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Jud. Watch, Inc. v. DOJ, No. 19-0879, 2022 WL 898825 (D.D.C. Mar. 28, 2022) (Nichols, J.)

Date

Jud. Watch, Inc. v. DOJ, No. 19-0879, 2022 WL 898825 (D.D.C. Mar. 28, 2022) (Nichols, J.)

Re:  Request for records regarding April 2017 meeting between DOJ officials and Associated Press reporters

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:  "In particular, Plaintiff notes that records produced by DOJ showed that many individuals communicated with DOJ's Public Affairs Office regarding the April 2017 meeting."  "Plaintiff therefore argues that DOJ must search that entire office, not simply Flores's emails."  "Plaintiff also argues that the Criminal Division was required to search the shared drives belonging to the Office of the Assistant Attorney General and the Fraud Section."  "But Defendant's supplemental declarations clarified that a 'records search revealed that certain Criminal Division personnel had communicated with former Department Spokesperson Sarah Isgur Flores regarding the April 2017 meeting.'"  "'The FOIA/PA Unit determined that in the records returned from the first electronic search, Ms. Flores was the only OPA employee with whom the Criminal Division communicated regarding the April 2017 meeting.'"  "Thus, because the lead only implicated Flores—not anyone else in the Office of Public Affairs—Defendant acted reasonably in searching her emails alone."  "Since Plaintiff did not direct Defendant to any particular locations within the DOJ where the records might be, Defendant needed only to search its central filing system and follow any leads it could not ignore in good faith."  " DOJ was also not required to search the shared drives belonging to the Office of the Assistant Attorney General and the Fraud Section."  "The April 2017 meeting was not conducted by the Fraud Section; it was handled by the Money Laundering Section."  "'Because Plaintiff's FOIA request sought records regarding a meeting that was not tied to a subject matter that the Fraud Section was investigating, the FOIA/PA Unit determined that a search of the Fraud Section's shared electronic drive was not necessary.'"  "And while DOJ searched Weissman's emails, and Weissman was the Chief of the Fraud Section . . . his emails were searched because it was independently known that Weissman had attended the meeting."  "Yet Weissman's emails (and all other individuals' emails) did not reveal any other Fraud Section employees who might have responsive documents."  "There were thus no further leads within the Fraud Section for DOJ to follow."

    "Plaintiff argues that DOJ 'did not even attempt to locate the records of all attendees of the April 2017 meeting and others known to have communicated about the meeting and/or subject matter of the meeting.'"  "It names three individuals who attended the April 2017 meeting."  "As to the agents, DOJ reasonably concluded that any responsive documents would have been discovered in its Central Records System."  "[T]he agent whom the FBI did ask to review his own personal documents, as he was named in the Polit[i]co article—confirmed that any relevant materials would be maintained on CRS."  "Again, '[w]hen a request does not specify the locations in which an agency should search, the agency has discretion to confine its inquiry to a central filing system if additional searches are unlikely to produce any marginal return.'" 

    "As for [the AUSA], DOJ argues that neither the Criminal Division nor the FBI are custodians of [the AUSA's] records; the Executive Office for U.S. Attorneys is."  "But that misses the point."  "Plaintiff submitted its request not to the Criminal Division or the FBI, but to DOJ."  "That DOJ forwarded the request only to those two divisions was its own decision."  "That decision did not relieve DOJ of its obligation to 'pursue [] a lead it cannot in good faith ignore, i.e., a lead that is both clear and certain.'"  "The information DOJ uncovered made it 'clear and certain' that [the AUSA] likely possessed responsive documents, and DOJ was therefore obligated to search his records (presumably through EOUSA)." 

    "Plaintiff argues that DOJ used inadequate search terms and dates ranges."  "Plaintiff first argues that both the Criminal Division and the FBI used the names of reporters as keywords, but the FBI used those terms only when searching its Public Affairs Office—not CRS."  "And 'the FBI [] confirmed that, when indexing the responsive serialized records into the CRS for the Manafort investigation, SA Pfeiffer (who serialized several of the relevant records in CRS  . . .) did not index these records under the names and/or email addresses of any of the reporters who attended the April 2017 meeting in question.'"  "The Public Affairs Office, on the other hand, does not sort their documents in this manner."  "The government has thus justified its reason for using different search terms, and '[w]here the agency's search terms are reasonable, the Court will not second guess the agency regarding whether other search terms might have been superior.'"

    "Plaintiff also argues that the email address for each AP reporter who attended the meeting should have been used in all searches."  "As to the Criminal Division, as the government notes, it did use the email addresses of three reporters present at the meeting."  "It did not use the fourth reporter's email address because it did not have it at the time of the search, but it did search for his name."  "Further, a review of all emails about the meeting between Criminal Division employees and Associated Press reporters showed that the relevant documents pertained only to the scheduling of this meeting."  "The issue this court must resolve is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.'"  "The Court concludes that it was."

    "As to OIP, Plaintiff's argument dovetails with another of Plaintiff's objections: that the terms used by OIP to discover relevant emails from Weissman and Special Agent Pfeiffer were unreasonably restrictive."  "As DOJ explains, '[t]hese terms were chosen because . . . the meeting participants included representatives of the Associated Press, and allegedly discussed a storage locker owned by Paul Manafort.'"  "But the Politico article cited in Plaintiff's request stated that the meeting 'may have led the FBI to a storage locker the bureau raided.'"  "'With this in mind,' DOJ explains, 'and the fact that OIP was conducting searches within the [Special Counsel's Office], which opened one month after the date of the meeting, OIP crafted its search terms in an attempt to identify[] records concerning the [Special Counsel's Office] use of the information about the storage locker.'"  "That was reasonable."  "And as the government goes on to explain, 'none of the searches conducted or records located by OIP indicate that using the term 'Manafort' or the names and/or email addresses of specific AP reporters would be more likely to uncover responsive records than the search terms utilized.'"  "DOJ's 'burden was to show that its search efforts were reasonable and logically organized to uncover relevant documents; it need not knock down every search design advanced by every requester.'"  "It has met its burden here."

    "As to the date range, Plaintiff points out that both the Criminal Division and OIP 'cut off the search well before the date Plaintiff submitted the FOIA request or even before reports surfaced about the April 2017 meeting.'"  "But this argument misses the mark."  "Plaintiff's request was targeted to 'records regarding, concerning, or related to the April 2017 meeting.'"  "Both the Criminal Division and OIP thus reasonably focused its search dates around the meeting."  "Indeed, both used ample time cushions."  "The date ranges were thus reasonably tailored to Plaintiff's request."

    "Plaintiff's final challenge is to the adequacy of the search for the so-called 'Trial Binder.'"  "Plaintiff notes that it cannot tell whether DOJ failed to locate the contents of the trial binder, or if it did not think they were responsive because it took a narrow view of Plaintiff's FOIA request."  "But the Second [OIP] Declaration cleared up any potential ambiguity: 'OIP also conducted a targeted search of the SCO's paper files . . . after a manual, page-by-page review of all the paper files contained in the identified box, OIP was unable to confirm whether the box contained the contents of the binder discussed in the Politic[o] article.  Nevertheless, each document was also reviewed to determine whether—again, irrespective of whether it was contained within the binder referenced by the Politico article—it is responsive to Plaintiff's FOIA [request]; none are responsive.'"  "This is an adequate explanation and clears up the ambiguity."  "Plaintiff appears to agree."  "Nowhere in its reply brief does it counter DOJ's proffered explanation."  "The Court will thus treat this argument as conceded." 
Court Decision Topic(s)
District Court opinions
Litigation Considerations, Adequacy of Search
Updated April 26, 2022