Am. Oversight v. OMB, No. 18-2424, 2020 WL 1536186 (D.D.C. Mar. 31, 2020) (Friedrich, J.)

Am. Oversight v. OMB, No. 18-2424, 2020 WL 1536186 (D.D.C. Mar. 31, 2020) (Friedrich, J.)

Re:  Requests for discussions with White House concerning FBI Headquarters Consolidation Project

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

• Procedural Requirements, Searching for Responsive Records:  Regarding the search for records responsive to plaintiff's first request, the court holds that "[defendant's] search was not adequate."  "To begin with, while the request sought '[a]ll . . . communications . . . regarding the FBI headquarters consolidation project,' . . . OMB's search would not have captured documents referring to the FBI headquarters by any name other than 'FBI headquarters' or 'FBI HQ.'"  The court finds that "[s]uch a search could not be 'reasonably expected to produce' all communications regarding the FBI headquarters consolidation project."  "As a general matter, 'omitting from the search an alternative name by which the subject of the search is known renders the search inadequate.'"  "More generally, the Court finds OMB's justification of its search terms – and, in particular, its justifications for refusing to use the terms suggested by [plaintiff] – insufficient."  "It is true that 'a FOIA petitioner cannot dictate the search terms for his or her FOIA request.'"  "But the agency must still 'provide[ ] an explanation as to why the search term was not used.'" 
   
  Regarding the search for records responsive to plaintiff's second request, the court finds that "[b]oth parts of [plaintiff's] second request were more straightforward than the searches that OMB ultimately conducted."  "The second request sought, in essence, (1) all records reflecting communications between two OMB officials (or their delegates) and the fifteen Trump Organization individuals specifically identified in the request and (2) all records reflecting communications by those two OMB officials (or their delegates) containing any one of six terms."  "Instead of conducting those searches, however, OMB searched for a complex arrangement of terms devised in response to [plaintiff's] first request."  "The Court recognizes that [plaintiff's] second request may generate a large volume of records unrelated to the true object of [plaintiff's] inquiry and thus encourages the parties to work together to refine these searches to facilitate a timely and efficient response."  "On this record, however, the Court cannot conclude that OMB has established that it has conducted a search 'reasonably calculated to uncover all relevant documents' responsive to [plaintiff's] second request."
   
  Regarding defendant's overall searches of non-email communications, the court notes that "OMB initially limited its searches to email communications."  "Subsequently, however, OMB conducted 'additional searches of each of the custodians' paper records, electronic work folders . . . , and shared network drives accessible by that custodian.'"  "Because the plain terms of [plaintiff's] requests sought all types of records, including but not limited to emails, OMB must search these additional records again, using appropriate search terms as discussed above."  "And while courts generally show deference to an agency's decision to restrict its search to certain types of records, . . . OMB must provide adequate justification in its supplemental declaration for limiting its searches to these particular categories of records."
   
• Exemption 5, Presidential Communications Privilege:  "[T]he Court concludes [that certain documents] were properly withheld under the presidential communications privilege."  However, the court finds that some documents were not.  The court finds that "[w]ith respect to each category of documents [withheld], OMB has confirmed that the documents memorialize communications that were 'solicited and received by the President or his immediate White House advisers.'"  "However, with respect to three of the above categories, OMB has failed to allege that the withheld documents related to matters of presidential decisionmaking."  Specifically, the court finds that "[t]he email from [an] OMB official . . . and the two attachments to that email involved a matter of presidential decisionmaking because they concerned 'a request by the President, Vice President, or an immediate White House advisor to the President for a pre-published draft of a volume of the President's Budget,' . . . a subject that falls squarely within the realm of presidential decisionmaking."  "But with respect to the other three categories of documents, the current record does not permit the Court to determine whether the presidential communications privilege properly applies to these documents."  "OMB must therefore 'support its contention that the [withheld documents] relate to presidential decisionmaking.'"