Platsky v. NSA, No. 15-1529, 2016 U.S. Dist. LEXIS 86171 (S.D.N.Y. July 1, 2016) (Carter, Jr., J.)
Re: Request for records concerning plaintiff
Disposition: Granting defendants' motion for summary judgment; denying plaintiff's motion for summary judgment
- Litigation Considerations, Adequacy of Search: The court holds that, "[b]ased on the declarations, and on [plaintiff's] own statement that he will 'pass by the defendants' assertions that they conducted an adequate search for records concerning an open and acknowledged relationship between [him] and the defendant agencies, as . . . all agree that there has never been such a relationship' . . . , the Court grants summary judgment to Defendants on the issue of the adequacy of the searches performed."
- Exemption 3, Glomar: The court holds that "NSA's Glomar response was appropriate." The court relates that "NSA identifies three withholding statutes within the bounds of Exemption 3: (1) Section 6 of the National Security Agency Act of 1959, 50 U.S.C. § 3605; (2) 18 U.S.C. § 798; and (3) the National Security Act of 1947, as amended by the Intelligence Reform and Terrorist Prevention Act of 2004, 50 U.S.C. § 3024." "The Court need only consider Section 6 here, as it is sufficient to sustain the Glomar response." "'Section 6 states that no law shall be construed to require the disclosure of any information with respect to the activities of the NSA.'" The court finds that, "[w]hile the statute should not be read so broadly as to exempt the NSA entirely from FOIA, . . . the 'very nature of [plaintiff's] request – which seeks records concerning whether [his] communications were monitored by the NSA – establishes that any response would reveal "information with respect to the activities" of the NSA.'" "Thus, the NSA's Glomar response was appropriate."
Additionally, the court finds that "CIA's response is justified under Exemption 3" because "[t]he declaration is sufficiently detailed to show that the requested information logically falls within the claimed exemptions." The court relates that "CIA identifies two withholding statutes as the basis of its Glomar response: (1) Section 102A(i)(1) of the National Security Act, as amended, 50 U.S.C. § 3024; and (2) the Central Intelligence Agency Act of 1949, 50 U.S.C. § 3507." "'Section 102A(i)(1) of the National Security Act of 1947 . . . requires that the Director of National Intelligence protect intelligence sources and methods from unauthorized disclosure.'" "'Section 6 of the Central Intelligence Agency Act. . . provides that, "in the interests of the security of the foreign intelligence activities of the United States and in order further to implement the Director of National Intelligence's responsibility for protecting intelligence sources and methods from unauthorized disclosure, the CIA shall be exempted from the provisions of any law that require the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency."'"
- Litigation Considerations, Vaughn Index/Declaration: Responding to plaintiff's argument, the court finds that "allegations grounded in mere speculation are insufficient to rebut the presumption of good faith."
- Exemption 1: The court finds that "[b]ecause Exemption 3 furnishes a separate and independent ground in support of a Glomar response, the Court need not consider the applicability of FOIA Exemption 1." "Thus, the Court need not consider Plaintiff's argument that the records he seeks are no longer classified because they are older than ten years."
- Exemption 7(E), Glomar: "[The] Court concludes that 'the FBI properly tethered its Glomar response to Exemption 7(E), which protects information compiled for law enforcement purposes.'" The court finds that "[t]he information contained in the declaration is logical and plausible, and thus it is sufficient to establish that the FBI's Glomar response was proper." "[Plaintiff] does not rebut the presumption of good faith." "That the existence of the No Fly List is public knowledge and that some people on the No Fly List come to know of their presence on it does not change the Court's analysis, contrary to [plaintiff's] arguments." "This is because 'Exemption 7(E) applies even when the identity of the techniques has been disclosed, but the manner and circumstances of the techniques are not generally known, or the disclosure of additional details could reduce their effectiveness.'"
- Litigation Considerations, Relief: The court holds that plaintiff's "request that the Court 'order the Department of Justice to inspect the files of all three defendants to insure that they are not violating' an executive order . . . is outside the scope of relief permitted under FOIA." "'When, as here, a court finds that the government's public affidavits sufficiently allege the necessity of a Glomar response, ex parte and in camera review of additional, confidential material is unnecessary and beyond the role assigned to the judiciary by applicable law.'" "It follows that it is beyond the role assigned to the judiciary to order an executive agency to perform such review on its behalf."
