption is substantively equivalent to
―Exemption 5‖ in the federal FOIA. See 5 U.S.C. § 552 (b)(5) (exempting ―inter-
agency or intra-agency memorandums or letters which would not be available by
law to a party other than an agency in litigation with the agency‖).
18
D.C. Code § 2-534 (e) (―The deliberative process privilege . . . [is]
incorporated under the inter-agency memoranda exemption listed in subsection
(a)(4) of this section.‖).
11
from its Third Production. Although the District contends that its claim of
privilege in connection with the Third Production is not properly before this court,
we disagree. FOP objected promptly to that claim of privilege in the reply brief it
filed in support of its motion for reconsideration, and the trial court specifically
addressed the objection by stating in its order denying reconsideration that the
District‟s invocation of the deliberative process privilege in connection with the
Third Production “appear[ed] adequate.” FOP noted a timely appeal from that
order. Even if FOP might have followed a different procedural route in the trial
court to attack the District‟s claim of privilege, we do not perceive that the District
has been prejudiced by FOP‟s failure to proceed differently or that the District will
be prejudiced by our consideration of the issue in this appeal.
The deliberative process privilege “shelters documents reflecting advisory
opinions, recommendations and deliberations comprising part of a process by
which governmental decisions and policies are formulated.”19 To qualify under
this privilege, “information must be both „predecisional‟ and „deliberative.‟”20 “A
document is „predecisional‟ if it was prepared in order to assist an agency decision
19
Petroleum Info. Corp. v. Dep’t of Interior, 976 F.2d 1429, 1433 (D.C.
Cir. 1992) (internal quotations omitted).
20
Id.12
maker in arriving at his decision rather than to support a decision already made,
and material is „deliberative‟ if it reflects the give-and-take of the consultative
process.”21 “To ascertain whether the documents at issue are predecisional, the
court must first be able to pinpoint an agency decision or policy to which these
documents contributed.”22 In ascertaining whether the documents are deliberative,
the “key question . . . is whether disclosure of the information would discourage
candid discussion within the agency.”23 As a rule, to be deliberative, the document
must “reflect the personal opinions of the writer rather than the policy of the
agency.”24 Generally speaking, therefore, “[f]actual material that does not reveal
the deliberative process is not protected” by the privilege or the associated FOIA
exemption.25 Thus, “when material could not reasonably be said to reveal an
21
Id. (internal citations omitted).
22
Morley v. CIA, 508 F.3d 1108, 1127 (D.C. Cir. 2007) (internal quotation
marks and brackets omitted).
23
Access Reports v. Dep’t of Justice, 926 F.2d 1192, 1195 (D.C. Cir. 1991).
24
Morley, 508 F.3d at 1127 (internal quotation marks omitted). This
requirement prevents an agency from developing ―a body of secret law,‖ which
dictates the actions of the agency but is hidden from the public ―behind a veil of
privilege because it is not designated as ‗formal,‘ ‗binding,‘ or ‗final.‘‖ Coastal
States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 867 (D.C. Cir. 1980).
25
Morley, 508 F.3d at 1127 (internal quotation marks omitted). Courts
have recognized, however, that ―[i]n some circumstances . . . the disclosure of even
(continued…)
13
agency‟s or official‟s mode of formulating or exercising policy-implicating
judgment, the deliberative process privilege is inapplicable.”26
When putting forth its reasons for claiming that specific documents are
exempt, a government agency must do so in a manner that “permit[s] adequate
adversary testing of the agency‟s claimed right to an exemption, and enable[s] the
[trial] [c]ourt to make a rational decision whether the withheld material must be
produced without actually viewing the documents themselves . . . [and] without
thwarting the [claimed] exemption‟s purpose.”27 The burden is on agencies
withholding information to “supply the courts with sufficient information to allow
[them] to make a reasoned determination that they were correct.”28 Summary
judgment is appropriate if an agency‟s submission “describe[s] the documents and
the justifications for nondisclosure with reasonably specific detail, demonstrate[s]
(continued…)
purely factual material may so expose the deliberative process within an agency
that it must be deemed exempted.‖ Mead Data Cent., Inc. v. Dep’t of Air Force,
566 F.2d 242, 256 (D.C. Cir. 1977).
26
Petroleum Info., 976 F.2d at 1435.
