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Watkins L. & Advoc., PLLC v. DOJ, No. 17-1974, 2021 WL 1026173 (D.D.C. Mar. 17, 2021) (Berman Jackson, J.)

Date

Watkins L. & Advoc., PLLC v. DOJ, No. 17-1974, 2021 WL 1026173 (D.D.C. Mar. 17, 2021) (Berman Jackson, J.)

Re:  Request for "'inter-agency agreements' which were tied 'to allegedly financially incompetent veterans . . . reported [by the VA] to DOJ, FBI, and ATF'"

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

  • Litigation Considerations, Adequacy of Search & Procedural Requirements, Searching for Responsive Records:  The court holds that "[b]ecause defendant has 'demonstrate[d] beyond material doubt that its search was "reasonably calculated to uncover all relevant documents,"' . . . and plaintiff has not offered any evidence of bad faith or pointed to evidence in the record to raise doubts about OIP's efforts, defendant is entitled to summary judgment as to the adequacy of the supplemental search."  The court finds that "[defendant's] supplemental search, a process 'in which plaintiff was both consulted and involved,' appears reasonably targeted to find documents responsive to the FOIA request."  The court relates that "[defendant] attests that the agency conducted a second search, to locate documents responsive to plaintiff's FOIA request for information exchanged between the VA and DOJ regarding NICS reporting and mental health standards applied to veterans under the Brady Act, using the five more expansive Boolean searches proposed by plaintiff."  "Defendant submits that this rectified the deficiency the Court identified in its earlier opinion, and judgment should be entered in its favor."

    Separately, "plaintiff contends that the time period used for the search on remand should have been extended."  "The supplemental search was conducted using the original requested date range, which ended in 2015, . . . and defendant extended it 'through September 2017 when OIP issued its [first] final response.'"  "As other courts in this district have concluded, the use of a cut-off date need only be reasonable under the circumstances . . . ."  "Here, defendant searched an additional two years of records, and its decision to stop at that point was reasonable."
     
  • Procedural Requirements, Searching for Responsive Records:  "The Court agrees. . . [with plaintiff] that defendant improperly withheld portions of . . . two reports."  The court relates that "defendant states that it divided the 'sections' of the responsive reports into discrete records 'based on natural breaks between these sections based on the distinct aspects of the National Instant Criminal Background Check System . . . addressed within the report.'"  "The declarant acknowledges that 'all sections of the report[s] relate to the NICS.'"  "But she states that the agency redacted portions that did not specifically relate to 'the relationship between DOJ and the VA' in the NICS reporting context."  The court finds that "there is nothing similar to lift the reports here out of the general rule that a responsive record must be produced in its entirety."  "Both documents are short reports covering a single topic related to plaintiff's FOIA request, and therefore, the Court will enter judgment in plaintiff's favor on this issue."  "Defendant must produce the reports to plaintiff in full, as the sections withheld provide important context that is indivisible from the rest of the document."
     
  • Exemption 5, Deliberative Process Privilege:  "Based on this information and the Court's own review of the document, the Court agrees that defendant properly withheld the disputed record pursuant to Exemption 5 . . . ."  The court relates that "Defendant relies on the deliberative process privilege to justify its withholding of five of the fifty-plus pages of responsive material identified in the supplemental search under Exemption 5 of FOIA, stating that the contents of the '2013 Memorandum' were both predecisional and deliberative in nature."  First, "the Court is satisfied that the 2013 Memorandum is a pre-decisional document relating to the issues arising from improving reporting records to NICS."  Second, "[t]he Court's in camera review confirms that the redacted material is deliberative in nature; the memorandum was a 'direct part of the deliberative process' that was drafted explicitly to inform senior level staff of issues and provide recommendations for solutions."
     
  • Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "Defendant has met its burden of demonstrating that it has reasonably segregated the withheld material within the 2013 Memorandum."  The court relates that "'OIP conducted a line-by-line review of this recommendation memorandum in order to segregate information for release to Plaintiff.'"  "' OIP ultimately determined that it could not effectively segregate factual information or sub-recommendations within this memorandum because they were inextricably intertwined with the analysis, recommendations, evaluations, and opinions of subordinate staff.'"
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Litigation Considerations, Adequacy of Search
Litigation Considerations, “Reasonably Segregable” Requirements
Procedural Requirements, Searching for Responsive Records
Updated November 9, 2021