Am. Oversight v. GSA, No. 18-2423, 2020 WL 5095465 (D.D.C. Aug. 28, 2020) (Contreras, J.)
Am. Oversight v. GSA, No. 18-2423, 2020 WL 5095465 (D.D.C. Aug. 28, 2020) (Contreras, J.)
Re: Requests for records concerning plans to redevelop FBI headquarters
Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment
- Procedural Requirements, Searching for Responsive Records: The court holds that "the GSA must nonetheless conduct an additional round of searches consistent with this Opinion." First, the court holds that "the agency erred in construing [one] request as only relating to seeking records pertaining to the FBI headquarters consolidation project." The court finds that "[n]either part of the Trump Organization Communications Request contained a subject matter restriction." "Rather, as explained above, the first part of the request sought all records of communications between or among a set of GSA officials and Trump Organization officials, regardless of subject matter, while the second sought all records of communications with a set of GSA officials containing specific key terms." "Neither part limited itself to a particular topic or subject area." "Resisting this conclusion, the GSA urges that the request should be 'considered as a whole,' and points to the opening paragraphs of the request (which discuss [plaintiff's] reasons for making the request) and the suggested search terms in the second part of the request (which include related terms like 'FBI,' 'Trump Org*' and 'Trump Hotel')." "But it is not the agency's role to intuit the 'purpose' of a request and impose a corresponding limitation on the associated search." "The operative language of each part of [plaintiff's] request is clearly labeled and unambiguous and, moreover, does not import or cross-reference any of the prefatory material from the opening paragraphs."
Second, the court disagrees with "GSA declin[ing] to use the full suite of search terms specifically set forth in the request." "In essence, the GSA first imposed its own subject matter limitation on the request, and then developed its own set of search terms that it thought was tailored to this imagined request." "This two-step procedure was unnecessary." "Rather, when presented with [plaintiff's] request that 'reasonably describe[s]' the records sought with sufficient particularity, . . . the GSA was required to make 'a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested' . . . ." "That said, when faced with a request like the one at issue here (that is, one where relevancy is defined by a particular set of terms), an agency is not necessarily required to blindly execute the corresponding search." 'For instance, depending on the scope of a search and the records implicated, a search may pose an undue burden." "Or a request may contain so many search terms requiring so many combinations that the search is technically not feasible." "But in the absence of a more specific objection or a showing of burden or infeasibility, the agency cannot narrow or redefine the substance of the request and then craft a corresponding set of search terms.
Third, the court holds that "GSA does not even mention why it did not attempt to search voicemails or call logs, two formats specifically highlighted in [plaintiff's] request." "Additionally, that the GSA did not 'provide' the relevant employees with text messaging capability or access to messaging systems is not, standing alone, reason to conclude that no relevant agency communications existed in those formats." "Indeed, the GSA does not explicitly spell out why this fact – that the agency did not itself provide the capability – is legally significant." "Taken in its best light, the GSA's position appears to be that because it does not provide the relevant capabilities on its employees' official devices, any texts or instant messages would be stored on custodians' personal devices – and the GSA is not required to search those, at least (perhaps) in the absence of some evidence that employees used their own devices for official business."
- Litigation Considerations: The court holds that "summary judgment is entered on behalf of the GSA with respect to the withholdings and redactions of the records located to date, and with respect to the adequacy of the searches insofar as they were not challenged by [plaintiff]."