Watkins L. & Advoc., PLLC v. DOJ, No. 21-5108, 2023 WL 5313522 (D.C. Cir. Aug. 18, 2023) (Srinivasan, C.J.)

Watkins L. & Advoc., PLLC v. DOJ, No. 21-5108, 2023 WL 5313522 (D.C. Cir. Aug. 18, 2023) (Srinivasan, C.J.)

Re:  Request for records concerning process by which names of certain veterans and other VA beneficiaries were added to background check system barring them from possessing firearms for having been adjudicated as lacking mental capacity

Disposition:  Affirming in part, vacating in part and remanding district court’s grant in part of government’s motion for summary judgment

• Litigation Considerations, Adequacy of Search & Procedural Requirements, Searching for Responsive Records:  First, “[the Court of Appeals for the District of Columbia Circuit] conclude[s] that the FBI’s search was adequate.”  “The FBI declarations ‘describe[ ] with particularity the files that were searched, the manner in which they were searched, and the results of the search,’ . . . and show that the agency made ‘a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested’ . . . .”  The court relates that “[the requester] asserts that the FBI’s search was inadequate because it turned up only a single record from 2010 through 2017, despite evidence that the VA had identified to the FBI a substantial number of veterans and other VA beneficiaries to be added to the NICS during that timeframe.”  The court finds that “[t]he ‘adequacy of a FOIA search,’ however, ‘is generally determined not by the fruits of the search, but the appropriateness of the methods used to carry out the search.’”  “And ‘belated disclosure of even responsive documents,’ such as those located following the FBI’s supplemental search of the two FBI file numbers, ‘does not necessarily undermine the adequacy of an agency’s search.’”  “[The requester] next seeks to demonstrate the inadequacy of the FBI’s search by pointing to the FBI’s acknowledgment that it did not anticipate finding responsive documents in the Central Records System.”  “But [the court does] not fault the FBI for searching a record system in which records were unlikely to be found when it also conducted additional searches that were ‘more likely to elicit responsive records.’”  “Finally, [the requester] contends that the FBI should have used [other search terms] which [the requester] had included in its list of ‘obvious’ search term combinations in briefing before the district court.”  “The FBI, however, crafted searches reasonably tailored to locate responsive documents, and indeed used most of [the requester’s] suggested terms.”  “The FBI’s failure to use four more search term combinations to which [the requester] pointed . . . does not render the agency's search unreasonable, especially because nothing in [the requester’s] FOIA request indicated that those terms were essential.”
  
