Amadis v. U.S. Dep't of State

• Decision Date: 21 August 2020
• Docket Number: No. 19-5088,19-5088
• Citation: 971 F.3d 364
• Parties: Juan Luciano MACHADO AMADIS, Appellant v. UNITED STATES DEPARTMENT OF STATE and United States Department of Justice, Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

971 F.3d 364

Juan Luciano MACHADO AMADIS, Appellant

v.UNITED STATES DEPARTMENT OF STATE and United States Department of Justice, Appellees

No. 19-5088

United States Court of Appeals, District of Columbia Circuit.

Argued January 17, 2020

Decided August 21, 2020

Kelly B. McClanahan argued the cause and filed the briefs for appellant.

Katie Townsend argued the cause for amici curiae The Reporters Committee for Freedom of the Press and 36 Media Organizations in support of plaintiff-appellant. With her on the brief were Bruce D. Brown, David McCraw, Barbara L. Camens, Laura R. Handman, Alison Schary, Washington, DC, Kurt Wimmer, James Cregan, Bruce W. Sanford, Mark I. Bailen, and Kathleen A. Kirby, Washington, DC.

Weili J. Shaw, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Jessie K. Liu, U.S. Attorney, and Sharon Swingle, Attorney, Washington, DC. R. Craig Lawrence and April D. Seabrook, Assistant U.S. Attorneys, entered appearances.

Before: Rogers and Katsas, Circuit Judges, and Williams, Senior Circuit Judge.^*

Opinion for the Court filed by Circuit Judge Katsas.

This appeal presents several questions under the Freedom of Information Act. One of them is whether certain record searches were adequate. Another is whether an agency may invoke the deliberative-process privilege to withhold advice provided by subordinate attorneys to their superiors. A third is whether FOIA requesters must exhaust administrative appeals when the agency, after completing its search, offers to conduct another search if presented with additional information.

I

Juan Machado Amadis is a citizen and resident of the Dominican Republic. He repeatedly has applied for a United States entry visa. The Department of State has denied the applications on the ground that Machado is inadmissible as a suspected drug trafficker.

Machado has filed three sets of FOIA requests for information about the denials. He has sought records from the State Department and three components of the Department of Justice—the Drug Enforcement Administration, Federal Bureau of Investigation, and Office of Information Policy.

In 2016, Machado filed his first set of requests with the State Department, DEA, and FBI. These requests sought information about Machado's alleged criminal activity. The State Department produced responsive records, but neither the DEA nor the FBI found any. Machado appealed the DEA and FBI determinations to OIP, which adjudicates FOIA appeals within the Justice Department. OIP affirmed the FBI's determination and closed the appeal of the DEA's determination once Machado filed this lawsuit. Machado no longer challenges any response to this first set of requests.

In 2017, Machado filed a second set of FOIA requests. From the State Department, DEA, and FBI, Machado sought records "memorializing or describing the processing of his previous FOIA Request." J.A. 81, 112, 221. And from OIP, he sought records "memorializing or describing the processing of his previous FOIA Appeal[s]." J.A. 280. The State Department produced responsive records. The DEA produced some responsive records right away, then produced others after Machado successfully appealed its determination to OIP. The FBI withheld responsive records.

OIP withheld some records as non-responsive, and it produced other records with redactions based on the deliberative-process privilege.

Machado then submitted a third set of FOIA requests to the DEA and FBI. These requests sought "all records, including emails" about Machado. J.A. 129, 241. In response, the DEA informed Machado that its search had located no responsive records and that he was entitled to appeal to OIP. Machado never appealed. DEA also offered to conduct another search if Machado provided additional search terms. Machado did so, but DEA still was unable to locate any responsive records. The FBI similarly informed Machado that its search had produced no responsive records and that he was entitled to appeal to OIP. Machado never appealed. The FBI also offered to conduct an additional search if Machado provided more information. But in response to an e-mail from Machado's attorney, the FBI clarified that Machado would have to submit additional information through a separate FOIA request, which he did not do.

Machado filed a lawsuit challenging the various agency responses, and the district court granted summary judgment to the agencies. Machado Amadis v. DOJ , 388 F. Supp. 3d 1 (D.D.C. 2019).

