Cole v. Copan, No. 15-1991, 2021 WL 6049871 (D.D.C. Dec. 21, 2021) (Sullivan, J.)

Cole v. Copan, No. 15-1991, 2021 WL 6049871 (D.D.C. Dec. 21, 2021) (Sullivan, J.)

Re:  Request for records concerning collapse of the World Trade Center ("WTC") buildings on September 11, 2001

Disposition:  Adopting in part and rejecting in part magistrate judge's report and recommendation; denying defendants' motion for summary judgment; granting plaintiff's motion for limited discovery; denying plaintiff's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that "[a]s [the] Magistrate Judge [reviewing this case] explains, [the Federal Emergency Management Agency ("FEMA")] has failed to explain both how its searches were carried out and what files the searches covered."  "The testimony FEMA references . . . , asserting that all records were turned over to [the National Institute of Standards and Technology ("NIST")], does not provide any detail on the search conducted . . . ; nor does [defendant's] Declaration make up for enough of these deficits."  "Without more information, 'even if the Court can make "reasonable guesses about the answers to those questions," the Court cannot award the agency summary judgment on the adequacy of its search.'"  Additionally, the court finds that, "[l]ike FEMA, NIST fails to lay out its search terms or methodology in any detail."  "Defendants reply that '[e]xpecting a list of search terms misses the point that NIST had lists or logs of the responsive [Building Performance Study ("BPS")] material in its possession that were transferred by FEMA and that NIST used those lists or logs to guide its search for the BPS material.'"  "The Court can certainly appreciate how the log would be a useful basis for the BPS material search, but Defendants continue to miss the point that they have not explained how the lists guided their search, and what their methodology was when searching the log."
   
• Litigation Considerations, Discovery:  The court relates that "[it] had previously noted that [plaintiff] 'has raised significant questions as to whether FEMA has processed documents in good faith in response to [his] FOIA request,' and that it was 'troubled by the government's inconsistent, even contradictory, responses to [plaintiff's] inquiries regarding his FOIA request.'"  "However, the Court denied [plaintiff's] first motion for limited discovery precisely because FEMA and NIST had not 'submitted any declarations setting forth details related to [their] search.'"  "Based on the continued lack of details in the affidavits provided by FEMA, the Court concludes that this is the rare case where discovery, rather than supplemental declarations, is warranted as to the Defendants' searches."  "The Court finds it unnecessary to address the scope of discovery at this juncture and will direct the parties to submit a proposed plan for obtaining discovery limited to the adequacy of the Defendants' searches."  However, "[t]he Court concludes that FEMA has satisfied its burden with respect to the Region II local warehouse search, and discovery on this issue is unwarranted."  Regarding that issue, "[t]he question for the Court is not whether [plaintiff] finds FEMA's explanation and sources trustworthy; the legal standard is that the agency must demonstrate that it made a good-faith effort to search for responsive records 'using methods which can be reasonably expected to produce the information requested.'"  "Here, the agency's affidavits must specify 'what records were searched, by whom, and through what process.'"  "Contrary to [plaintiff's] assertion, FEMA does explain that the Region II local archives were searched by 'the Disclosure Branch and its counsel,' who 'learned that the only local archives were temporary locations that were rented to house information pertaining to the Hurricane Sandy disaster.'"  "[Plaintiff] does not refer the Court to any authority that requires FEMA to provide the names of every employee involved in the search."