Toensing v. U.S. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
VICTORIA TOENSING and
JOSEPH E. DIGENOVA,
Plaintiffs,
v. Civil Action No. 11-1215 (BAH)
U.S. DEPARTMENT OF JUSTICE, Judge Beryl A. Howell
Defendant.
MEMORANDUM OPINION
Plaintiffs Victoria Toensing and Joseph diGenova bring this action against the United
States Department of Justice (“DOJ”) under the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552 et seq., seeking injunctive relief. The plaintiffs seek agency records relating to a criminal
investigation performed by the United States Attorneys’ Office for the District of Delaware
(“Delaware USAO”) in which the plaintiffs were subpoenaed to testify before a grand jury.
Pending before the Court are cross-motions for summary judgment pursuant to Federal Rule of
Civil Procedure 56. For the reasons discussed below, the Court grants in part and denies in part
the Defendant’s Motion for Summary Judgment, ECF No. 11, and denies the Plaintiffs’ Cross-
Motion for Summary Judgment, ECF No. 15.
I. BACKGROUND
Before discussing the FOIA requests at issue, the Court will provide some background
regarding the events giving rise to the Delaware USAO investigation and the plaintiffs’
involvement in that investigation.
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A. Grand Jury Subpoenas and Alleged Tape Recordings
The plaintiffs are two attorneys who are married to each other and operate a small,
private law practice. Decl. of Victoria Toensing (“Toensing Decl.”) ¶¶ 4–5, ECF No. 15-3; Decl
of Joseph E. diGenova (“diGenova Decl.”) ¶¶ 4–5, ECF No. 15-4. Beginning in September 2000
the plaintiffs represented the Executive of New Castle County, Delaware, Thomas Gordon, in
legal proceedings related to an investigation of misuse of government funds conducted by the
Delaware Attorney General. Toensing Decl. ¶ 6; Compl. ¶ 12, ECF No. 1. Sherry Freebery, a
New Castle County administrative officer, was also being investigated, and she retained an
attorney named Hamilton P. Fox, III, as legal counsel. Compl. ¶ 13. Later, from January to
March of 2002, Gordon and Freebery retained the services of the law firm Kirkland & Ellis
(“Kirkland”) in a related matter, and the plaintiffs attended a meeting with the Kirkland lawyers
“to ensure the lawyers understood what had occurred in 2000.” Toensing Decl. ¶¶ 10–12. 1
In September 2002, the U.S. Attorney for the District of Delaware, Colm Connolly,
opened an investigation directed at Gordon, Freebery, and others for misuse of public funds, and
as a part of that investigation Mr. Connolly subpoenaed New Castle County for a number of
documents. Compl. ¶ 17; Toensing Decl. ¶ 14. The plaintiffs were also both subpoenaed as a
part of this investigation in November 2003. Toensing Decl. ¶ 44. These subpoenas requested
both testimony and documents on the part of the plaintiffs and were “limited to the retention of
defamation counsel on behalf of [New Castle] County.” Id. (internal quotation marks omitted).
The plaintiffs moved to quash the subpoenas—an effort that lasted several months and included
1
There is a discrepancy between the Complaint and the Toensing Declaration regarding how many meetings the
plaintiffs attended with the Kirkland lawyers. The Complaint states that it was two meetings, see Compl. ¶ 15,
while the Toensing Declaration states that it was only one meeting, see Toensing Declaration ¶ 12. This discrepancy
is immaterial to the resolution of the issues pending before the Court.
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an appeal to the Third Circuit—and eventually the subpoenas were vacated as moot by the
district court. See id. ¶¶ 47–48, 50.
The plaintiffs allege that, during the New Castle County investigation, Mr. Connolly
engaged in various acts of prosecutorial misconduct, including making false statements in court
filings and otherwise, id. ¶¶ 21, 43, 49, 52, 55, violating DOJ guidelines, id. ¶ 45, blackmailing a
material witness to obtain favorable testimony, id. ¶ 41, and conspiring to disqualify the
plaintiffs as counsel to Mr. Gordon by secretly recording planned conversations between Ms.
Toensing and a New Castle County employee, id. ¶¶ 24–28. Most relevant in this action are
these alleged secret recordings. According to the plaintiffs, Mr. Connolly sent a New Castle
County employee named Shawn Tucker to speak with Ms. Toensing while wearing a hidden
recording device. Id. ¶ 28. The alleged purpose of this conversation was to induce Ms. Toensing
to speak with Mr. Tucker regarding the investigation, even though Mr. Tucker was represented
by counsel and thus speaking with him would have been grounds to disqualify Ms. Toensing. Id.¶¶ 25–26, 28. Ms. Toensing firmly believes that she was tape-recorded during this encounter,
based primarily on a similar incident that occurred wherein Hamilton Fox was tape-recorded by
Mr. Tucker during a meeting with New Castle County employees, allegedly at the behest of Mr.
Connelly. See id. ¶¶ 24, 27; Decl. of Hamilton P. Fox (“Fox Decl.”) ¶¶ 6–8, ECF No. 15-5. The
plaintiffs further believe that Mr. Connolly’s “legal maneuverings” were “for the sole purpose of
getting rid of experienced counsel and investigator.” Pls.’ Mem. of P. & A. in Supp. Cross-Mot.
Summ. J. & Opp’n Def.’s Mot. Summ. J. (“Pls.’ Mem.”) at 9, ECF No. 15-2.
B. FOIA Requests
Over the course of nearly three and a half years from June 2007 to December 2010, the
plaintiffs submitted a total of eight FOIA requests to three separate subcomponents of the
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Department of Justice: the Executive Office of the United States Attorney (“EOUSA”), the
Criminal Division of the DOJ (“Criminal Division”), and the Federal Bureau of Investigation
(“FBI”). Only three of these requests are formally at issue in the instant action.
1. Plaintiffs’ First and Second FOIA Requests (“2007 Requests”)
On June 19, 2007, the plaintiffs submitted identical FOIA requests to the EOUSA and the
Criminal Division, which sought “all documents collected, accumulated and/or maintained” by
the subcomponents regarding:
• The subpoena of Joseph diGenova and/or Victoria Toensing to testify against
their client, Thomas P. Gordon, including but not limited to all memoranda
related to such requests and meeting notes;
• All responses and internal memoranda regarding such requests to subpoena
diGenova and/or Toensing, including e-mails and any other electronic
communication; and
• All calendar entries regarding requests or decisions to subpoena diGenova
and/or Toensing.
See Decl. of John F. Boseker (“First Boseker Decl.”) ¶ 6, Ex. A (Jan. 23, 2012 ), ECF No. 12-1;
Decl. of John E. Cunningham III (“Cunningham Decl.”) ¶ 4, Ex. A, ECF No. 12-2. The EOUSA
forwarded the EOUSA request (the “2007 EOUSA request”) to the Delaware USAO, where Mr.
Connolly and administrative officer Theresa Jordon conducted a search for responsive records
(the “2007 EOUSA search”). See Decl. of Theresa A. Jordan (“Jordan Decl.”) ¶ 4, ECF No. 11-
5. The search performed by Connolly and Jordan returned 675 pages of responsive records, 306
of which were eventually released to the plaintiffs between February and May 2008; the
remainder were withheld in their entirety under FOIA Exemptions (b)(3), (b)(5), and/or
(b)(7)(C). First Boseker Decl. ¶¶ 10, 12. The plaintiffs were informed that they could
administratively appeal the agency’s decision to withhold documents to the DOJ’s Office of
Information and Privacy (“OIP”) within 60 days of being notified of the decision, but the
plaintiffs did not do so. Id. ¶¶ 11, 13. A January 9, 2008 memorandum from Mr. Connolly to
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Gary Stewart, an Assistant Director at the EOUSA, however, indicated that, in conducting the
2007 EOUSA search, he was instructed by the EOUSA not to forward six categories of
documents in response to the plaintiffs’ request. 2 See Decl. of Jamie M. McCall (“First McCall
Decl.”) ¶ 2 (Jan. 23, 2012), ECF No. 11-6
The Criminal Division also conducted a search in response to the 2007 FOIA request and
uncovered twelve responsive records, eight of which were released in full and four of which
were withheld under FOIA Exemptions (b)(5), (b)(6), and/or (b)(7)(C). Cunningham Decl. ¶ 6.
Additionally, the Criminal Division located 410 pages of responsive documents that had
originated with the EOUSA, and those documents were referred to the EOUSA for review. See
First Boseker Decl. ¶¶ 23–24. Of those 410 pages, 18 pages were released to the plaintiffs on
May 30, 2008, and the remaining 392 pages were withheld under FOIA Exemptions (b)(3),
(b)(5), and/or (b)(7)(C). Id. ¶ 24. Once again, although the plaintiffs were informed of their
right to administratively appeal, within 60 days, the decision to withhold, they never exercised
that right. Id. ¶¶ 25–26.
2. Plaintiffs’ Third FOIA Request (“2008 Request”)
Ms. Toensing submitted another FOIA request to the EOUSA on February 26, 2008,
which sought different records, namely: “a copy of all documents and recordings collected,
accumulated and/or maintained” by the defendant “during the investigation of Thomas P.
Gordon,” and specifically “[a]ny and all tapes and/or recordings of any kind of Victoria
Toensing from August 2001 to May 26, 2004; and [a]ny and all transcripts of such tapes and/or
recordings of Victoria Toensing.” Id. ¶ 14, Ex. G. The EOUSA forwarded this request to the
2
The six categories included: (1) drafts of papers filed with the DOJ’s Office of Professional Responsibility,
(2) drafts of Mr. Connnolly’s responses to a Senate Questionnaire, (3) grand jury records, (4) court filings submitted
under seal, (5) drafts of court filings submitted under seal or submitted ex parte, and (6) duplicate documents. See
Decl. of Jamie M. McCall (“First McCall Decl.”) ¶ 2 (Jan. 23, 2012), ECF No. 11-6; Def.’s Mem. of P. & A. in
Supp. Mot. Summ. J. (“Def.’s Mem.”) at 16, ECF No. 11-1.
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Delaware USAO in May of 2008. Jordan Decl. ¶ 5. An Assistant United States Attorney
(“AUSA”) named Patricia Hannigan handled the request and certified, without performing any
search, that “we know there were no tapes/transcripts responsive to the request.” Jordan Decl.
