Jud. Watch, Inc. v. DOJ, No. 22-1034, 2023 WL 8190820 (D.D.C. Nov. 27, 2023) (Howell, J.)

Jud. Watch, Inc. v. DOJ, No. 22-1034, 2023 WL 8190820 (D.D.C. Nov. 27, 2023) (Howell, J.)

Re:  Request for communications between FBI officials and New York Times (“NYT”) regarding FBI’s execution of search warrants on November 4 and 6, 2021, at homes of employee and of founder of Project Veritas, a “‘a non-profit non-governmental organization headquartered in Mamaroneck, New York’”

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

• Litigation Considerations, Adequacy of Search:  The court holds that “[n]one of plaintiff’s challenges to the search has sufficient merit to defeat DOJ’s motion for summary judgment.”  The court first relates that “Plaintiff insists that the requested records must exist based on the premise that ‘information communicated to and published by’ the NYT regarding the search warrants’ execution ‘was restricted to everyone except’ those involved in the FBI’s investigation of the diary theft.”  The court finds that “[t]his premise is plainly incorrect.”  “Plaintiff’s speculation that the FBI was the source for the NYT’s reporting fails to acknowledge the reality, that there was nothing surreptitious about execution of the search warrants.”  “To the contrary, the warrants were necessarily executed in broad daylight and thus plainly observable to the public.”  “Plaintiff is seemingly convinced that records of communications about the search warrants between the NYT and the FBI must exist despite the sparsity of credible support for this inference.”  “Guiding review of plaintiff’s challenge to the search here, is the well-settled law ‘that an “agency’s failure to turn up a particular document, or mere speculation that as yet uncovered documents might exist, does not undermine the determination that the agency conducted an adequate search for the requested records.”’”
  
  Next, “Plaintiff asserts that the FBI failed to search or ‘contact the New York Field Office,’ which was ‘likely to possess potentially responsive records, about the requests,’ or to search the email accounts of ‘the limited number of FBI officials who would likely possess potentially responsive records.’”  “This contention misconceives the standard for the adequacy of an agency’s search under the FOIA.”  The court finds that “just because plaintiff pointedly asked the FBI to conduct a search of specific locations does not impose an obligation on the agency to do so.”  “In its initial and supplemental declarations, the FBI explained that ‘a search of [its Central Records System (“CRS”)],’ which contains “records of FBI Headquarters, FBI field offices, and FBI legal attaché offices (legats) worldwide,’ ‘would encompass records from the FBI’s New York Field Office and investigative records of applicable Supervisory Special Agents, and other individuals who have or had an active role in the investigation.’”  “Plaintiff does not contest the FBI’s description of the scope of its record system as covering records in the New York Field Office.”  “Indeed, the search conducted using the FBI’s selection of relevant search terms did locate an open investigative file regarding Project Veritas, . . . seemingly proof that the FBI’s system and search terms used were effective in this case.”  “Agency declarations explaining search scope and methodology are accorded ‘a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.’”  “Plaintiff’s additional challenge that the FBI failed to search the email accounts of ‘the limited number of FBI Case Participants who had prior knowledge’ of the search warrants is similarly without foundation.”  “Plaintiff dismisses as insufficient the FBI’s search of the email accounts of individuals who were in the senior executive service (‘SES’) and permitted, per the FBI’s media policy, ‘to communicate with the media,’ . . . .”  “The FBI explained that because these individuals were ‘authorized to communicate with the media (which would include contact with employees, contractors, or representatives of [the NYT]),’ if such records existed, these were the accounts that could be ‘expected to have responsive records.’”  “Plaintiff’s request that additional searches are required of email accounts of individual FBI agents and personnel participating in some fashion with the search warrant investigation and execution, therefore boils down to speculation that these individuals likely have email accounts and likely use email and therefore could have used email to communicate with the NYT.”  “This reasoning about the possible use of email ‘without more[,] does not invariably constitute a “lead” that an agency must pursue.’”  “Set against the FBI’s detailed declarations demonstrating that the FBI conducted a good-faith search, plaintiff has not carried its burden of ‘establish[ing] a sufficient predicate to justify’ the FBI searching additional email accounts.”
  
  “Next, plaintiff challenges as inadequate the search terms employed by the FBI.”  “Plaintiff posits that the terms used were inadequate for two reasons, arguing that the FBI should have used ‘logical variations’ of the FBI’s search terms, such as ‘Times’ and ‘PV,’ . . . and that the FBI should have used terms ‘that would encompass communications with the [NYT] “regarding” the search warrants,’ . . . .”  “To be sure, as plaintiff contends, an ‘agency is obligated to construe a FOIA request liberally.’”  “Here, the FBI ‘crafted searches reasonably tailored to locate responsive documents.’”  “When conducting the searches, the FBI used these search terms suggested by plaintiff, . . . as well as additional search terms that the FBI determined would be ‘most likely to locate responsive records’ . . . .”  “Given the focus of plaintiff’s FOIA request for communications between the FBI and the NYT ‘regarding the FBI search warrants’ executed at [two homes] . . . the FBI’s search used specific terms (e.g., ‘New York Times,’ ‘Project Veritas,’ . . .), that were reasonably calculated to lead to responsive documents.”  “The fact that the FBI did not use the specific search terms plaintiff now suggests during litigation to search CRS indices, the investigative file, and email accounts does not, plaintiff’s speculation notwithstanding, . . . undermine the conclusion that the search was reasonable.”  “Moreover, although plaintiff asserts – in an argument subsequently abandoned on reply – that the FBI improperly ‘used [terms] to search email records [that] differ[ed] from the terms used to search the CRS,’ . . . the FBI’s use of ‘different search terms for different databases . . . does not undermine the conclusion that the search was reasonable’ . . . .”  “The FBI has discretion in crafting a list of search terms that it ‘believe[s] to be reasonably tailored to uncover documents responsive to the FOIA request.’”  “In short, plaintiff’s ‘purely speculative claims about the existence and discoverability’ of documents through alternate search terms does not overcome the ‘presumption of good faith’ to which the FBI’s conclusion regarding the adequacy of its search is entitled.”
  
  “Finally, plaintiff challenges as a shortcoming in the search scope that the FBI did not ‘search text messages and instant chat messages’ or ‘explain why’ such search was not conducted.”  “This critique is incorrect and simply ignores the FBI’s explanation.”  “The FBI’s declarations accordingly explained that searches of text and instant chat messages ‘that [had] been serialized in the applicable investigative file’ in CRS, . . . ‘would have been redundant’ of the FBI’s searches of the CRS, . . . and ‘[the court’s] FOIA precedent, under which an agency’s search need only be “reasonably expected to produce the information requested,” does not require what the government represents would be a redundant search’ . . . .”  “Moreover, plaintiff’s assertion that a search of CRS would not have encompassed responsive text and instant chat messages because records classified as ‘transitory’ pursuant to the FBI’s record management policy may not have been entered into CRS, misses the point.”  “Plaintiff offers no evidence to support its speculation that responsive text and instant chat messages exist . . . and ‘[a]bsent some reason to believe that [text and instant chat messages] are likely to contain responsive materials, [plaintiff’s] arguments are insufficient to require the FBI to conduct further searches’ . . . .”