Avila v. U.S. Dep't of State, No. 17-2685, 2022 WL 2104483 (D.D.C. June 10, 2022) (Contreras, J.)

Avila v. U.S. Dep't of State, No. 17-2685, 2022 WL 2104483 (D.D.C. June 10, 2022) (Contreras, J.)

Re:  Request for records concerning plaintiff

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

• Litigation Considerations, Adequacy of Search:  "Plaintiffs claim the search methodology was deficient because different [agency] components used different search terms."  "Plaintiffs [also] protest that using Agent Avila's name as the sole search term created an unreasonably narrow search."
  
  "Agencies have 'discretion in crafting a list of search terms that they believe to be reasonably tailored to uncover documents responsive to the FOIA request.'"  "'[T]he fact that different offices used different search terms' does not 'undermine the reasonableness of [Defendant's] search.'"  "Here, [Defendant's] various components all used Agent Avila's name as a search term, but some components voluntarily included additional search terms[.]"  "According to Director Stein, [defendant] 'relies on the knowledge and expertise of the employees of each bureau/office/post to determine the files and locations reasonably likely to house responsive records and the best means of locating such records, as these employees are in the best position to know how their files are organized.'"  "The Court finds that the searches were adequate in this regard."
  
  "Plaintiffs [also] take issue with the fact that many components . . . used Agent Avila's name as the only search term."  "The Court agrees that this was an inadequate search method."  "[S]earching 'Victor Avila' alone 'may have missed documents that did not identify him by his full name.'"  "This deficit raises concerns about whether the search process produced all responsive documents." 
  
  "More significantly, [p]laintiffs point out that [defendant's] search unduly focused on Agent Avila's name while ignoring the broader scope of the request."  "Plaintiffs requested 'all records concerning Victor Avila, Jr.' including 'communications among State Department personnel that refer or relate to Mr. Avila and communications between State Department and ICE and/or DHS personnel that refer or relate to Mr. Avila.'"  "[Defendant's] search plainly covered documents that 'refer' to Mr. Avila, but not necessarily records that 'concern' or 'relate to' Mr. Avila."  "The State Department's use of the sole search term 'Victor Avila' would miss records of the attack that do not specifically mention Agent Avila's name, but which are nonetheless responsive to this request."
  
  "[Defendant] argues that it was reasonable to interpret the FOIA request as 'excluding all records that did not name Avila' and that [p]laintiffs should 'know[] better' if they 'wanted a broader range of documents than [the] request explicitly sought.'"  "But [defendant] 'has a duty to construe a FOIA request liberally.'"  "Read in context, [p]laintiffs' letter plainly seeks information about the February 15, 2011 attack that severely wounded Agent Avila."  "The letter describes the attack in detail, including the date, location, victims, circumstances, and the government program that allegedly sourced the weapons used in the attack."  "Immediately following this description—and still on the first page—the letter states [p]laintiffs' search request."  "Given this context, and the broad meaning of the words 'concerning' and 'relate to,' it is 'improbable' to read the letter as solely seeking records with Agent Avila's name on them."
  
  "[Defendant's] position is further undermined by the fact that it knew [p]laintiffs sought information about the attack."  "When 'an agency becomes reasonably clear as to the materials desired,' the agency must provide them even if the request is not a 'model of clarity.'"  "During the search process, counsel for [defendant] emailed counsel for [p]laintiffs to discuss the possibility of excluding 'a substantial volume of documents concerning extradition of individuals to the United States in connection with the attack.'"  "[Defendant] did not need to provide any context for 'the attack' because the request letter already made this obvious."  "[Defendant's] brief also admits that it was 'keenly aware of the salient facts' and 'details related to or concerning Mr. Avila and [his] deadly assignment.'"  "Despite knowing what [p]laintiffs sought, [defendant] conducted a narrow search by only searching for documents that had Agent Avila's name on it."  "In short, [defendant's] search was not 'reasonably calculated to uncover all relevant documents.'" 
  