Ex. C. Plaintiff Toensing was notified on October 28, 2008 that no responsive records had been
found and that she had 60 days to administratively appeal that result to the OIP, though no
administrative appeal was ever filed. First Boseker Decl. ¶¶ 20–23.
3. Plaintiffs’ Fourth and Fifth FOIA Requests (“2009 Requests”)
On February 11, 2009, the plaintiffs once again submitted identical FOIA requests to the
EOUSA and the Criminal Division. Id. ¶ 27; Cunningham Decl. ¶ 7. These requests both sought
all documents “collected, accumulated and or maintained” by each component regarding:
• The subpoena of Joseph diGenova and/or Victoria Toensing to testify against
their client, Thomas P. Gordon, including but not limited to all memoranda
related to such requests and meeting notes;
• All responses and internal memoranda regarding such requests to subpoena
diGenova and/or Toensing, including e-mails and any other electronic
communications;
• All calendar entries regarding requests or decisions to subpoena diGenova
and/or Toensing;
• Any and all tapes and records of any kind of Toensing during the investigation
of Gordon, specifically from August 2001 to May 26, 2004;
• Any and all transcripts of recordings of any kind of Toensing during the
investigation of Gordon, specifically from August 2001 to May 26, 2004; and
• All documents submitted by the U.S. Attorney, Colm Connolly, to DOJ prior
to the issuance of the subpoena.
First Boseker Decl. ¶ 27, Ex. N; Cunningham Decl ¶ 7, Ex. E. Essentially, these requests sought
all of the subpoena and recording records that the plaintiffs had previously sought in their 2007
and 2008 requests, and it added a sixth category that included documents submitted by Mr.
Connolly prior to the issuance of the subpoenas. In fact, in both requests the plaintiffs
acknowledged: “We have previously requested these documents in a prior FOIA request.” First
Boseker Decl. Ex. N; Cunningham Decl. Ex. E.
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The EOUSA forwarded the request to the Delaware USAO, which in turn advised the
EOUSA that “all categories of documents are duplicative, save one,” that “the duplicative
requests are actually untimely [administrative] appeals of the earlier responses,” and that the only
responsive record found regarding the new category had already been sent during the previous
production of documents. First Boseker Decl. ¶ 29. The EOUSA notified the plaintiffs on May
21, 2009, that no new responsive documents had been located, but the plaintiffs administratively
appealed that determination on July 20, 2009. Id. ¶¶ 30, 32. On November 23, 2009, the OIP,
which has responsibility for adjudicating FOIA administrative appeals, affirmed the EOUSA’s
action. See id. Exs. Q–R. The OIP Associate Director, Janice McLeod, who adjudicated the
administrative appeal, wrote to the plaintiffs that “no new records had been located that had not
already been located in response to your prior [FOIA] requests,” and that “I have determined that
EOUSA conducted an adequate, reasonable search for records responsive to your request.” Id.Ex. R. Ms. McLeod added that “[i]f you remain interested in records that EOUSA previously
processed for you, I suggest that you make a new request to EOUSA and specify that you seek
records that you have previously requested.” Id. Ms. McLeod additionally stated that one
document previously located by the EOUSA, which had not been responsive to prior requests but
was responsive to the plaintiff’s new request category, was being withheld under FOIA
Exemptions (b)(3) and (b)(5). Id. Finally, Ms. McLeod notified the plaintiffs that if they were
dissatisfied with her decision, they could “file a lawsuit in accordance with 5 U.S.C.
§ 552(a)(4)(B).” Id.With respect to the 2009 Criminal Division request, the Criminal Division’s
FOIA/Privacy Act Unit “promptly initiated searches of the component likely to possess
responsive records—the Office of Enforcement Operations (OEO) Policy and Statutory
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Enforcement (PSEU).” Cunningham Decl. ¶ 8. PSEU replied on April 29, 2009, and June 23,
2009, that they did not locate any responsive records. Id. Ex. F. The plaintiffs were notified of
this action on July 16, 2009, and they administratively appealed the action four days later to the
OIP. See id. Exs. G–H. Ms. McLeod of the OIP affirmed the Criminal Division’s action on
November 9, 2009, telling the plaintiffs that “no new records were located that had not already
been located in response to your prior [FOIA] request,” and that “the Criminal Division
conducted an adequate, reasonable search for records responsive to your request.” Id. Ex. K.
Ms. McLeod also once again notified the plaintiffs of their right to file a lawsuit if they were
dissatisfied with her disposition of their administrative appeal. Id. No appeal to federal district
court was filed, however, with regard to any of the 2009 requests.
4. Plaintiffs’ Sixth, Seventh, and Eighth FOIA Requests (“2010 Requests”)
On December 24, 2010, the plaintiffs submitted a fourth set of FOIA requests to the
EOUSA, the Criminal Division, and the FBI, which are the three requests at issue in this case.
See Compl. ¶¶ 29–45. The plaintiffs noted that their requests to the EOUSA and the Criminal
Division were “similar (but not entirely identical) to previous requests.” See First Boseker Decl.
Ex. S; Cunningham Decl. Ex. L. Indeed, the 2010 requests to the EOUSA and the Criminal
Division were identical to the 2009 requests, except for three differences that could be
considered material. First, the 2010 requests sought “[a]ll responses and internal memoranda
throughout the [DOJ] regarding such requests to subpoena diGenova and/or Toensing.” See
First Boseker Decl. Ex. S; Cunningham Decl. Ex. L (emphasis added to both). Second, the 2010
requests sought all tapes, recordings of any kind “or documents reflecting an intent to tape.”
First Boseker Decl. Ex. S; Cunningham Decl. Ex. L (emphasis added to both). Finally, the 2010
requests sought “[a]ll documents submitted by the U.S. Attorney Colm Connolly or staff of the
U.S. Attorneys Office for the District of Delaware, to the [DOJ] prior to the issuance of the
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subpoena.” First Boseker Decl. Ex. S; Cunningham Decl. Ex. L (emphasis added to both). The
request submitted to the FBI was identical to the requests submitted to the EOUSA and Criminal
Division, but it also included one additional category of records: “Any communications between
the District of Delaware [and the FBI] concerning Mr. diGenova and Ms. Toensing from August
1, 2001, to May 26, 2004.” See Decl. of David Hardy (“Hardy Decl.”) Ex. A, ECF No. 11-8.
The EOUSA and the Criminal Division both acknowledged receipt of these requests in
January 2011, see First Boseker Decl. Ex. T; Cunningham Decl. Ex. M, but the plaintiffs allege
that they never received any further response prior to filing the instant action. See Compl. ¶¶ 28,
35. As a result of the EOUSA’s and the Criminal Division’s failure to respond to the plaintiffs’
2010 requests prior to the filing of this action, the plaintiffs are deemed by statute to have
constructively exhausted their administrative remedies with respect to those two requests, even
though the OIP never reviewed any of the actions taken by either component in response to the
requests. See 5 U.S.C. § 552(a)(6)(C).
For its part, the Criminal Division initiated a search of “DOJ components likely to
possess responsive records” on February 7, 2011, and found no responsive records. See
Cunningham Decl. ¶ 15; id. Ex. O. The Delaware USAO initially notified the EOUSA that the
request was a duplicate request and that responsive records had previously been provided. See
First Boseker Decl. ¶ 38. Subsequently, however, the EOUSA realized that it had not
specifically searched for the new category of documents listed in the plaintiffs’ 2010 request, i.e.,
“documents reflecting an intent to tape” Ms. Toensing. See Def.’s Reply in Supp. Mot. for
Summ. J. and Mem. Opp’n Pls.’ Mot. Summ J. (“Def.’s Reply”) at 7, ECF No. 18. As a result of
this oversight, the EOUSA conducted a three-level search for such records in archived witness
and correspondence files from the New Castle County investigation, electronic FBI field reports,
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the personal notes of the case agents who handled the matter, and the personal files and e-mails
of Mr. Connolly. See Decl. of Jamie M. McCall (“Second McCall Decl.”) ¶¶ 4–14 (Apr. 26,
2012), ECF No. 18-1. This supplemental search, however, yielded no responsive records. Id.
¶ 15.
With regard to the FBI request, the FBI searched the indices of its Central Records
System (“CRS”) but was unable to identify any records responsive to the plaintiffs’ request, see
Hardy Decl. ¶ 7, and it notified the plaintiffs of this result on February 22, 2011, see id. Ex. C.
The plaintiffs filed an administrative appeal of that action to the OIP on February 28, 2011, see
id. Ex. D, and the OIP remanded the request to the FBI on May 23, 2011, directing the FBI to
conduct a supplemental search of another database, the Electronic Surveillance (“ELSUR”)
indices, for responsive records, see id. Ex. F. The OIP closed the plaintiffs’ administrative
appeal on August 17, 2011, while the appeal was still pending, because the plaintiffs had
commenced the instant action. Id. Ex. K (citing 28 C.F.R. § 16.9(a)(3)). Though the FBI’s
search of the ELSUR indices did not take place until after the plaintiffs commenced the instant
action, the FBI was nevertheless unable to locate any responsive records in that search either.
See id. ¶¶ 11, 29.
***
The plaintiffs filed the Complaint in the instant action on June 30, 2011, challenging the
defendant’s handling of the three 2010 requests to the EOUSA, the Criminal Division, and the
FBI. The plaintiffs seek a declaration that the defendant has violated the FOIA with respect to its
handling of the 2010 requests; an Order directing the FBI, the EOUSA, and the Criminal
Division to immediately conduct a search for all records responsive to the 2010 requests; an
Order directing the FBI, the EOUSA, and the Criminal Division to release immediately all
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records responsive to the 2010 requests; and attorney fees and litigation costs. Compl. at 12.
Pending before the Court are cross-motions for summary judgment. The defendant seeks
summary judgment on the basis that each component’s search was adequate and that the records
withheld were appropriately withheld under FOIA Exemptions (b)(3), (b)(5), and/or (b)(7).
Def.’s Mem. at 12–26. The plaintiffs seek summary judgment on the grounds that the defendant
has violated the FOIA by (1) “fail[ing] to demonstrate that its search was reasonably calculated
to uncover all relevant documents,” (2) “fail[ing] to account for responsive records located by
Mr. Connolly . . . that were not produced, described or included on Defendant’s Vaughn
indices,” (3) “fail[ing] to create a sufficient Vaughn index,” and (4) improperly invoking FOIA
Exemptions (b)(3), (b)(5), (b)(6)(C), and (b)(7)(C). Pls.’ Mem. at 12–13. Alternatively, the
plaintiffs ask the Court to review the withheld materials in camera before making any findings
that the responsive records were properly withheld. Id. at 23.