27
King v. United States Dep’t of Justice, 830 F.2d 210, 218 (D.C. Cir.
1987).
28
Coastal States, 617 F.2d at 861.
14
that the information withheld logically falls within the claimed exemption, and [is]
not controverted by either contrary evidence in the record nor by evidence of
agency bad faith.”29
The six documents that the District withheld from the First and Second
Production by invoking the deliberative process privilege were listed as numbers
413 to 418 in the Vaughn index for those productions. The index stated only that
the six documents constitute an email “chain” that “[d]etails internal grant review
process” and “reveals internal deliberative process.”30 However, in support of its
motion for summary judgment, the District also relied on a declaration under
penalty of perjury made by Leeann Turner, the Executive Director for the
Corporate Support Bureau of MPD. Turner‟s declaration states that documents
413 to 418 are emails “that constitute a discussion among District employees at
29
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see
also Carney v. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir. 1994) (―In order to
justify discovery once the agency has satisfied its burden, the plaintiff must make a
showing of bad faith on the part of the agency sufficient to impugn the agency‘s
affidavits or declarations, or provide some tangible evidence that an exemption
claimed by the agency should not apply or summary judgment is otherwise
inappropriate.‖) (internal citations omitted).
30
The authors of the emails were identified as Leeann Turner of the MPD
and two named individuals in the Executive Office of the Mayor. The recipients
were identified as Turner and Chief of Police Cathy Lanier.
15
MPD and the Executive Office of the Mayor, pertaining to the allocation of grant
money.” The declaration explains that “the E-mails regarding a grant proposal
made to MPD by [a non-profit organization for which Peaceoholics acts as a
fiduciary agent] . . . reflect deliberations regarding [the] proposal, whether MPD
should approve the grant, and what additional information was needed to assist
MPD in that determination.”
An agency declaration submitted in response to a FOIA request is accorded
a presumption of good faith that is not overcome by speculative or conclusory
objections.31 FOP argues that the declaration is substantively deficient, but we
disagree. While Turner‟s description of the six emails is brief, it supplied the court
with specific enough information as to “what the agency is refusing to produce and
why” for the court to assess the applicability of the claimed exemption from
disclosure.32 Requiring the District to furnish more information regarding the
content of the emails would risk undermining the exemption. We further hold that
Turner‟s declaration established that the District properly invoked the deliberative
process privilege to withhold documents 413 to 418. The declaration confirms that
31
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991).
32
Fidducia v. Dep’t of Justice, 185 F.3d 1035, 1042 (9th Cir. 1999).
16
the emails were both predecisional, in that the offices involved had not yet decided
whether to approve the proposed grant, and deliberative, in that the emails evinced
the process through which the employees consulted about whether the proposal
should be approved.33
Nor do we agree with FOP that the Turner declaration is insufficient because
only a department head with control over the information in question may invoke
the deliberative process privilege. FOP points to no FOIA case in which any court
has held this; it relies on the authority requiring a department head to assert the
privilege to resist discovery in civil litigation.34 But as the United States District
Court for the District of Columbia has said, “although the deliberative process
33
There is no dispute that an agency decision whether to approve a grant
proposal is the sort of activity to which the deliberative process privilege may
apply. See, e.g., AIDS Healthcare Found. v. Leavitt, 256 F. App‘x 954 (9th Cir.
2007) (records concerning agency review of grant application held exempt from
applicant‘s FOIA request under deliberative process privilege); Casad v. Dep’t of
Health & Human Servs., 301 F.3d 1247 (10th Cir. 2002) (material that reflected
scientific review group‘s thoughts and conclusions about grant applications exempt
from disclosure under the deliberative process privilege); Weinstein v. Dep’t of
Health & Human Servs., 977 F. Supp. 41 (D.D.C. 1997) (reports by scientists
concerning potential funding of scientific research through competitive grant
exempt from disclosure under the deliberative process privilege).
34
See, e.g., Landry v. Federal Deposit Ins. Corp., 204 F.3d 1125, 1135-36
(2000); Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 405 n.11
(D.C. Cir. 1984).
