Shapiro v. DOJ, 944 F.3d 940 (D.C. Cir. 2019) (Williams, S.C.J.)

Shapiro v. DOJ, 944 F.3d 940 (D.C. Cir 2019) (Williams, S.C.J.)

Re:  Requests for records concerning mosaic theory and handling of FOIA cases

Disposition:  Reversing and remanding district court's grant of government's motion for summary judgment

• Litigation Considerations, Adequacy of Search & Vaughn Index/Declarations:  The Court of Appeals for the District of Columbia holds that "[a]s the FBI did not sufficiently explain its determinations, [the court] reverse[s] the district court's contrary ruling, vacate[s] the decision in part and remand[s] for further proceedings."  "First, the affidavit does not explain how the agency concluded that the files preliminarily listed as responsive did not relate to [the requester's] request."  "[The court] recognize[s] that the search slip purported only to record a preliminary finding."  "And obviously the law should not force an agency to jump through complex hoops merely because a preliminary review seemed positive . . . ."  "But where a record's presence on a search slip arose from some sort of 'hit' in the FBI's indexing system, and especially where the search slip distinguished between responsive and potentially responsive files, the FBI can obtain summary judgment (as to files originally identified as 'responsive') only by offering some non-conclusory justification for each ultimate classification as non-responsive."  "Second, the affidavit says nothing – at least nothing clear – about the files whose numbers were redacted, though it identifies each numbered file as either non-responsive or destroyed."  "As a result, [the court] ha[s] no idea whether those redacted records – originally listed as responsive in the search slip – were not responsive or had been destroyed (and which)."  "This leaves [the court] with 'positive indications of overlooked materials' and 'substantial doubt' about the adequacy of the government's search."  "Third, the affidavit does not explain why or how the FBI knew that certain files had been destroyed."  "To be sure, '[i]f the agency is no longer in possession of' files, it need not 'take further action in order to produce' them."  "But affidavits must provide 'adequate assurance that the documents were in fact destroyed.'"  The court finds similarly regarding the FBI's searches in its Electronic Case Filing System and Sentinel databases.