Attkisson v. U.S. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
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Sharyl Attkisson, et al., )
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Plaintiffs, )
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v. ) Civil No. 14-cv-01944 (APM)
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U.S. Department of Justice, )
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Defendant. )
_________________________________________ )
MEMORANDUM OPINION
I. BACKGROUND
This matter is before the court on the parties’ Cross-Motions for Summary Judgment.
See Def.’s Mot. for Summ. J., ECF No. 26 [hereinafter Def.’s Mot]; Pls.’ Opp’n to Def.’s Mot. for
Summ. J. and Cross-Motion for Summ. J, ECF No. 27 [hereinafter Pls.’ Opp’n].
In September 2014, Plaintiffs—Judicial Watch, Inc., and Sharyl Attkisson—submitted to
the Federal Bureau of Investigation (FBI) a joint request under the Freedom of Information Act
(FOIA) and the Privacy Act, seeking information and records pertaining to Attkisson. Compl.,
ECF No. 1, ¶ 6; Def.’s Stmt. of Facts in Support of Mot. for Summ. J., ECF No. 26 [hereinafter
Def.’s Stmt.], at 4-5. Plaintiffs’ request, which was subsequently narrowed, sought “any and all
[FBI] records concerning, regarding or relating to Sharyl Attkisson” and records specifically
pertaining to her involvement in two particular FBI investigations. Def.’s Stmt. at 5-6. On
December 16, 2014, the FBI released records responsive to Plaintiffs’ FOIA request—six redacted
pages that the FBI previously had produced to Attkisson in response to a previous FOIA request.
Id. at 6. Five months later, on May 14, 2015, the FBI released one additional responsive,
unredacted, page. Id.
Before the FBI had released those responsive records, on November 19, 2014, Plaintiffs
filed suit in this court alleging that Defendant was unlawfully withholding records in violation of
FOIA, 5 U.S.C. § 552 et. seq., and the Privacy Act, 5 U.S.C. § 552a. See Compl. On August 21,
2015, Defendant filed its Motion for Summary Judgment, in which it argued that it had conducted
a reasonable and adequate search for the requested records and had produced all responsive and
nonexempt documents under both FOIA and the Privacy Act. See generally Def.’s Mot. On
September 21, 2015, Plaintiffs filed a consolidated Opposition to Defendant’s Motion for
Summary Judgment and Cross-Motion for Summary Judgment, claiming that the FBI had failed
to conduct a reasonable and adequate search for records because it: (1) had failed to conduct its
search using phonetic alternatives to Attkisson’s name, and (2) had failed to uncover during its
search responsive documents that Plaintiffs believe should be in the FBI’s possession.
See generally Pls.’ Opp’n. The parties’ cross-motions are now ripe for consideration.
II. LEGAL STANDARD
A court shall grant summary judgment “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). To make this determination, the court must “view the facts and draw reasonable
inferences in the light most favorable to the [non-moving] party.” Scott v. Harris, 550 U.S. 372,
378 (2007) (citations and internal quotations omitted). A dispute is “genuine” only if a reasonable
fact-finder could find for the nonmoving party, and a fact is “material” only if it is capable of
affecting the outcome of litigation. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A non-
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material factual dispute must not prevent the court from granting summary judgment. See id. at
248–50.
Most FOIA cases are appropriately decided on motions for summary judgment. See
Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C.2009). A court may
award summary judgment in a FOIA case by relying on the information included in the agency's
affidavits or declarations if they are “relatively detailed and non-conclusory,” SafeCard Servs.,
Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citations and internal quotations omitted), and
describe “the documents and the justifications for nondisclosure with reasonably specific detail,
demonstrate that the information withheld logically falls within the claimed exemption, and are
not controverted by either contrary evidence in the record nor by evidence of agency bad faith,”
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).
III. DISCUSSION
Plaintiffs offer only one argument in response to Defendant’s Motion for Summary
Judgment: that Defendant’s search for responsive records was inadequate. 1 Pls.’ Opp’n at 3-9.
Plaintiffs make two contentions to support that claim: (1) the FBI failed to use phonetic
alternatives to Attkisson’s name, as well as her date of birth and social security number, in its
electronic records search, id. at 4-8; and, (2) the search failed to uncover responsive documents
that Attkisson, based on her past experiences, believes should be in the FBI’s possession, thus
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Plaintiffs did not respond to Defendant’s arguments regarding the nondisclosure of otherwise responsive records
under either FOIA or the Privacy Act, Def.’s Mot. at 11-22, and thus the court will treat those arguments as conceded.
