Colgan v. DOJ, No. 14-740, 2020 WL 2043828 (D.D.C. Apr. 28, 2020) (Chutkan, J.)

Colgan v. DOJ, No. 14-740, 2020 WL 2043828 (D.D.C. Apr. 28, 2020) (Chutkan, J.)

Re:  Requests for records concerning FBI's FOIA procedures

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

• Litigation Considerations, Adequacy of Search & Procedural Requirements, Searching for Responsive Records:  First, the court relates that "[t]he FBI did not search for records in response to [two of plaintiff's] . . . requests."  "In response to [one] request, rather [than] conducting a search, the FBI gathered 360 pages based on [defendant's declarant's] 'institutional knowledge and position within RIDS' which made him 'familiar with the forms used by RIDS.'"  "This was inadequate."  "Reliance on an individual's knowledge of records does not fulfill an agency's obligation to search for responsive records."  "This is because agency affidavits that 'do not denote which files were searched or by whom, do not reflect any systematic approach to document location, and do not provide information specific enough to enable [the requester] to challenge the procedures utilized' are insufficient."
  
  Second, regarding the search location, the court finds that "[defendant's] conclusory statement that the FBI searched all places likely to have responsive records for all requests cannot support the implication that [the Central Records System ("CRS")] is the only location in which responsive records are likely to be found."  "Indeed, it would be difficult for the FBI to satisfy its burden in one paragraph, given the varied nature of the FOIA requests."  "That difficulty is highlighted in [defendant's] Declaration's internal inconsistency:  the FBI first states that CRS is the 'only' system where responsive records could be found, and in the next sentence states that it searched other locations."  Similarly, the court finds that "[t]he FBI does not reasonably detail why these places were searched, why they were likely to contain responsive records, or what search terms were used."  "Furthermore, for numerous requests, the FBI did not explain why it searched the places it did and rejected searches [plaintiff] suggested."  "The FBI’s search was also inadequate because it failed to follow clear leads."  "[T]he FBI ignored a 'positive indication' – in the only responsive record found – that records related to the request were likely to be found in the [Work Process Unit] SharePoint site."  "The FBI offers no justification for ignoring this lead."  "And, as discussed above, the FBI's conclusory statement that it searched all likely places . . . fails to overcome the 'positive indication' in the record that responsive documents would be found elsewhere."
  
  Third, the court finds that "the FBI gives no information about the search methods or terms used for [certain] additional searches conducted . . . ."  Regarding these searches, the court finds that "the FBI's declaration is similarly deficient because it leaves the court to speculate about the nature of the file (electronic or hard copy) and how it was searched.
  
  Fourth, the court relates that "[t]he FBI also contends that searches for several requests would be 'unduly burdensome,' but fails to establish that burden."  "In response to [plaintiff's] twenty-third request, the FBI merely argues that it would be unduly burdensome to search field offices for relevant documents."  The court finds that "[t]his conclusory statement fails to meet the level of detail required to show a search was reasonable."  "The FBI also asserts that [plaintiff's] ninth request, for screenshots or printouts of certain search screens in agency records, would be unduly burdensome because 'there is no reasonably practical method of searching for specific screen shots which may exist in record form.'"  "It contends that such a search would require a manual search of 'voluminous amounts of records and expend thousands of hours on the possibility that a responsive record of a screenshot or manual was created and exists.'"  "These conclusory statements about the volume of material that would need to reviewed do not provide estimates of the cost of the search, or whether the burden would be unusual, and therefore fail to show that a search would be unduly burdensome."  The court finds that "[w]hile [defendant] provides an estimate of the hours necessary to complete the search, as with the first part of the ninth request, he does not provide enough detail to show why searching for the policies, manuals, and training materials related to these thirty systems would result in those hours, the costs associated with the search, or whether those costs would be unusual."  "[Defendant] also claims that the search could result in 'hundreds of thousands of pages of potentially responsive material.'"  "This statement carries little weight in the court's determination of whether a search is burdensome because the quantity of responsive records is not a basis on which to deny a FOIA request."
  
  Fifth, the court relates that "[t]he FBI contends that it does not maintain some of the systems described in [plaintiff's] ninth request and therefore is not obliged to search for responsive records related to them."  The court finds that "[t]he FBI is correct that an agency's mere 'right of access' to a responsive document does not render the document an 'agency record' because FOIA applies only to records 'which have been in fact obtained, and not to records which merely could have been obtained.'"  However, "if the FBI possesses manuals, policies, or training materials referring to the systems identified in the request, then, under FOIA, they are FBI records."
  
  Sixth, the court relates that "[plaintiff] also claims that for his ninth request, the FBI must make a screenshot of the search screen for the thirty listed records systems because that search screen itself is an agency record."  The court finds that "[r]egardless of whether the FBI search screen is an agency record, the search screen is not retained as a record (except, as noted above, if the FBI already took screenshots and retained them)."  "While a computer stores data in RAM to display a blank search screen during use of the software, that storage is not permanent."  "Thus, while data to display the search screen is stored, that temporary storage does not constitute retention of a record."  "For the government to produce the requested screenshots, it would have to open the software and create a screenshot, which would not otherwise exist from the last time the agency opened the software to the search screen."  "FOIA imposes no such duty on agencies, and the search screen is not simply another 'form or format' of an already maintained record."
   
• Litigation Considerations, Vaughn Index/Declaration:  "The court will . . . deny without prejudice the parties' motions as they pertain to the merits of Defendant's claimed exemptions."  The court finds that "the administrative record supporting this FOIA dispute leaves much to be desired."  The court relates that "the FBI released 1,582 pages after moving for summary judgment on the adequacy of its searches and released nearly two-thirds of its sampled documents."  The court determines that "the FBI improperly withheld nearly two-thirds of the sampled pages."  The court finds that, "[a]t bottom, the extraordinary error rate casts 'substantial doubt' on the FBI's original claimed exemptions."  The court relates that "[t]he FBI argues that because it already re-processed the non-sample pages, any harm has been ameliorated."  The court finds that "[e]ven though the FBI reprocessed the remaining pages, it rendered the sample unrepresentative by changing the treatment of the documents underlying the sample."  "Moreover, the FBI provides no justification for the changes in its claimed exemptions, either in the sample or non-sample documents."