  Next, the court relates that “[the requester] argues that DOJ’s search was inadequate because it failed to turn up certain documents, including several years of the annual reports sent from the Attorney General to Congress pursuant to the [National Instant Criminal Background Check System (“NICS”)] Improvement Amendments Act of 2007. We have established that an “agency's failure to turn up a particular document, or mere speculation that as yet uncovered documents might exist, does not undermine the determination that the agency conducted an adequate search for the requested records.”  The court finds that “[the requester’s] belief that more reports to Congress exist than were located, however, is not ‘mere speculation.’”  “Rather, since Congress enacted the NICS Improvement Amendments Act of 2007, the Attorney General has been required by law to “submit an annual report to Congress that describes the compliance of each department or agency’ with the NICS requirements.”  “And one of the documents that DOJ released indicates that the sixth annual report was transmitted in 2015, suggesting that annual reports have been submitted to Congress since 2010.”  “DOJ attributes the failure of its searches to unearth the rest of the annual reports to the scope of [the requester’s] request.”  “DOJ’s declarations explain that [the requester’s] request sought records specifically of the Office of the Attorney General, but the reports were transmitted to Congress by a different DOJ component, the Office of Legislative Affairs.”  “[The requester] suggests that DOJ should have expanded the scope of its search beyond the Office of the Attorney General to the Office of Legislative Affairs to uncover the rest of the annual reports.”  “[A]s to the adequacy of DOJ’s search, [the court] cannot conclude that it was unreasonable in the circumstances of this request to search only records of the Office of the Attorney General.”  “As noted, DOJ’s FOIA regulations instruct that, in light of DOJ’s ‘decentralized system for responding to FOIA requests,’ a requester ‘should write directly to the FOIA office of the component that maintains the records being sought.’”  “The regulations further provide that, if a requester is uncertain about which component has the records she seeks, she may send her request to a Mail Referral Unit, which will forward the request to the component(s) it determines to be most likely to maintain responsive documents.”  “And if a component that receives a FOIA request determines that it was ‘misdirected’ within DOJ, the component will ‘route the request to the FOIA office of the proper component(s).’”  “A requester also can always send a request to more than one DOJ component.”  “[The requester] submitted the request at issue specifically to the attention of one component: ‘Attn: Office of the Attorney General (OAG).’”  “DOJ handled that request in accordance with its FOIA regulations and guidance.”  “Upon receipt of the request, the Office of Information Policy – processing the request for the Office of the Attorney General – determined that the request was partially misdirected to the extent that it sought FBI records (which the FBI would maintain), and thus forwarded the request to the FBI.”  “The Office found no basis for believing the request it received had otherwise been misdirected.”  “Nor has [the requester] identified any reason that the Office of Information Policy should have concluded that [the requester’s] request had otherwise been misdirected – for instance, that [the requester] should have directed it to the Office of Legislative Affairs instead of the Office of the Attorney General.”  “The request did not reference the Office of Legislative Affairs, documents transmitted by that Office, or the specific annual reports to Congress on which [the requester] now focuses.”  “Instead, the request sought a broad category of records as to which the Office of the Attorney General could (and did) have responsive documents.”  “Accordingly, the Office of Information Policy searched that Office’s records.”  “Given the phrasing of [the requester’s] request targeted to the Office of the Attorney General and the absence of any basis for believing the request had been misdirected, and in light of DOJ’s regulations mandating that requests for DOJ components be sent directly to the FOIA office of the component whose records are sought, nothing in the circumstances of this case required that the search extend beyond the Office of the Attorney General’s records to encompass the records of another component.”  “True, [the requester’s] request – like its requests to other agencies – included language stating that ‘[i]f DOJ’s OAG does not have custody or control over certain requested and responsive records but knows or believes that another component of DOJ subject to FOIA does, please forward this FOIA Request to the appropriate person and inform us that you have done so.’”  “To the extent [the requester] believes that language required DOJ to expand the scope of its search to include the Office of Legislative Affairs’s records, [the court] disagree[s].”  “At the time the Office of Information Policy received the request directed to the Office of the Attorney General, as explained, there was no reason to conclude that a search should be conducted of the Office of Legislative Affairs’s records instead of – or in addition to – the Office of the Attorney General’s records.”  “If [the requester] instead means to suggest that after the Office of Information Policy conducted its initial and supplemental searches of the Office of the Attorney General’s records, it should have examined every responsive document resulting from the searches to ascertain whether any document might suggest that another, separate component might also possess responsive documents, and if so, should have conducted or provided for a search of that other component as well, that is incorrect.”  “There was no requirement in the circumstances of this case for the Office of Information Policy to conduct that kind of document-by-document review of the results of its searches of the Office of the Attorney General’s records to assess whether any responsive document might suggest that a search of another component could produce additional responsive documents.”  “[E]ven if [the requester’s] ‘please forward’ language had asked DOJ in sufficiently clear terms to scrutinize the results of a search of the Office of the Attorney General’s records to assess whether responsive documents might be found in a subsequent search of another component (and, if so, to conduct such a search), DOJ would not have been obligated to do so.”  “[The requester] points to nothing in DOJ’s FOIA regulations – or in FOIA itself – that requires that kind of follow-on examination of responsive records to identify the existence of potentially responsive records in another component and to conduct an ensuing search of that other component's records.”  “[The requester] relies on the fact that ‘organizationally, the Office of Legislative Affairs sits below [the Office of the Attorney General].’”  “But there is no requirement under DOJ’s regulations – or under FOIA itself – that a FOIA office assess whether responsive documents might be found in a subsequent search of any component that ‘sits below’ the component whose records were initially searched or to conduct a subsequent search of that other component if so.”  “And nothing in the statute (or in DOJ’s regulations) enables a FOIA requester to impose that kind of obligation on an agency by asking for it.”  “And to the extent that [plaintiff] might believe that the two reports to Congress that the Office of Information Policy’s search uncovered contained a ‘lead’ that the Office was obligated to pursue, [plaintiff] does not explain how the lead was sufficiently ‘clear and certain’ to meet our decisions’ ‘exacting standard.’”  “[The requester] last contends that DOJ’s search was inadequate because, in its supplemental search, DOJ failed to use the date of the supplemental search (January 2020) as the cut-off date for responsive documents, and instead used the date of the initial search (September 2017).”  “But the choice of a cut-off date need only be reasonable under the circumstances, and it was reasonable for DOJ to use the date of its initial search as the cut-off date.”
   
