Finders Keepers USA, LLC v. DOJ, No. 22-00009, 2025 WL 823920 (D.D.C. Mar. 14, 2025) (Mehta, J.)

Finders Keepers USA, LLC v. DOJ, No. 22-00009, 2025 WL 823920 (D.D.C. Mar. 14, 2025) (Mehta, J.)

Re:  Request for records concerning Dent’s Run dig

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

• Litigation Considerations, Adequacy of Search:  The court relates that “[it] previously denied summary judgment as to the adequacy of Defendant’s search for three reasons.”  “The first was that Defendant failed to identify the search terms used to locate responsive materials, after an initial search turned up no records.” “[Defendant] now explains that the FBI used the search term ‘Gold at Dents Run’ to search its Sentinel Indices for a second time to locate records within the Central Records System (‘CRS’).” “The FBI also performed additional searches using terms suggested by Plaintiff, including ‘Finders Keepers,’ ‘Dents Run, Elk County, PA,’ ‘Civil War gold,’ ‘Enviroscan,’ ‘Dennis Parada,’ and ‘Operation Union Gold.’”  “These searches produced no new records.”
  
  “The court declined to approve the adequacy of the search for the added reason that Defendant did not identify the cut-off date that it used to conduct the second search.”  “[Defendant] now states that the FBI used as the cut-off date May 14, 2018, the date of its initial unsuccessful search.”  “Defendant says that using this date was reasonable ‘because it was the date the FBI started its search,’ and the date of search is the cut-off date noticed on its FOIA website.”  “The court is unpersuaded.”  “As previously noted, the D.C. Circuit has ‘held that “it [is] reasonable for DOJ to use the date of its initial search as the cut-off date,” because “the choice of a cut-off date need only be reasonable under the circumstances.”’”  However, the court finds that “it was a new search that came about only after U.S. Senator Pat Toomey interceded on Plaintiff’s behalf.”  “The FBI treated Senator Toomey’s inquiry ‘as an official appeal,’ . . . considered it to be a ‘lead,’ and ‘determined another search of the CRS automated indices was necessary, as a reasonable means for the FBI to locate records potentially responsive to Plaintiff’s FOIA request[]’ . . . .”  “In these circumstances, it was unreasonable for Defendant to view the second search as a mere extension of the first and to adopt the first search’s cut-off date.”  “The FBI therefore should have looked for records up through the date of the second search – which occurred sometime before October 15, 2018.”  “Plaintiff asks the court to go further and order an even later cut-off date – July 24, 2019 – more than nine months after the second search.”  “That is the date on which the FBI formally closed its investigation and agreed to release responsive materials that it previously had withheld in full under Exemption 7(A).”  “But a cut-off date’s reasonableness must be assessed as of when the search itself occurs.”  “Post-search events that come to light during litigation have no bearing on that assessment.”
  
  “The third ground on which the court denied summary judgment as to search adequacy was the FBI’s failure to explain why all files likely to contain responsive material would be discovered from a search of the Sentinel Indices.”  “According to [defendant], ‘Sentinel is the FBI’s case management system.’” “[Defendant] now explains that the FBI’s Records and Information Management Policy Guide, dated September 22, 2022, ‘requires all FBI personnel to serialize any non-transitory investigatory records of investigative importance concerning a particular investigation to the case file of the investigation.’”  “‘[A] Sentinel search of the [Central Records System] would be expected to contain records . . . deemed of investigative importance by FBI personnel.’”  “According to [defendant], the agency confirmed that its Philadelphia Field Office, which led the Dents Run investigation, ‘followed the Policy Guide, and serialized all records deemed of investigative importance’ to the relevant case file.”  “[Defendant] also responds to an earlier criticism from Plaintiff, renewed again in its Opposition, that the records produced did not contain any documents reflecting expenses associated with the Dents Run dig.”  “He suggests that agents might have considered such records to be ‘transitory’ and, for that reason, they would not be contained in the CRS.” “[Defendant’s] latest explanation for limiting the search to the CRS remains deficient for two reasons.” “First, as Plaintiff points out, the Dents Run dig took place in March 2018, when the cited Policy Guide – dated September 2022 – was not in effect.”  “[Defendant] does not say whether agents were subject to similar preservation policies four years earlier.”  “Second, Plaintiff did not limit its request to ‘non-transitory investigative records.’”  “[Defendant] does not, for instance, exclude the possibility that agents in the Philadelphia Field Office saved ‘transitory’ responsive materials, like email communications or records of expenditures.”  “Nor does [defendant] describe any effort to determine whether such materials might exist in the Philadelphia Field Office or elsewhere.” “That omission rendered the search inadequate.”
  
