Gun Owners of Am., Inc. v. FBI, No. 21-1601, 2022 WL 856388 (D.D.C. Mar. 23, 2022) (Bates, J.)

Gun Owners of Am., Inc. v. FBI, No. 21-1601, 2022 WL 856388 (D.D.C. Mar. 23, 2022) (Bates, J.)

Re:  Request for records concerning Virginia's procedures for background checks prior to purchasing firearm

Disposition:  Granting in part and denying in part defendant's motion to dismiss

• Procedural Requirements, Proper FOIA Requests:  "The FBI contends, as it did in its initial denials, that these [three] requests 'fail to reasonably describe the records they seek or seek to impose unreasonable burdens on the FBI,' and thus that the FBI has no obligation to comply under FOIA."  "Plaintiffs' first request seeks 'records of all communications between the FBI and' the Governor, Lieutenant Governor, and Attorney General of Virginia, their respective 'Office[s],' and 'agents and employees of the same.'"  "[T]he FBI contends that Request 1 fails sufficiently to identify the Virginia officials whose correspondence it requests[]; that the request constitutes an improper 'fishing expedition,'[]; and that, even if the request does 'reasonably describe' the documents sought, its 'shocking breadth would impose undue and unreasonable burdens on the FBI[.]'"  "[Defendant] first argues that, since eight people have served as Governor, Lieutenant Governor, or Attorney General over the requested time period, the request is 'vague and ambiguous as to whether Plaintiffs seek all communications between each of them and the FBI . . . , only communications between these individuals and the FBI during their terms in office, or communications between a particular governor, lieutenant governor, or attorney general and the FBI.'"  The court disagrees, finding that "[t]here is only one reasonable interpretation of this request: plaintiffs seek communications between the FBI and then-incumbent officeholders and their staffs."  "The Court agrees with the FBI's other contention, however:  plaintiffs' request for correspondence between the FBI and 'agents and employees' of the six listed officials and offices is so vague as to prevent an agency professional from 'determin[ing] precisely what records are being requested[.]'"  "On the one hand, the set of relevant 'agents and employees' could be coterminous with the 'Office[s]' of the Governor, Lieutenant Governor, and Attorney General, rendering the catch-all term superfluous. On the other hand, the phrase could apply to every individual working for Virginia's executive branch, each of whom could plausibly be considered an 'agent[ ] of' the Governor."  "Even more than the potential breadth of the request, however, the fatal flaw in Request 1 is that it provides no way to determine which of these plausible meanings to apply."  The court highlights that "a researcher presented with an email from someone at the FBI to a Virginia state employee would have very little guidance for determining whether the email is to an 'agent or employee' of the Governor—the request 'leave[s] the unfortunate FOIA processor . . . in a hopeless muddle without clear guidance about what documents are being sought.'"    
  
  "Plaintiffs seem to realize that their [first] request is problematically vague, but rather than simply amending their request, they seek to obscure its terms."  "Plaintiffs argue that this additional specificity [provided in their opposition brief] demonstrates that their request 'seeks communications between a limited number of FBI personnel and a limited number of clearly identified Virginia officials.'"  However, the court contends that "plaintiffs cannot point to suggested research strategies as evidence that their request is narrower than its terms."  "In this case, far from submitting a new request or specifically seeking a narrower set of documents, plaintiffs' administrative appeal plainly asserts that their original requests are valid and must be processed as submitted."  "Their search suggestions are framed as just that:  suggestions for how to process their original request."  "So although plaintiffs' suggestions are good ones, neither their appeal nor their brief actually limits the scope of their request . . . ."  Thus, the court holds that "[b]ecause Request 1 uses such inherently imprecise terminology that the agency would not be able to determine precisely which documents are being requested, it does not reasonably describe the documents sought."
  
  "Plaintiffs' second FOIA request seeks records of 'all communications between the FBI and the Virginia Department of State Police involving' two Virginia background check programs . . . ."  "First, [defendant] contends that Request 2 is deficient because it 'do[es] not identify by name the relevant Virginia government officials' and instead lists only 'the Virginia Department of State Police.'"  "The Court is not persuaded."  Unlike the first request, "Request 2 names a particular state agency."  "Whereas an FBI processor confronted with a particular email would be at sea in determining whether it was to an 'agent' of the Governor, determining whether the communication was with the Virginia State Police is a straightforward inquiry with clear and obvious criteria."  "A FOIA request is not deficient just because it does not provide the name or email address of every individual whose communications are sought—the request's description need only be 'reasonable' to implicate the agency's obligations under the statute." 
  