• Litigation considerations, Vaughn Index/Declaration:  “Because [the requester’s] claims about the purported inadequacies of the agencies’ searches raise no concerns about the declarants’ (or the agencies’) good faith, [the Court of Appeals for the District of Columbia Circuit] find[s] no error in the district court’s grant of the good faith presumption to the FBI and DOJ declarations.”
   
• Exemption 5, Deliberative Process Privilege & Attorney Work-Product Privilege:  The Court of Appeals for the District of Columbia Circuit] relates that “[the requester] challenges the VA’s withholding of sixty-seven documents pursuant to the deliberative-process and attorney-client privileges.”  “The VA initially contends that, for all but eight of the sixty-seven challenged documents, [the requester] forfeited its challenge by failing to ‘specifically’ identify the shortcomings of the VA’s justifications on a document-by-document basis.”  “[The court] disagree[s].”  “In the circumstances, [the requester] could use the eight documents as examples and otherwise argue on an across-the-board basis that the VA’s justifications do not reasonably demonstrate that the withheld documents fall within the deliberative-process or attorney-client privileges.”  “[The requester’s] articulation of its arguments gave the VA adequate notice of the nature of the challenges to the agency’s withholdings.”  “[The VA’s] Declaration devotes three brief paragraphs to justifying the VA’s invocation of Exemption 5 for a total of 382 documents.”  “The first paragraph describes the documents withheld under the deliberative-process and attorney-client privileges at a very high level of generality, in two sentences (one per privilege).”  “The second and third paragraphs contain three and four sentences, respectively, that recite the standards for the deliberative-process and attorney-client privileges and state in conclusory fashion that the withheld documents fit within those standards.”  “Nowhere does the Declaration use ‘reasonably specific detail’ to ‘demonstrate that the information withheld logically falls within the claimed exemption.’”  “Instead, its ‘claims are conclusory, merely reciting statutory standards’ and ‘are too vague or sweeping.’”  “The VA’s Vaughn index, which asserts both privileges for all sixty-seven challenged documents, fares no better.”  “The Vaughn index includes a short description of each withheld document.”  “But like [the VA’s] Declaration, it does not ‘specifically identify[ ] the reasons why a particular exemption is relevant’ to a particular document or ‘correlat[e] those claims with the particular part of a withheld document to which they apply.’”  “‘Specificity is the defining requirement of the Vaughn index,’ . . . yet the VA’s Vaughn index in this case is threadbare.”  “[The court] thus conclude[s] that the VA failed to adequately set out its basis for asserting the deliberative-process and attorney-client privileges as to the withheld documents.”  “And because the VA offers no arguments about specific documents other than the eight that [the requester] highlighted as illustrations, a blanket remand is appropriate.”