Amadis v. DOJ, No. 16-2230, 2019 WL 2211120 (D.D.C. May 22, 2019) (McFadden, J.)

Amadis v. DOJ, No. 16-2230, 2019 WL 2211120 (D.D.C. May 22, 2019) (McFadden, J.)

Re:  Request for records concerning decision to deny plaintiff's visa applications

Disposition:  Granting defendants' motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Litigation Considerations, Exhaustion of Administrative Remedies:  The court holds that "because [plaintiff] failed to appeal the DEA and the FBI's decisions to OIP, he has not exhausted his administrative remedies."  The court relates that "both the DEA and the FBI issued adverse determinations."  "Both agencies also told [plaintiff] that he could appeal their adverse determinations. And because both agencies issued their determinations within 20 working days of receiving the requests, FOIA's administrative exhaustion requirements were triggered."  The court notes that "[plaintiff], however, appealed neither decision to OIP before amending his Complaint to add [these two requests]."  Responding to plaintiff's argument "that because the DEA and the FBI offered to conduct additional searches if he submitted more information, the agencies' respective responses were not final 'determinations,'" the court finds "[n]ot so."  "As described above, when an agency informs a requester that it has complied with a request but has located no responsive records, that is a determination, and such a determination is susceptible to immediate administrative appeal."  "An agency's offer to conduct an 'additional' search does not alter the final, appealable nature of its determination."
   
• Procedural Requirements, Searching for Responsive Records:  The court holds that "DEA 'searched the computer database that most likely would identify responsive records.'"  "'Nothing more is required.'"  In response to plaintiff's specific objection, the court holds that "DEA was not separately required to comb through employee emails when it had reasonably determined that any email relevant to the processing of [plaintiff's] initial FOIA request would be in [the specific system searched]."
  
  The court also finds that the State Department "conducted an adequate search for records responsive to [plaintiff's] FOIA request."  The court finds that "State searched where responsive documents were reasonably likely to be found."  "What is more, State wisely assigned the search to employees familiar with [plaintiff's] earlier request."  "And State searched in several databases using criteria unique to [plaintiff's] past request reasonably likely to return responsive records."  Responding to plaintiff's search term objections, the court finds that "[b]ecause requesters may have common names or several different FOIA requests, it is reasonable for an agency to use a unique identifier, like a FOIA request number, to locate only responsive records while excluding nonresponsive records."  "This is especially true when searching voluminous databases, such as email accounts."
   
• Exemption 7(E), Glomar:  The court holds that "because the FBI withheld only records related to its search that produced a 'No Records'/Glomar response, it properly withheld those records under Exemption 7(E)."  The court relates that "[plaintiff's] [f]irst FBI Request sought all records for 'criminal and/or drug trafficking related crimes' about him."  "The FBI issued a 'No Records' response and refused to confirm or deny whether [plaintiff] was listed on any watch lists under Exemption (b)(7)(E)."  "Requesters put the FBI in an untenable position when they seek search slips and FDPS case notes about such responses . . . ."
   
• Procedural Requirements, Searching for Responsive Records:  The court holds that "OIP reasonably determined that the 15 pages of DEA and FBI records in the appeals files were not responsive."  In response to plaintiff's objection that "OIP improperly narrowed his FOIA request," the court finds that "[t]he plain language of [plaintiff's] FOIA request . . . does not encompass DEA and FBI records in his appeals file."  The court finds that "[plaintiff's] request to OIP was for 'all records . . . memorializing or describing' OIP's processing of his two appeals."  "He did not seek all records in his appeals files."  "Nor did he specifically request records about the DEA and the FBI's processing of his initial requests."
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "[t]he deliberative process privilege attaches to the portions of Blitz Forms at issue."  "The redacted information at issue reflects OIP's attorneys' 'evaluations, analysis, recommendations, and discussions in contemplation of the adjudication of [plaintiff's] administrative appeals.'"  "Indeed, Blitz Forms are prepared by front-line attorneys to 'succinctly summarize the initial search and response to the FOIA request at issue in the administrative appeal, identify important issues to be taken into account during the course of the adjudication process, and provide key background information in a concise, summary format for ease of understanding and presentation to reviewing senior OIP attorneys.'"  "That information is both predecisional and deliberative, and properly withheld under Exemption 5."  Responding to plaintiff's argument, the court finds that "the fact that the supervisors reviewing the front-line attorneys' Blitz Forms did not have additional comments does not show that the front-line attorneys were granted decision-making authority, and [plaintiff] has cited no authority to the contrary."  Finally, regarding forseeable harm, the court holds that "[defendant] explained that disclosing the information at issue would have a chilling effect on OIP Administrative Appeals Staff attorneys, who would no longer feel able to discuss their idea, strategies, and recommendations in Blitz Forms freely."  "This is among the harms that Exemption 5 seeks to prevent."