  "The FBI's second objection to Request 2 centers on plaintiffs' use of the word 'involving.'  "'[S]ince life, like law, is "a seamless web," and all documents "relate" to all others in some remote fashion,' [] the FBI contends that there is a categorical rule barring all requests that use the phrase 'relating to' (or similar phrases like 'pertaining to' or, as here, 'involving')."  The court emphasizes that "[t]hat is not the law."  "That the reasonable description requirement should not be reduced to a categorical test is evident from its terms:  courts should rarely deploy a bright-line rule—and particularly not one this expansive—when determining whether something is 'reasonable.'"  "Moreover, the FBI's proposed linguistic litmus test would problematically narrow the permissible forms of a FOIA request."  "The FBI's rule would require the requester to either guess at a document's title or provide a list of terms 'mentioned' or 'referenced' in responsive documents in order to make even a facially valid request."  "The FBI's inhospitable approach is especially inappropriate in light of FOIA's 'general philosophy of full agency disclosure[.]'"  "Although a requester must reasonably describe the documents sought, the recipient agency has a correlating duty to work in good faith to fulfill that request if reasonably possible."  "This attitude is even more important at the threshold stage:  the FBI's argument means that an agency may refuse even to attempt to fulfill a request simply because it uses a phrase like 'relating to' or 'involving.'"  "To be sure, many cases in this District have disapproved of requests using phrases like 'related to' [], and the Court recognizes that a request for documents 'involving' a topic does indeed embed an inherent vagueness that complicates the task of compliance."  "Although many—perhaps even most—requests framed in this way will fail to reasonably describe the records sought, the FBI's proposed rule declaring any request using the phrase 'related to' or a similar term facially invalid is not supported by the caselaw, understates the agency's obligations in processing requests, and contravenes the spirit of FOIA."  "The Court thus moves to the context-specific inquiry of whether Request 2 reasonably describes the documents sought."  "The Court concludes that it does" because "Request 2 identifies a discrete state agency whose communications are sought, provides a specific time period for the requested search, and includes four ready-made search terms."  Unlike previous district court opinions, "[this request] does not require the FBI to search all of its files, nor would doing so make any sense—it would be irrational for the agency to canvass the files of the Anchorage field office looking for communications with the Virginia State Police involving a specific Virginia law."
  
  "The final FOIA request challenged here, Request 3, seeks 'records related to whether Virginia's voluntary background check system and its implementation complies with 28 C.F.R. Section 25.6.'"  "[Defendant] now seeks to dismiss plaintiffs' complaint with respect to Request 3 because it (a) 'contains the improper formulation "all records relating to" a subject matter,' and (b) 'appears to ask for FBI's determination as to whether Virginia's voluntary background check complies with a federal regulation' and thus 'in essence propounds an interrogatory[.]'"  "Taking the FBI's second argument first, an agency may not reject a FOIA request that on its face seeks only pre-existing documents just because it implicitly asks a question."  "In other words, what matters is not the form of the request but whether compliance would require the creation of new documents."  As to defendant's vagueness argument, the court agrees that "[u]nlike Request 2, Request 3 is not limited to FBI communications with a specific state agency, and it contains no parameters pointing the agency to search certain locations or time periods."  "Plaintiffs counter that Request 3 contains several implicit limitations."  The court notes that "these purported limitations are nowhere to be found in the request itself . . . ."  "More fundamentally, however, plaintiffs seem to think that Request 3 is already so inherently narrow that limitations to certain types of documents or to certain time periods are unnecessary or would be superfluous."  "When a FOIA request is framed using the kind of intrinsically expansive terms used in Request 3, these kinds of limitations are far from superfluous—they are essential to give the FBI adequate guidance in locating responsive documents."  "Between the inherent vagueness of 'related to' and the lack of any temporal or custodial limitation on the set of responsive documents, Request 3 is distinguishable from Request 2 and fails to provide adequate guidance for FBI personnel in locating the documents sought."