II. STANDARDS OF REVIEW
A. FOIA Generally
Congress enacted the FOIA to promote transparency across the government. See 5
U.S.C. § 552; Quick v. U.S. Dep't of Commerce, Nat'l Inst. of Standards & Tech., 775 F. Supp.
2d 174, 179–80 (D.D.C. 2011). The Supreme Court has explained that the FOIA is “a means for
citizens to know ‘what their Government is up to.’ This phrase should not be dismissed as a
convenient formalism. It defines a structural necessity in a real democracy.” Nat'l Archives &
Records Admin. v. Favish, 541 U.S. 157, 171–172 (2004) (citation and internal quotation marks
omitted). “The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning
of a democratic society, needed to check against corruption and to hold the governors
accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).
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This strong interest in transparency must be tempered, however, by the “legitimate governmental
and private interests [that] could be harmed by release of certain types of information.” United
Techs. Corp. v. U.S. Dep't of Defense, 601 F.3d 557, 559 (D.C. Cir. 2010); see also Critical
Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992).
Accordingly, Congress included nine exemptions permitting agencies to withhold information
from FOIA disclosure. See 5 U.S.C. § 552(b). “These exemptions are explicitly made exclusive,
and must be narrowly construed.” Milner v. Dep't of the Navy, 131 S. Ct. 1259, 1262 (2011)
(citations and internal quotation marks omitted); see also Pub. Citizen, Inc. v. Office of Mgmt. &
Budget, 598 F.3d 865, 869 (D.C. Cir. 2010) (“FOIA allows agencies to withhold only those
documents that fall under one of nine specific exemptions, which are construed narrowly in
keeping with FOIA's presumption in favor of disclosure.” (citations omitted)).
B. Summary Judgment
Summary judgment is appropriate when “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. In ruling on
a motion for summary judgment, the Court must draw all justifiable inferences in favor of the
nonmoving party and shall accept the nonmoving party's evidence as true. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986); Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 123
(D.C. Cir. 2011). In a FOIA case, when a plaintiff challenges the adequacy of an agency’s
search, an agency can prevail on summary judgment if it “show[s] beyond material doubt that it
has conducted a search reasonably calculated to uncover all relevant documents.” Morley v.
CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Weisberg v. U.S. Dep’t of Justice
(“Weisberg II”), 705 F.2d 1344, 1351 (D.C. Cir. 1983)). To meet this burden, the government
may rely on relatively detailed and non-conclusory affidavits that are submitted in good faith.
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Id. at 1116. When a plaintiff challenges an agency’s withholding of documents, the agency is
entitled to summary judgment if “no material facts are in dispute and if it demonstrates ‘that each
document that falls within the class requested either has been produced . . . or is wholly exempt
from the Act’s inspection requirements.’” Students Against Genocide v. Dep’t of State, 257 F.3d
828, 833 (D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)).
III. DISCUSSION
The Court first addresses the scope of the plaintiffs’ challenge. In their opposition to the
defendant’s Motion for Summary Judgment, the plaintiffs do not specifically challenge the
adequacy of the searches performed by the Criminal Division and the FBI. Although the
adequacy of those searches was arguably within the broad sweep of the plaintiffs’ Complaint,
and although the defendant specifically argued in its Motion for Summary Judgment that those
searches were adequate, see Def.’s Mem. at 23, 25–26, the plaintiffs’ decision not to address the
adequacy of those searches in their opposition brief is a concession that those searches were in
fact adequate under the FOIA. See Shankar v. ACS-GSI, 258 F. App’x 344, 345 (D.C. Cir. 2007)
(holding that plaintiff conceded the merits of an issue when he “did not respond in any way to
defendant’s argument” on that issue in his opposition before the district court (citing Local Civil
Rule 7(b))); Buggs v. Powell, 293 F. Supp. 2d 135, 141 (D.D.C. 2003) (“It is understood in this
Circuit that when a plaintiff files an opposition to a dispositive motion and address only certain
arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to
address as conceded.” (citing FDIC v. Bender, 127 F.3d 58, 67–68 (D.C. Cir. 1997))).
Therefore, the Court will not address whether the searches performed by the Criminal Division
and the FBI were adequate.
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A. Exhaustion of Administrative Remedies
Prior to addressing the merits of the plaintiffs’ claims, the Court will also address
whether the plaintiffs have sufficiently exhausted their administrative remedies. “‘Exhaustion of
administrative remedies is generally required before filing in federal court so that the agency has
an opportunity to exercise its discretion and expertise on the matter to make a factual record to
support its decision.’” Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003) (quoting Oglesby
v. U.S. Dep’t of the Army, 920 F.2d 57, 61 (D.C. Cir. 1990)). Although the exhaustion
requirement is not jurisdictional, “as a jurisprudential doctrine, failure to exhaust precludes
judicial review if ‘the purposes of exhaustion’ and the ‘particular administrative scheme’ support
such a bar.” Id. (quoting Oglesby, 920 F.2d at 61); see also Wilbur v. CIA, 355 F.3d 675, 677
(D.C. Cir. 2004) (holding that “[e]xhaustion of administrative remedies is generally required
before seeking judicial review”); Sinito v. U.S. Dep't of Justice, 176 F.3d 512, 516 (D.C.
Cir.1999) (recognizing that “FOIA requires each requestor to exhaust administrative remedies”
(citing Oglesby, 920 F.2d 57)); Dettmann v. U.S. Dep't of Justice, 802 F.2d 1472, 1476 (D.C.
Cir.1986) (“It goes without saying that exhaustion of remedies is required in FOIA cases.”).
Under the FOIA, however, there are two ways for a requester to exhaust her
administrative remedies. When an agency responds to a request and determines, within twenty
days, whether and how to comply with that request, a requester dissatisfied with the agency’s
determination must administratively appeal that determination to the head of the agency before
filing suit. See 5 U.S.C. § 552(a)(6)(A); see also Oglesby, 920 F.2d at 65 (“[F]oregoing an
administrative appeal will preclude the [FOIA] requester from ever bringing suit on that request
because the individual will not have exhausted his administrative remedies . . . .”); Weisberg v.
U.S. Dep’t of Justice, 745 F.2d 1476, 1497 (“Weisberg III”) (D.C. Cir. 1984) (holding that
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appellant “did not exhaust his administrative remedies” where he “pretermitted the
administrative stage of the processing of FOIA requests”). When an agency fails to respond to a
request within twenty days, however, a requester “shall be deemed to have exhausted his
administrative remedies with respect to such request,” 5 U.S.C. § 552(a)(6)(C), and may
therefore immediately seek judicial review in federal district court. See, e.g., Judicial Watch,
Inc. v. Rossotti, 326 F.3d 1309, 1310 (D.C. Cir. 2003) (“A requester is considered to have
constructively exhausted administrative remedies and may seek judicial review immediately
if . . . the agency fails to answer the request within twenty days.”). This kind of “constructive
exhaustion” is “a special provision virtually unique to FOIA.” Spannaus v. U.S Dep’t of Justice,
824 F.2d 52, 58 (D.C. Cir. 1987).
In this case, the plaintiffs originally sought the majority of the relevant categories of
records through FOIA requests submitted in 2007 and 2008, but the plaintiffs never
administratively exhausted those requests. They never administratively appealed the adequacy
of the searches performed in response to those requests, nor did they administratively appeal the
EOUSA’s or the Criminal Division’s decisions to withhold documents in response to those
requests. Instead, the plaintiffs chose simply to file subsequent FOIA requests with the EOUSA
and the Criminal Division in 2009 and 2010 that were almost entirely duplicative of their 2007
and 2008 requests. Although there is no question that the plaintiffs properly exhausted their
2009 and 2010 requests, either through administrative appeal or constructive exhaustion, the
defendant’s responses to those requests were premised upon the searches that had been
performed and the withholding decisions that had been made in conjunction with the 2007 and
2008 requests. 3 See, e.g., First Boseker Decl. Ex. O (EOUSA response to 2009 request stating:
3
The one exception would be the Criminal Division’s 2009 search for recording documents, though the plaintiffs do
not challenge the adequacy of that search in any event.
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“All categories listed in your above FOIA request are duplicative except one. This office has
already responded to your [prior] FOIA request[s] . . . .”); id. ¶ 38 (“The [Delaware USAO]
notified EOUSA that [the 2010 EOUSA] request was a duplicate of prior requests, [and] that the
responsive records had previously been provided.”); id. Ex. R (notifying plaintiffs that “no new
records were located that had not already been located in response to your prior [FOIA]
requests”). Therefore, the Court must decide whether allowing the plaintiffs now to challenge,
on the basis of constructive exhaustion, (a) the adequacy of the EOUSA’s searches and (b) the
propriety of the EOUSA’s and the Criminal Division’s withholding decisions in response to the
2007 and 2008 requests (for which the plaintiffs waived their right to obtain administrative
review) would undermine either the “particular administrative scheme” or the “purposes of
exhaustion.”
1. The Particular Administrative Scheme
The D.C. Circuit has held that the FOIA’s administrative scheme “favors treating failure
to exhaust as a bar to judicial review.” See Wilbur, 355 F.3d at 677 (D.C. Cir. 2004) (citing
Hidalgo, 344 F.3d at 1259); see also Cunningham v. Holder, 842 F. Supp. 2d 338, 345 (D.D.C.
2012) (“FOIA is an administrative scheme that not only requires exhaustion of administrative
remedies, but, moreover, permits a court to dismiss a case when a plaintiff fails to exhaust his
administrative remedies.” (citing Hidalgo, 344 F.3d at 1259)). Moreover, the defendant’s
administrative scheme regarding FOIA requests specifically requires that an administrative
appeal be filed within a particular time period if a plaintiff wishes to challenge any agency action
in court. See 28 C.F.R. § 16.9(c) (2012) (“If you wish to seek review by a court of any adverse
determination, you must first appeal it under this section.”); id. § 16.9(a) (requiring
administrative appeal to be filed “within 60 days of the date of the letter denying your request”).
