Cato Inst. v. DOD, No. 21-1223, 2023 WL 3231445 (D.D.C. May 3, 2023) (Boasberg, C.J.)

Cato Inst. v. DOD, No. 21-1223, 2023 WL 3231445 (D.D.C. May 3, 2023) (Boasberg, C.J.)

Re:  Request for “‘any records from any [Department] component pursuant to’ Directive 5200.27,” rules to govern its collection and retention of information about certain non-DoD-affiliated persons

Disposition:  Granting defendants’ motion for summary judgment; denying plaintiff’s motion for summary judgment

• Procedural Requirements, Proper FOIA Requests:  “The Court agrees” with defendants’ “assert[ion] that on its face, Plaintiff’s request for documents ‘pursuant to’ the Directive calls for them to ‘guess blindly what [plaintiff] really means.’”  “[Plaintiff] has not asked for records that cite the directive, implement the directive, or that were created at the directive’s behest, all of which would be plausible and comprehensible requests, even if potentially overbroad.”  “Plaintiff instead requests ‘copies of any records from any [Agency] component pursuant to’ the Directive.”  “That request makes little sense to a common reader – let alone an agency employee familiar with the myriad ways the Directive may implicate agency records.”  “It gives the agencies no way of knowing what relation a record must have to the Directive to qualify as responsive.”  “Much like a request for documents ‘pertaining’ to a particular topic – and unlike a request for documents containing a name or phrase – [plaintiff’s] request for records pursuant to the Directive does not tell the agencies what to look for.”  “To reasonably describe the records it seeks, [plaintiff] must clearly identify what relation those records must have to the topic it has identified.”  “‘Pursuant to’ does not cut it.”
  
  Relatedly, the court finds that “[a]lthough Plaintiff does not tease this out in its briefing, [plaintiff] might be making a related but separate point with its proposed reformulations:  that even if the request does not clearly identify the records it seeks, it nonetheless encompasses at least the two sets of documents described above, which the agencies should therefore hand over.”  “Even if one could glean from the request that it encompasses some identifiable records that Defendants ‘possess,’ agencies need not produce any records in response to a request that flunks FOIA’s threshold requirement to ‘reasonably describe’ the records sought.”  “[Plaintiff’s] invalid request triggers no agency obligation to produce responsive records.”
  
  Also, the court finds that one defendant’s “offer to ‘begin processing’ a reinterpreted, narrowed-down request, however, does not constitute a concession that Cato's request was otherwise reasonably described.”  “The offer at most represents a good-faith effort to guess at what records could be responsive to [plaintiff’s] unintelligible request – a project no agency need undertake.”  “If every agency that attempted to clarify a request thereby ‘obligate[d]’ itself to fulfilling it, that ‘nothing-or-all approach’ would give agencies ‘a strong incentive to . . . refuse to make any effort to provide what they reasonably can.’”
  
  Finally, “[t]he Court also recognizes that each agency further identified the request as imposing a burdensome search or as failing to identify a particular location where records could be found.”  “An agency, however, does not waive one objection to the request merely by identifying another.”  “Instead, the agencies’ additional protests merely support their overarching objection to the vagueness of the request.”  “This conclusion, of course, is no assessment of the merits of the objection that the request, even once clarified, may be too broad.”  “The Court refrains from considering that intertwined argument before [plaintiff] has had the chance to refine its request and before the agencies have detailed the burden a search responsive to a refined request may pose.”