17
privilege requires invocation by a high-level agency official in civil discovery, no
court has ever indicated that such an official must make the determination that a
document comes within [the FOIA exemption incorporating the deliberative
process privilege], and . . . courts routinely accept a declaration from an employee
at the agency other than a high level official as documentation of [a] deliberative
process claim” in FOIA cases.35
In Federal Trade Commission v. Grolier Inc.,36 the Supreme Court rejected
the premise that invocation of the FOIA exemption for privileged documents—the
exemption at issue in this case—is subject to the same rules that would govern
assertion of the privilege at issue in civil discovery. FOIA, the Court explained,
allows the government to withhold all documents that are “normally” privileged in
the civil discovery context, and hence are not “routinely” available to litigants on a
mere showing of relevance, regardless of whether a particular private litigant in a
civil case would be able to overcome the governmental assertion of privilege (for
35
Lardner v. United States, No. 03-0180, 2005 U.S. Dist. LEXIS 5465, at
*28 (D.D.C. Mar. 31, 2005) (citations omitted).
36
462 U.S. 19 (1983).
18
example, because the private litigant‟s need for the document outweighs the
government‟s need to withhold it).37
In Lardner, the district court observed that the principles articulated in
Grolier “create a divide between the rules of FOIA and civil discovery.”38 The
procedural requirements for asserting a governmental privilege in civil discovery
thus do not “automatically carry over” into the FOIA context.39 And the district
court identified several reasons for not importing into FOIA litigation the civil
discovery requirement that a high-level agency official assert the government‟s
privilege. First, both in general and with respect to the deliberative process
privilege in particular, the applicability of a FOIA exemption depends on “the
content or nature” of the document sought and not on “the manner in which the
exemption is raised.”40 The exemption for documents that are “normally”
privileged is meant to be “interpreted in a manner that produces categorical and
37
Id. at 26, 28 (―It is not difficult to imagine litigation in which one party‘s
need for otherwise privileged documents would be sufficient to override the
privilege but that does not remove the documents from the category of the
normally privileged.‖).
38
Lardner, 2005 U.S. Dist. LEXIS 5465, at *19.
39
Id. at *21.
40
Id. at *23.
19
easily applied rules”—a goal that would be thwarted if the availability of the
exemption depended on the particular agency employee who invoked it or how the
employee did so.41
In addition, the district court pointed out the “critical difference between the
government‟s invocation of a privilege in civil discovery and its decision to
withhold documents under FOIA.”42 The former is “an act of resistance to the
disclosure of information in a judicial proceeding” that requires the court to
balance the private litigant‟s need for the information against the government‟s
prerogatives and interests.43 Where that is the case, it makes sense to require a
responsible government official to evaluate the strength of the government‟s need
to withhold information and make the decision whether to assert the privilege. But
no such judicial balancing or sensitive evaluation is called for when the
government invokes a FOIA exemption based merely on “a determination that a
statutory provision protects the documents from disclosure.”44 Further, the district
41
Id. at *23, *25-26.
42
Id. at *26.
43
Id.44
Id. at *27.
20
court noted, nothing in FOIA‟s text or legislative history suggests that Congress
intended that the decision to withhold documents under a statutory exemption
would need to be made personally by the head of the agency or other senior
official. And the burden of such a requirement, if it were to be imposed, would be
considerable, with little benefit to show for it.
For these reasons, the district court concluded in Lardner that FOIA does not
require a department head or other senior official to invoke the government‟s
privilege in order for an agency to shield documents from disclosure. We agree
with the court‟s analysis and find it to be equally applicable to Exemption 4 of the
D.C. FOIA and the District‟s invocation of the deliberative process privilege. We
hold that the District did not need to submit the affidavit or declaration of a
department head or other high-level official in order to claim the deliberative
process privilege against disclosure in this case. Leeann Turner‟s declaration
sufficed to enable the District to invoke the privilege with respect to documents
413 to 418.
The Turner declaration did not address any of the documents withheld from
the Third Production, however. Although the District asserted the deliberative
process privilege in a supplemental Vaughn index to withhold some documents
21
from that production, it did not provide an affidavit or declaration to explain why
those documents were within the privilege. This omission was not necessarily
fatal. The District can satisfy its burden to provide “a sufficiently detailed
description of what it is refusing to produce and why” by including all the
necessary information in a Vaughn index alone.45 When the District opts to rely on
its Vaughn indexes, though, the index must supply enough information to enable
the court to assess whether the District properly invoked the privilege.