See Wilkins v. Jackson, 750 F. Supp. 2d 160, 162 (D.D.C. 2010) (“It is well established that if a plaintiff fails to
respond to an argument raised in a motion for summary judgment, it is proper to treat that argument as conceded.”);
Sykes v. Dudas, 573 F. Supp. 2d 191, 202 (D.D.C. 2008) (“[W]hen a party responds to some but not all arguments
raised on a Motion for Summary Judgment, a court may fairly view the unacknowledged arguments as conceded.”).
Additionally, based on Defendant’s declarant’s statements, see Def.’s Mot., Ex. 1., Decl. of David M. Hardy, ECF
No. 26-1 [hereinafter Hardy Decl.], ¶ 48, which Plaintiffs have not challenged, the court finds that Defendant has
complied with its obligation to disclose reasonably segregable material, see Sussman v. U.S. Marshals Serv., 494 F.3d
1106, 1116-17 (D.C. Cir. 2007).
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demonstrating the inadequacy of the search, id. at 8-9. The court finds both arguments
unpersuasive.
Plaintiffs’ first argument is unsupported by the facts—which, in fairness to Plaintiffs, fully
came to light only after Defendant’s declarant, David Hardy, supplemented his initial declaration.
In his second declaration, Hardy attested that the FBI did in fact use phonetic alternatives during
the records search: “The phonetic search of the [Central Records System “CRS”] automated
indices systematically broke down common spelling variations of the names ‘Sharyl’ or
“Attkisson,’ making it unnecessary for [the FBI] personnel to predict the possible spelling
variations of Plaintiff’s names.” Def.’s Reply, Ex. 2, Second Decl. of David M. Hardy, ECF No
31-2 [hereinafter Second Hardy Decl.], ¶ 9. In addition, as Hardy further explained, the FBI did
not in this case need to resort to Attkisson’s date of birth or social security number to conduct its
search. According to Hardy, a requestor’s date of birth and social security number becomes
relevant only to distinguish among the “‘hits’ returned from the phonetic name breakdowns to
identify records that actually pertain to the requester and not another individual indexed within the
vast CRS.” Id. ¶ 10. Because a phonetic name search in this case only yielded a small number of
records, the court finds that it was reasonable for the FBI not to rely on the requestor’s date of birth
and social security number to identify responsive material.
Plaintiffs’ remaining argument—that Defendant’s search was inadequate because it did not
uncover documents Attkisson believes must exist—is similarly unconvincing. “The adequacy of
a FOIA search is generally determined not by the fruits of the search, but by the appropriateness
of the methods used to carry out the search.” Iturralde v. Comptroller of the Currency, 315 F.3d
311, 315 (D.C. Cir. 2003) (citing Steinberg v. DOJ, 23 F.3d 548, 551 (D.C. Cir. 1994)). Simply
put, Defendant has met its evidentiary burden under FOIA by presenting the affidavits of David
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Hardy, see Hardy Decl.; Second Hardy Decl., which illustrate in “relatively detailed and non-
conclusory” terms that the FBI’s search was both reasonable and adequate. SafeCard Servs., Inc.
926 F.2d at 1200. That is all that is required under FOIA. Id. Hardy’s affidavits are afforded “a
presumption of good faith, which cannot be rebutted by purely speculative claims,” id. (internal
quotations omitted), such as Plaintiffs’ contention that certain records should exist, Pls.’ Opp’n at
8-9. Such an argument “amounts to nothing more than mere speculation . . . [and] is not enough
to undermine the determination that the agency conducted an adequate search for the requested
records.” Morley v. CIA, 508 F.3d 1108, 1120 (D.C. Cir. 2007) (citations and internal quotations
omitted); see also Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 514 (D.C.
Cir. 2011) (holding that, although it was “unexpected” that the agency’s search turned up only a
few emails, that fact alone does not render the search inadequate).
IV. CONCLUSION
For the foregoing reasons, the court grants Defendant’s Motion for Summary Judgment
and denies Plaintiffs’ Motion for Summary Judgment. A separate order accompanies this
Memorandum Opinion.
Dated: September 7, 2016 Amit P. Mehta
United States District Judge
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