Judicial Watch, Inc. v. U.S. Dept. of Commerce, No. CIV.A. 95-133(RCL).

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtLamberth
Citation337 F.Supp.2d 146
Decision Date30 September 2004
Docket NumberNo. CIV.A. 96-2747(RCL).,No. CIV.A. 95-133(RCL).,No. CIV.A. 97-289(RCL).,No. CIV.A. 97-2416(RCL).
PartiesJUDICIAL WATCH, INC., Plaintiff, v. UNITED STATES DEPARTMENT OF COMMERCE, Defendant.
337 F.Supp.2d 146
JUDICIAL WATCH, INC., Plaintiff,
v.
UNITED STATES DEPARTMENT OF COMMERCE, Defendant.
No. CIV.A. 95-133(RCL).
No. CIV.A. 97-289(RCL).
No. CIV.A. 97-2416(RCL).
No. CIV.A. 96-2747(RCL).
United States District Court, District of Columbia.
September 30, 2004.

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Larry Elliot Klayman, Paul J. Orfanedes, Klayman & Associates, PC, James F. Peterson, Washington, DC, for Plaintiff.

Bruce R. Hegyi, Marina Utgoff Braswell, William Mark Nebeker, Washington, DC, for Defendant.

MEMORANDUM OPINION

LAMBERTH, District Judge.


Before the Court are the defendant's Motions for Summary Judgment in Civil Action Nos. 95-133 [doc. 617], 97-289 [doc. 32], 97-2416 [docs. 42 and 47], and 96-2747 [doc. 36]. Upon consideration of the motion papers, the applicable law and the records in these cases, the Court will grant each of the defendant's motions for summary judgment.

BACKGROUND

The plaintiff, Judicial Watch, Inc. ("Judicial Watch"), filed these actions pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, against the defendant, the Department of Commerce ("DOC"). The DOC conducted a search pursuant to Judicial Watch's FOIA requests, a search which the Court found to be "inadequate, unreasonable and unlawful." Judicial Watch, Inc. v. Dep't of Commerce, 34 F.Supp.2d 28, 45 (D.D.C.1998). Having found this first search grossly inadequate, the Court ordered the DOC to conduct a "rigorous" second search in satisfaction of its FOIA duties and in compliance with a separate order issued that date. Judicial Watch, 34 F.Supp.2d at 46.

Subsequent to the Court's 1998 Order, Judicial Watch made five separate FOIA requests, each lodged in a separate civil action as discussed herein. In Civil Action No. 95-133, Judicial Watch sought access to:

all correspondence, memoranda, lists of names, applications, diskettes, letters, expense logs and receipts, diary logs, facsimile logs, telephone records, notes and other documents and things that refer or relate in any way to" certain trade missions involving former Secretary Brown from January 1993 through October 1995.

In Civil Action No. 97-289, Judicial Watch sought access to:

all correspondence, memoranda, lists of names, applications, diskettes, letters, expense logs and receipts, diary logs, facsimile logs, telephone records, notes and other documents and things that refer or relate in any way to" certain trade missions involving former Secretary Brown from January 1993 through October 1996; information on certain identified individuals and organizations, as well as certain documents of former Secretary Ron Brown.

In Civil Action No. 96-2747, Judicial Watch sought access to:

all correspondence, memoranda, lists of names, applications, diskettes, letters, expense logs and receipts, diary logs, facsimile logs, telephone records, notes and other documents and things that refer or relate in any way to" certain trade missions taken by the Department in 1995, work performed or responsibilities

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held by former Deputy Assistance Secretary John Huang, records concerning certain specified individuals, and other categories of records that would update certain of the Judicial Watch's prior FOIA requests to the Department.

In the request underlying the first motion for summary judgement in Civil Action No. 97-2416, Judicial Watch sought access to:

all documents produced by the DOC within the last twelve (12) months in response to any request, demand, or subpoena by any investigatory agency or body, including the United States Department of Justice (including any of its divisions, the Federal Bureau of Investigation, and its United States Attorneys for the District of Columbia or any other district), the United States Congress (and any of its committees), or any grand jury impaneled pursuant to federal law in any judicial district of the United States.

In the request underlying the second motion for summary judgement in Civil Action No. 97-2416, Judicial Watch sought access to:

all documents produced by the DOC within the last twelve (12) months in response to any request, demand, or subpoena by any investigatory agency or body, including the United States Department of Justice (including any of its divisions, the Federal Bureau of Investigation, and its United States Attorneys for the District of Columbia or any other district), the United States Congress (and any of its committees), or any grand jury impaneled pursuant to federal law in any judicial district of the United States.

After its second document search, responsive to each of Judicial Watch's FOIA requests, the DOC produced some responsive documents and withheld others pursuant to various FOIA exemptions. The DOC moved for summary judgment in each case relative to Judicial Watch's specific FOIA requests and its specific FOIA withholdings. In each case, the DOC seeks an order approving the second search and its invocations of the FOIA exemptions.

Judicial Watch urges the Court to find the second search inadequate, including the DOC's use of FOIA exemptions to withhold certain classes of information and documents. It seeks a new round of discovery to further examine the DOC's search procedures and to locate other responsive documents that Judicial Watch claims the DOC did not produce.

