Akel v. DOJ, No. 20-3240, 2021 WL 6196984 (D.D.C. Dec. 30, 2021) (Moss, J.)

Akel v. DOJ, No. 20-3240, 2021 WL 6196984 (D.D.C. Dec. 30, 2021) (Moss, J.)

Re:  Request for ex parte communications about plaintiff's criminal case between U.S. Attorney's Office for the Northern District of Florida and U.S. District Court for the Northern District of Florida

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's cross-motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "[T]he Court concludes that the Department conducted an adequate search for records, except with respect to the email communications of [one former Assistant United States Attorney ("AUSA")]."  First, the court relates that "[t]he Department admits that it did not seek to recover and search [the former AUSA's] emails, even though they are archived in a centralized location."  "The Department offers two reasons why it believes that decision was a reasonable one."  "First, the Department asserts that, because [the former AUSA and another AUSA whose records defendant did search] were co-counsel, they 'surely' would have included each other on any ex parte communications, and thus searching [the former AUSA's] emails would be duplicative."  "Second, the Department suggests that searching [the former AUSA's] emails would be 'unnecessary and unreasonable' because Plaintiff's request is premised on a 'wild conspiracy theory.'"  The court finds that "[n]either of these reasons is persuasive."  "First, the Court is unconvinced by the Department's assurance that [the emails of the AUSA whose records were searched] 'surely' would have included any ex parte communications sent or received by [the former AUSA]."  "Because it is generally improper for lawyers to communicate with chambers ex parte concerning a pending or impending matter, . . . to the extent that any responsive records do exist, there is no reason to assume that an attorney engaged in such conduct would have copied his colleagues."  "The Court is also unmoved by the Department's claim that the incremental burden involved in searching [the former AUSA's] emails renders that search unreasonable."  "The relevant question is not whether a FOIA request seeks records that an agency is likely to possess but, rather, whether the agency has looked in those places where responsive records are likely to be found, assuming they do exist."  "Applying an a priori filter based on the agency's good-faith belief that its officers and employees are trustworthy and do not violate legal or ethical norms runs head on into FOIA's promise of transparency."
  
  Second, the court finds that "[t]he Department [states] that it . . . search[ed] for emails from official Department email accounts, albeit only those accounts that it identified as most likely to contain responsive emails."  "The Court concludes that the Department has done enough to meet its burden for summary judgment."  "[Plaintiff] identified the AUSAs who worked on the case and asked them to search their records for any responsive emails."  "Two AUSAs responded that they had saved every email related to Plaintiff's case, searched those files, and found that there were no ex parte communications with chambers."  "Two more AUSAs responded that they had only worked on the appeal but added that they did not have any ex parte communications with chambers."  "[Defendant] also sent an email to the entire office asking for responsive records . . . and conducted a manual and electronic search of the case files for responsive records."  The court finds that "[defendant's] declaration . . . describes in sufficient detail how he identified the attorneys associated with Plaintiff’s case, which files and systems he (and other attorneys) searched, and the search terms that they employed in those searches."  "Although Plaintiff does not say it in so many words, he effectively argues that the Department's search methodology was unreasonable because, in his view, the best way to locate responsive records would have been to conduct a search of the Office's email archive system – not rely on attorneys saving emails in their personal files."  "[H]owever, [the court finds that] the existence of a searchable email archive is largely beside the point, because the search that the Department conducted in this case was adequate without resort to such an archive (except with respect to [the former AUSA], as discussed above)."  "Thus, any search of an email archive system, beyond the search that the Court has already ordered with respect to former [the former AUSA], would be 'unlikely to produce any marginal return.'"
  
  Finally, the court relates that "Plaintiff also contends that the Court may not rely on any of [defendant's declarant's] descriptions of the searches that . . . [other AUSAs] conducted, because the AUSAs did not 'submit[ ] . . . declaration[s]' of their own, and their statements constitute 'impermissible [h]earsay.'"  "The court holds that "[a]n affidavit from an agency employee responsible for supervising a FOIA search is all that is needed to satisfy Rule 56(e); there is no need for the agency to supply affidavits from each individual who participated in the actual search.'"  "Moreover, the declarant need not himself have participated in the search for records."