The Vaughn index accompanying the Third Production has ten entries that
claim the deliberative process privilege for a total of sixty-two documents (each
entry covers more than one document). The entries identify the documents by
number, date, time (e.g., “11:36 a.m.”), sender, recipients, subject matter, and
reason for withholding. The subject matter of seventeen of the documents is said
to be “Request from Wash. Post about Peaceoholics.” The subject matter of the
other forty-five documents is said to be “Peaceoholics and DCPS//Deadline
Today.” The same reason is given for redacting all sixty-two of the documents:
“Pre-decisional discussion re potential response to reporter‟s inquiry concerning
Peaceholics.” No further substantive information is provided about the documents.
45
Fiduccia v. Dep’t of Justice, 185 F.3d 1035, 1042 (9th Cir. 1999).
22
In denying FOP‟s motion for reconsideration, the trial court did not address
in detail the sufficiency of the District‟s explanation for asserting the deliberative
process privilege with respect to these sixty-two documents. In our view, however,
the assertion that all the redacted material in these documents involved a pre-
decisional discussion about a potential response to a reporter‟s inquiry concerning
Peaceoholics is too cryptic and unenlightening to enable the court to assess the
propriety of the District‟s decision to withhold the material. The conclusory
characterization of the redacted material does not confirm that it actually was
“prepared in order to assist an agency decision maker in arriving at his decision”46
and “recommendatory in nature”47 or reflective of the participants‟ opinions and
the give-and-take of a consultative process.48 It is entirely possible, for example,
that the withheld material merely consists of factual information about the MPD‟s
involvement with Peaceoholics collected for the purpose of transmitting it to the
inquiring reporter, or a recitation of internal MPD guidelines for responding to the
46
Petroleum Info. Corp. v. Dep’t of Interior, 976 F.2d 1429, 1433 (D.C.
Cir. 1992).
47
Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 868 (D.C.
Cir. 1980).
48
Petroleum Info., 976 F.2d at 1433; Coastal States, 617 F.2d at 867.
23
press.49 We are compelled to conclude that a genuine issue of material fact
remains as to whether the District properly invoked the deliberative process
privilege to redact documents in the Third Production. Accordingly, we reverse
the grant of summary judgment in favor of the District on this issue and remand the
case to the trial court, where the District either must support its non-disclosure
adequately or disclose the withheld material.
FOP has requested in camera review of the withheld documents by both the
trial court and this court. The decision to conduct in camera review is
discretionary.50 Conducting such a review is burdensome for the courts; adequate
affidavits or Vaughn indexes supporting the claim to exemptions are designed, in
part, to alleviate such a potential burden. Having found the Turner declaration
49
One set of partially redacted documents is an email chain generated in
response to a reporter‘s request for specific factual information—namely,
confirmation of statistics published in Peaceoholics‘ annual report regarding the
number of ―crews‖ identified in schools by Peaceoholics and the number of
conflicts Peaceoholics mediated in the previous year. It seems unlikely that such a
request would generate the sort of opinion or other comment protected from
disclosure under the deliberative process privilege.
50
See Vaughn v. Rosen, 484 F.2d 820, 825 (D.C. Cir. 1973) (―In an effort to
compensate, the trial court, as the trier of fact, may and often does examine the
document in camera to determine whether the Government has properly
characterized the information as exempt. Such an examination, however, may be
very burdensome.‖).
24
sufficient to support the District‟s invocation of the deliberative process privilege
with respect to documents 413 to 418, we deem it unnecessary to examine those
documents in camera ourselves or to require the trial court to do so. As to the
documentary material withheld from the Third Production, it will be up to the trial
court on remand to decide whether in camera review would be appropriate.
B. The Adequacy of the Government’s Search
An agency‟s search conducted in response to a FOIA request “need not be
perfect, only adequate, and adequacy is measured by the reasonableness of the
effort in light of the specific request.”51 In order to prevail on a motion for
summary judgment, 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.”52 The burden is on the agency to
establish “through reasonably detailed affidavits that its search was reasonable.”53
It is not enough for an affidavit merely to state in conclusory terms that the
51
Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir. 1986).
