Judicial Watch, Inc. v. U.S. Dep't of Justice
| Docket Number | Civil Action 22-1034 (BAH) |
| Decision Date | 27 November 2023 |
| Parties | JUDICIAL WATCH, INC., Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant. |
| Court | U.S. District Court — District of Columbia |
Plaintiff Judicial Watch, Inc., a nonprofit organization that “seeks to promote transparency, integrity, and accountability in government and fidelity to the rule of law” and “regularly requests records from federal agencies, ” Compl. ¶ 3, ECF No. 1, challenges the response of the Federal Bureau of Investigation (“FBI”), a component of defendant U.S. Department of Justice (“DOJ”), to a request submitted pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for records of communications between FBI officials and the New York Times (“NYT”) regarding the FBI's execution of search warrants on November 4 and 6 2021, at the homes of an employee and of the founder of Project Veritas, id. ¶ 5, which is described as “a non-profit non-governmental organization headquartered in Mamaroneck, New York, ” id.[1]After the FBI had searched its records system and informed plaintiff of the existence of an active-and claimed exempt-investigative file pertaining to Project Veritas, plaintiff brought the instant lawsuit alleging in a one-count complaint that the FBI failed to conduct an adequate search for responsive records. Compl. ¶¶ 16-19; Def.'s Mot Summ. J. (“Def.'s Mot.”), Att. 1, Decl. of Michael G. Seidel (“Seidel Decl.”), Ex. C at 1, December 15, 2021 Letter, ECF No. 16-1.
Pending before the Court are the parties' cross-motions for summary judgment. See Def.'s Mot., ECF No. 16; Pl.'s Opp'n Def.'s Mot. Summ. J. & Mem. Supp. Cross-Mot. Summ. J. (“Pl.'s Opp'n”), ECF No. 17.[2] For the reasons set forth below, defendant's Motion for Summary Judgment is granted and plaintiff's Cross-Motion for Summary Judgment is denied.
The background underlying plaintiff's FOIA request is described below, followed by a review of plaintiff's FOIA request and the FBI's responses to the request both before and after the initiation of this lawsuit.
The search warrants about which plaintiff's FOIA request sought records were executed in connection with a criminal investigation into the theft of a diary belonging to the President's daughter, Ashley Biden. Pl.'s Resp. SMF ¶¶ 25-27, ECF No. 17-1; Def.'s Resp. Pl.'s SMF ¶¶ 2527, ECF No. 20-2. On November 5 and 6, 2021, the NYT published two articles about the search warrants executed on November 4 and 6 at the homes of Project Veritas's employee Spencer Meads and founder James O'Keefe, “citing ‘people briefed' on the matter as its sources.” Pl.'s Resp. SMF ¶¶ 29-31 (). Each article was updated days following publication.
On November 10, 2021-even before the final updates to the NYT articles were made on November 12-plaintiff submitted to the FBI the FOIA request at issue, seeking records, from October 1, 2021, to “present, ” of communications between FBI officials and the NYT regarding what plaintiff described as “the FBI search warrants and raid” on the homes of O'Keefe and Meads. Compl. ¶ 5. The FOIA request detailed that the requested “communications” included “email (on .gov or non.gov email accounts), text message, or instant chat, ” with FBI officials, including “in the offices of the FBI Director, FBI Deputy Director, Office of General Counsel, Office of Public Affairs, and/or the FBI New York Field Office” (“NYFO”). Id.; see also Seidel Decl., Ex. A, FOIA Request, ECF No. 16-1.
Following receipt of plaintiff's FOIA request, the FBI searched its Central Records System (“CRS”) for main index entries via Sentinel, the FBI's case management system. Seidel Decl. ¶¶ 17-19. CRS contains “applicant, investigative, intelligence, personnel, administrative, and general files, ” “spans the entire FBI organization[, ] and encompasses the records of FBI Headquarters (HQ), FBI field offices, and FBI legal attache offices (legats) worldwide.” Id. ¶ 14. Information in CRS that is “deemed of sufficient significance to warrant indexing for future retrieval” is manually indexed by FBI personnel but not “every individual name or other subject matter” is indexed. Seidel Decl. ¶ 16. A main index entry is created for each “subject or focus of an investigation” and a reference index is created for individuals or non-individuals “associated with an investigation, but who or which is not the main subject or focus of the investigation.” Id.