Solers, Inc. v. IRS, No. 15-1608, 2016 WL 3563487 (4th Cir. June 30, 2016) (Niemeyer, J.)
Re: Request for records concerning tax audit of requester
Disposition: Affirming district court's grant of defendant's motion for summary judgment
- Litigation Considerations, Vaughn Index/Declarations: Responding to the requester's arguments, the Court of Appeals for the Fourth Circuit holds that "because the district court reviewed the documents in camera, it correctly concluded that its own 'thorough[ ] review[ ]' had 'completely eradicated' 'any issue about an inadequate Vaughn Index.'" "Stated otherwise, the issue of whether the IRS provided a Vaughn index sufficient to enable the district court to evaluate the IRS' claimed exemptions became irrelevant and moot after the IRS complied with the district court's order to produce the records for in camera review and the court completed its own review of the records."
- Exemption 5, Deliberative Process Privilege: "[The Court of Appeals for the Fourth Circuit] conclude[s] that the district court's factual findings regarding the content of the notes are amply supported by the record – which includes the IRS representative's statement that the four pages of notes 'consist[ ] of [Agent Sharma's] thoughts, impressions, and [indicate the] possible direction of the examination' – and therefore [those findings] are not clearly erroneous." "[The court] also affirm[s] the district court's implicit ruling that there are no segregable portions of the notes subject to production."
- Exemption 3: The Court of Appeals for the Fourth Circuit relates that "IRS contends that its withholdings with respect to these three pages are justified by Exemption 3 and 26 U.S.C. § 6103(a)[,]" which "prohibits the disclosure of '[r]eturns and return information ... except as authorized by [Title 26],' . . . and . . . defines the term 'return information' as including 'a taxpayer’s identity . . . [and] whether the taxpayer's return was, is being, or will be examined or subject to other investigation or processing,'" and "concludes[s] that, although the summary report does not specifically name third-party individuals whose tax returns were considered in conjunction with [the requester's] audit, the individuals' identities could easily be discerned from the report or any segregable portion of it, therefore justifying its being withheld." "Likewise, because the graph and checksheet specifically identified third-party individuals and entities, [the court] conclude[s] that the IRS acted properly in withholding the graph and redacting one line from the checksheet." Additionally, the court relates that "[i]n an effort to avoid this conclusion, [the requester] asserted for the first time during oral argument that four of its employees had authorized the IRS to release their tax return information to [the requester] . . . and that the IRS was therefore not entitled to rely on Exemption 3 and § 6103(a) to withhold records insofar as they relate to those third parties." The court finds that "[i]t is well settled, however, 'that contentions not raised in the argument section of the opening brief are abandoned.'" "Moreover, the record reflects that after the IRS noted to the district court that [the requester's] employees had failed to submit the proper authorization forms, [and the requester] made no effort to counter this representation."
- Exemption 5, Attorney-Client Privilege: The Court of Appeals for the Fourth Circuit "conclude[s] that the attorney-client privilege justifies the IRS' limited redaction of the activity report so as to keep confidential the specific issues on which [a] Revenue Agent . . . sought legal advice while working on the audit." The court finds that, "[w]hile, as [the requester] contends, 'the general purpose of the work performed [by an attorney] [is] usually not protected from disclosure by the attorney-client privilege because such information ordinarily reveals no confidential professional communications between attorney and client,' . . . the privilege nonetheless shields from disclosure 'the specific nature of the legal advice sought by [the client][.]'"
- Exemptions 6 & 7(C): The Court of Appeals for the Fourth Circuit "conclude[s] . . . that the district court struck the right balance in permitting these email redactions." "On the one side of the scale, IRS employees, as well as other government employees, 'have a substantial interest in the nondisclosure of their identities and their connection with particular investigations because of the potential for future harassment, annoyance, or embarrassment.'" "But, on the other side of the scale in this case, the record contains no indication that disclosing the names and contact information of these IRS employees would serve the public interest." "Accordingly, we conclude that the district court did not err in holding that the IRS employees' interest in maintaining the privacy of their names and contact information outweighed the public interest in the disclosure of this information."
Harper v. EEOC, No. 15-2629, 2016 U.S. Dist. LEXIS 84981 (W.D. Tenn. June 30, 2016) (Anderson, J.)