  Separately, the court finds that “[t]he FBI produced to Plaintiff three DVDs of videos of the Dents Run dig.”  “The court denied summary judgment as to the search for videos because [defendant] did not detail ‘how the [Philadelphia Field Office’s Public Affairs Office (‘PAO’)] conducted its search.’”  “[Defendant] now explains that, upon inquiry, the PAO reported that the FBI representatives who filmed the dig returned the camera to ‘the FBI.gov and Internet Operations Unit,’ and members of that Unit advised that the original video files were saved on a hard drive and ‘provided those video files to [the Record/Information Dissemination Section (‘RIDS’)].’”  “‘The processed video clips,’ [defendant] states, ‘were processed and released on three DVDs’ to Plaintiff.”  “Plaintiff thus received all the non-exempt video taken of the Dents Run dig in the FBI’s possession.”  “The court is now satisfied with the agency’s search for that material.”
  
  Additionally, the court notes “that the Plan released to Plaintiff seemingly is an ‘Updated’ version dated ‘3/13/2019,’ which is one year after the Dents Run dig.” “Plaintiff asks the court to ‘order the FBI to immediately produce . . . all versions of the Operational Plan[.]’” “Defendant offers no response to this argument, . . . so the court finds that there is a genuine dispute of fact as to whether the FBI possesses earlier versions of the Operational Plan.”
   
• Exemption 7(E); Litigation Considerations, Evidentiary Showing, Foreseeable Harm Showing & In Camera Inspection:  The court relates that “[it] previously rejected Defendant’s invocation of Exemption 7(E) as to the Dents Run Operational Plan because ‘[defendant’s] declaration [did] not specify the actual investigative techniques’ contained in the record.”  “[Defendant] now clarifies that the Operational Plan contains ‘1) information specifically about the Dents Run Seizure revealing non-public details of plan execution; and 2) additional details contained in the plan that, though not applicable to the seizure execution here, would disclose additional techniques and procedures considered for use in other investigative scenarios.’”
  
  “[Defendant] appears to identify the following Dents Run-specific investigative techniques within the Operational Plan that were withheld: ‘strategies for surveillance, placement of personnel, assigned duties and investigation tasks of these personnel, communication channels and equipment used during the operation, contingency/abort plans in case of operation disruptions, certain administrative and equipment information, coordination instructions for the multiple agencies (local and federal) involved in the investigation, and local emergency medical facility information, routes and coordination, and the medical operation plans.’”  “[Defendant] then goes on to say that ‘[r]elease of the exempt information would provide criminals with a complete playbook of all possible law enforcement considerations when executing investigative tasks.’”  “‘This could not only compromise the safety of law enforcement personnel executing the actions, it could also reasonably be expected to risk circumvention of the law by allowing criminals to alter behavior to avoid detection or disrupt FBI law enforcement operations.’”  The court finds that “[t]hese statements fall short of sustaining the Exemption 7(E) withholdings because they fail to ‘demonstrate logically how the release of the requested information might create a risk of circumvention of the law.’”  “Part of the difficulty with [defendant’s] declaration is that he does not separate out the expected harm from disclosing Dents Run-specific techniques in the Operational Plan versus those that are generally set forth.”  “[Defendant] indivisibly states as to both categories that disclosure might allow criminals to change their behavior or disrupt law enforcement operations.”  “Such representations are often enough to clear Exemption 7(E)’s ‘low bar.’”  “But here there is not an obvious ‘logical’ connection between the techniques specific to an operation to dig for gold and how their disclosure would enable bad actors to circumvent the law in the future or endanger agents.”  “Surely, it is not common for the FBI to oversee an operation that requires the removal of large amounts of earth to look for a thing of value.”  “The court therefore cannot assess, even granting proper deference to the judgment of law enforcement, whether disclosure could increase the risk of future evasions of the law.”
  
  “For similar reasons, [the court finds that defendant’s] representations do not meet FOIA’s ‘foreseeable harm’ standard.”  “Here, again, [defendant] offers no facts that would enable the court to evaluate the ‘foreseeability’ of the harm that he forecasts could result from release of information specific to the Dents Run operation.”  “His justifications for the withholdings instead are generic and seemingly tailored to the non-specific techniques.”  “Defendant thus fails to make the ‘focused and concrete’ showing required to satisfy the ‘foreseeable harm’ requirement.”
  
  “In light of the insufficiency of the agency affidavits, the court will exercise its discretion and review in camera the Operational Plan – including all prior versions – before making a final judgment on Defendant’s withholdings under Exemption 7(E).”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing: The court finds that “Defendant has met that obligation with respect to the information withheld under Exemptions 6 and 7(C) and the non-Operational Plan specific withholdings under Exemption 7(E).”  The court explains that “[a] ‘comprehensive Vaughn index, along with an affidavit that a line-by-line segregability review of each document withheld in full,’ is ‘sufficient to fulfill the agency’s obligation to show that further segregability was not feasible.’”