Judicial Watch filed an opposition in each case, disputing the adequacy of the second search and the DOC's use of the various FOIA exemptions. In support of its oppositions, Judicial Watch submitted and principally relied upon the declaration of Sonya Stewart ("Stewart Declaration"), the DOC's FOIA Director at the time of both searches. Relying on the Stewart Declaration, Judicial Watch argues that the second search was inadequate because: (1) the same persons involved in the first search were active participants in the second; (2) rules and procedures used during the first search were re-utilized in the second search; and (3) the DOC is misusing various FOIA exemptions to unlawfully withhold responsive documents. For reasons stated in a separately issued memorandum opinion and order, the critical majority of the Stewart Declaration was stricken pursuant to Rules 12(f) and 56(e) of the Federal Rules of Civil Procedure. As such, the only portions of Judicial Watch's oppositions remaining before the Court are the legal arguments and factual assertions contained in the memoranda of law attached to its oppositions.

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LEGAL STANDARD

Summary judgment is appropriate when the motion papers, affidavits, and other submitted evidence demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Whether a fact is "material" is determined in light of the applicable substantive law invoked by the action. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In light of the applicable substantive law, a "genuine issue of material fact" is a fact that is determinative of a claim or defense, and therefore, affects the outcome of the case. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The moving party bears the initial burden of demonstrating that no genuine issues of material fact are in dispute. Upon such a showing, the burden then shifts to the non-moving party to demonstrate that genuine issues of material fact are in dispute. The Court is precluded from weighing evidence or finding disputed facts and must draw all inferences and resolve all doubts in favor of the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

DISCUSSION

For the DOC to prevail on its summary judgment motions, it must demonstrate that it, first, conducted an adequate search, one "reasonably calculated to uncover all relevant documents" and that, second, any withheld materials fall within a statutory exemption. Weisberg v. Dep't of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983); Judicial Watch v. Dep't of Justice, 306 F.Supp.2d 58, 64 (D.D.C.2004). Judicial Watch contests both the search's adequacy and the propriety of withholdings under FOIA's seven exemptions.

I. Adequacy of the Second Search

When responding to a FOIA document request, an agency is obliged to conduct a good faith search that is reasonably calculated to uncover all documents responsive to that request. See Valencia-Lucena v. Coast Guard, 180 F.3d 321, 325-26 (D.C.Cir.1999); Campbell v. Dep't of Justice, 164 F.3d 20, 27 (D.C.Cir.1998); Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C.Cir.1990). The adequacy of a FOIA search, and the corresponding search burden, are case-dependent. See Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C.Cir.1990). Normally, an agency need only conduct a "reasonable" search, but in this case the DOC's burden was heightened as a result of its prior misconduct. See Judicial Watch, 34 F.Supp.2d at 46. In its 1998 Memorandum Opinion, this Court found that

[T]he DOC's search was inadequate, unreasonable and unlawful under the FOIA. The DOC failed to search entire offices that were likely, if not certain, to hold responsive documents. Documents were destroyed, discarded and given away, sometimes without being searched to determine if they were responsive, other times with full knowledge that they were responsive.

Judicial Watch, 34 F.Supp.2d at 46. The Court ordered the DOC to conduct a second search "more restrictive and rigorous... than those ordinarily ordered as relief in a FOIA case" because...

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    ...of Mgmt. & Budget , 932 F.Supp.2d 167, 175 (D.D.C. 2013) (alterations omitted) (quoting Judicial Watch, Inc. v. U.S. Dep't of Commerce, 337 F.Supp.2d 146, 171 (D.D.C. 2004) ). A tribe's decision to apply for a license to operate an off-reservation casino is plainly voluntary, but then, havi......
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70 cases
  • Rodriguez v. U.S. Dep't of Army, Civil Action No. 12–1923 RC
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 27, 2014
    ...¶ 6. Additionally, although Ms. Kardelis's declaration sufficiently detailed the search, see Judicial Watch v. U.S. Dept. of Commerce, 337 F.Supp.2d 146, 160 (D.D.C.2004) (finding as sufficient the declaration of the individual responsible for coordinating the search), the defendant respond......
  • Ctr. for Investigative Reporting v. U.S. Customs & Border Prot., Civil Action No. 18-2901 (BAH)
    • United States
    • United States District Courts. United States District Court (Columbia)
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    ...for an agency to proceed solely on its sworn affidavits." Judicial Watch, Inc. v. U.S. Dep't of Commerce (Judicial Watch III ), 337 F. Supp. 2d 146, 171 (D.D.C. 2004). Yet, as is the case for all affidavits, such agency affidavits must "be made on personal knowledge." Animal Legal Def. Fund......
  • Oklahoma Pub. Emps. Ass'n v. State ex rel. Oklahoma Office of Pers. Mgmt., Nos. 108,839
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    • Supreme Court of Oklahoma
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    ...FN37. United America Financial, Inc. v. Potter, 531 F.Supp.2d 29 (D.D.C.2008); Judicial Watch, Inc. v. United States Dept. of Commerce, 337 F.Supp.2d 146 (D.D.C.2004); Tacoma Public Library v. Woessner, 90 Wash.App. 205, 951 P.2d 357 (1998) [Modified on rehearing on other grounds.]; Small v......
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    • United States
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    • September 30, 2017
    ...of Mgmt. & Budget , 932 F.Supp.2d 167, 175 (D.D.C. 2013) (alterations omitted) (quoting Judicial Watch, Inc. v. U.S. Dep't of Commerce, 337 F.Supp.2d 146, 171 (D.D.C. 2004) ). A tribe's decision to apply for a license to operate an off-reservation casino is plainly voluntary, but then, havi......
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