  "[Defendant's] other arguments also miss the mark."  "[Defendant] claims that it has no obligation to 'search[ ] for documents beyond the clear four corners of [the] request.'"  "While an agency is 'not obliged to look beyond the four corners of the request for leads to the location of responsive documents,' [p]laintiffs' request for records that 'relate to' and 'concern' Agent Avila fall squarely within the request itself."  "The request itself describes Agent Avila's relation to the attack, and by extension, [defendant]—i.e., it did not request documents concerning Agent Avila devoid of context."
  
  "[Defendant] also contends that it was reasonable to interpret [p]laintiffs' request narrowly because Agent Avila had previously filed a broader FOIA request to [defendant] in connection with a separate lawsuit."  "According to Director Stein, the former 'request is broader than, but inclusive of, the FOIA request at issue in this case.'"  "The Court does not doubt that Agent Avila's first FOIA request . . . was broader in scope."  "But that does not diminish the scope of the current request, whose words must still be given effect." 
  
  "Finally, [defendant's] reliance on [a prior court decision] is misplaced."  "[The prior decision] held that the FBI did not need to search for the deceased's 'known associates and affiliated organizations,' because the request made no reference to any affiliated organizations, and the FBI's searches of the deceased would likely have captured responsive records about known associates."  "[The prior decision] is inapposite here because [p]laintiffs' request made clear mention of the attack, so [defendant] has no excuse not to search for it."  "This case is also unlike [the prior decision] because the Court finds it unlikely that Agent Avila's name would be mentioned every time in conjunction with the attack."  "Thus, a search for Agent Avila's name only would not be 'reasonably calculated to uncover all relevant documents.'"
   
• Exemption 1:  "Plaintiffs dispute application of Exemption 1 to eight documents."  "Director Stein confirmed that the withheld information in these documents continues to meet the classification criteria of E.O. 13,526." 
  
  "Document 19 is a 13-page incident report on the attack, authored by [defendant]."  "The Vaughn index describes the incident report's assessments of certain related Mexican policies and efforts, and how disclosure of this information could jeopardize bilateral relations and cooperation with Mexico."  "Given this greater level of specificity compared to Document 18, [defendant] has met its 'light' burden to detail how the disclosure of this information might harm national security."
  
  "Document 102 is a cable of confidential discussions between the United States and the Government of Mexico regarding Mexican senators' calls for the foreign secretary to testify."  "The cable contains deliberations and assessments of Mexican foreign policy, which if exposed would undermine Mexico's willingness to share information in confidence with the United States."  "The Court is satisfied that this document is exempt under E.O. 13,526 § 1.4(b) and (d)." 
  
  "Documents 103–105 are cables that 'set the scene' for senior U.S. government official visits to Mexico."  "The cables evaluate Mexican policy and governance, regional security, and assessments of certain foreign officials, which if exposed would inject friction into U.S.-Mexican relations."  "The Court is satisfied that this withholding is permitted under E.O. 13,526 § 1.4(d)." 
  
  "Document 106 is a 38-page spreadsheet that explains the Permanent Coordinating Committee's decision for not convening an Accountability Review Board regarding past security incidents involving U.S. personnel."  "The Court finds that E.O. 13,526 § 1.4(d) applies because the document details specific security incidents involving U.S. Government personnel." 
  
  "Document 115 is a 2-page cable that contains information about the attack."  "As with Document 18 (a briefing paper prepared for Assistant Secretary Eric Boswell's meeting with U.S. Ambassador to Mexico Tony Wayne), the Court lacks enough information to decide whether withholding is proper."  "Until [defendant] better describes these withholdings (without disclosing classified details), 'it is premature for the Court to draw conclusions as to whether the document[s] are properly withheld.'" 
   
• Exemption 3:  "Plaintiffs contest [defendant's] withholding of Document 115 under Exemption 3."  "[Defendant] invoked this exemption under the National Security Act, claiming that it 'protect[s] intelligence sources and methods from unauthorized disclosure.'"  "[T]he Court lacks enough information to decide whether withholding is proper."  "[Defendant] . . . must revisit this document and provide more detail."
   
