Reps. Comm. for Freedom of the Press v. DOJ, No. 19-2847, 2021 WL 5179237 (D.D.C. Nov. 8, 2021) (Hogan, J.)

Reps. Comm. For Freedom of the Press v. DOJ, No. 19-2847, 2021 WL 5179237 (D.D.C. Nov. 8, 2021) (Hogan, J.)

Re:  Request for records concerning federal government's involvement in questioning of a freelance journalist during law enforcement raid of his San Francisco home in May 2019

Disposition:  Granting in part and denying in part defendants' motion for summary judgment; granting in part and denying in part plaintiff's cross-motion for partial summary judgment

• Litigation Considerations, Adequacy of Search:  Regarding the FBI, "the Court finds that the FBI's search was unreasonable and will grant summary judgment for Plaintiff as to that search."  The court finds that "the FBI conducted an index search of the [Central Records System ("CRS")] for main and reference records and located one reference record."  "The FBI also conducted a term search for '[the journalist's last name]' within the relevant investigative file in which the reference record was located, which yielded no additional records."  "Because of the way the CRS is indexed, an index search does not search the text of any underlying records maintained in the CRS."  "The FBI did not search its email systems or other electronic messages in response to [plaintiff's] request because 'the FBI determined that an electronic search of emails/texts was not reasonable without a clear and certain lead from Plaintiff or in the processed record.'"  "Relevant here, in a separate records request to [a local police department] (made after [plaintiff] initiated the instant action), Plaintiff was provided a number of responsive emails sent from the FBI email accounts of FBI Special Agents."  "The emails include discussion of the case, execution of the search warrant, and the questioning of [the journalist] by [the local police department] and the FBI."  "Certain of these emails explicitly reference [the journalist] by name in the subject line."  The court finds that "an index-only search of solely the CRS does not demonstrate that, in this case, the FBI undertook 'a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.'" 
  
  " First, the CRS is an incomplete repository as it does not contain all potentially relevant email records."  "FBI personnel are not necessarily required to transfer 'transitory' or 'non-record' emails to the system."  "That a responsive record might be classified as 'transitory' or 'non-record' does not, however, absolve an agency of its duty to conduct a search reasonably designed to uncover such responsive records."  "That is, the FBI's classification of its own records does not affect its duties to search for responsive records under FOIA."  "Indeed, Plaintiff has affirmative proof that the FBI did not place a number of clearly responsive emails concerning [the journalist] in the CRS."  "Although the FBI correctly notes that the 'fact that a particular document was not found does not demonstrate the inadequacy of a search,' . . . the fact that responsive emails were found, in the exact location . . . indicated in Plaintiff's request indicates that the search methodology was inadequate and not 'reasonably calculated to uncover all relevant documents.'"  "Second, even if the CRS contained all relevant records, an index search does not search the full text of the underlying documents and would therefore be unlikely to uncover all (or potentially even most) responsive documents."  "An index search of the CRS searches only pre-populated terms that FBI officials choose as tags."  "As the name suggests, indexing is done at a relatively high level, and an index search would be unlikely to uncover records with the specific keywords sought by [plaintiff]."  "In the context of [plaintiff's] FOIA request, which sought email correspondence, text messages, and other electronic messages containing certain specific keywords, reliance on an index-only search cannot be 'reasonably expected to produce the information requested.'"
  
  Regarding the Criminal Division, the court finds that "[b]ecause a search of only the [Criminal Division's Policy and Statutory Enforcement Unit ("PSEU")] was unreasonably narrow, the Court will grant summary judgment for Plaintiff as to the Criminal Division's search."  The court relates that, "[l]ike the request to the FBI, [plaintiff's] request to the Criminal Division specifically asked for emails, text messages, and other electronic communications."  "In response, the Criminal Division searched only the PSEU, as it determined that office was 'most likely to maintain records responsive to Plaintiff's request' and located no responsive records."  "The Criminal Division did not search emails, text messages, or other electronic messaging services."  The court relates that defendant points to "the News Media Policy, [which states that] before the FBI can question a journalist it must provide notice to the Director of the Office of Public Affairs and obtain 'express authorization' from the Attorney General."  "The record of approval would then be stored in the PSEU."  Defendant argues that "[i]f the News Media Policy was followed, responsive records would likely reside in the PSEU/FOTS."  However, the court notes that "[the] journalist, was questioned by the FBI – an activity that should have required approval – but there is no record of any authorization in the PSEU."  "Because the policy was seemingly not followed, the PSEU was not the unit most likely to house records concerning the decision to question [the journalist], and a reasonable search would necessarily include other DOJ components."  "Further, Plaintiff sought communications concerning matters unrelated the News Media Policy, which could reasonably be stored outside the PSEU."  "For example, [plaintiff's] request also sought records of communications between different entities mentioning [the journalist] and [other related terms]."  "A search limited to PSEU/FOTS would be unlikely to uncover documents responsive to these requests."
  
