Brody v. DOJ, No. 22-5043, 2023 WL 1511679 (D.C. Cir. Feb. 3, 2023) (per curiam)

Brody v. DOJ, No. 22-5043, 2023 WL 1511679 (D.C. Cir. Feb. 3, 2023) (per curiam)

Re:  Request for records concerning compliance with certain records management directives

Disposition:  Affirming district court’s grant of government’s motion for summary judgment

• Procedural Requirements, Proper FOIA Requests:  The Court of Appeals for the District of Columbia Circuit relates that “[the requester] sought to compel the FBI to search for ‘all email correspondence exchanged between [the Appraisal Archivist assigned to the FBI] and any FBI email address since 1 January 2016.’”  “The request as drafted asked the FBI, at a minimum, to search the emails of ‘employees or contractors whose official duties would include interacting with’ the National Archives and Records Administration ‘regarding records management issues.’”  “The FBI submitted a declaration explaining in some detail that finding all employees who have these duties would require a search of ‘73,552 email accounts’ or ‘voluminous correspondence and surveys with all FBI Divisions to compile a list of FBI employees’ email accounts to be searched.’”  “[The requester] argues the FBI should have used ‘common sense’ to limit the search to the FBI’s Information Management Division and ‘a few other offices.’”  “[The court] reject[s] this argument.”  “The FOIA places the burden of submitting a reasonably drafted request on the requester.”  “An agency has no duty to narrow a request in order to make the required search reasonable.”  “[The requester], not the agency, should have used ‘common sense’ when drafting the request, or redrafted it when the agency advised him of its overbreadth.”  “He did not.”  The court relates that “[the requester] also speculates that the FBI must know the employees whose ‘official duties’ include the management of records, arguing these must be a ‘select few.’”  “The declaration explains the search would be necessary because ‘proper records management is required of all FBI employees,’ and because the FBI has no ready list of employees who ‘regularly contact’ the Appraisal Archivist.”  “[Plaintiff] does not dispute that the search described by the FBI would be unreasonably burdensome.”  “At most, he quibbles with the FBI’s good faith.”  “As the district court noted, however, [the requester] ‘points to no evidence suggesting a reason to disbelieve the FBI's declarations.’”  “Nor is [it] of any moment that the FBI knew at least some employees in the FBI’s Information Management Division were likely to possess responsive records.”  “When a FOIA request is overbroad, an agency has no duty to process it at all.”  “Because the law is clear and the facts are not genuinely disputed, [the court] affirm[s] the grant of summary judgment as to count three.”
   
• Litigation Considerations, Vaughn Index/Declaration:  The Court of Appeals for the District of Columbia relates that “[the requester] raises two arguments.”  “He argues first that the FBI never submitted ‘admissible evidence’ from a ‘records management specialist’ or an ‘information technology specialist’ supporting the need for a cross-check.”  “On summary judgment, however, [the court holds that] a district court need not rely only upon admissible evidence.”  “A district court may consider a declaration ‘made on personal knowledge’ that ‘set[s] out facts that would be admissible in evidence, and show[s] that the affiant or declarant is competent to testify on the matters stated.’”  “In this case, the FBI submitted a declaration by the chief of the ‘Record/Information Dissemination Section,’ in the ‘Information Management Division’ of the FBI.”  “He was competent to testify on the matter, and [the requester’s] argument to the contrary is without merit.”
  
  “[The requester] also argues that the FBI's declaration should not be entitled to a presumption of good faith.”  “He notes the FBI has successfully defended the adequacy of its search in other cases by arguing that a search for emails outside the Central Records System would be unlikely to produce responsive records.”  “[The requester] accuses the FBI of ‘hypocrisy’ for now contending that searching for records not in the Central Records System would be unreasonably burdensome.”  “[The court] see[s] no inconsistency, let alone hypocrisy.”  “The FBI does not claim the search would be unreasonably burdensome because the number of emails not stored in the Central Records System is likely to be large.”  “Rather, the FBI asserts that finding out whether there are any email records at all not stored in the Central Records System would require an individual cross-check of each email to records stored in the Central Records System.”  “The burdensome cross-check required to find the responsive records, not the size of the responsive records, is what makes this requested search unreasonably burdensome.”
  
  “Because the law is clear and the facts are not genuinely disputed, [the court] affirm[s] the grant of summary judgment as to count four.”