Democracy Forward Found. v. DOJ, No. 17-1877, 2022 WL 17177497 (D.D.C. Nov. 23, 2022) (Sullivan, J.)

Democracy Forward Found. v. DOJ, No. 17-1877, 2022 WL 17177497 (D.D.C. Nov. 23, 2022) (Sullivan, J.)

Re:  Request for records concerning communications between Trump Administration Transition Team and EOUSA

Disposition:  Adopting magistrate judge’s report and recommendation; denying defendant’s motion for summary judgment

• Litigation Considerations, Adequacy of Search & Procedural Requirements, Searching for Responsive Records:  First, the court relates that “[plaintiff] first objects that DOJ ‘improperly construed Plaintiff’s search as limited to “authorized” communications between the Transition Team and EOUSA.’”  “The organization clarifies that it requested ‘all incoming and outgoing communications between the named members of the Transition Team and all of EOUSA.’”  “This request included unauthorized communications.”  “The agency considered the scope of [plaintiff’s] request – all communications between the named Transition Team members and EOUSA – and reasonably determined that the only records likely to exist are authorized communications.”  The court finds that, “here, the affidavits state that only authorized communications and no other communications are likely to exist.”  “FOIA does not require an agency to ‘make hopeless and wasteful efforts to locate’ documents that would not ‘have been created in the normal course.’”  “Unauthorized communications would not have been created in the normal course.”  “[Plaintiff] speculates – based on other actions of the Transition Team and other investigations – that there may be unauthorized communications between EOUSA and certain members of the Transition Team.”  However, the court finds that “[plaintiff] has not shown that EOUSA’s search was unreasonably limited or that other EOUSA employees were likely to have responsive records.”
  
  Next, “[t]he Court agrees with [the] Magistrate Judge . . . that [defendant’s declarant’s] conversations with the other likely custodians of responsive records ‘are no substitute for actually searching those employees’ records.’”  The court relates that defendant’s declarant stated that “he ‘personally spoke with and exchanged emails with’ the other December 2016 meeting participants and, based on those conversations, determined that ‘they neither sent nor received any email or other written correspondence to or from any Transition Team member during the requested timeframe.’”  “Although the Court presumes good faith here, FOIA still requires that the agency conduct some search and forbids it from relying on ‘professed personal knowledge that no responsive records exist.’”
  
  Finally, the court relates that, “[i]n a footnote, [plaintiff] objects to [the Magistrate Judge’s] recommendation that the Court permit DOJ to supplement the record by explaining why any further search would be burdensome.”  The court finds that “[it] possesses the authority to order that a record be supplemented.”  “This supplementation is particularly appropriate here as DOJ explained in its briefing that a search through the four meeting participants’ email records may be burdensome.”