Re: Request for records concerning plaintiff’s complaint
Disposition: Adopting Magistrate Judge's Report and Recommendation; granting defendant's motion for summary judgment
- Litigation Considerations, Summary Judgment: The court holds that, "[h]aving reviewed the Magistrate Judge's Report and Recommendation de novo, Plaintiff's timely objections, and the entire record of the case, the Court hereby adopts the Report and Recommendation" and finds that "[d]efendant's Motion for Summary Judgment is granted." The court relates that defendant "grant[ed] in part and den[ied] in part Plaintiff's request." "EEOC located Plaintiff's charge file, which contained 354 pages and released the first 100 pages of responsive documents without charge pursuant to 29 C.F.R.§ 1510.15(a)(3)." "EEOC assessed a fee of $38.70 associated with copying the remaining 254 pages of responsive documents." "Plaintiff was informed that EEOC partially redacted two pages of the released documents pursuant to FOIA exemption (b)(5) and that he could avail himself of certain appeal rights related to the determination." "Plaintiff has not paid the fee, and EEOC has not released the remaining 254 pages of responsive documents to Plaintiff." The court finds that "[p]laintiff has cited little or no evidence to show that a genuine dispute exists on any material fact."
- Discovery: The court finds that "[t]he Magistrate Judge did not err in failing to grant Plaintiff an opportunity for discovery." "The Court holds that Plaintiff's blanket plea for discovery in his affidavit fails to meet [the applicable] standard." "Plaintiff did not show what material facts he hoped to uncover or why the facts would establish a genuine dispute for trial." "Indeed, the Magistrate Judge recognized that 'district courts typically dispose of FOIA cases on summary judgment before a plaintiff can conduct discovery' and framed the threshold issue presented in FOIA cases at summary judgment: '[i]f the Government fairly describes the content of the material withheld and adequately states its grounds for nondisclosure [by affidavit], and if those grounds are reasonable and consistent with the applicable law, the district court should uphold the government's position.'" "'Unless evidence contradicts the government's affidavits or establishes bad faith, the [district] court's primary role is to review the adequacy of the affidavits and other evidence.'"
Renewal Serv. v. U.S. Patent and Trademark Office, No. 15-1779, 2016 WL 3552037 (S.D. Cal. June 29, 2016) (Hayes, J.)
Re: Request for records concerning patents issued in on or after January 1, 2002
Disposition: Granting defendant's motion to dismiss
- Proactive Disclosures: The court holds that "[s]ince the allegations of the Complaint in this case establish that Defendant has made the requested records publicly available and indexed, through electronic means, there are no facts alleged which would support the claim that the requested information is 'improperly withheld' pursuant to 5 U.S.C. § 552(a)(3)." The court relates that "[t]he facts alleged in the Complaint show that the requested information is available for public inspection, without a request, as required by § 552(a)(2)." The court finds that "5 U.S.C. § 552(a)(3) specifically provides that the agency need not respond to a § 552(a)(3) request for information when the same information is indexed and made public pursuant to the guidelines of § 552(a)(2)."
Bayala v. DHS, No. 14-5279, 2016 WL 3524098 (D.C. Cir. June 28, 2016) (Millett, J.)
Re: Request for records concerning requester's asylum application
Disposition: Reversing district court's grant of defendant's motion for summary judgment and remanding case
- Litigation Considerations, Mootness and Other Grounds for Dismissal: The Court of Appeals for the District of Columbia Circuit holds that, "[w]hile the Department is correct then that any dispute over the earlier withholding of the documents that the Department has now turned over is moot, the entire FOIA case is not moot because [the requester] has not received all of the documents that he requested." The court explains that "[s]hortly after [the requester] filed suit . . . the Department reversed course and spontaneously released a number of previously withheld documents, while offering a heavily revamped explanation for its remaining withholdings." However, the court finds that "[the requester's] FOIA request sought, among other things, 'a copy of the Assessment to Refer of the Asylum Officer.'" "As of this date, [the requester] has not yet received that document and, accordingly, there is still a live controversy over whether the Department may lawfully withhold that document." The court also notes that while "[t]he Department cited the exemption for internal agency memoranda privileged by law from public disclosure, 5 U.S.C. § 552 (b)(5)" to "defend its decision to omit the Assessment from its more recent tranche of disclosures[,]" "the propriety of that withholding determination has not yet been adjudicated and is very much contested, so this FOIA case is not moot."