52
Doe v. District of Columbia Metro. Police Dep’t, 948 A.2d 1210, 1220
(D.C. 2008) (internal quotation marks omitted).
53
Maynard v. CIA, 986 F.2d 547, 560 (1st Cir. 1993).
25
locations searched were “most likely to contain the information which had been
requested”; rather, the affidavit must demonstrate “with reasonable detail, that the
search method . . . was reasonably calculated to uncover all relevant documents.”54
If the agency meets its burden, the FOIA requester can prevail in a motion
for summary judgment only by showing that the agency‟s search was not made in
good faith.55 “Purely speculative claims about the existence and discoverability of
other documents” are not sufficient to rebut the presumption of good faith
accorded to an agency affidavit.56 On the other hand, if the agency fails to meet its
54
Doe, 948 A.2d at 1221. ―At the same time,‖ we have emphasized,
there is no requirement that an agency search every
record system, and a search is not presumed unreasonable
simply because it fails to produce all relevant material.
Nor need an agency demonstrate that all responsive
documents were found and that no other relevant
documents could possibly exist, and an agency‘s failure
to turn up specific documents does not undermine the
determination that it conducted an adequate search for
the requested documents.
Id. at 1221 n.19 (internal quotation marks, brackets, and citations omitted).
55
Maynard, 986 F.2d at 560.
56
Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)
(internal quotation marks omitted).
26
burden, a FOIA requester may prevail on a motion for summary judgment “merely
by showing that the agency might have discovered a responsive document had the
agency conducted a reasonable search.”57
The search in this case encompassed the electronic communications of
seventeen MPD employees and the paper files and hard drives of two of them.
FOP argues that the District should have searched the electronic correspondence of
at least eleven more individuals, some of whom work not for the MPD but in the
Executive Office of the Mayor, and the hard-copy files of all seventeen individuals
whose electronic correspondence was searched. FOP states that it has a “good
faith belief” that these additional individuals possess responsive documents based
on the fact that they are identified in the documents that have so far been produced.
In support of the adequacy of its search, the District submitted two
declarations under penalty of perjury by Ms. Natasha Cenatus. Cenatus identified
herself as the D.C. Freedom of Information Act Specialist (or “Officer”) for the
MPD. She averred that, upon receiving FOP‟s FOIA request, she arranged for the
Office of the Chief Technology Officer to search “all MPD electronic
57
Id.27
correspondence, including data . . . stored on District computer servers,” of
seventeen named MPD employees. Cenatus said she had selected “these particular
custodians based on [her] determination that they were—by virtue of their
positions, titles and responsibilities—the individuals within MPD most likely to
possess electronic communications responsive to” FOP‟s FOIA request.58
In addition, Cenatus stated that she forwarded the FOIA request to the
departments within MPD that would “most likely have” responsive documents.
“Those departments,” she said, “included the Office of Resource Accountability of
the Executive Office of the Chief of Police and the Grants Unit in the Office of
Fiscal Accountability of the Executive Office of the Chief of Police.” Her
declarations do not name the other departments that received the FOIA request.
Cenatus was aware of “only two individuals” who conducted a further search as a
result of this transmittal.59 One of them was Leeann Turner, who (according to
58
Cenatus specified the several search terms that she directed be used for
the electronic search, such as ―‗peaceoholics‘ AND ‗grant‘‖; as previously
mentioned, the adequacy of the search terms is not at issue in this appeal.
59
Cenatus added that ―other staff may have been involved in the searches
within those departments.‖ This indicates that Cenatus lacked knowledge as to
whether or how searches were conducted in response to her transmittal of the
FOIA request to the departments she thought ―mostly likely‖ to possess responsive
documents, or why searches may not have been conducted in some departments or
by other recipients.
28
Cenatus) reported that she had searched for documents responsive to the FOIA
request in her electronic files, her computer hard drive, and the paper files in her
office and file cabinets.60 The other, Janice Sullivan, reported to Cenatus that she
had conducted a comparable search. (Sullivan did not provide a declaration.)