The FBI searched on CRS for the term “Project Veritas” and applied a cut-off date of November 24, 2021, the date of the FBI's initial search. Id. ¶ 19. The FBI did not search for records relating to the Project Veritas employee or founder by name, because plaintiff had not supplied a privacy waiver or proof of death for either. Id. ¶ 19 n.6; Def.'s Reply Supp. Mot. Summ. J. & Opp'n Pl.'s Cross-Mot. Summ. J. (“Def.'s Opp'n”), Att. 1, Decl. of Joseph E. Bender, Jr. (“Bender Decl.”) ¶ 5, ECF No. 20-1. This search identified one responsive file that the FBI determined contained “law enforcement records” related to “a pending or prospective law enforcement proceeding.” Seidel Decl. ¶ 8; Seidel Decl., Ex. C at 1, December 15, 2021 Letter. By letters, dated December 15, 2021, and January 6, 2022, the FBI advised that release of the material located in the active investigative file “could reasonably be expected to interfere with enforcement proceedings, ” and that such record was accordingly “exempt from disclosure pursuant to [FOIA exemption (b)(7)(A)].” Seidel Decl., Ex. C at 1, December 15, 2021 Letter; Seidel Decl. ¶ 8; Bender Decl. ¶ 5; Answer ¶ 11, ECF No. 9.
Plaintiff appealed the FBI's denial of the FOIA request to DOJ's Office of Information Policy (“OIP”), which, on February 14, 2022, denied this administrative appeal and affirmed the FBI's determination that the requested records were properly withheld pursuant to exemption (b)(7)(A). Seidel Decl. ¶ 11; Seidel Decl., Ex. F, February 14, 2022 Letter, ECF No. 16-1.
On April 13, 2022, plaintiff filed the instant lawsuit seeking relief under the FOIA. See generally Compl. Following this filing, the FBI determined that plaintiff's FOIA request had been misinterpreted as seeking records “pertaining to Project Veritas, James O'Keefe, and Spencer Meads, ” as opposed to records “of communications between FBI officials and employees, contractors, and representatives of The New York Times regarding” the search warrants executed at the homes of O'Keefe and Meads. Bender Decl. ¶ 6 & n.1; Pl.'s Reply Supp. Cross Mot. Summ. J. (“Pl.'s Reply”) at 1 n.1, ECF No. 22. Thereafter, the FBI conducted a “page-by-page” review of the active investigative file for any records of the requested communications, searching for the terms “New York Times, ” “NY Times, ” and “Times, ” and, upon receipt of O'Keefe's certification of identity in February 2023, “James O'Keefe” and “O'Keefe, ” which also returned results for “James OKeefe” Seidel Decl. ¶¶ 21-22 & nn.7-8. The FBI also conducted an additional search of CRS for the term “James O'Keefe.”[3]Id. ¶ 22. The FBI “contacted Plaintiff to explain” that CRS contained no responsive records, but that the FBI would additionally “search the classified and unclassified email accounts of certain individuals in the offices delineated by Plaintiff.” Seidel Decl. ¶ 26.
The FBI accordingly searched the classified and unclassified email accounts of certain individuals within the FBI offices identified in plaintiff's request for records exchanged between October 1, 2021, and November 24, 2021 (the same time period applied to its search of the CRS), using the search terms “Spencer Meads, ” “Meads, ” “James O'Keefe, ” “O'Keefe, ” “OKeefe, ” “Project Veritas, ” and “Veritas.” Bender Decl. ¶ 14; Seidel Decl. ¶ 26. The FBI limited its search to individuals who, during that time period, “held a position at the Senior Executive Service (SES) level, had been officially acknowledged by the FBI as an FBI employee in the context of the records at issue, or held a public-facing position.” Seidel Decl. ¶ 26. The FBI located no responsive records from these email searches. Id. ¶ 27. Based on the results of its email searches and review of the investigative file pertaining to Project Veritas, the FBI concluded that “a search elsewhere would not reasonably be likely to locate responsive records.” Id. ¶ 28.
“[A]n agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents, ” Watkins L. & Advoc., PLLCv. U.S. Dep'tof Just., 78 F.4th 436, 442 (D.C. Cir. 2023) (quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999)), and “perform[s] more than a perfunctory search” to identify responsive records, Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 514 (D.C. Cir. 2011); see also In re Clinton, 973 F.3d 106, 116 (D.C. Cir. 2020).
When an agency's search for records is challenged, “a district court is not tasked with uncovering whether there might exist any other documents possibly responsive to the request, but instead, asks...
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