Truthout & Jeffrey Light v. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
TRUTHOUT and JEFFREY LIGHT, )
)
Plaintiffs, )
)
v. ) Civil Action No. 12-1660 (RMC)
)
DEPARTMENT OF JUSTICE, )
)
Defendant. )
_________________________________ )

OPINION ON RECONSIDERATION

Plaintiffs Truthout and Jeffrey Light sued the Department of Justice with regard to

its component, the Federal Bureau of Investigation’s response to requests for records under the

Freedom of Information Act (FOIA), 5 U.S.C. § 552. Plaintiffs seek to compel the release of

records concerning the protest movement and encampment known as “Occupy Wall Street” and

other Occupy encampments across the country. The Court granted the Department of Justice’s

motion for summary judgment, finding that the FBI conducted good faith, reasonable searches of

the systems of records likely to possess records responsive to Plaintiffs’ requests. Plaintiffs now

move for reconsideration, reiterating their request that the Court require the FBI to search its

Electronic Surveillance system of records and shared drives. As explained below, the motion

will be denied because the FBI already has conducted an adequate search for records.

I. FACTS

In response to Plaintiffs’ multiple FOIA requests, the FBI searched the Central

Records System (CRS), the FBI’s electronic repository for information compiled for law

enforcement purposes as well as administrative, applicant, criminal, personnel, and other files.

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Mot. to Dismiss or for Sum. J. (MSJ) [Dkt. 9], Ex. A (Hardy Decl.) [Dkt. 9-1] ¶ 59. 1 CRS is

accessed via an Automated Case Support System (ACS) and General Indices by searching for the

subject. Hardy Decl. ¶¶ 59-61. ACS consists of Investigative Case Management, Electronic

Case File (ECF), and a Universal Index. Id. ¶ 63.

The FBI searched the CRS using the following terms: Occupy

Movement/Northern California, Occupy Oakland, Occupy San Francisco, Occupy Cal, Occupy

UC Davis, OWS, Occupy Wall, Occupy Movement, Occupy Encampment(s), Occupy

McPherson, Occupy Zuccotti Park, Occupy New York City, Occupy DC, Occupy Portland,

Occupy Sacramento, Occupy Salt Lake City, Occupy Seattle, Occupy Atlanta, Occupy San Jose,

Occupy Boston, Occupy Los Angeles, Occupy Indianapolis, Occupy Baltimore, Occupy St.

Louis, Occupy Cincinnati, Occupy Providence, Occupy Austin, Occupy Denver, Occupy

Eugene, Occupy Philadelphia, Occupy Buffalo, Occupy Las Vegas, Occupy Charlotte, Occupy

Pittsburgh, Occupy Dallas, Occupy Houston, Occupy Chicago, Occupy Washington, Occupy

Washington DC, and Occupy K. The FBI did not find any documents as a result of these

searches. Because the Occupy Movement has been widely publicized, the FBI also conducted

text searches of ECF. Id. ¶¶ 65-66. Since decisions regarding how to index names within a

document can vary, the text search of ECF was more comprehensive than the search of CRS. Id.

¶ 66 n.5. Responsive records were located and released to Plaintiffs on January 10, 2013. See

Op. [Dkt. 28] at 2-4. 2

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In support of its motion for summary judgment and in opposition to Plaintiffs’ motion for
reconsideration, the FBI filed sworn Declarations by David Hardy, Section Chief of the
Record/Information Dissemination Section, Records Management Division of the FBI.
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Certain redacted materials were provided to Plaintiffs and other materials were withheld in full.
See Hardy Decl. ¶¶ 68-72. The FBI released all material in the public domain and all reasonably
segregable material. Id. With respect to the records withheld in full, the Court found that any
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 In opposition to summary judgment, Plaintiffs protested that the FBI only

searched CRS and that it did not search its Electronic Surveillance (ELSUR) file system or

shared drives. The Court rejected this argument, finding that the FBI searched CRS because that

is the place where records responsive to Plaintiffs’ requests were most likely to be kept. Id. at 11

(citing Reply [Dkt. 20], Ex. 1 (Supp. Hardy Decl.) [Dkt. 20-1] ¶¶ 5-6, 10). In their motion for

reconsideration, Plaintiffs again complain that the FBI did not search ELSUR and shared drives.

