Leopold v. NSA, No. 14-805, 2015 WL 4603026 (D.D.C. July 31, 2015) (Chutkan, J.)

Leopold v. NSA, No. 14-805, 2015 WL 4603026 (D.D.C. July 31, 2015) (Chutkan, J.)

Re: Request for records concerning surveillance of federal and states judges

Disposition: Granting in part and denying in part defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that "[plaintiff's] 'purely speculative claims about the existence and discoverability of other documents' do not overcome the 'presumption of good faith' afforded to the agency's declarations."  The court holds that "there is 'no requirement that an agency search every division or field office in response to a FOIA request,' . . . and [plaintiff] offers no evidence that responsive records that were not otherwise to be found as a result of the agency search may reside in any of the additional offices."  "The agency provided reasonably detailed affidavits explaining why it only searched two offices, and why a search of the offices [plaintiff] identifies would be redundant and not likely to result in the location of any responsive records."  Additionally, the court notes that "[plaintiff's] request sought 'policies, memoranda, training materials and guidance.'"  The court finds that "[i]t was reasonable for NSA to determine that an email search was unlikely to uncover responsive records, especially given that other databases were available that specifically compiled policies, memoranda, training materials, and guidance."  Also, "[t]he court finds that while NSA could have provided additional explanation regarding the nature of its database search, ultimately the terms 'federal judges' and 'state judges' are terms taken directly from the request, and were reasonably calculated to capture any responsive records."  Additionally, regarding OLC's search, the court finds that "[b]ecause [plaintiff] did not identify the four specific sources [that he now argues should be searched] in his original FOIA request, and because OLC searched the sources likely to contain responsive records, the court finds OLC's search adequate in this respect and will not require it to search these additional sources."

However, the court does find that "[g]iven that NSA itself identified a directive 'of interest' but failed to explain why it did not search for other directives, and because [plaintiff] has identified a particular source of records which may hold responsive documents, NSA is ordered to conduct a search of the United States Signals Intelligence Directive System and disclose responsive documents, if any, or claim an exemption."  Additionally, "[t]he court is persuaded that [plaintiff's request from OLC for] 'any and all memoranda and legal opinion [s]' means exactly what it says—any and all, meaning drafts and final product."  "OLC has not provided any persuasive justification regarding why it did not search for drafts, and is therefore ordered to reprocess [plaintiff's] request and conduct a search for draft memoranda and legal opinions."  Finally, the court finds that "[w]hile FOIA cases are not typically concerned with non-responsive documents, here, because [plaintiff's] request is narrow and he has identified a specific document that would likely have been captured by the search terms, the court will require OLC to indicate whether it located no records at all, or located some records that were deemed non-responsive."