- Litigation Considerations, Exhaustion of Administrative Remedies: The Court of Appeals for the District of Columbia Circuit holds that "[t]he Department's argument that exhaustion of its original administrative decision was required . . . became moot once it chose to abandon its previous determination, make a sua sponte disclosure of documents, and craft a new, five-page-long explanation for this different withholding decision in the district court, the content and specificity of which went far beyond the original, perfunctory administrative decision." "That new FOIA determination rendered the propriety of the original agency decision – and any administrative challenges to it – an entirely academic question." "Instead, once the government abandoned its original FOIA decision, the dispute between the parties centered on the correctness of the Department's materially novel and different in-court disclosure decision." "There is no required administrative exhaustion process for that in-court litigation decision." "The government, for its part, cites no authority – and we can conceive of none – for compelling a FOIA claimant to administratively exhaust a decision that the agency no longer stands by and that has been overtaken by new and different in-court disclosures and explanations."
Wilson v. DOJ, No. 15-1149, 2016 WL 3580610 (D.D.C. June 28, 2016) (Cooper, J.)
Re: Request for records concerning plaintiff's criminal conviction
Disposition: Granting in part and denying in part defendant's motion for summary judgment
- Exemption 7(C): "[T]he Court will grant summary judgment in favor of the government on this aspect of the case." The court relates that "[t]he government has cited FOIA Exemption 7(C) as authority for redacting from the documents it produced to Wilson personal identifying information for certain DOJ employees, law-enforcement personnel, and third parties." "The government contends that identifying the individuals who helped investigate and prosecute [plaintiff] 'would shed no light on [DOJ’s] performance of [its] statutory duties.'" The court finds that "[plaintiff] does not challenge these minimal withholdings, and the Court finds them to be justified for the reason the government states."
- Litigation Considerations, Adequacy of Search: The court holds that "the government has not shown beyond material doubt that its search was reasonably calculated to uncover all responsive records." The court explains that, "[f]or two main reasons, the evidentiary record leaves the Court with substantial doubt as to the sufficiency of DOJ's search." "First, [defendant's declarant] did not 'aver[ ] that all files likely to contain responsive materials . . . were searched.'" "His blanket assurance that EOUSA's search was 'systematic,' . . . hardly remedies this crucial defect." "The Court can only speculate about the FOIA contact's methodology – the number and location of any physically searched files, why those files alone were searched, why some staff were deemed 'appropriate' email recipients, and whether any physical searches resulted from those emails." "[S]econd, [defendant's declarant's] declaration does not satisfy the Court that he had 'a general familiarity with the responsive records' at issue in this case." "He does claim 'familiar[ity] with the procedures followed by [ ]his office in responding to the FOIA request(s) made to EO[US]A by Plaintiff.'" "He also asserts that his knowledge is partially 'based upon [his] review of the official files and records of EOUSA.'" "But the identity of the documents he reviewed remains a mystery: The Court cannot determine whether records maintained by the U.S. Attorney's Office for the District of Columbia qualify as 'official files and records of EOUSA' (as opposed to those of the originating office), and even if they do, it is unclear whether [defendant's declarant] has ever seen the records that were produced[.]" "He at no point claims familiarity with records responsive to any one FOIA request."
Reedom v. SSA, No. 15-0406, 2016 WL 3581996 (D.D.C. June 27, 2016) (Collyer, J.)
Re: Requests for various records concerning plaintiff
Disposition: Granting defendant's motion for summary judgment
- Litigation Considerations, Exhaustion of Administrative Remedies: "The Court will grant Defendant's motion on the ground that Plaintiff failed to exhaust his administrative remedies prior to filing this civil action." First, the court finds that "[d]efendants have demonstrated that Plaintiff failed to exhaust his administrative remedies with respect to his FOIA requests for earnings records and other information" because "he failed to submit the proper authorization for release of information[,]" "neither paid fees associated with two of his requests . . ., nor appealed the denial of his request for a fee waiver," "failed to describe reasonably the records he sought[,]" and "did not pursue an administrative appeal of any of the SSA's initial determinations." Second, the court finds that "[p]laintiff did not exhaust his administrative remedies with respect to his . . . request to Rural Development." "Although Plaintiff sought an administrative appeal of Rural Development's initial 'no records' response, the appeal had not been completed when Plaintiff filed this lawsuit." Third, the court finds that "[p]laintiff's four FOIA requests to the IRS called for the written consent of all the individual taxpayers whose information he sought . . . as is required by regulation[.]" "Plaintiff has not complied."