Machado urges reversal on three grounds. First, he argues that the State Department and DEA failed to conduct adequate searches in response to the second set of FOIA requests. Second, he contends that OIP searched too narrowly and redacted its production too broadly. Third, he argues that the DEA and FBI failed to issue timely determinations on his third set of FOIA requests, making it unnecessary for him to exhaust administrative appeals. We review the district court's decision de novo, Steinberg v. DOJ , 23 F.3d 548, 551 (D.C. Cir. 1994), and now affirm.

II

Machado contends that the State Department and DEA conducted inadequate searches in response to his second set of FOIA requests. To prevail on this issue, each agency must show that it "conducted a search reasonably calculated to uncover all relevant documents." Weisberg v. DOJ , 745 F.2d 1476, 1485 (D.C. Cir. 1984) (cleaned up); see DiBacco v. U.S. Army , 795 F.3d 178, 191 (D.C. Cir. 2015). Agencies can satisfy this burden through 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." Oglesby v. U.S. Dep't of the Army , 920 F.2d 57, 68 (D.C. Cir. 1990). We accord such affidavits "a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." SafeCard Servs., Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quotation marks omitted).

A

From the State Department, Machado sought records "memorializing or describing the processing of his previous FOIA Request No. F-2016-10536." J.A. 81. The request asked the agency to "exclude any correspondence exchanged with any attorney" representing Machado. Id. The agency searched for records containing the FOIA request number in its FOIA database and in the e-mail account of the analyst who had processed the previous request. Machado has no quarrel with where the agency searched. But he objects that the search term, keyed to the prior request number, was unreasonably narrow. We disagree.

The search term was reasonably calculated to find all responsive records. An affidavit from the Director of the State Department's Office of Information Programs and Services explained why: The agency used the FOIA request number "because [its] records are organized by request number." J.A. 57. It was surely reasonable for the agency to conduct a search that tracked how its own records are organized, just as it surely would be reasonable for our clerk to search by a docket number to locate all court records from a particular case.

Machado hypothesizes that incoming correspondence may not have contained the FOIA request number, even if the agency consistently used it for internal and outgoing correspondence. As an illustration, Machado notes that the search would not have captured e-mails sent by his attorney to the agency. But Machado specifically asked the agency not to produce e-mails from his attorney, and it is hard to imagine that e-mails from anyone else would bear on how the agency had processed his prior FOIA request. Furthermore, when the agency responded to Machado's attorney, it inserted the FOIA request number into the e-mail's subject line. J.A. 75. The search thus did capture both the response and the initial e-mail, which was appended to the response. This bolsters the agency's statement that it consistently uses FOIA request numbers to track associated documents and correspondence. The State Department's search was reasonable.

B

From the DEA, Machado also sought records "memorializing or describing the processing of his previous FOIA Request." J.A. 112. In response, the agency searched a database called the DEA Freedom of Information/Privacy Act Record System, JUSTICE-004 and located materials associated with the prior request. The DEA initially produced twelve pages, then produced five additional pages on remand from an OIP appeal. Machado contends that the DEA also should have searched individual e-mail accounts.

The DEA's search was reasonably calculated to find all responsive records. In an affidavit, the DEA's Chief FOIA Officer explained that "all responsive information was reasonably likely to be found" in the JUSTICE-004 database. J.A. 100. This makes sense, for the database "consists of records created or compiled in response to FOIA ... requests and administrative appeals, including: The original requests and administrative appeals; responses to such requests and administrative appeals; [and] all related memoranda, correspondence, notes, and other related or supporting documentation." Privacy Act of 1974; System of Records, 77 Fed. Reg. 26,580, 26,581 (May 4, 2012). That description appears in the Federal Register, the contents of which "shall be judicially noticed." 44 U.S.C. § 1507. Given the breadth of the JUSTICE-004 database, which includes all FOIA "correspondence," we conclude that the DEA's search was reasonably calculated to locate all responsive records.

III

Machado sought from OIP records "memorializing or describing the processing of his previous FOIA Appeal[s]." J.A. 280. OIP conducted searches, identified responsive records, and produced them with redactions. Machado contends that OIP interpreted his request too narrowly and redacted the records too broadly.

A

In responding to Machado's request, OIP located its files on his previous appeals. The files contained OIP...