Machado Amadis v. U.S. Dep't of State, No. 19-5088, 2020 WL 4914093 (D.C. Cir. Aug. 21, 2020) (per curiam)

Machado Amadis v. U.S. Dep't of State, No. 19-5088, 2020 WL 4914093 (D.C. Cir. Aug. 21, 2020) (per curiam)

Re:  Requests for records concerning denial of requester's application for United States entry visa

Disposition:  Affirming district court's grant of government's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  Regarding the State Department's search for records concerning the requester's previous FOIA requests on the topic of this lawsuit, the Court of Appeals for the District of Columbia Circuit holds that "[t]he search term was reasonably calculated to find all responsive records."  "The agency used the FOIA request number 'because [its] records are organized by request number.'"  "It was surely reasonable for the agency to conduct a search that tracked how its own records are organized, just as it surely would be reasonable for our clerk to search by a docket number to locate all court records from a particular case."  Regarding DEA's search, the court holds that "[t]he DEA's search was reasonably calculated to find all responsive records."  "Given the breadth of the . . . database [searched], which includes all FOIA 'correspondence,' we conclude that the DEA's search was reasonably calculated to locate all responsive records."
   
• Procedural Requirements, Searching for Responsive Records:  Separately, the Court of Appeals for the District of Columbia Circuit holds that "OIP properly construed [the requester's] FOIA request to exclude the underlying source documents."  The court explains that "[the requester] sought from OIP only records 'memorializing or describing the processing' of his prior FOIA appeals."  "In ordinary usage, this phrase does not encompass records created by other agencies before the appeals were taken."  "[The requester] responds that the DEA and FBI documents were contained in OIP's appeal files."  "True enough, but [the requester's] request did not seek OIP's entire case files."
   
• Exemption 5, Deliberative Process Privilege:  The Court of Appeals for the District of Columbia Circuit relates that "OIP redacted the Blitz Forms under the deliberative-process privilege incorporated into Exemption 5 of FOIA" and holds that "OIP permissibly withheld the privileged information."  The court relates that "[t]he records at issue are called 'Blitz Forms,' which OIP uses to adjudicate FOIA appeals."  "Line attorneys fill out the forms to identify issues presented in an appeal, to analyze those issues, and to make recommendations to senior attorneys."  "In turn, senior attorneys review the Blitz Form for an appeal before finally adjudicating it."  "In this case, OIP produced the Blitz Forms for [the requester's] prior appeals, but it redacted the fields for recommendations, discussion, and search notes."  The court holds that "[t]he redacted portions of the Blitz Forms are both predecisional and deliberative."  Finally, the court holds that "OIP also reasonably foresaw that disclosure would harm an interest protected by the deliberative-process privilege."  "OIP's affidavit adequately explained that full disclosure of the Blitz Forms would discourage line attorneys from 'candidly discuss[ing] their ideas, strategies, and recommendations,' thus impairing 'the forthright internal discussions necessary for efficient and proper adjudication of administrative appeals.'"  "Such chilling of candid advice is exactly what the privilege seeks to prevent."  "[Plaintiff] contends that agencies, to justify withholding records under FOIA's foreseeable-harm provision, cannot simply rely on 'generalized' assertions that disclosure 'could' chill deliberations."  "[The court has] no quarrel with that proposition."  "But here, OIP specifically focused on 'the information at issue' in the Blitz Forms under review, and it concluded that disclosure of that information 'would' chill future internal discussions."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The Court of Appeals for the District of Columbia Circuit "readily conclude[s] that OIP appropriately segregated exempt and non-exempt portions of the Blitz Forms."  "In deciding what portion of the Blitz Forms to withhold, OIP conducted a 'line-by-line review,' determined that 'some non-exempt, factual information within them could be segregated for release,' and redacted only 'pre-decisional, deliberative notes made by line attorneys during the course of adjudicating administrative appeals.'"
   
• Litigation Considerations, Exhaustion of Administrative Remedies:  The Court of Appeals for the District of Columbia Circuit holds that "[t]he DEA and FBI responses were proper determinations under FOIA, which triggered [the requester's] obligation to exhaust his administrative appeals."  The court relates that "[the requester] submitted his third set of FOIA requests on May 17, 2017."  "It is undisputed that the DEA and FBI responded within 20 business days, and [the requester] did not appeal either response to OIP."  "But, [the requester] contends, neither agency response was a 'determination' within the meaning of FOIA, so he did not have to appeal."  The court holds that "[t]he DEA and FBI response letters satisfied these requirements."  "The DEA stated that it had 'conducted a search for responsive records' but found none, and it informed [the requester] that he could 'administratively appeal' to OIP."  "Likewise, the FBI stated that it had 'conducted a search of the Central Records System' but was 'unable to identify main file records responsive' to the request, and it informed [the requester] that he could 'file an appeal' to OIP."  The court also relates that "[t]he agencies also offered to conduct further searches if [the requester] provided more information."  The court holds that "[b]y offering to conduct a 'second' search if he provided 'further' information, or to conduct an 'additional' search if he provided 'additional' information, neither agency backed away from the finality of the adverse determination already made – that a sufficient agency search had yielded no responsive records."  "In sum, offers to conduct additional searches are immaterial to whether an agency has made a 'determination' under FOIA."  Alternatively, the requester argues that "administrative appeals on his third set of FOIA requests would have been futile because his prior appeals had proved unsuccessful."  The court finds that "[t]hat is not entirely accurate."  "On [plaintiff's] second FOIA request, the DEA produced some records, then produced others after [plaintiff] successfully appealed its determination to OIP."  "Moreover, as even [plaintiff] concedes, his third set of FOIA requests was in many respects broader than his earlier ones and included more 'specific leads for the agencies to follow.'"  "For these reasons, we cannot conclude that OIP would have failed to give any appeals their due consideration."  "Administrative appeals thus would have furthered the 'purposes and policies' of the exhaustion requirement."