• Exemption 5, Deliberative Process Privilege; Attorney Work-Product Privilege; Attorney-Client Privilege:  "Documents 2–5 are draft diplomatic notes and cables from [defendant] addressed to Mexico on the issue of waiving immunity for Agent Avila to provide a declaration regarding the attack."  "Similarly, Documents 37–60 are a series of email chains discussing the wording and content of the proposed cable and diplomatic note to Mexico regarding this issue."  "Document 20 is a draft of a proposed cable on a different subject and contains proposed cable language."  "These documents are predecisional because they predate the final versions of the notes and cables and were generated to help formulate final positions."  "They are deliberative because they involve the agency's back-and-forth consideration of the messaging of foreign communications."  "The Court finds that these records fall under the deliberative process privilege[.]"
  
  "Documents 6–8 include [an] . . . email chain discussing a draft recommendation of guidelines for U.S. law enforcement officers operating in Mexico."  "[The] documents are predecisional because as drafts, they predate the final versions of the guidelines and presentation, and were generated in the process of the agency reaching final decisions on these issues."  "They are deliberative because they discuss and propose language for the guidelines and presentation, reflecting the give-and-take of the consultative process."  "These documents fall under the deliberative process privilege[.]" 
  
  "Document 9 is a draft memo from [defendant] regarding proposed investigative actions on the attack."  "Document 23 is a draft report created by U.S. government officials of U.S. activities in Mexico that includes redlines of proposed language and comments suggesting information to include."  "[The] documents are predecisional because they predate any final agency positions on investigations concerning the attack and reports of activities in Mexico, and were created to help the agency formulate positions on these issues."  "[The documents] are deliberative because the proposed language and edits in these documents reflect agency deliberations on [the] issues."  "The Court finds that these records fall under the deliberative process privilege[.]" 
  
  "Documents 10–17 are . . . emails that discuss press inquiries and deliberations and recommendations on how to respond."  "Document 21 is a checklist prepared for a high-level meeting between U.S. and Mexican officials which recommends subjects of discussion and objectives for the meeting."  "Documents 61–63 are emails that discuss preparations to brief Congress on security issues in Mexico, including an evaluation of what to present to Congress."  "Documents 79–82 are emails that discuss how to brief the U.S. House Committee on Homeland Security, including recommendations on how to engage with the committee."  "Document 100 is a draft agenda and talking points for an interagency Accountability Review Board addressing the attack that recommends subjects of discussion and objectives for the meeting."  "[The] documents are predecisional because they were generated before the agency's final position on these issues for the purpose of assisting the agency in taking these outward-facing positions." 
  
  "[The documents] are also deliberative because they reflect the agency's thought process in formulating its public statements."  "The Court finds that these records fall under the deliberative process privilege[.]" 
  
  "Document 18, however, poses more of a problem."  "It is a briefing paper prepared for Assistant Secretary Eric Boswell's meeting with U.S. Ambassador to Mexico Tony Wayne."  "[Defendant] claims that information in this document is deliberative because it 'reflects consideration related to' 'a counterintelligence issue.'"  "This vague assertion does not allow the Court to determine whether the withheld portions of the briefing paper actually 'reflect[ ] the give-and-take of the consultative process.'"  "[Defendant] must provide more details about its withholding under this privilege and whether factual information may be segregated and disclosed." 
  
  "Documents 64–69 consist of emails discussing legal issues related to the response to the attack."  "All of these messages contain at least one U.S. government lawyer in the communication."  "Likewise, Document 70 is an email from a State Department official to a State Department lawyer asking for legal advice regarding the Accountability Review Board."  "Documents 94–96 are emails of State Department attorneys providing legal advice to other government officials in connection with potential witness testimony."  "These communications fall squarely under the attorney-client privilege, because they concern legal advice given in confidence by lawyers to their client, the Executive Branch, or requests by the client for such legal advice."
  
