Gun Owners of Am., Inc. v. DOJ, No. 19-03135, 2023 WL 5830427 (D.D.C. Sept. 8, 2023) (McFadden, J.)

Gun Owners of Am., Inc. v. DOJ, No. 19-03135, 2023 WL 5830427 (D.D.C. Sept. 8, 2023) (McFadden, J.)

Re:  Request for records concerning information about DOJ website visitors

Disposition:  Granting defendant’s motion for summary judgment; denying plaintiff’s cross-motion for summary judgment; denying plaintiff’s request for limited discovery

• Procedural Requirements, Searching for Responsive Records:  The court first considers the FBI’s interpretation of plaintiff’s request.  The court relates that “DOJ argues that Subpart 4 seeks only ‘records from the FBI that aggregate or track the number of individuals from whom the additional information is collected.’”  “So, DOJ says, the request does not encompass records relating to individual agent requests for user information.”  “Plaintiff disagrees.”  “In its view, it ‘sought the requests themselves.’”  “Plaintiff thus faults DOJ for failing to search for records – in particular, emails – relating to discrete agent requests for data collected from FBI.gov users.”  “[T]he Court agrees with DOJ’s interpretation of the scope of Plaintiff’s request.”  “Any records about an attempt to investigate a particular individual are not within the scope of Subpart 4.”  “An email from an agent asking for user data does not constitute a ‘record identifying the number of individuals about whom’ the FBI has collected information.”  “The FBI’s obligation ‘to interpret FOIA requests liberally and reasonably does not require it to extend the meaning of the request to include’ records that the requester did not seek.” 
  
  “Plaintiff’s principal response is that the FBI ‘understood perfectly well’ that it was seeking individual record requests.”  “But this argument misses the mark because the FBI’s duty to search is limited to ‘the four corners of the request.’”  “First, Plaintiff notes that, in response to this request, DOJ’s other components produced records of investigations into specific persons who have accessed various DOJ websites for allegedly nefarious purposes.”  “This fails to move the needle.”  “An agency may release ‘documents out of generosity rather than an obligation under FOIA.’”  “That other DOJ components apparently did so and produced individual requests does not render those records responsive.”  “Nor does the fact that other agencies elected to make discretionary releases of non-responsive material undermine the adequacy of the FBI’s response.”  “Second, Plaintiff says DOJ has already admitted that Subpart 4 encompasses records relating to discrete agent requests for user information.”  “Plaintiff points to emails between counsel that it says show DOJ has changed its tune at summary judgment.”  “According to Plaintiff, this exchange shows that DOJ ‘has been fully aware’ of its desire for individual information requests.”  “Even if so, that is beside the point.”  “An ‘agency’s seeming change in its interpretation of [a] FOIA request is of little consequence when determining the scope of th[e] request.’”  “This Court determines the scope of Plaintiff’s request de novo.”  “Plaintiff’s final argument gets full marks for creativity but ultimately fares no better.”  “It suggests that if the FBI were to provide all the specific investigative records, then these records would, combined, approximate ‘the number of individuals about whom DOJ has collected’ additional data.”  “True enough.”  “But the key point here is that an agency’s duty to search under FOIA goes no further than ‘the plain meaning of [the] request.’”  “And the plain language of Subpart 4 indicates that Plaintiff wanted preexisting aggregate records, not each underlying document that would allow it to construct the record itself.”  “FOIA does not require agencies ‘to divine a requester’s intent.’”
   
• Litigation Considerations, Adequacy of Search:  The court holds that, “[b]ased on [defendant’s] detailed declaration, the Court finds that the FBI satisfied its duty under FOIA to search all files likely to contain responsive materials.”  “[Defendant] first determined that Plaintiff’s request was not searchable in the Central Records System (CRS), the main records system that the FBI searches in response to most FOIA requests.”  “This database indexes information about individuals, organizations, and other subjects of investigative interest.”  “And because no such subject was identified in Plaintiff’s request, the FBI could not search the CRS indices in a manner that would likely yield responsive records.”  “Next, [defendant] explains that when a request is not searchable in CRS, the FBI conducts targeted searches of the offices within the FBI that are reasonably likely to maintain responsive records.”  “Here, [the FBI’s Record/Information Dissemination Section (“RIDS”)] first contacted the Assistant General Counsel in the Privacy and Civil Liberties Unit (PCLU) for potentially responsive records.”  “Then, at PCLU’s direction, RIDS contacted the Office of Public Affairs’ (OPA) FBI.gov & Internet Operations Unit (FIOU), and the Enterprise Security Operation Center (ESOC).”  “FIOU responded, on behalf of OPA, that it ‘neither create[s] nor maintain[s] the information Plaintiff requested.’”  “It explained that ‘no centralized database exists that tracks requests by [agents] for information on users of the FBI.gov website.’”  “And though data logs exist that record daily entries to the FBI’s website, these logs contain only general information about website activity and do not indicate whether information was requested by a specific agent.”  “RIDS then sought further clarification from FIOU on how user data is collected and maintained.”  “FIOU explained that, as stated in the Privacy Policy, the FBI.gov website collects basic information on each visitor to its website.”  “Within OPA, this information is used for basic web analytics for content or site improvement.”  “OPA will also provide this data to FBI agents on request to assist in ongoing investigations.”  “But there is no centralized location to request this information from FIOU.”  “ESOC also came up short.”  “It advised RIDS that it could not search for responsive information about Subpart 4 because it maintains no database or logs of records tracking agent requests for information on users of the FBI.gov website.”  “ESOC referred RIDS to the Insider Threat Office, which responded that it did not have any information responsive to Subpart 4.”
  
  “Plaintiff fails to offer evidence ‘sufficient to overcome an adequate agency affidavit.’”  “Its specific gripes with the FBI’s search all relate to the agency’s decision to exclude individual user information requests from the scope of its search.”  “And because Plaintiff did not ask for those requests, these complaints provide no basis to deny DOJ’s motion for summary judgment.”