Elec. Privacy Info. Ctr. v. DEA, No. 14-317, 2016 U.S. Dist. LEXIS 82351 (D.D.C. June 24, 2016) (Sullivan, J.)
Re: Request for government's analysis of legal and privacy issues related to Hemisphere, program that grants law enforcement officials access to telephone database
Disposition: Granting in part and denying in part defendant's motion for summary judgment; denying in part and holding in abeyance in part plaintiff's motion for summary judgment
- Litigation Considerations, Adequacy of Search: The court holds that "DEA's search was reasonable." The court finds that "[plaintiff's] argument that it 'is difficult to believe that such a far-reaching, invasive program would not have triggered some privacy analysis or discussion that would be responsive to the third prong of [plaintiff's] request' does not support a finding that the DEA's search was inadequate." The court explains that "based on the legal standard for what constitutes a reasonable search, arguments that certain documents 'should' or 'must' exist are consistently rejected."
- Litigation Considerations, Vaughn Index/Declaration: The court holds that "[defendant's] Declaration meets the requirements of Vaughn." The court explains that "[defendant's] Declaration identifies the exemptions relied upon and describes the documents withheld under each exemption." Additionally, "[t]he nature of each document is described in the text of [defendant's] declaration, and each redaction is labeled with the relevant exemption."
- Exemption 5, Deliberative Process Privilege: The court holds that "[a] draft memorandum was properly withheld under FOIA Exemption 5." The court first rejects plaintiff's argument that, "'[w]hen an agency uses the deliberative process privilege to withhold draft documents under Exemption 5, it must identify a corresponding final decision.'" The court explains that "[plaintiff's] insistence that the draft memorandum here be treated as a final policy . . . ignores the reality of how government policies evolve." The court then finds that "the memorandum was prepared by an attorney in the DEA's office of Chief Counsel for senior DEA management" and "the memorandum includes comments by the attorney who prepared the document, reflecting the deliberative posture of the memorandum."
- Exemption 5, Attorney Work-Product: "The Court . . . concludes that the email at issue is protected by the work product doctrine because it was prepared in anticipation of litigation." The court first notes that, "[a]lthough there is sufficient evidence in the record to conclude that [plaintiff] has waived any argument regarding the application of the work-product doctrine to the email in question because [plaintiff] did not contest the application of the work-product doctrine to the email message in its first summary judgment brief, . . . the Court is also satisfied that the email is in fact protected by the privilege." The court agrees with defendant that "the email is 'covered by the attorney work-product doctrine because it was prepared by a DOJ attorney in anticipation of litigation relating to the use of Hemisphere in law enforcement.'" The court also finds that "the nature of the Hemisphere program, which clearly implicates controversial law-enforcement techniques and privacy rights as evidenced by this lawsuit, satisfies the Court that it is objectively reasonable for the government agencies involved to hold a subjective belief that litigation was and is a real possibility."
- Exemption 7(D): The court holds that "DEA must either disclose the relevant information withheld under Exemption 7(D), supplement the record with additional affidavits and authority justifying its withholding, or produce documents for the Court's in camera review." First, "[t]he Court acknowledges the sensitive nature of the information at issue, but agrees with [plaintiff] that the government has failed to meet its burden of showing that an explicit assurance of confidentiality was given to the private companies involved with Hemisphere." The court "order[s DEA] to submit the relevant documents to the Court for in camera review, or to supplement the record with a declaration from a DEA employee who has first-hand knowledge of the explicit assurance of confidentiality given to the private companies." Similarly, "[t]he Court agrees with [plaintiff] that the DEA has failed to provide the necessary details to support a finding that confidentiality was implied to private companies assisting with the operation of Hemisphere." The court explains that "DEA cites no authority for the proposition that potential retaliation against a private company is sufficient to justify a finding of implied confidentiality."