The scheme also requires administrative appeals to “clearly identif[y] the component
16
determination . . . that [the requester is] appealing.” Id. § 16.9(a). Hence, allowing the plaintiffs
now to use their 2010 requests as the vehicle to challenge the adequacy of the EOUSA’s searches
performed in response to the 2007 and 2008 requests and the propriety of the defendant’s 2007
and 2008 withholding decisions—in spite of the plaintiffs’ failure to file administrative appeals
of the agency’s responses to their identical 2007 and 2008 FOIA requests—would clearly
frustrate the FOIA administrative scheme generally, as well as the defendant’s particular scheme
for processing FOIA requests.
Indeed, the course taken by the plaintiffs could be viewed as an end run around the
FOIA’s and the defendant’s administrative exhaustion requirements because, if the plaintiffs’
course were generally available, FOIA requesters who failed to exhaust their administrative
remedies the first time around could routinely cure any failure to exhaust by simply filing a
subsequent duplicative request seeking the same records. In this case, the plaintiffs do not
contest that, because of the nature of the records they seek, no new responsive records would
have been created since 2007 and 2008 when the relevant searches and withholding decisions
were made. See Def.’s Reply at 9. Rather, it is worth noting that they contend that they
submitted new, duplicative requests “to ensure that they had exhausted their administrative
remedies and to afford the government the opportunity to process the requests under the new
FOIA standards set forth on March 19, 2009 by Attorney General Holder, which were not in
effect at the time of the earlier requests.” Pls.’ Mem. at 6 n.3.
The plaintiffs’ explanation, however, falls short in two respects. First, to the extent the
plaintiffs claim that their duplicative requests were submitted “to ensure that they had exhausted
their administrative remedies,” their claim rings hollow. The plaintiffs did not style their 2009 or
2010 requests as administrative appeals of the components’ 2007 and 2008 actions; rather, the
17
plaintiffs clearly intended them to be considered by the defendant as new, stand-alone FOIA
requests. See First Boseker Decl. Exs. N, S; Cunningham Decl. Ex. L. The 2009 and 2010
requests noted that almost all of the same categories of documents had been sought in prior
requests 4 and specifically highlighted any categories of documents that were not covered by the
prior requests. See First Boseker Decl. Exs. N, S; Cunningham Decl. Ex. L. Additionally, the
plaintiffs separately filed administrative appeals for both 2009 requests, and although they
captioned their initial 2009 and 2010 submissions as “Freedom of Information Act Request” and
“FOIA/PA Request,” see First Boseker Decl. Exs. N, S; Cunningham Decl. Ex. L, they captioned
both of their 2009 administrative appeals as “Freedom of Information Act/Privacy Act Appeal,”
see First Boseker Decl. Ex. P; Cunningham Decl. Ex. H. Finally, the plaintiffs stated in their
2009 EOUSA request letter that they were “renew[ing]” the 2007 and 2008 requests. All of this
points to the conclusion that the subsequent, duplicative requests were not, in and of themselves,
intended to be administrative appeals of the 2007 and 2008 requests, and therefore the Court will
not treat them as administrative appeals.
Strangely, the plaintiffs also claimed, for the first time, in their 2010 requests to the
EOUSA and the Criminal Division that “due to clerical errors by your office and the Department
of Justice, a full appeal of your initial responses was never undertaken by the Department of
Justice.” See First Boseker Decl. Ex. S; Cunningham Decl. Ex. L. On the contrary, however, it
was the plaintiffs’ apparent oversights that resulted in no administrative appeal ever being
undertaken in connection with their 2007 and 2008 requests. It is the requester’s responsibility
to initiate such administrative appeals, and although they were explicitly informed several times
4
The fact that the plaintiffs differentiated the “prior FOIA request” and the “previous requests made by Mr.
diGenova and Ms. Toensing” in their subsequent requests is further evidence that the subsequent requests were new
requests rather than untimely attempts to appeal or otherwise administratively exhaust their 2007 and 2008 requests.
First Boseker Decl. Exs. N, S; Cunningham Decl. Ex. L.
18
of their rights to administratively appeal, the plaintiffs clearly failed to do so regarding their 2007
and 2008 requests. Thus, the notion that the plaintiff’s duplicative requests submitted in 2009
and 2010 were legitimate attempts to exhaust their administrative remedies is a dubious one and
is largely contradicted by the record evidence submitted in this case.
To the extent that the plaintiffs’ subsequent requests were intended to “afford the
government the opportunity to process the requests under the new FOIA standards set forth on
March 19, 2009 by Attorney General Holder,” however, their argument has more merit.
Attorney General Holder notified the DOJ on March 19, 2009, that “an agency should not
withhold information [under the FOIA] simply because it may do so legally,” and that
“whenever an agency determines that it cannot make full disclosure of requested records, it must
consider whether it can make partial disclosure.” See Letter from Attorney General Eric Holder
to the Heads of Executive Departments and Agencies (Mar. 19, 2009), available at
http://www.justice.gov/ag/foia-memo-march2009.pdf. This new guidance from the Attorney
General could potentially have led the defendant to produce records, or portions of records, that
it had previously withheld. It is worth observing, however, that the 2009 guidance had no
apparent effect on the defendant’s actions—no new records were disclosed, and none of the prior
withholding decisions were reassessed. Therefore, although Attorney General Holder’s renewed
guidance may have afforded the defendant the opportunity to reassess its withholding decisions,
it neither compelled nor prompted such a reassessment.
This policy change is also irrelevant in terms of the plaintiff’s choice, over a year earlier,
not to seek administrative review of the agency’s responses to their 2007 and 2008 requests,
which would have indicated that the plaintiffs were dissatisfied with those responses. The
plaintiffs waived their right to object to the agency’s responses in 2007 and 2008 by failing to
19
file a timely (or even an untimely) administrative appeal, and a minor change to administrative
policy guidance such as this does not serve as a post hoc antidote to such a waiver.
2. The Purposes of Exhaustion
The D.C. Circuit has stated that non-jurisdictional exhaustion serves three primary
purposes: “giving agencies the opportunity to correct their own errors, affording parties and
courts the benefits of agencies’ expertise, [and] compiling a record adequate for judicial review.”
Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247 (D.C. Cir. 2004) (internal quotation marks
omitted); accord Wilbur, 355 F.3d at 677 (holding that the “purposes and policies underlying the
exhaustion requirement” are “to prevent premature interference with agency processes, to give
the parties and the courts [the] benefit of the agency’s experience and expertise and to compile
an adequate record for review”). “Exhaustion concerns apply with particular force when the
action under review involves exercise of the agency’s discretionary power or when the agency
proceedings in question allow the agency to apply its special expertise.” McCarthy v. Madigan,
503 U.S. 140, 145 (1992), superseded by statute on other grounds, Prison Litigation Reform Act
of 1995, Pub. L. No. 104-134, 110 Stat. 1321. Administrative exhaustion is designed “to give
the agency a fair and full opportunity to adjudicate [a party’s] claims,” which means “using all
steps that the agency holds out, and doing so properly (so that the agency addresses the issues on
the merits).’” Woodford v. Ngo, 548 U.S. 81, 90 (2006) (quoting Pozo v. McCaughtry, 286 F.3d
1022, 1024 (7th Cir. 2002)).
Two cases from this Circuit—Hidalgo v. FBI and Wilbur v. CIA—elucidate the concerns
at play in the doctrine of administrative exhaustion. In Hidalgo, a prisoner filed a FOIA request
seeking records related to an FBI informant who had helped the government prosecute him.
Hidalgo, 344 F.3d at 1257. While the plaintiff’s request was still pending within the 20-day
statutory response period, he filed an “appeal,” erroneously asserting that the FBI had failed to
20
respond to his request within the statutory time limit. Id. Less than two weeks later, the FBI sent
the plaintiff a response denying his FOIA request. Id. The plaintiff then filed a civil action
challenging the FBI’s denial of his request, and the district court granted summary judgment to
the government on the ground that FOIA Exemption 6 precluded disclosure of the information
sought. Id. at 1258. The Circuit vacated and remanded, however, holding that the plaintiff’s
complaint should have been dismissed for failure to exhaust his administrative remedies. Id.The Circuit held that although “Hidalgo’s appeal may have been timely, in a literal sense, it did
not promote the purposes of the exhaustion doctrine” because the administrative appeal was filed
“before the FBI acted on his request” and thus “the appeal could not and did not place the
substance of the FBI’s response before the OIP.” Id. at 1259. The OIP, in response to his
untimely administrative appeal, had specifically advised Hidalgo that he could administratively
appeal any final action, and because Hidalgo “did not heed the OIP’s directive,” to “permit him
to ignore the OIP’s directive ‘would cut off the agency’s power to correct or rethink initial
misjudgments or errors,’ and frustrate the policies underlying the exhaustion requirement.” Id. at
1259–60 (quoting Oglesby, 920 F.2d at 64).
By contrast, Wilbur involved a scenario where, although the plaintiff’s filing of his FOIA
request and the CIA’s denial of that request both occurred in 1994, the plaintiff did not file an
administrative appeal of the denial until January 1999. See Wilbur, 355 F.3d at 676.
