Am. Oversight v. U.S. Gen. Servs. Admin.
| Decision Date | 28 August 2020 |
| Docket Number | Civil Action No. 18-2423 (RC) |
| Citation | 486 F.Supp.3d 306 |
| Parties | AMERICAN OVERSIGHT, Plaintiff, v. U.S. GENERAL SERVICES ADMINISTRATION, Defendant. |
| Court | U.S. District Court — District of Columbia |
Cerissa Cafasso, Hart W. Wood, American Oversight, Washington, DC, for Plaintiff.
Martin M. Tomlinson, Peter T. Wechsler, U.S. Department of Justice, Washington, DC, for Defendant.
GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ; GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
This case concerns two Freedom of Information Act ("FOIA") requests made by Plaintiff American Oversight, a non-profit interested in government transparency. Both requests sought records from Defendant, the U.S. General Services Administration ("GSA"), concerning plans to redevelop the headquarters of the Federal Bureau of Investigation ("FBI"). After the GSA failed to respond to the requests within the statutorily-required time period, American Oversight brought this suit. The GSA now moves for summary judgment, arguing that it has fulfilled its obligations under FOIA. American Oversight cross-moves for summary judgment, contending that the GSA's searches for responsive documents were inadequate, but not challenging the GSA's withholding or redacting of certain records that it did locate. For the reasons explained below, the Court determines that the GSA's redaction and withholding of the located records are adequately justified, but agrees with American Oversight that the GSA's searches themselves were deficient. The Court will therefore grant both motions in part and deny both in part.
On August 27, 2018, the GSA's Office of the Inspector General ("OIG") published a report called "Review of GSA's Revised Plan for the Federal Bureau of Investigation Headquarters Consolidation Project." Compl. ¶ 7, ECF No. 1. Among other things, the report suggested that GSA Administrator Emily Murphy may have misled Congress about the White House's involvement in an ongoing initiative to rebuild or relocate the FBI's existing headquarters. Id. On August 30, 2018, American Oversight filed two related FOIA requests in an effort "to inform the public as to whether and to what extent the president's personal financial interests influenced a multi-billion-dollar federal project with national security implications." Id. ¶¶ 9–10, 15. They were assigned tracking numbers 2018-01618 and 2018-01619. Id. ¶¶ 14, 18.
The first request sought "[a]ll records reflecting communications ... between or among ... the following [GSA] individuals and any person at the White House Office (including anyone with an email address ending in @who.eop.gov) regarding the FBI headquarters consolidation project." Lewis Decl. Ex. 1 at 2 ("White House Communications Request"), ECF No. 21-2. It proceeded to specify various GSA officials1 by either name, function, or position. Id. It also "request[ed]" that the GSA use particular search terms2 "to help identify responsive records," and sought "all responsive records from January 20, 2017, through the date of search." Id. at 2–3.
The second request had two parts. The first part sought "[a]ll records reflecting communications ... between or among ... GSA officials in Column A and Trump Organization individuals or entities listed in Column B." Lewis Decl. Ex. 2 at 2 ("Trump Organization Communications Request"3 ), ECF No. 21-2. Column A listed the same set of GSA individuals listed in the first request. Id. Column B listed "[a]ny individuals associated with the Trump Organization LLC or Trump Hotels, including but not limited to" fifteen named individuals4 and "[a]nyone communicating from an email address ending with @trumporg.com, @trump.com, @trumphotels.com, @ijkfamily.com." Id. The second part sought "[a]ll records reflecting communications ... with the [same set of GSA] individuals ... containing the search terms listed below." Id. at 2–3. The request then listed two columns of terms, specifying that "communications containing at least one search term from Column A and at least one search term from Column B are considered responsive."5 Id. Both parts of the second request similarly specified that they sought records only "from January 20, 2017, through the date of search." Id. at 2, 3.