  Regarding EOUSA, the court finds that "[l]ike the searches performed by the FBI and the Criminal Division, the EOUSA's search was not 'reasonabily calculated to uncover all relevant documents.'"  "[EOUSA's] first declaration is insufficient to satisty the agency's obligations because it does not set forth a specific rationate - including search terms and method - supporting the reasonableness of the search."  "[EOUSA's] first declaration represents that she only performed a search for '[the journalist's name]' in the EOUSA databases Case View and PROMIS and the public database Lexis Nexis." "The affidavit provides scant detail about what records are stored in Case View and PROMIS or how those records are organized and can be located."  "[EOUSA's] second declaration adds that she sent an office-wide email seeking responsive communications to which she received no responses."  "In this case, a singular office -wide email that received no responses - not even a singular response confirming receipt - is not sufficient to meet and agency's obligations under FOIA."  
   
• Exemptions 6 & 7(C):  The court relates that "[t]he FBI asserts that it 'withheld the names of FBI Special Agents . . . pursuant to Exemptions 6 and 7(C) . . . .'"  The court first notes that "[a]lthough the FBI has not officially acknowledged [an agent's] role in its pleadings, one of the agent's names along with a clear indication he participated in the questioning of [the journalist] . . . appears in emails obtained and published by [plaintiff] from the [local police department] via a public records request."  "That email chain, in particular [the agent's] response . . . , specifically identifies [the agent] as one of the agents who questioned [the journalist] earlier that day."  "Although the FBI has not officially acknowledged the identity of the agents who questioned [the journalist], neither the FBI's pleadings nor representations made at the hearings cast doubt as to the authenticity [of] the emails or rebut the argument that [the agent's] identity is already in the public domain."  "The released email chain, therefore, provides information duplicative to that being withheld and Exemption 7(C) cannot apply as to that redaction." 
  
  "As to the other agent who questioned [the journalist], the Court must balance the privacy interest in the release of his name his with the public interest in knowing who was involved in the questioning of a journalist in alleged violation of the DOJ's News Media Policy."  The court finds that "[t]he unknown FBI agent certainly has some privacy interests at stake."  However, the court also finds that "the specter of government misconduct looms over the entire . . . matter."  "California state courts quashed the search warrants executed at [the journalist's] home and office because those warrants were improperly obtained in violation of a California shield law."  "Eventually, San Francisco approved a $369,000 settlement to compensate [the journalist] for the illegal search and seizure."  "Given those underlying circumstances and the fact that:  (1) the News Media Policy applies when federal agents question a journalist and requires consultation and authorization; (2) federal agents questioned [the journalist]; and (3) no record of consultation or authorization exists, a reasonable person could conclude that the alleged government impropriety occurred."  "However, even if impropriety occurred, '[i]n order to demonstrate an overriding public interest in disclosure . . . a plaintiff must show that the withheld information is necessary to "shed any light on the [unlawful] conduct of any Government agency or official."'"  "The withholding here is simply a name of a singular rank-and-file FBI Agent – relatively little information."  "[Plaintiff] does not assert that this particular agent had a supervisory role, a history of violating the News Media Policy, or that the agent had been previously disciplined for failure to abide by other DOJ policies – circumstances that might give the public a greater interest in knowing the precise agent involved."  "The alleged government misconduct at issue in the . . . matter has come to light (and may continue to be revealed after the relevant agencies fully search their records), and the public can – and has – engaged in scrutiny of the FBI without knowing the identity of the unknown agent."  "Taken as a whole, whether the public knows the names of this particular agent is unlikely to greatly assist their right 'to be informed about what their government is up to.'"  "[Plaintiff] has not met its burden of articulating a sufficiently strong public interest in release of . . . this specific agent's name to overcome his substantial privacy interest."