Nevertheless, the Court held that the appeal to federal district court was appropriate because the
CIA “received and accepted for consideration” the plaintiff’s administrative appeal, even though
it was several years tardy, and thus the plaintiff had ultimately exhausted his administrative
remedies. Id. at 676–77. The Circuit distinguished the scenario presented in Wilbur from that
presented in Hidalgo because “Wilbur did not bypass the administrative review process but
21
pursued it to its end; he was simply late (albeit four years late).” Id. at 677. In other words,
because the CIA had accepted and processed Wilbur’s administrative appeal and was able to
review its initial determination, “the policies underlying the exhaustion requirement [were]
served.” Id.From Wilbur and Hidalgo, a clear principle emerges: Failure to exhaust administrative
remedies is not a mere technicality, and a court must decline to decide the merits of an
unexhausted FOIA claim when the plaintiff fails to comply with procedures for administrative
review, denying the agency an opportunity to review its initial determination, apply its expertise,
correct any errors, and create an ample record in the process. Wilbur holds that that opportunity
can still come very late—in the form of an untimely administrative appeal— because such an
opportunity still pragmatically satisfies the purposes of the administrative exhaustion doctrine so
long as the agency chooses to accept and process that appeal and decide the issues presented on
the merits. Hildago, however, stands for the proposition that an opportunity for administrative
review is no opportunity at all when a requester’s appeal for review “d[oes] not place the
substance of the [agency’s] response before the [reviewing body],”and therefore, in that
situation, the purposes of exhaustion would be undermined by having a court consider the merits
of the plaintiff’s claims. Hidalgo, 344 F.3d at 107; see also Woodford, 548 U.S. at 90 (proper
administrative exhaustion requires “that the agency addresses the issues on the merits” (emphasis
added))
In this case, the Court has already found that the plaintiffs’ 2009 and 2010 FOIA requests
were not untimely administrative appeals of the 2007 and 2008 requests, but rather were framed
as new requests. See discussion supra pages 16–17. The essential question, then, is whether the
EOUSA or the Criminal Division ever had an opportunity to review their initial determinations
22
made in 2007 and 2008, such that the purposes of exhaustion could be fulfilled. With respect to
the adequacy of the 2007 and 2008 EOUSA searches, the Court finds that the EOUSA did have
such an opportunity. When the plaintiffs administratively appealed their 2009 EOUSA request,
the OIP specifically concluded that “the EOUSA conducted an adequate, reasonable search for
records responsive to your request.” First Boseker Decl. Ex. R. Because the only EOUSA
searches that had taken place prior to the OIP’s decision were those performed in response to the
plaintiffs’ 2007 and 2008 requests, see Jordan Decl. Exs. A–C, it is reasonable to assume that the
OIP was referencing those searches in its 2009 decision. The OIP, in reviewing those searches,
had the opportunity to review the EOUSA’s documentation of the searches it performed and
could have remanded the matter if it had determined that the searches had been inadequate.
Thus, allowing the plaintiffs to challenge the adequacy of the 2007 and 2008 EOUSA searches
would not undermine the purposes of exhaustion.
The withholding decisions of both the EOUSA and the Criminal Division, however, are a
different matter. Those withholding decisions were made in three separate communications to
the plaintiffs: (1) the February 28, 2008 letter from the EOUSA summarizing the decision to
withhold 370 pages of documents in conjunction with the 2007 EOUSA request; (2) the March
25, 2008 letter from the Criminal Division summarizing the decision to withhold seven pages of
documents in conjunction with the 2007 Criminal Division request; and (3) the May 30, 2008
letter from the EOUSA summarizing the decision to withhold a revised total of 392 pages of
documents. See First Boseker Decl. Exs. E, M; Cunningham Decl. Ex. C.
None of those actions were ever administratively appealed to the OIP, and the record in
this case contains no evidence that the OIP ever had an opportunity to review these initial
withholding decisions in either 2009 administrative appeal. This is because the scope of the
23
plaintiffs’ 2009 administrative appeals were necessarily limited to challenging the components’
2009 actions, which did not involve withholding decisions. See First Boseker Decl. Ex. O
(indicating that “[a] search for records . . . has revealed no responsive records regarding the
above subject” and that “a search of the appropriate indices . . . have located no records
responsive to your request”); Cunningham Decl. Ex. G (same). The faces of the plaintiffs’ 2009
administrative appeals also indicate that the only issue being raised was the sufficiency of the
searches performed, stating that the “Basis for Appeal” was that “[t]hese required documents
existed in the District of Delaware” and [t]he documents either exist today or have been
purposefully destroyed in bad faith.” First Boseker Decl. Ex. P; Cunningham Decl. Ex. H.
Under the defendant’s regulations, the plaintiffs were obligated to “clearly identif[y] the
component determination” that they were appealing, see 28 C.F.R. § 16.9(a), yet the plaintiffs
failed to identify the 2007 and 2008 withholding determinations as a basis for either of their
administrative appeals in 2009. See Vt. Dep’t of Pub. Serv. v. United States, 684 F.3d 149, 157
(D.C. Cir. 2012) (“[W]hen ‘an agency’s regulations require issue exhaustion in administrative
appeals, . . . courts reviewing agency actions regularly ensure against the bypassing of that
requirement by refusing to consider unexhausted issues.’” (quoting Sims v. Apfel, 530 U.S. 103,
108 (2000))). The OIP’s decision in both administrative appeals also explicitly noted this
limitation, stating that “no new records were located that had not already been located in
response to your prior [FOIA] request[s].” First Boseker Decl. Ex. R; Cunningham Decl. Ex. K
(emphasis added to both). These adjudications by the OIP clearly did not include any
consideration of whether the EOUSA’s or the Criminal Division’s initial withholding decisions
were appropriate and therefore these administrative appeals “did not place the substance of the
[withholding decisions] before the OIP.” 5 Hidalgo, 344 F.3d at 1259.
5
The plaintiffs’ constructive exhaustion of their 2010 requests fares no better because any administrative appeal
24
In this Circuit, filing a new, duplicative FOIA request has the potential to cure certain
defects of a prior FOIA request, such as defects with the FOIA request itself, see Abuhouran v.
U.S. State Dep’t, 843 F. Supp. 2d 73, 77 n.1 (D.D.C. 2012) (“The disposition of this case does
not preclude plaintiff from resubmitting his request to DOS with the proper waiver. . . .”); Ning
Ye v. Holder, 624 F. Supp. 2d 121, 124 n.2 (D.D.C. 2009) (“Should petitioner wish to obtain
information from the DOJ, he could (re)submit [his requests], ensure receipt, and properly begin
the process (anew).” (internal quotation marks omitted)), 6 or the filing of a federal district court
challenge outside the applicable statute of limitations, see Spannaus, 824 F.2d at 61 (“[N]othing
prevents [a FOIA requester] from requesting the same withheld documents decade after decade
without ever bringing a timely suit to compel disclosure.”); Porter v. CIA, 579 F. Supp. 2d 121,
126 (D.D.C. 2008) (“Where a [FOIA] cause of action is barred by the statute of limitations, a
plaintiff may ‘simply refile his FOIA request tomorrow and restart the process.’” (quoting
Spannaus, 824 F.2d at 61)); Aftergood v. CIA, 225 F. Supp. 2d 27, 30 (D.D.C. 2002) (“[T]he
plaintiff has already resurrected his claim by filing a new FOIA request.”). None of these
circumstances apply here. 7 In any event, the plaintiffs failed to cure the procedural defects in
associated with those requests would have been similarly limited. No new records were found, and thus there would
have been no withholding decisions for the OIP to review. See First Boseker Decl. ¶ 38; Cunningham Decl. ¶ 15 &
Ex. O; Second McCall Decl. ¶¶ 4–15. Thus, the only issue that can continue to be addressed in these redundant
requests and administrative appeals is the adequacy of each subsequent search and whether all of the responsive
documents continue to be accounted for.
6
Abhouran involved a FOIA request seeking information about a third party where the requester had failed to
submit a privacy waiver or proof of the individual’s death, and thus filing a second, identical request with the
appropriate waiver would cure that defect. See Abhouran, 843 F. Supp. 2d at 77–78 & n.1. Ning Ye involved a
requester’s failure to establish that he had ever submitted a FOIA request to the agency in the first place, and thus
submitting a second, identical request would likewise cure that defect. See Ning Ye, 624 F. Supp. 2d at 123–24.
These circumstances are clearly distinguishable from the instant case.
7
It is an open question in this Circuit whether a requester’s untimely administrative appeal of an agency’s
withholding decisions can cure a prior failure to exhaust administrative remedies for those withholding decisions
when administrative review of the withholding decisions is not on the merits. For example, had the plaintiffs in this
case submitted an untimely administrative appeal to the OIP, explicitly challenging the defendant’s 2007 and 2008
withholding decisions, and had the agency rejected that appeal on timeliness grounds or simply ignored the appeal
without reaching the merits, it is unclear whether that series of actions would cure the plaintiffs’ failure to exhaust
their administrative remedies. That circumstance, however, is not before the Court.
25
their 2007 and 2008 FOIA requests; namely, in their 2009 and 2010 FOIA requests, the plaintiffs
never identified the defendant’s 2007 and 2008 withholding decisions as a basis for their appeals.
Therefore, the defendant never reviewed the merits of those withholding decisions through an
administrative appeal—a fundamental prerequisite for judicial review. See, e.g., Oglesby, 920
F.2d at 65 (“[F]oregoing an administrative appeal will preclude the [FOIA] requester from ever
bringing suit on that request because the individual will not have exhausted his administrative
remedies . . . .” (citing Spannaus, 824 F.2d at 59)).
The situation in the instant case is unlike those presented in Spannaus and its progeny,
where a plaintiff submitted a FOIA request, administratively or constructively exhausted that
request, and then waited more than six years to file a lawsuit regarding the same request. See
Spannaus, 824 F.2d at 61; Porter, 579 F. Supp. 2d at 126–27; Aftergood, 225 F. Supp. 2d at 30–
31. In that situation, the defect with the requests was that they were time-barred under 28 U.S.C.
§ 2401(a), not that they were unexhausted, and as the D.C. Circuit impliedly recognized in
Spannaus, a requester may “resuscitate at will” a time-barred FOIA claim by simply refiling the
request and “restart[ing] the process.” Spannaus, 824 F.2d at 55, 61. The rule announced in the
instant case in no way conflicts with the Spannaus line of cases because the obligation to comply
with the statute of limitations and the obligation to exhaust administrative remedies are
independent of one another. See, e.g., Porter, 579 F. Supp. 2d at 129 (“[E]ven if a new request
based on substantially similar information is not barred by the statute of limitations, it must still
comply with the exhaustion requirement.”). Furthermore, statutes of limitations are designed to
Also not before the Court is the circumstance addressed in Wilbur. In Wilbur, the agency’s choice to accept the
requester’s appeal and decide that appeal on the merits served to revive the requester’s previously unexhausted
challenge to the agency’s actions. By contrast, the plaintiffs in the instant case satisfied the exhaustion requirement
through constructive exhaustion, and thus there was never an administrative appeal on the merits that could have
similarly revived (i.e., administratively exhausted) the plaintiffs’ unexhausted challenge to the defendant’s 2007 and
2008 withholding decisions.
26
address different concerns than administrative exhaustion requirements. Statutes of limitations
are designed to “promote finality, repose, and the efficient and prompt administration of justice,”
AKM LLC d/b/a Volks Constructors v. Sec’y of Labor, 675 F.3d 752, 767 (D.C. Cir. 2012), while
administrative exhaustion requirements are designed to “giv[e] agencies the opportunity to
correct their own errors, afford[] parties and courts the benefits of the agencies’ expertise, [and]
compil[e] a record adequate for judicial review,” Avocados Plus, 370 F.3d at 1247 (internal
quotation marks omitted).
