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Keeping Gov't Beholden, Inc. v. DOJ, No. 17-1569, 2021 WL 5918627 (D.D.C. Dec. 13, 2021) (Pan, J.)


Keeping Gov't Beholden, Inc. v. DOJ, No. 17-1569, 2021 WL 5918627 (D.D.C. Dec. 13, 2021) (Pan, J.)

Re:  Seven requests for records concerning "'understanding of and compliance with records management directives, especially those involving emails'"

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

  • Procedural Requirements, Searching for Responsive Records:  First, the court relates that "[plaintiff] requested disclosure of all e-mails between any NARA Archivist assigned to the FBI and any FBI e-mail address over a period of about 20 months, but also noted that the FBI 'may limit the scope of this request to employees or contractors whose official duties would include interacting with NARA regarding records management issues.'"  "[The] Court is skeptical that a FOIA request may be denied based on sheer volume of records requested alone."  "Nonetheless, when it would be unreasonably burdensome for the agency to identify what records are responsive to a FOIA request, the agency is not obliged to honor that request."  "In the instant case, the FBI's affidavits explain that [plaintiff's] request for all e-mail correspondence between the NARA Archivist assigned to the FBI and all FBI employees and contractors whose official duties include interacting with NARA regarding record management issues would require the agency to search over 73,000 e-mail accounts, because all of the FBI's employees have record-management duties as part of their employment."  "The FBI's declarations further indicate that, even if there were some discrete subset of FBI employees whose 'official duties' include interacting with NARA, the agency 'would still need to conduct extensive research to determine who among its 36,776 employees regularly contact NARA.'"  "Although KGB emphatically argues that, '[w]hile proper records management may be required of all FBI employees, interacting with NARA regarding records management issues would only be an "official duty" for a select few,' . . . it appears that the alleged 'select few' are not readily identifiable."

    The court relates that "[t]he FBI raises similar objections to the request . . . for all emails that were sent or received by certain FBI employees over the course of approximately two weeks and that were not stored in the [Central Records System ("CRS")] . . . ."  "In order '[t]o comply with Plaintiff's request as written' and 'verify which emails constitute "email correspondence which is not stored in the CRS," [the FBI] would have to conduct an in-depth analysis of each email to identify proper terms to search within the CRS for the individual emails' and then 'carefully and diligently search these terms for every email to verify their status within the CRS' – which would require 'approximately 17,666 hours of searching.'"  The court finds that "[a]sking for all records not stored in a particular database is overbroad where the agency has identified 106,000 potentially responsive records and the only way to confirm whether those records are in the database is to check them one by one."
  • Exemption 5, Deliberative Process Privilege & Foreseeable Harm and Other Considerations:  "To start, the Court is persuaded that the withheld information is covered by the deliberative-process privilege and thus falls within the scope of Exemption 5."  "Here, the emails from which the FBI withheld information under Exemption 5 generally contain drafts of, revisions to, or comments on documents such as public and internal statements by former FBI Director James Comey and agency policies on subjects such as personnel matters and technology initiatives."  "These records plainly are both predecisional, because they are 'generated before the adoption of an agency policy,' and deliberative, because they 'reflect[ ] the give-and-take of the consultative process.'"  "[Plaintiff's] arguments to the contrary are unavailing in light of the FBI's more detailed descriptions of the withheld documents in its supplemental materials."  "Based on the descriptions of the documents in question, '[t]hese materials are, at their core, the back-and-forth deliberative process required for an agency to reach a decision' and thus fall within Exemption 5's protection."

    The court also finds that "[defendant's foreseeable harm] explanation sufficiently 'identif[ies] specific harms to the relevant protected interests' that would result from disclosure of the withheld materials."  "The FBI's justification for its withholding expressly identifies those interests and explains why the agency reasonably foresees that those interests would be harmed by disclosure of the document."  "And the agency's explanation adequately 'connect[s] the harms in [a] meaningful way to the information withheld,' . . . by describing how disclosure of the specific information at issue - the FBI Director's preliminary views regarding the Trump investigation – would discourage FBI employees from seeking advice about public statements regarding high-profile matters in the future."  Additionally, the court notes that, to analyze the sufficiency of defendant's foreseeable harm explanation, "the Vaughn index must be considered in conjunction with the FBI's supplemental declaration, which provides a detailed description of the contents of each withheld document to which these explanations apply."
Court Decision Topic(s)
District Court opinions
Exemption 5, Deliberative Process Privilege
Litigation Considerations, Foreseeable Harm Showing
Procedural Requirements, Searching for Responsive Records
Updated January 14, 2022