- Exemption 7(E): First, the court holds that "the record in this case does not, at this time, support a finding that disclosure of the names of the private companies cooperating with the government in the operation of Hemisphere will assist individuals in thwarting the DEA, or create a risk of circumvention of the law." The court explains that "[t]he DEA has offered no evidence or explanation for its claim that Hemisphere is a 'single' technique and procedure." Additionally, the court finds that "the cooperation of major telecommunication companies with Hemisphere has been widely reported by various news outlets[.]" Also, the court finds that "[t]he DEA has failed to logically demonstrate how release of the private corporation's names would assist drug traffickers seeking to evade law enforcement." Second, the court finds that "DEA's conclusory assertion that publication of ["documents that reveal how Hemisphere secures cooperation from other entities"] could 'reasonably be expected to lead to disruption of the means of securing cooperation' does not allow the Court to assess whether the documents deserve protection under 7(E)." "Because the DEA insists that 'a more specific description of this potential risk would entail revealing the withheld information,' the DEA is ordered to produce the documents withheld under this rationale for in camera review." Third, the court holds that "[d]efendant's Motion for Summary Judgment pertaining to [the withholding of] the names of other agencies that have access to the Hemisphere data is denied without prejudice." The court finds that "DEA's argument that disclosure of other agencies with access to Hemisphere is equivalent to the disclosure of specific investigatory FBI units and locations is not persuasive." Additionally, "no evidence has been presented to the Court to justify the DEA's conclusory argument that 'because every law enforcement agency has its own respective focus and sphere of authority, knowing which particular law enforcement agencies have access to Hemisphere would help criminals tailor their activities to avoid apprehension.'"
Erisman v. Md. Parole Comm'n, No. 16-2094, 2016 U.S. Dist. LEXIS 81766 (D. Md. June 23, 2016) (Chasanow, J.)
Re: Request for transcript or audio recording of petitioner's parole hearing
Disposition: Dismissing petitioner's request for mandamus relief
- Procedural Requirements, Entities Subject to the FOIA: The court holds that, "[t]o the extent that Petitioner is raising a claim under FOIA, he has failed to state a cognizable claim." "FOIA provides a mechanism for citizens to obtain documents from federal agencies, and grants the federal district courts jurisdiction to review agency compliance with those requests." "The Maryland Parole Commission is not a federal agency subject to the provisions of FOIA."
Soto v. Dep't of State, No. 14-604, 2016 WL 3390667 (D.D.C. June 17, 2016) (Moss, J.)
Re: Request for records concerning plaintiffs' visa applications
Disposition: Granting defendant's renewed motion for summary judgment; denying plaintiffs' renewed motion for summary judgment; denying plaintiffs' motion for reconsideration
- Exemption 3: "[T]he Court concludes that the Department acted lawfully in withholding records relating to [one plaintiff's] visa revocation pursuant to Exemption 3" because the court finds that "8 U.S.C. § 1202(f), which makes confidential those State Department records that 'pertain [ ] to the issuance of refusal of visas or permits to enter the United States,' also protects records that pertain to the revocation of visas." The court relates that "it initially declined to resolve this question because it was not clear, on the record previously before the Court, whether the Department had withheld any 'documents that solely relate[d] to the revocation of a visa,' or whether instead it had withheld only records that related both to the denial of [one plaintiff's] visa and the revocation of [another plaintiff's] student visa." "Because the Court [still] cannot be certain whether the Department in fact withheld only documents that it relied upon in denying [one plaintiff's] visa application or whether, instead, it withheld at least some documents that were used only to revoke [another plaintiff's] visa (and would not 'disclose confidential information regarding the denial of visa,'…), the Court will assume the latter." "That is, the Court will assume that at least some of those records withheld by the Department were relied upon only in revoking [the second plaintiff's] visa – and, operating on that assumption, will address whether § 1202(f) protects such records." The court finds that "[t]he language of the statute, standing alone, is sufficiently capacious to encompass this result [that the court reaches]." "Indeed, although the Court previously withheld judgment on the issue, it now holds that the statutory language is best read to reach visa revocations, which 'pertain' to the 'issuance or refusal of visas or permits to enter the United States.'" "That is, as a textual mater, a decision to revoke a visa relates to, has a bearing on, or concerns the issuance of the visa . . . – it nullifies that action."
- Litigation Considerations: The court also denies plaintiff's motion for reconsideration. Responding to plaintiff's arguments, the court finds that "[t]he fact that a different agency failed to identify responsive documents does not undermine the Department's assertion that it located responsive documents, nor is it evident how such a suggestion would support the plaintiffs' efforts to obtain documents from the Department."