Mattachine Soc'y of Washington, D.C. v. DOJ, No. 16-00773, 2017 WL 3251552 (D.D.C. July 28, 2017) (Lamberth, J.)

Mattachine Soc'y of Washington, D.C. v. DOJ, No. 16-00773, 2017 WL 3251552 (D.D.C. July 28, 2017) (Lamberth, J.)

Re:  Request for records concerning Executive Order which gave heads of federal agencies ability to investigate and dismiss government employees if they posed risk to national security

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:  The court finds that "[t]he FBI's response fails to demonstrate that their search was reasonably calculated to uncover all relevant documents."  "The locations searched and search techniques employed by the FBI, as outlined in [defendant's second] Declaration, are sufficient, but the limited nature of the terms used, and the complete failure to search for documents related to [a pertinent former government official], are wholly insufficient."  Regarding search terms specifically, the court finds that "the FBI's affidavit does not address [the] shift in institutional language[]" in regard to choice of search terms.  Additionally, "[w]hile broad, ["terms like 'gay,' 'lesbian,' and 'homosexual,'"] and the terms outlined in [plaintiff's] Cross–Motion are directly related to [plaintiff's] specific request; even if there is a large volume of responsive documents, [plaintiff's] request would compel their production."  Additionally, regarding a potential burdensome argument, the court finds that "the FBI has not reviewed any portion of this search or others like it, offers no projections of what the results might be, and does not estimate the number of additional hours, resources, or funds make these searches rise to level of being an undue burden."  "The Government provides no context in which to assess the volume of responses as being disproportionately burdensome as compared to similar requests."  "The FBI is asking the Court to declare that these searches would be unduly burdensome merely because the FBI suspects that they might be so, and that is not sufficient."
   
• Exemption 7(D):  "The Court finds that the FBI properly withheld [certain] documents . . . under Exemption 7(D)."  "Through in camera review, the Court has confirmed that these documents constitute information provided by a foreign government entity under the assumption of confidentiality, and that to compel production of the documents may result in an unnecessary and entirely avoidable cooling between the relations of the FBI and the foreign government entity which provided this information."
   
• Exemptions 6 & 7(C):  "The Court finds that the FBI properly withheld [certain] documents . . . under Exemption[s 6 & 7(C)]."  "Through in camera review, the Court has confirmed that these documents contain personally identifying information that, if produced, would constitute a clear violation of the right of privacy for individuals identified and their families."  However, "the Court finds that public interest in the implementation and aftermath of [the Executive Order at issue] is sufficient to warrant the production of an index for cross-referencing persons who are listed in these and other responsive documents produced as a result of [plaintiff's] FOIA request."  "Such names are to be replaced with alphanumeric markers, which are to be uniquely identifiable and consistent throughout all documents produced related to this FOIA request."  "The Court believes that this will sufficiently protect the privacy interests of all parties involved, while also allowing the public to better study the effects of [the Executive Order at issue] on lesbian, gay, bisexual, and transgender federal employees who were surveilled, harassed, and/or terminated under this program and others like it."  The court also finds that some records withheld in full under Exemptions 6 and 7(C) must be further segregated.