Cenatus averred that Sullivan was “the single employee within MPD responsible
for acting as the point of contact concerning all grants to the Peaecoholics. As a
result of these responsibilities, Sullivan was the only MPD employee likely to
maintain hard copy records responsive to [FOP‟s] FOIA request.”61
In our view, the District did not meet its burden of establishing that it
conducted a search “reasonably calculated to uncover all relevant documents.”62
The stumbling block is that the Cenatus declarations do not enable a judicial arbiter
to evaluate whether the search was, in fact, reasonably comprehensive. Even
60
Cenatus did not specify the department or office with which Turner was
associated. Turner stated in her own declaration (discussed earlier in this opinion
in connection with the District‘s assertion of the deliberative process privilege) that
she was a former Executive Director for the Office of Resource Accountability, but
she did not make clear whether she occupied that position at any time relevant to
the FOIA request. It should be noted that Turner‘s declaration did not even
mention her search for documents.
61
Cenatus‘s declaration did not specify (and the record does not otherwise
reveal) Sullivan‘s position either.
62
Rein v. Patent & Trademark Office, 553 F.3d 353, 362 (4th Cir. 2009).
29
accepting the somewhat conclusory assertion that Sullivan was the “only”
employee likely to have hard copies of documents responsive to the FOIA
request—though we think it would be necessary to know more about her role in the
activities covered by the request to be confident of that assertion—the declarations
do not come close to justifying the choices made and the limitations imposed on
the search for electronic communications. Because the declarations do not disclose
anything about the “positions, titles, and responsibilities” of the other sixteen
named MPD employees, a judge has no way of knowing whether they were in fact
“most likely” (or likely at all) to have responsive documents, or whether other
MPD employees should have been added to the search list. Similarly, it is unclear
from the declarations whether any MPD offices other than the two Cenatus
identified were likely to have relevant documents or, if so, whether other offices
were searched.63 Indeed, it even is unclear how thoroughly the two named offices
were searched.
Because the District has not met its burden, FOP needs to show only that the
District “might have discovered a responsive document had [the District]
63
Cf. Doe v. District of Columbia Metro. Police Dep’t, 948 A.2d 1210,
1221 (D.C. 2008) (―At the very least, the agency is required to explain in its
affidavit that no other record system was likely to produce responsive
documents.‖) (internal quotation marks and brackets omitted).
30
conducted a reasonable search” in order to defeat the District‟s motion for
summary judgment.64 FOP has made this showing; it has demonstrated that there
are other MPD employees who may possess responsive documents, namely, the
employees (whose electronic communications were not searched) referenced in the
documents the District did produce.
This is not to say that the District now must conduct the precise search that
FOP demands in order to fulfill its obligation to perform an adequate search. For
one thing, the fact that the District should not have been awarded summary
judgment with respect to the sufficiency of its search does not mean FOP was
entitled to judgment on that issue. If the District, on remand, supplements the
Cenatus declarations with a sufficiently detailed declaration, it may yet be able to
establish that its previous searches were adequate and that no further search is
necessary. Even if further searching is required, the District is not necessarily
obliged to search the files of the specific MPD employees that FOP has identified
as possibly having responsive documents.65 That certain individuals are referenced
64
Maynard v. CIA, 986 F.2d 547, 560 (1st Cir. 1993).
65
Nor is the District obligated to search the files of persons in the Executive
Office of the Mayor, as FOP asserts, even if it is likely such persons do have
relevant documents. The FOIA request asked only for ―documents and
information in the possession, custody, or control of the Metropolitan Police
(continued…)
31
in responsive documents found in the District‟s previous searches does not
automatically mean the District must search their files too, “following an
interminable trail of cross-referenced documents.”66 However, the District cannot
claim that its search is adequate by ignoring evidence that suggests otherwise.67 If
the results of an initial search contain “leads” indicating that additional responsive
documents are likely to be found in another location, those leads must be followed.
Such “leads” change the agency‟s, and the court‟s, assessment of what is
reasonable; “[c]onsequently, the court evaluates 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.”68 This does not mean that the District will be
put to a never-ending series of searches or that it must proceed beyond the point of
diminishing returns.69 Once it has met its burden of demonstrating that it
(continued…)
Department.‖ If FOP wants to request documents from other agencies or
departments of the District of Columbia Government, it is free to do so.