  "Documents 71–72 are emails raising policy and legal questions posed by [an agency] employee to [an agency] attorney, in relation to ICE-requested assistance regarding the attack."  "Documents 73–74 are emails involving a[n] [agency] attorney who provided responses to legal and policy questions posed by the Under Secretary for Management regarding the attack."  "The attorney-client privilege applies to these emails because they concern legal advice given in confidence by lawyers to their client, the Executive Branch, or requests by the client for such legal advice."  "The privilege applies even though some advice was policy in nature, because obtaining legal advice was one of the significant purposes in these attorney-client communications."
  
  "Documents 75–78 are emails between Department of Justice attorneys and Department of State employees and attorneys seeking information about potential witnesses for the prosecution of the attack."  "These emails discuss possible witnesses before reaching a final decision on this issue, are exchanged for the purpose of receiving legal advice from lawyers to their Executive Branch client, and specifically discuss litigation strategy."  "Accordingly, [the documents] are adequately covered by Exemption 5's deliberative process, attorney-client, and attorney work product privileges." 
  
  "Document 83 is an email chain reflecting disagreement among various agencies regarding security policies in Mexico."  "The email chain is predecisional because it predates any final decision on security policies."  "It is deliberative because it reflects internal debates about this issue."  "The Court finds that this record falls under the deliberative process privilege."
  
  "Documents 84–85 are memos prepared by DHS related to a request from Mexico for a security briefing."  "These documents are predecisional because they were prepared to assist the agency in arriving at a final decision and preceded the final decision."  "They are deliberative because they reflect the agency's thought process in recommending a course of action."  "These records fall under the deliberative process privilege." 
  
  "Document 86 is a DHS report on a visit by a senior U.S. official to Mexico City."  "This is a close call."  "On the one hand, the report is predecisional because it predates any final policy decisions and deliberative because it reflects evaluations of various policy options under consideration related to U.S. involvement in Mexico City."  "On the other hand, it is unclear whether there are portions of this fully withheld report that 'provide only facts,' in which case those portions would not be protected by this privilege."  "[Defendant] should provide more details about its withholding under this privilege and whether factual information may be segregated and disclosed."
  
  "Document 98 is a cable that analyzes various shootings of U.S. personnel in Pakistan and Mexico and provides recommendations regarding security policies to prevent future serious injury and death as in the case of Agents Zapata and Avila."  "The cable is predecisional because it predates any final agency review or decision on its recommendations."  "It is deliberative because it assesses past events from the agency's perspective and provides recommendations to help the agency formulate security policies."  "Disclosure would expose an agency's thought process before it formalizes a final opinion on a matter."
  
  "Document 106 is a spreadsheet that explains the Permanent Coordinating Committee's decision for not convening an Accountability Review Board regarding past security incidents involving U.S. personnel."  "[T]his spreadsheet explains the conclusions that the committee reached in past security incidents."  "In other words, it is not predecisional."  "Withholding this spreadsheet . . . does not appear to be appropriate because the 'deliberative process privilege does not protect documents that merely state or explain agency decisions.'"  "Nor is this the rare case involving a document postdating an agency's 'macro level' decision that reveals subsequent '[d]ebate and discussion' about how to 'persuasively communicate [the decision's] terms and rationale to the public.'"  "[Defendant] must therefore better explain its withholding or segregate portions of the spreadsheet that are subject to disclosure."
   
• Segregability:  "'An agency shall ... take reasonable steps necessary to segregate and release nonexempt information.'"  "Here, [defendant] provided an adequate Vaughn index that declared, for each responsive document, that the agency 'conducted a line-by-line review of the document and determined that there is no meaningful, non-exempt information that can be reasonably segregated and released.'"  "Director Stein stated that in the course of [defendant's] search, '[w]here material was found to be exempt from disclosure, IPS reviewed this material to ensure that all non-exempt, segregable information was released to the requester.'"  "Therefore, with the exception of specific documents discussed above that require [defendant's] further review, the Court concludes that [defendant] has satisfied FOIA's segregability requirement."