The instant case is also unlike the situation presented in Citizens for Responsibility and
Ethics in Washington v. Department of Interior, where the court seemed to suggest that a defect
in administrative exhaustion could be cured by filing an additional request. See Citizens for
Responsibility & Ethics in Wash. v. Dep’t of Interior (“CREW”), 503 F. Supp. 2d 88, 100
(D.D.C. 2007) (“The more efficient method of obtaining information [sought in an unexhausted
request] . . . would be for the plaintiff to file an additional FOIA request.”). Upon further
analysis, however, the court was suggesting no such thing. That case involved a FOIA requester
that had made a series of requests to the Department of the Interior (“DOI”) seeking a particular
group of documents, and although the DOI released hundreds of documents, none of them were
the particular documents the requester had in mind. See id. at 91. Since the requester had not
obtained the particular documents it sought, it filed a lawsuit claiming that the searches for the
documents had been inadequate. Id. Three of the four requests, however, had not been
administratively exhausted, and as to those requests, the court stated: “The more efficient
method of obtaining information, rather than attempting to revive an unexhausted claim by filing
a late appeal, would be for the plaintiff to file an additional FOIA request.” Id. at 100. The court
was clear, however, that when it referred to “fil[ing] an additional FOIA request,” it meant filing
27
either a “more specific FOIA request” or a FOIA request seeking “other, broader searches.” See
id. at 100–02 (emphases added). Hence, that case stands for the uncontroversial proposition that
a FOIA requester is “perfectly free to file an additional FOIA request” that is more “tailored” to
the documents she is seeking, and it did not address the situation in the instant case, where a
requester seeks to “revive an unexhausted claim” by filing identical requests. Id. at 100, 102. 8
For the administrative exhaustion requirements to serve any meaningful purpose,
duplicative requests filed by the same individuals for the same information cannot cure all
unexhausted prior requests, and this case is a prime example: When withholding decisions are
made in an unexhausted request, a subsequent, identical request cannot cure a prior failure to
exhaust because withholding decisions in particular “involve[] [the] exercise of the agency’s
discretionary power [and] allow the agency to apply its special expertise.” 9 McCarthy, 503 U.S.
at 145. The alternative would be to require an agency faced with a duplicative FOIA request to
reassess any previous withholding decisions made within the scope of the duplicative request.
Yet, withholding decisions are often the most labor-intensive and complicated aspect of an
agency’s FOIA response efforts. Thus, after agency employees have already processed a FOIA
request and made withholding decisions, requiring the same or yet another agency employee to
plow the same ground all over again, while a backlog of requesters remain waiting for attention,
is not an efficient use of agency resources. Holding otherwise would potentially allow a small
group of FOIA requesters to hold an agency’s resources hostage with a constant barrage of FOIA
spam in the form of duplicative requests, compelling de novo reassessment of the same
8
CREW also did not involve an attempt to “revive” an unexhausted challenge to withholding decisions, but rather
dealt with the adequacy of searches.
9
This is particularly true when FOIA requests and withholding decisions involve national security issues, since “the
courts must defer to the executive on decisions of national security.” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of
Justice, 331 F.3d 918, 932 (D.C. Cir. 2003) (upholding government’s invocation of FOIA Exemption 7(a)).
28
withholding decisions ad infinitum. 10 Agency resources are not unlimited, and thus allowing
requesters to monopolize scarce agency resources in this way—through filing duplicative
requests where the records are static—would also disserve the purposes of the FOIA because
every minute spent giving de novo reassessment to a duplicative request is a minute not spent
processing new requests and disclosing new, previously undisclosed records.
As a result, allowing the plaintiffs now to challenge the defendant’s 2007 and 2008
withholding decisions (and the sufficiency of the resulting Vaughn indices) when the agency did
not have the opportunity for de novo administrative review, due to the plaintiff’s failure to appeal
the 2007 and 2008 withholding decisions, would directly undermine the purposes and policies
underlying the administrative exhaustion doctrine. See Hidalgo, 344 F.3d at 1259–60.
Inexplicably, the defendant does not raise exhaustion as a basis for dismissing any of the
plaintiffs’ claims. Nevertheless, the Court holds that the plaintiff’s claims in this action may not
extend beyond the issues properly appealed to and decided by the agency in conjunction with the
2009 and 2010 requests. The Court therefore also necessarily holds that any issues related to the
unexhausted 2007 and 2008 requests that were not appealed to and decided by the agency in
conjunction with the exhausted 2009 and 2010 requests have been waived. This means that the
plaintiffs’ claims relating to the defendant’s 2007 and 2008 withholding decisions (and the
resulting Vaughn indices) will be dismissed sua sponte for failure to state a claim upon which
relief may be granted under Federal Rule of Civil Procedure 12(b)(6). 11 See id. at 1260(directing district court to dismiss unexhausted claims under Rule 12(b)(6)). Therefore, the
10
Of course, a different requester is free to make an identical FOIA request as a previous requester and then pursue
her administrative remedies and exhaust them before seeking judicial review of withholding decisions. That,
however, is not the situation presented in this case.
11
Although the Court will dismiss these claims, the Court does so based upon the prudential considerations
surrounding the requirement of administrative exhaustion, and therefore the Court does not reach the merits of those
claims.
29
Court will only consider the sole remaining issue presented by the plaintiffs’ claims and the
administrative record below: whether the searches performed by the EOUSA were reasonably
calculated to uncover all relevant documents. 12
B. Adequacy and Responsiveness of the EOUSA’s Search
The plaintiffs contest the adequacy of the EOUSA’s searches for records on two grounds.
First, they argue that the EOUSA has failed to establish that it conducted a reasonable search for
the requested records “because it claims to have reviewed only tape recording logs rather than
conducting an actual search for records concerning the attempted tapings.” See Pls.’ Mem. at
12–14; Pls.’ Reply to Def.’s Reply in Supp. Mot. Summ. J. & Opp’n Pl.’s Mot. Summ J. (“Pls.’
Reply”) at 1–3, ECF No. 19. Second, the plaintiffs argue that the EOUSA failed to account for
all responsive records by specifically excluding six categories of documents that Mr. Connolly
was instructed “not to forward . . . to EOUSA.” Pls.’ Mem. at 12, 15; Pls.’ Reply at 3–4; First
McCall Decl. ¶ 2.
“[A]n agency responding to a FOIA request must ‘conduct[] a search reasonably
calculated to uncover all relevant documents,’ and, if challenged, must demonstrate ‘beyond
material doubt’ that the search was reasonable.” Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C.
Cir. 1990) (footnotes omitted) (quoting Weisberg II, 705 F.2d at 1351); accord Oglesby v. U.S.
Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (“In order to obtain 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.”). The
adequacy of a search “is judged by a standard of reasonableness and depends, not surprisingly,
upon the facts of each case.” Weisberg III, 745 F.2d at 1485. “The question is not whether there
12
The Court notes once again that the plaintiffs failed to oppose the defendant’s arguments that the searches
performed by the Criminal Division and the FBI were adequate, and therefore the Court considers the adequacy of
those searches to be conceded by the plaintiffs. See discussion supra page 13.
30
might exist any other documents possibly responsive to the request, but rather whether the
search for those documents was adequate.” Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551
(D.C. Cir. 1994) (quoting Weisberg III, 745 F.2d at 1485). Thus, to obtain summary judgment
against a challenge to the adequacy of a search, the agency must show that there exists no
genuine issue of material fact regarding whether “the search was reasonably calculated to
discover the requested documents, not whether it actually uncovered every document extant.”
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991). “Mere speculation that as
yet uncovered documents may exist does not undermine the finding that the agency conducted a
reasonable search for them.” Id.“An agency may establish the adequacy of its search by submitting reasonably detailed,
nonconclusory affidavits describing its efforts.” Baker & Hostetler LLP v. U.S. Dep’t of
Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006). Such affidavits should “denote which files were
searched,” by whom those files were searched, and reflect a “systematic approach to document
location.” Weisberg v. U.S. Dep’t of Justice (“Weisberg I”), 627 F.2d 365, 371 (D.C. Cir. 1980).
“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, is necessary to afford a FOIA requester an opportunity to challenge the adequacy of the
search and to allow the district court to determine if the search was adequate in order to grant
summary judgment.” Oglesby, 920 F.2d at 68.
For the reasons discussed below, the Court holds that the defendant ultimately conducted
an adequate search for records related to the alleged recording of Plaintiff Toensing but
conducted an inadequate search for subpoena records.
31
1. The EOUSA Conducted an Adequate Search for Records Related to the
Alleged Recording of Ms. Toensing
In this case, the EOUSA, in conjunction with the Delaware USAO, took three actions to
search for the records requested by the plaintiffs that relate to alleged tape recordings of Ms.
Toensing. First, on October 2, 2008, in response to the plaintiffs’ 2008 EOUSA request, an
AUSA from the Delaware USAO named Patricia Hannigan certified that the Delaware USAO
did not have any documents or recordings that were responsive to the plaintiffs’ request. See
Jordan Decl. ¶ 6. That certification stated: “No additional search time, because we know there
were no tapes/transcripts responsive to the request.” Id. Ex. C. Next, Theresa Jordan—the
Delaware USAO employee who helped Mr. Connolly perform the 2007 EOUSA search—
reviewed “a detailed log of all recordings, telephonic or otherwise, made during the course of the
New Castle County investigation” during the process of preparing her January 20, 2012
declaration. Id. ¶ 7. This log “includes the names of persons subject to recordings, as well as the
time and format of the recording,” and Ms. Jordan attested that the log “does not indicate that
Ms. Toensing was the subject of any recordings.” Id. Finally, sometime in between March 26,
2012 and April 26, 2012, 13 representatives from the Delaware USAO searched for “documents
that reflected ‘an intent to tape’ Victoria Toensing by the [Delaware USAO] during its criminal
investigation of Sherry Freebery and Thomas Gordon.” Second McCall Decl. ¶ 2. This search
was intended to supplement the original search in order to account for the new category of
documents listed in the plaintiffs’ 2010 EOUSA request, i.e., “documents reflecting an intent to
tape” Ms. Toensing from August 2001 to May 26, 2004. See First Boseker Decl. Ex. S; see also
13
The search must have been conducted during this time period because the defendant requested an extension of
time to file its reply brief on March 26, 2012, stating that the EOUSA “has decided to process a supplemental
response to Plaintiffs’ FOIA request, which will likely entail additional searches,” see Def.’s Mot. Extension of
Time at 2, ECF No. 17, and the search itself was described in Jamie McCall’s April 26, 2012 declaration, see
Second McCall Decl. ¶¶ 4–14.
