Akel v. DOJ, No. 20-3240, 2023 WL 2585667 (D.D.C. Mar. 21, 2023) (Moss, J.)

Akel v. DOJ, No. 20-3240, 2023 WL 2585667 (D.D.C. Mar. 21, 2023) (Moss, J.)

Re:  Requests for certain records of communication concerning plaintiff

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

• Litigation Considerations, Adequacy of Search:  “Because the Department has failed to describe the searches undertaken by the individual attorneys and staff in response to [plaintiff’s] second FOIA request with sufficient detail to permit judicial review, the Court must deny both the Department’s motion for summary judgment and [plaintiff’s] cross-motion for summary judgment respecting this search.”  First, regarding “whether the Department has now remedied the deficiency in its search identified in the Court’s prior decision – that is, the Department’s failure to locate or search [certain] archived emails,” the court finds that defendant has conducted the required search and “there is nothing left for the Court to order the Department to do regarding [these] emails.”
  
  As to plaintiff’s second request, “the Court is persuaded that the Department has identified who conducted the relevant searches.”  Additionally, “[a]lthough a close question, the Court is persuaded that the Department has carried its burden of demonstrating that it applied an appropriate date range to the searches that it conducted in response to [plaintiff’s] second FOIA request.”  However, the court finds that defendant’s “declaration is less clear about whether each such search included the [required] search terms.”  “The Department, nonetheless, asks the Court to infer that the searches conducted of each of the four remaining accounts included [the required] terms.”  “It argues that ‘[b]ecause Plaintiff included the . . . search terms in his FOIA request, the affidavit does not need to specify that the search was conducted with those terms,’ . . . and that ‘USAO-FLN certified that its search was complete’ . . . .”  “The Court is unpersuaded for two reasons.”  “First, [defendant’s] declaration does not indicate whether the individual AUSAs, who were asked to search their own email accounts, ever received a copy [of plaintiff’s] second FOIA request.”  “Second, to prevail on summary judgment in a FOIA case, an agency must offer a sufficiently detailed, non-conclusory description of its search to permit the Court to determine for itself whether the search was adequate.”  “Yet, here, all that [defendant] tells the Court is that the individual AUSAs were asked to search for ‘potentially-responsive material’ and that an unnamed person from the U.S. Attorney’s Office certified that the search was ‘complete.’”  “If the Court is to take its duty to undertake an independent assessment of the adequacy of the search seriously, such a barebones declaration cannot suffice.”