Danik v. DOJ, No. 17-1792, 2020 U.S. Dist. LEXIS 94788 (D.D.C. May 31, 2020) (Chutkan, J.)

Danik v. DOJ, No. 17-1792, 2020 U.S. Dist. LEXIS 94788 (D.D.C. May 31, 2020) (Chutkan, J.)

Re:  Requests for records concerning former FBI Deputy Director Andrew McCabe

Disposition:  Denying defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Procedural Requirements, "Agency Records":  "Based on the record before it, the court declines to determine whether McCabe's text messages are agency records . . . . "  The court finds that "[t]he FBI has not created an adequate record on either possession or control for the court to determine whether McCabe's text messages are agency records."  "The FBI establishes no facts regarding whether it possesses McCabe's texts messages."  "Further, the FBI has created a limited record on whether it controls the text messages, but nonetheless asks the court to find that it does not, and therefore the messages are not agency records."  "But the fact-intensive inquiry into whether a document is an 'agency record' under FOIA does not lend itself to the broad ruling the FBI seeks, and it has not shown that the court could make such a finding on the record before it."  Specifically, the court finds that the FBI has "offer[ed] no facts or argument" regarding the first three agency record control factors, and regarding the fourth factor, "the FBI has not shown whether it retained McCabe's text messages in its files."
   
• Litigation Considerations, Adequacy of Search:  "The FBI claims that searching McCabe's texts and running [plaintiff's] remaining proposed search terms for McCabe's emails would be 'unduly burdensome,' . . . but [the court finds that ]it fails to establish that burden."  The court explains that "while the initial estimate from the search terms the FBI ran may indicate some terms are unduly burdensome, the FBI has not shown this for all the proposed terms."  Additionally, the court notes that "[defendant] does not even address the burden of searching McCabe's text messages."
   
• Exemption 5, Deliberative Process Privilege:  "[T]he court will deny summary judgment for the FBI regarding Exemption 5."  "The court will, however, permit the FBI to supplement the record regarding foreseeable harm."  The court relates that "[plaintiff] does not contest that the deliberative process privilege protects the documents; he argues that the FBI has not shown that releasing the documents would harm the agency's deliberative process."  The court relates that "the FBI declares that '[t]he release of the redacted/withheld information is likely to chill full, frank, and open discussions between agency personnel, as well as chill the thorough preparation of potential criminal matters in advance of litigation.'"  The court holds that "[t]his boilerplate language does not link the harm (chilled discussion and preparation of materials) to the specific information in the withheld materials."  "Therefore, the explanation fails to establish foreseeable harm from disclosing the documents."