32
Second McCall Decl. ¶ 2 (“[T]he present search supplements the previous search conducted by
the [Delaware USAO].”).
In sum, the first two searches searched for the “tapes and records” and “transcripts of
recordings” themselves, which the plaintiffs sought in their 2008 and 2009 requests, and the third
search searched for “documents reflecting an intent to tape,” which the plaintiffs added in their
2010 request. Because the relevant standard asks whether a search was “reasonably calculated to
uncover all relevant documents,” the Court will group the first two searches together to
determine their composite adequacy with respect to the first two categories of records, and then it
will consider the adequacy of the third search to determine its adequacy with respect to the third
category of records.
a) Searches for “Tapes and Recordings” and “Transcripts of
Recordings”
The Court first holds that the 2008 “search” performed by Ms. Hannigan was clearly
inadequate. As Ms. Hannigan’s certification admits, she spent “[n]o additional search time”
because she and her colleagues “kn[ew] there were no tapes/transcripts responsive to the
request.” Jordan Decl. Ex. C. It is precisely this kind of cursory government response to
requests for information that the FOIA was intended to prevent. Although “[a]gency affidavits
are accorded a presumption of good faith,” SafeCard Servs., 926 F.2d at 1200, an affidavit must
still incorporate the required factual content to demonstrate the search’s adequacy as a matter of
law (i.e., the search terms, the type of search performed, etc.). See Oglesby, 920 F.2d at 68.
Hence, Ms. Hannigan’s response, which admits that no search was performed and relies instead
on professed personal knowledge that no responsive records exist, cannot possibly constitute an
adequate search.
33
The search performed by Ms. Jordan in 2012 for the tapes, recordings, and transcripts of
recordings, on the other hand, was adequate. As stated in her January 20, 2012 declaration, Ms.
Jordan personally reviewed a log that contained entries for “all recordings, telephonic or
otherwise, made during the course of the New Castle County investigation,” and each entry
included “the names of persons subject to recordings, as well as the time and format of the
recording.” Jordan Decl. ¶ 7. The Jordan Declaration also describes how the search was
performed and the fact that Ms. Toensing’s name was specifically queried. This search was
adequate because the log that was reviewed was comprehensive, in that it contained “all
recordings, telephonic or otherwise, made during the course of the New Castle County
investigation,” and therefore it would reasonably be expected to include “all files likely to
contain responsive materials (if such records exist).” See Oglesby, 920 F.2d at 68.
The plaintiffs object that this search was inadequate for two reasons. First, they argue
that reviewing a log of all recordings does not qualify as “conducting an actual search.” Pls.’
Mem. at 12. Second, they also implicitly argue that, because Ms. Toensing has a “basis for
belief” that Mr. Tucker was taping their discussion, “records should exist concerning this
taping,” and therefore they argue that, because the search performed by the EOUSA did not
uncover any such records, the search must have been inadequate. Id. at 4, 13.
The plaintiffs’ first argument is without merit. The FOIA does not require that a “search”
of records take any particular form, such that there would necessarily be a distinction between a
comprehensive review of a log of records and an “actual search.” This is because records
themselves can take many forms and may not exist in a place that can be electronically searched,
despite the modern conventional wisdom that all information can be marshaled by a few
keystrokes. See 5 U.S.C. § 552(a)(3)(D) (defining “search” as “to review, manually or by
34
automated means, agency records for the purpose of locating those records which are responsive
to a request” (emphasis added)). All that the FOIA requires is that an agency makes “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, and the EOUSA did
that here. The log that was reviewed by Ms. Jordan contained “all recordings, telephonic or
otherwise, made during the course of the New Castle County investigation,” which is an
eminently reasonable place for an agency to search for “tapes and/or recordings” made “during
the investigation of Thomas P. Gordon,” which were the records requested by Ms. Toensing. 14
See Jordan Decl. ¶ 7; First Boseker Decl. Ex. G. Such an all-inclusive log would logically be the
“only possible place” an agency would need to search to find the records requested. Oglesby,
920 F.3d at 68 (emphasis omitted).
Indeed, the plaintiffs do not suggest any specific deficiencies in the search or other places
that must be searched to render the search adequate. They merely suggest that the defendant
should “search again,” or that “Mr. Tucker and Mr. Connolly should also be questioned about
their knowledge of any tapings and where these records are logged.” Pls.’ Mem. at 14. The only
potential defect with this search was that a review of the recording log would not be reasonably
likely to directly uncover “transcripts of such tapes and/or recordings,” because the log itself did
not include transcripts—it only included entries for the recordings themselves. It is, however,
both logical and reasonable for an agency to conclude that, when a comprehensive search for
14
Although the plaintiffs clearly insinuate that the alleged recordings may have been effected by Mr. Connolly ultra
vires and thus outside the proper scope of the New Castle County investigation., see Toensing Decl. ¶¶ 24–28, Pls.’
Mem. at 3–4, the plaintiffs’ request was limited to tapes, recordings, or transcripts that were “collected, accumulated
and/or maintained by the [DOJ] during the investigation of Thomas P. Gordon,” First Boseker Decl. Ex. G
(emphasis added). In light of this self-imposed limitation on the scope of the search, the defendant was reasonable
in not searching beyond the official log of all recordings that were made during the course of the New Castle County
investigation.
35
particular recordings turns up empty, no transcripts of such recordings are reasonably likely to be
located by searching elsewhere.
The plaintiffs’ second argument likewise fails because it runs contrary to the well-settled
standard for what agencies must do in order to demonstrate the adequacy of a FOIA search.
“Mere speculation that as yet uncovered documents may exist does not undermine the finding
that the agency conducted a reasonable search for them.” SafeCard Servs., 926 F.2d at 1201.
This Circuit has long held that “a search is not unreasonable simply because it fails to produce all
relevant material.” Meeropol v. Meese, 790 F.2d 942, 952–53 (D.C. Cir. 1986); see also Perry v.
Block, 684 F.2d 121, 128 (D.C. Cir. 1982) (“The issue is not whether any further documents
might conceivably exist but rather whether the government’s search for responsive documents
was adequate.”). Thus, although Ms. Toensing may genuinely believe that she was recorded by
the EOUSA, the mere fact that an otherwise adequate search did not uncover such recordings
does not automatically render that search inadequate, and it certainly does not mean that the
defendants should be required to question Messrs. Connolly and Tucker about these alleged
tapings, as the plaintiffs suggest. See Pls.’ Mem. at 14. The agency affidavit of Ms. Jordan
establishes that the EOUSA’s search for “tapes and recordings” and “transcripts of recordings”
was reasonably adequate, and therefore the defendant’s motion for summary judgment will be
granted in part with respect to that issue.
b) Search for “Documents Reflecting an Intent to Tape”
Only one search was performed by the EOUSA to discover any “documents reflecting an
intent to tape” Ms. Toensing from August 2001 to May 26, 2004. That search was performed by
Ms. Jordan and Jamie McCall (an AUSA in Delaware) in March or April of 2012 and searched
two categories of documents: (1) paper documents of the New Castle County investigative file
36
and (2) electronic documents of the investigative file. See Second McCall Decl. ¶ 3. The search
proceeded in three steps or “levels.” In the first level of the paper document review, Mr. McCall
and Ms. Jordan reviewed seventy-two boxes of documents that contained paper documents
related to the case and determined which of those boxes were “reasonably likely to contain
documents potentially responsive to the FOIA request,” based on the general description affixed
to each box. Id. ¶¶ 4–5. This narrowed the universe from seventy-two boxes to seven boxes.
See id. ¶¶ 5–6. In the second level of review, Ms. Jordan flagged any documents in the seven
boxes that contained any of the following key words: “Victoria, Toensing, VT, Joseph,
diGenova, Genova, JD, Shawn Tucker, and an additional keyword that was Shawn Tucker’s
code name.” Id. ¶ 7. In the third and final level of review, Mr. McCall reviewed each of the
documents flagged by Ms. Jordan “to determine whether these documents were, in fact,
responsive to the FOIA request,” and he also “performed a ‘spot check’” of each of the boxes
that had been flagged for second-level review. Id. ¶ 8.
The search of electronic records proceeded similarly. First, Mr. McCall “determined that
the electronic files reasonably likely to include responsive documents would be the Federal
Bureau of Investigation’s (‘FBI’) field reports, referred to as ‘FBI 302 reports,’ as well as the
primary case agent’s personal notes.” 15 Id. ¶ 9. Second, Ms. Jordan conducted a second-level
review of those files by searching for and printing any documents that contained the key words
listed above. Id. ¶ 10. Finally, Mr. McCall once again performed a third-level review of all
documents containing the key words to determine whether they were in fact responsive. Id. ¶ 11.
The Court holds that this search was adequate with respect to “documents reflecting an
intent to tape” Ms. Toensing because the defendant has demonstrated, through Mr. McCall’s
15
The EOUSA also searched Colm Connolly’s personal computer and e-mail files for the key words “Victoria,
Toensing, Shawn, Tucker,” and Shawn Tucker’s code name. Second McCall Decl. ¶¶ 12–14.
37
sworn affidavit, that “the search was reasonably calculated to discover the requested documents.”
SafeCard, 926 F.2d at 1201. Mr. McCall’s affidavit exhaustively describes how the multi-layer
search was performed, who performed it, and what search terms were used, and it also avers that
all of the paper and electronic files reasonably likely to include responsive documents were
searched. Therefore, under well-settled precedent, this search was adequate as a matter of law,
and the defendant’s motion for summary judgment will be granted in part on the issue of whether
the EOUSA’s search for documents reflecting an intent to tape Ms. Toensing was adequate.
See,e.g., Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325–26 (D.C. Cir. 1999)
(discussing standard for adequacy of agency search); Oglesby, 920 F.2d at 67–68.