66
Steinberg v. Dep’t of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994).
67
See Valencia-Lucena v. United States Coast Guard, FOIA/PA Records
Management, 180 F.3d 321, 327 (D.C. Cir. 1999) (―[I]t is well-settled that if an
agency has reason to know that certain places may contain responsive documents,
it is obligated under FOIA to search barring an undue burden.‖).
68
Campbell v. Dep’t of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998).
69
Id.(continued…)
32
performed a search reasonably calculated to uncover all responsive documents, the
District will not be “required to chase rabbit trails that may appear in documents
uncovered during their search.”70 At that point, the District will be entitled to
prevail on summary judgment unless FOP can show that the search was not carried
out in good faith.
C. Timeliness of the District’s FOIA Response
Finally, FOP argues that it was entitled to summary judgment on its claim
that the District failed to produce documents responsive to its FOIA request in a
timely fashion. It is less than clear what effect such a judicial declaration would
have in this case, since the only consequence provided in FOIA for an agency‟s
failure to comply with the Act‟s time provisions is that the request is deemed to
have been denied and the requestor is deemed to have exhausted his administrative
remedies (a prerequisite to seeking judicial relief to compel agency action).71 We
need not explore this question further, however, because we are satisfied that the
(continued…)
70
Rein v. Patent & Trademark Office, 553 F.3d 353, 365 (4th Cir. 2009).
71
See D.C. Code § 2-532 (e) (2012 Repl.).
33
trial court correctly ruled that the District complied with the time deadline in the
D.C. FOIA.
The Act provides that a public body upon receiving a request for any public
record “shall within 15 days (except Saturdays, Sundays, and legal public holidays)
. . . either make the requested public record accessible or notify the person making
such request of its determination not to make the requested public record or any
part thereof accessible and the reasons therefor.”72 In the present case, the District
received FOP‟s request on July 23, 2010. It therefore had until August 13, 2010, to
respond as FOIA required. The District met that deadline by producing on that
date all the documents in its possession that it deemed to be responsive to FOP‟s
request and non-exempt along with a Vaughn index identifying all the responsive
documents it had determined to withhold and its reasons for doing so.
It is true, as FOP points out, that the District produced additional responsive
documents in its Second and Third Productions (as well as a supplemental Vaughn
index to additional documents withheld in whole or part from the latter production)
after the statutory fifteen-day deadline had passed. FOP argues that these
72
D.C. Code § 2-532 (c) (2012 Repl.). The fifteen-day time limit may be
extended by up to ten days in ―unusual circumstances.‖ Id. § 2-532 (d).
34
subsequent productions were untimely. We agree with the trial court that “[t]his
argument conflates the statutory requirements of timeliness and sufficiency.”
Where the District has responded in good faith to a FOIA request within the time
prescribed by the statute, enabling the requestor to seek relief in court for any
perceived deficiencies such as the inadequacy of the agency‟s search for
responsive documents or the unavailability of a claimed exemption, we think the
principal purpose of the statutory deadline has been accomplished and the District
has complied with its duty to make a timely response. That the District later
discloses more responsive documents, either voluntarily or pursuant to court order,
does not mean it has disregarded the Act‟s time provisions.73
III. Conclusion
We affirm the trial court‟s grant of partial summary judgment in favor of the
District on the issues of its assertion of the deliberative process privilege to
withhold documents 413 to 418 and the timeliness of its compliance with the time
73
Cf. Ctr. for Biological Diversity v. Gutierrez, 451 F. Supp. 2d 57, 70
(D.D.C. 2006) (―Despite its full plate, NMFS responded to the Center‘s most
recent request, Request 594, within 20 days; the fact that further documents were
later released as they were identified as responsive to that request demonstrates not
dilatory conduct but the serious attention NMFS gives to its FOIA obligations.‖).
35
provisions of FOIA. We vacate the grant of partial summary judgment in favor of
the District with respect to the adequacy of its search for responsive documents and
its invocation of the deliberative process privilege to justify its redaction of
documents in the Third Production. We remand the case to the trial court for
further proceedings in accordance with our opinion.
So ordered.