Judicial Watch, Inc. v. Dep't of State

• Decision Date: 06 April 2016
• Docket Number: Civil Action No. 15-CV-690 (RMC)
• Citation: 177 F.Supp.3d 450
• Parties: Judicial Watch, Inc., Plaintiff, v. Department of State, Defendant.
• Court: U.S. District Court — District of Columbia

177 F.Supp.3d 450

Judicial Watch, Inc., Plaintiff,

v.Department of State, Defendant.

Civil Action No. 15-CV-690 (RMC)

United States District Court, District of Columbia.

Signed April 6, 2016

Lauren M. Burke, Chris Fedeli, Judicial Watch, Inc., Washington, DC, for Plaintiff.

Caroline J. Anderson, U.S. Department of Justice, Washington, DC, for Defendant.

OPINION

ROSEMARY M. COLLYER, United States District Judge

In recent years, there has been something of an uproar over State Department officials' use of private email addresses to conduct official State business. Judicial Watch, Inc., submitted a request under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, with the goal of ascertaining how broadly across the State Department private email was used. Because the request was not a request for records governed by FOIA but instead was a request for information outside of FOIA, the Court will enter summary judgment in favor of the State Department.

I. FACTS

On March 6, 2015, Judicial Watch submitted a FOIA request to State seeking:

Any and all records that identify the number and names of all current and former officials, officers, or employees of the U.S. Department of State from January 20, 2009 to the present who used email addresses other than their assigned “state.gov” email addresses to conduct official State Department business.

Mot. for Summ. J. (MSJ) [Dkt. 10], Ex. A (Hackett Decl.) ¶ 4, Ex. 1 (FOIA Request 3/6/16).¹ The State Department read Plaintiff's request word for word to mean that Plaintiff sought “any and all records that identify the number and names of all current and former officials ... who used email addresses other than their assigned “state.gov” email addresses to conduct official State Department business.” Id . ¶ 10 (adding emphasis to the words of Plaintiff's FOIA request). Based on this reading, the State Department determined that the only Department records systems or offices likely to contain responsive records were: the Central Foreign Policy Records; the Office of the Executive Secretariat; the Office of the Inspector General; the Bureau of Diplomatic Security; the Bureau of Information Resources and Management; the Office of Information Programs; and the Office of the Legal Advisor. Id . § 6. These record systems and offices were searched, but no responsive records were found. Id . The State Department moves for summary judgment. See MSJ [Dkt. 10]; Reply [Dkt. 12]. Plaintiff opposes. See Opp'n [Dkt. 11].

II. LEGAL STANDARDS

The State Department contends that it is entitled to judgment as a matter of law because there is no genuine dispute as to any material fact. See Fed. R. Civ. P. 56(a) ; Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is properly granted against a party who “after adequate time for discovery and upon motion ... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In ruling on a motion for summary judgment, a court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson , 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than “[t]he mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505.

FOIA cases are typically and appropriately decided on motions for summary judgment. Miscavige v. I . R . S . , 2 F.3d 366, 368 (11th Cir.1993) ; Rushford v. Civiletti , 485 F.Supp. 477, 481 n. 13 (D.D.C.1980), aff'd sub nom. Rushford v. Smith , 656 F.2d 900 (D.C.Cir.1981). In a FOIA case, a district court may award summary judgment solely on the basis of information provided by the agency in affidavits when the affidavits 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). Affidavits submitted by the agency to demonstrate the adequacy of its response are presumed to be in good faith. Ground Saucer Watch, Inc. v. C . I . A . , 692 F.2d 770, 771 (D.C.Cir.1981).

III. ANALYSIS

A. FOIA Generally

FOIA requires federal agencies to release government records to the public upon request, subject to nine listed exceptions. See 5 U.S.C. § 552(b) ; Wolf v. C . I . A . , 473 F.3d 370, 374 (D.C.Cir.2007). To prevail in a FOIA case, the plaintiff must show that an agency has (1) improperly (2) withheld (3) agency records. Dep't of Justice v. Tax Analysts , 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989) ; United We Stand America, Inc. v. I . R . S . , 359 F.3d 595, 598 (D.C.Cir.2004). Once the requested records have been produced, there is no longer a case or controversy and the FOIA action becomes moot. See Armstrong v. Exec. Office of the President , 97 F.3d 575, 582 (D.C.Cir.1996).