On September 8, 2018, just over a week after the requests were submitted, the GSA acknowledged receipt and assigned them tracking numbers. Lewis Decl. ¶ 4. However, the GSA did not actually act on the requests within the statutory deadline, see 5 U.S.C. § 552(a)(6)(C)(i), which prompted the filing of this suit on October 23, 2018, see Compl. ¶¶ 19–20. The complaint alleged two violations of FOIA: one, that the GSA failed to conduct an adequate search, and two, that it was unlawfully withholding non-exempt responsive records. Compl. ¶¶ 21–33. While this litigation was pending (between December 2018 and July 2019), the GSA released responsive records in a series of productions. Lewis Decl. ¶ 21.
The GSA now moves for summary judgment, arguing that it has now adequately searched for records responsive to the requests, properly withheld and redacted some responsive records pursuant to some of FOIA's various exemptions, and released all non-exempt, reasonably segregable information. Def.’s Mem. in Supp. of Def.’s Mot. for Summ. J. ("Def.’s MSJ") at 1, ECF No. 21-1. American Oversight disagrees, arguing that (1) the GSA's search in response to the Trump Organization Communications Request was inappropriately limited because the agency wrongly construed the request, and (2) neither of GSA's searches were adequately geared to capture non-email communications. Pl.’s Mem. of P. & A. in Supp. of Pl.’s Cross-Mot. for Summ. J. & in Opp'n to Def.’s Mot. for Summ. J. ("Pl.’s XMSJ") at 4, ECF No. 22-1. American Oversight does not challenge the GSA's invocation of FOIA exemptions or otherwise object to the GSA's summary judgment motion.
"[T]he vast majority of FOIA cases can be resolved on summary judgment." Brayton v. Office of the U.S. Trade Representative , 641 F.3d 521, 527 (D.C. Cir. 2011). Summary judgment is justified when "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). A dispute is "genuine" if there is enough evidence for a reasonable finder of fact to decide in favor of the non-movant, see Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), while a "material" fact is one capable of affecting the substantive outcome of the litigation, see Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When presented with a motion for summary judgment in the FOIA context, the district court must conduct a de novo review of the record. See Multi Ag Media LLC v. U.S. Dep't of Agriculture , 515 F.3d 1224, 1227 (D.C. Cir. 2008). The burden is on the agency to justify its response to the plaintiff's request. See 5 U.S.C. § 552(a)(4)(B). "An agency may sustain its burden by means of affidavits, but only if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith." Multi Ag Media , 515 F.3d at 1227 (citation omitted).
When the adequacy of a search is at issue, 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." Reporters Comm. for Freedom of Press v. FBI , 877 F.3d 399, 402 (D.C. Cir. 2017) (quoting Oglesby v. U.S. Dep't of Army , 920 F.2d 57, 68 (D.C. Cir. 1990) ). "[T]he issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate. " Weisberg v. U.S. Dep't of Justice , 745 F.2d 1476, 1485 (D.C. Cir. 1984). "The adequacy of the search, in turn, is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case." Id. If "the record leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper." Truitt v. Dep't of State , 897 F.2d 540, 542 (D.C. Cir. 1990).
The Court will follow American Oversight's lead and focus on the specific objections to the adequacy of GSA's searches, rather than on other aspects of GSA's search or invocation of exemptions as to the located documents.6
As its supporting declaration explains, the GSA "interpreted" the Trump Organization Communications Request as "seeking records reflecting communications pertaining to the FBI headquarters consolidation project." Lewis Decl. ¶ 11. Based on this interpretation, the GSA selected a set of search terms designed to locate material relevant to that topic. Def.’s MSJ at 10–11. American Oversight argues that GSA, in interpreting the request in this fashion, inferred a nonexistent subject matter limitation and thereby unreasonably narrowed the scope of the request.
The Court agrees with Plaintiff. Neither part of the Trump Organization Communications Request contained a subject matter restriction. Rather, as explained above, the first part of the request sought all records of communications between or among a set of GSA officials and Trump Organization officials, regardless of subject matter, while the second sought all records of communications with a set of GSA officials containing specific key terms. See Section II.B, supra. Neither part limited itself to a...
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