Blank Rome LLP v. Dep't of Air Force, No. 15-1200, 2016 WL 5108016 (D.D.C. Sept. 20, 2016) (Lamberth, J.)
Re: Request for records concerning termination for convenience of utility contract at Fort Monroe, Virginia
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
- Litigation Considerations, Adequacy of Search: "[T]he Court concludes that the Air Force has met its burden of showing that it conducted a reasonable search and fulfilled its obligations under FOIA." "The declarations are detailed and non-conclusory regarding the search undertaken by defendant in response to plaintiff's FOIA request." The declarations "'set forth the search terms and the type of search performed, and aver that all files likely to contain responsive materials . . . were searched.'" Responding to plaintiff's arguments, the court first finds that "'[m]ere speculation that as yet uncovered documents may exist does not undermine the finding that the agency conducted a reasonable search for them.'" Additionally, "the Court finds that defendant's search was not rendered inadequate due to its failure to uncover documents later released[.]" The court explains that "[i]f an agency uncovers previously unreleased responsive documents, and then releases them, the search is not deemed inadequate." Also, "the Court agrees with plaintiff that defendant appears to have taken an undue amount of time to respond fully to plaintiff's FOIA request" and "has offered no explanation for why it waited over a year and a half to refer plaintiff's request to these other agencies, [and] does [not] offer an explanation for the production delays generally." "Nonetheless, the fact of delay is not enough to cast sufficient doubt on the reasonableness of the search[.]"
- Exemption 5, Deliberative Process Privilege: "After [an] in camera review, the Court concludes that three of the redactions were improper under Exemption 5, but that all others were proper." The court explains that it "concludes that [some] redactions do not qualify as predecisional." "Although they were generated before the Air Force's final decision regarding the Fort Monroe termination settlement proposal, . . . and were therefore predecisional at that time, the material in these redactions lost their predecisional status when they were adopted in the Air Force's final memorandum." However, "[t]he Court concludes that [the remaining] redactions . . . were proper under Exemption 5 because the information redacted from the drafts was both predecisional and deliberative." "First, the drafts are predecisional; they were prepared in the process of assisting the Air Force in coming to a decision regarding [a] settlement proposal." "The drafts are also deliberative in nature." "They reflect the Air Force's decisionmaking process with regard to [the] settlement proposal." "Furthermore, despite plaintiff's argument that Exemption 5 was improperly used to withhold factual information such as calculations and estimates regarding termination costs, the Court finds that any factual information redacted was 'inextricably intertwined' with deliberative material." "Finally, the Court finds that all reasonably segregable portions of the materials were produced to plaintiff."
- Procedural Requirements, Searching for Responsive Records: Regarding one document which plaintiff specifically requests at this point, the court finds that the "record at issue was created . . . plainly outside [the] date range [in the request]." "If plaintiff wants the Air Force to produce this record, its remedy is to file a new FOIA request for the document, with the proper date range."