The defendant in a FOIA case must show that its search for responsive records was adequate, that any exemptions claimed actually apply, and that any reasonably segregable non-exempt parts of records have been disclosed after redaction of exempt information. See Sanders v. Obama , 729 F.Supp.2d 148, 154 (D.D.C.2010). The adequacy of a search is measured by a standard of reasonableness and depends on the individual circumstances of each case. Truitt v. Dep't of State , 897 F.2d 540, 542 (D.C.Cir.1990). The question is not whether other responsive records may exist, but whether the search itself was adequate. Steinberg v. Dep't of Justice , 23 F.3d 548, 551 (D.C.Cir.1994).

To rebut a challenge to the adequacy of a search, the agency need only show that “the search was reasonably calculated to discover the requested documents, not whether it actually uncovered every document extant.” SafeCard Servs. Inc. v. S . E . C . , 926 F.2d 1197, 1201 (D.C.Cir.1991). There is no requirement that an agency search every record system, but the agency must conduct a good faith, reasonable search of those systems of records likely to possess the requested records. Oglesby v. Dep't of Army , 920 F.2d 57, 68 (D.C.Cir.1990).

An agency may prove the reasonableness of its search by a declaration by responsible agency officials, so long as the declaration is reasonably detailed and not controverted by contrary evidence or evidence of bad faith. Military Audit Project , 656 F.2d at 738 ; see SafeCard , 926 F.2d at 1201 (affiant who is in charge of coordinating an agency's document search efforts is the appropriate person to provide a comprehensive affidavit in FOIA litigation). An agency affidavit can demonstrate reasonableness by “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.” Valencia – Lucena v. U.S. Coast Guard , 180 F.3d 321, 326 (D.C.Cir.1999). An agency's declarations are accorded “a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” SafeCard , 926 F.2d at 1200 (internal citation and quotation omitted). “Mere speculation that as yet uncovered documents may exist does not undermine the finding that the agency conducted a reasonable search for them.” Id . at 1201. Once an agency has provided adequate affidavits, the burden shifts back to the plaintiff to demonstrate a lack of a good faith search. Maynard v. C . I . A . , 986 F.2d 547, 560 (1st Cir.1993). If a review of the record raises substantial doubt as to the reasonableness of the search, especially in light of “well-defined requests and positive indications of overlooked materials,” then summary judgment may be inappropriate. Founding Church of Scientology v. Nat'l Sec. Agency , 610 F.2d 824, 837 (D.C.Cir.1979).

B. Interpretation of Plaintiff's Request

Plaintiff's FOIA request was actually a question posed as a request for records. The request for “records that identify the number and names of all current and former” State Department officials “who used email addresses other than their assigned ‘state.gov’ email addresses to conduct official State Department business” is really a question that asks “who at the State Department used private email for conducting official business?” A question is not a request for records under FOIA and an agency has no duty to answer a question posed as a FOIA request. See, e.g., Amnesty Int'l v. C . I . A . , No. 07–5435, 2008 WL 2519908, at *12–13 (S.D.N.Y. June 19, 2008) (agency had no duty to compile a list of persons it deemed subject to secret detention in response to request for records relating to such persons). “FOIA is a mechanism to obtain access to records, not answers to questions.” Id . FOIA does not require agencies to create documents. See Krohn v. Dep't of Justice , 628 F.2d 195, 197–98 (D.C.Cir.1980) (agency cannot be compelled to create records necessary to produce the information sought); Moore v. Bush , 601 F.Supp.2d 6, 15 (D.D.C.2009) (FOIA does not impose a duty on agencies to create documents). Accordingly, the State Department was not obligated to answer the Plaintiff's question by compiling a list of State department officials who used private email addresses to conduct Department business.

Further, an agency is obligated to release only those records that a FOIA request “reasonably describes.” 5 U.S.C. § 552(a)(3)(A). An agency is “not obliged to look beyond the four corners of the request for leads to the location of responsive documents.” Kowalczyk v. Dep't of Justice, 73 F.3d 386, 389 (D.C.Cir.1996). An agency's reasonable effort to satisfy a FOIA request “does not entail an...