2. The Defendant Has Not Demonstrated That the EOUSA’s Search
Related to the Subpoenas Was Adequate or That It Accounted for All
Responsive Records
The EOUSA, in conjunction with the Delaware USAO, performed a single search on
January 9, 2008 for the requested records relating to the grand jury subpoenas issued to the
plaintiffs in November 2003 (hereinafter “subpoena records”). The search was performed
independently by both Ms. Jordan and Mr. Connolly of the Delaware USAO, and their search
efforts were documented in standard “FOIA Cost Tracking” and “Certification of Search” forms.
See Jordan Decl. ¶ 4, Exs. A–B.
As explained in the defendant’s motion papers and documented in the record, Ms. Jordan
and Mr. Connolly reviewed a number of files reasonably likely to contain the subpoena records,
including: the Delaware USAO’s physical case file from the New Castle County investigation;
the AUSA’s file from the investigation; a “Concordance database” of scanned records relating to
the investigation; the “My Documents” folder on Ms. Jordan’s and Mr. Connolly’s government
computers; Mr. Connolly’s e-mail folders; the AUSA’s e-mail folders; 2003 and 2004 calendar
entries for Mr. Connolly and Ms. Jordan; and phone logs from 2003 and 2004. See Def.’s Mem.
38
at 15–16; Jordan Decl. Exs. A–B. Ms. Jordan’s role in the search was largely as administrative
support: retrieving files, organizing and copying potentially relevant documents, and creating
document indices. See Jordan Decl. Ex. A. She also performed some keyword searching and
reviewed the 2003 and 2004 phone logs. See id. Mr. Connolly’s role was more primary. He did
most of the actual keyword searching, he reviewed the physical case files, and he reviewed the
2003 and 2004 calendar entries. See id. Ex. B. The two spent a combined 23.25 hours searching
the New Castle County files for responsive records. Id. Exs. A–B.
At first blush, this might be able to pass muster as a thorough and adequate search of all
files likely to contain responsive materials, but the plaintiffs protest that the search was
inadequate because Mr. Connolly was directed by the EOUSA not to forward six categories of
documents. 16 See First McCall Decl. ¶ 2; Pls.’ Mem. at 12, 14. The defendant responds that “it
can be reasonably inferred that those six categories were not searched because they were deemed
categorically non-responsive, categorically exempt, or not reasonably likely to include
responsive records.” Def.’s Reply at 9.
To assess the plaintiff’s objection, the Court must first determine whether the defendant’s
admitted failure to forward six categories of documents would constitute a defect in the search,
whether it would constitute a defect in the defendant’s Vaughn index, or both. The defendant
appears to concede that this is a search issue, based on its admission that the “six categories were
not searched” at all. Id. The plaintiffs, however, argue that “this is not entirely a search issue”
because they read the Second McCall declaration to admit that these six categories of documents
were originally located by Mr. Connolly and Ms. Jordan but simply were not forwarded to the
16
Once again, the six categories included: (1) drafts of papers filed with the DOJ’s Office of Professional
Responsibility, (2) drafts of Mr. Connnolly’s responses to a Senate Questionnaire, (3) grand jury records, (4) court
filings submitted under seal, (5) drafts of court filings submitted under seal or submitted ex parte, and (6) duplicate
documents. See First McCall Decl. ¶ 2; Def.’s Mem. at 16.
39
EOUSA along with the rest of the responsive records. See Pls.’ Reply at 3. The Court finds this
to be a search issue, not only because the defendants admit that the six categories of documents
“were not searched,” but also because that admission is supported by the documentation of the
searches performed. Both Ms. Jordan’s and Mr. Connolly’s detailed listings of their response
efforts indicate that, at least with respect to the Concordance database, the search was narrowed
to “non-grand jury records.” See Jordan Decl. Exs. A–B.
Based on the defendant’s admission that these six categories of documents were excluded
from the scope of the EOUSA’s 2007 search, that search was inadequate. The defendant is
perhaps justified in inferring that these six categories of documents would be categorically
exempt from production under one or more FOIA exemptions, but the fact that a category of
documents is likely to be exempt from disclosure does not allow an agency to preemptively
exclude such a category of documents from its search. Instead, in that situation, an agency must
include in its search “all files likely to contain responsive materials,” Oglesby, 920 F.2d at 68(emphasis added), and account for any of those responsive documents that the agency believes
should be withheld. In other words, an agency’s search obligations are in no way limited by
whether certain documents will eventually be classified as exempt from disclosure because an
agency is obligated to perform a search “reasonably calculated to uncover all relevant
documents,” not just all non-exempt, relevant documents. 17 Weisberg III, 705 F.2d at 1351
(emphasis added). Def.’s Reply at 9. Therefore, the defendant’s explanation that it failed to
17
This sort of “preemptive withholding” is doubly problematic in this case because, not only did it render the search
itself inadequate, it has necessarily also infected the adequacy of the EOUSA’s Vaughn indices because, although
these six potentially relevant categories of documents were withheld from the plaintiffs, they were never accounted
for under any particular exemption, and thus the plaintiffs and the Court would have no concrete basis from which to
conclude that those withholdings were appropriate. As discussed above, however, the Court does not address the
adequacy of the defendant’s Vaughn indices at this time because of the plaintiffs’ failure to exhaust their
administrative remedies with respect to the defendant’s withholding decisions.
40
search for these six categories of documents because they were presumptively exempt is entirely
misguided and at odds with its obligations under the FOIA.
Additionally, the defendant’s explanation that it failed to search for these six categories
of documents because they were “categorically non-responsive” or “not reasonably likely to
include responsive records,” is equally insufficient on this record. It is certainly true that an
agency “need only search those systems in which it believes responsive records are likely
located,” Hall & Assocs. v. EPA, 846 F. Supp. 2d 231, 241 (D.D.C. 2012), but on summary
judgment, an agency has the burden of logically explaining, through sworn affidavits, why
certain files or categories of documents were not included in a search. See Oglesby, 920 F.2d at
68; see also Jefferson v. Dep’t of Justice, 168 F. App’x 448, 450 (D.C. Cir. 2005) (holding
search inadequate where “[t]he Government has offered no plausible justification for limiting its
search for responsive records to its investigative database”); Morley, 508 F.3d at 1120 (holding
that agency’s “post hoc explanation” for why it did not search for certain documents “cannot
make up for the[agency declaration’s] silence”). Because the defendant offers no evidence to
demonstrate why these six categories of documents would have been categorically non-
responsive, its failure to include those categories of documents in its search further renders that
search inadequate.
Furthermore, although the parties do not address this issue, the Court notes that the
defendant has presented no evidence to demonstrate that it accounted for the two arguably
material additions contained in the plaintiffs’ 2010 requests. The 2010 EOUSA request specified
that it was seeking “[a]ll responses and internal memoranda throughout the [DOJ] regarding
such requests to subpoena diGenova and/or Toensing” and “[a]ll documents submitted by the
U.S. Attorney Colm Connolly or staff of the U.S. Attorneys Office for the District of
41
Delaware.” First Boseker Decl. Ex. S. For summary judgment to be appropriate, the defendant
must demonstrate either that it performed a broader supplementary search to encompass these
additions or that these additions were already encompassed in the original EOUSA search, but
the defendant has done neither.
Thus, the Court holds that the 2007 EOUSA search, relied upon by the defendant in
concluding that it had conducted an adequate search for the subpoena records requested by the
plaintiffs, was inadequate because it failed to include six categories of documents that may have
included responsive records and because it failed to account for the two material additions in the
2010 request discussed above. The defendant has also failed to explain or justify why the six
categories of documents should reasonably have been excluded from the scope of the search.
Therefore, there are genuine issues of material fact regarding whether the EOUSA’s search for
subpoena records was adequate, and thus the defendant’s motion for summary judgment will be
denied in part with respect to that issue.
IV. CONCLUSION
In sum, the Court holds first that, where a FOIA requester fails to exhaust her
administrative remedies in connection with an initial request, but then files a subsequent,
identical request for which the requester does exhaust her administrative remedies (either
constructively or through an administrative appeal), the requester may only obtain judicial
review of issues related to the initial, unexhausted request insofar as the agency elected to review
those particular issues through an administrative appeal on the merits in connection with the
subsequent, identical, exhausted request. The plaintiffs have failed to exhaust their
administrative remedies with respect to the defendant’s withholding decisions. Consequently,
the plaintiffs’ claims regarding (1) the propriety of the defendant’s invocation of FOIA
42
Exemptions (b)(3), (b)(5), (b)(6), and (b)(7); and (2) the sufficiency of the resulting Vaughn
indices, are DISMISSED for failure to state a claim.
The Court also holds that the EOUSA’s search for subpoena records was inadequate, but
that its search for “tapes and recordings,” “transcripts of recordings” and “documents reflecting
an intent to tape” Ms. Toensing were adequate. Therefore, the defendant’s motion for summary
judgment is GRANTED in part for sufficiently demonstrating that its search for “tapes and
recordings,” “transcripts of recordings” and “documents reflecting an intent to tape” Ms.
Toensing were adequate. The defendant’s motion for summary judgment is DENIED in part
for failing to demonstrate that its search for subpoena records was adequate. Since the latter
search may have been adequate, the partial denial is without prejudice, and for that same reason,
the plaintiffs’ cross-motion for summary judgment is DENIED without prejudice.
In light of the inadequate search for subpoena records, as described in the defendant’s
submissions discussed above, the most efficient course would be to remand this matter to the
agency to ensure that an adequate search is performed. See, e.g., People for the Ethical
Treatment of Animals, Inc. v. Bureau of Indian Affairs, 800 F. Supp. 2d 173, 178 n.2 (D.D.C.
2011) (“[I]n a FOIA case, even if defendant had failed in obtaining summary judgment because
of an inadequate search, . . . . the usual remedy is for the Court to remand to the agency to
expand its search or to provide more detailed declarations regarding the scope of the search.”).
Therefore, the parties are directed to confer and jointly propose search and documentation
procedures appropriate for this case. These procedures should address, inter alia, how the search
for subpoena records will be modified so as to be adequate or what additional detail will be
provided in the defendant’s declarations to demonstrate the original search’s adequacy. The
parties’ joint proposal, noting any disagreement among the parties regarding the search and
43
documentation procedures, is due to the Court by October 12, 2012. See generally Kean v. Nat’l
Aeronautics & Space Admin., 480 F. Supp. 2d 150, 159 (D.D.C. 2007). An appropriate Order
accompanies this Memorandum Opinion.
Date: September 13, 2012
/s/Beryl A. Howell
BERYL A. HOWELL
United States District Judge
44