Am. Oversight v. GSA, No. 18-2419, 2020 WL 1911559 (D.D.C. Apr. 20, 2020) (Kollar-Kotelly, J.)

Am. Oversight v. GSA, No. 18-2419, 2020 WL 1911559 (D.D.C. Apr. 20, 2020) (Kollar-Kotelly, J.)

Re:  Requests for meeting notes, agendas, informational material, readouts, and follow-up conversation notes from White House meetings – occurring on December 20, 2017, January 24, 2018, and June 15, 2018 – concerning FBI Headquarters Consolidation Project

Disposition:  Granting in part and denying in part without prejudice plaintiff's motion for summary judgment; denying without prejudice defendants' motion for summary judgment

• Litigation Considerations, Adequacy of Search:  First, "the Court finds that Defendant GSA's search was not reasonably calculated to discover all responsive documents."  The court finds that "[i]n its FOIA request, Plaintiff requested 'all meeting notes, agendas, informational material, readouts, and follow-up conversation notes' related to three White House meetings discussing the FBI Headquarters Consolidation Project."  "'[N]othing in plaintiff’s . . . request suggests any intent to restrict the scope of [the] request to email only.'"  "Given the breadth of Plaintiff's request, and lacking justification from Defendant GSA, the Court finds that the decision to link all search terms with email addresses unreasonably excluded other, non-email records."
  
  Second, "[b]ased on the information disclosed in the responsive email, the Court finds that Defendant DOJ's decision to search the records of only Mr. Rosenstein was not reasonably calculated to uncover all responsive documents."  The court relates that "Defendant DOJ's initial decision to search the records of only Mr. Rosenstein may have been reasonable."  "However, courts 'evaluate[ ] the reasonableness of an agency's search based on what the agency knew at its conclusion rather than what the agency speculated at its inception.'"  "Following Defendant DOJ's supplemental search of Mr. Rosenstein's records, Defendant DOJ discovered a record demonstrating that at least two other individuals could have information responsive to Plaintiff's FOIA requests."  Specifically, the court points to "[one] email [which] reflects that more individuals tha[n] Mr. Rosenstein were involved in preparing for the meeting and could have agendas, informational material, readouts, and follow-up conversation notes related to the meeting."  "Based on the information disclosed in this email, showing the involvement of individuals other than Mr. Rosenstein, [the court finds that] Defendant DOJ was required to 'revise its assessment of what [was] "reasonable" . . . to account for leads that emerge[d] during its inquiry.'"  Responding to defendant's objections, the court finds that "even if Mr. Rosenstein was the sole attendant of the meeting, the disclosed email makes clear that he did not work alone in preparing for the meeting and may not have worked alone in the meeting's follow-up."  "In conducting its search, Defendant DOJ was not permitted to 'ignore clear leads . . . [that] may indicate . . . other offices that should have been searched' such as 'records custodians who should have been consulted.'"
  
  Third, the court finds that "[b]y omitting obvious synonyms, Defendant OMB's search was not reasonably calculated to produce all responsive records."  "First, Defendant OMB argues that the terms 'JEH' and 'Hoover Building' are not used by the OMB or by other agencies in communications with the OMB."  "However, Plaintiff has introduced evidence that other agencies use these terms to refer to the subject matter of Plaintiff's FOIA request."  Therefore, the court finds that "it is reasonable to expect that other agencies may use these terms when communicating with OMB even if OMB itself does not regularly use the terms."  "Additionally, Defendant OMB argues that a search using the requested terms would result in a number of unresponsive results."  "But, without more, the speculation that the search terms may result in some unresponsive results is not a sufficient reason to exclude the search terms."
  
  Finally, "the Court finds that Defendant FBI's search in response to Plaintiff's FOIA requests was inadequate because it did not use obvious synonyms as search terms and it did not include, or justify the failure to include, a search of Director Wray's paper records."  First, "the Court concludes that Defendant FBI's failure to search for obvious synonyms resulted in a search not reasonably calculated to find all responsive documents."  The court explains that its rationale is the same as in its discussion of OMB's search.  "Second, [the court relates that] Plaintiff challenges Defendant FBI's failure to search Director Wray's paper records."  The court finds that "Defendant FBI failed to state that it searched Director Wray's paper records."  "And, assuming that those records were not searched, Defendant FBI failed to justify its decision not to search those paper records."  The court explains that "Plaintiff's FOIA requests asked for '[a]ll meeting notes, agendas, informational material, readouts, and follow-up conversation notes' related to two White House meetings attended by Director Wray."  "As Director Wray was in attendance at these meetings it is reasonable to think that he might have notes, handouts, or other material that are in paper form and not electronically stored."  "Lacking adequate explanation, it was not reasonable for Defendant FBI to fail to search Director Wray's paper records."