II. LEGAL STANDARDS

A. FOIA Generally

“The defendant in a FOIA case must show that its search for responsive records

was adequate, that any exemptions claimed actually apply, and that any reasonably segregable

nonexempt information has been disclosed after deletion of exempt information.” Sanders v.

Obama, 729 F. Supp. 2d 148, 154 (D.D.C. 2010). The adequacy of a search is measured by a

standard of reasonableness and depends on the individual circumstances of each case. Truitt v.

Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990). The question is not whether other responsive

records may exist, but whether the search itself was adequate. Steinberg v. Dep’t of Justice, 23

F.3d 548, 551 (D.C. Cir. 1994). To rebut a challenge to the adequacy of a search, the agency

need only show that “the search was reasonably calculated to discover the requested documents,

not whether it actually uncovered every document extant.” SafeCard Servs., Inc. v. SEC, 926

F.2d 1197, 1201 (D.C. Cir. 1991) (citing Meeropol v. Meese, 790 F.2d 942, 950-51 (D.C. Cir.

1986)). There is no requirement that an agency search every record system, but the agency must

conduct a good faith, reasonable search of those systems of records likely to possess the

requested records. Oglesby v. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). An agency’s

nonexempt portions were so intertwined with exempt portions that no portion could be disclosed.
See Op. at 22.

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search must be evaluated in light of the request made and is “not obliged to look beyond the four

corners of the request for leads to the location of responsive documents.” Kowalczyk v. Dep’t of

Justice, 73 F.3d 386, 389 (D.C. Cir. 1996).

An agency may prove the reasonableness of its search through a declaration by

responsible agency officials, so long as the declaration is reasonably detailed and not

controverted by contrary evidence or evidence of bad faith. Military Audit Project v. Casey, 656

F.2d 724, 738 (D.C. Cir. 1981). An agency affidavit can demonstrate reasonableness by “setting

forth the search terms and the type of search performed, and averring that all files likely to

contain responsive materials (if such records exist) were searched.” Valencia-Lucena v. U.S.

Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (quoting Oglesby, 920 F.2d at 68). An

agency’s declarations are accorded “a presumption of good faith, which cannot be rebutted by

purely speculative claims about the existence and discoverability of other documents.”

SafeCard, 926 F.2d at 1200 (internal citation and quotation omitted).

B. Motion For Reconsideration Under Rule 59

Plaintiffs seek reconsideration under Federal Rule of Civil Procedure 59(e). This

Rule specifies that a motion must be filed no later than twenty-eight days after the entry of the

judgment. Fed. R. Civ. P. 59(e). The Court does not have authority to extend the deadline. See

Fed. R. Civ. P. 6(b)(2) (a court “must not extend the time to act” under Rule 59(e)).

C. Motion for Reconsideration Under Rule 60

As an alternative to relief under Rule 59(e), Plaintiffs seek relief under Federal

Rule of Civil Procedure 60(b)(1) and (6). A court can, in its discretion, grant relief from a final

judgment under Rule 60(b)(1) due to “mistake, inadvertence, surprise, or excusable neglect,”

and, under Rule 60(b)(6), due to “any other reason justifying relief from the operation of the

judgment.” Subsection (6), the catch-all provision, gives courts discretion to vacate or modify
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judgments when it is “appropriate to accomplish justice,” Klapprott v. United States, 335 U.S.

601, 614-15 (1949), but it should be applied only in “extraordinary circumstances,” Kramer v.

Gates, 481 F.3d 788, 791 (D.C. Cir. 2007) (citing Ackermann v. United States, 340 U.S. 193, 199

(1950)). The party seeking relief from judgment bears the burden of proof. Rufo v. Inmates of

Suffolk Cnty. Jail, 502 U.S. 367, 383-84 (1992).

III. ANALYSIS

Plaintiffs’ motion for reconsideration under Rule 59(e) must be denied as

untimely. The Court entered judgment on July 17, 2013, see Order [Dkt. 29], and thus any Rule

59(e) motion was due within twenty-eight days, i.e. by August 14, 2013. Plaintiffs did not file

their motion for reconsideration until the following day, August 15, 2013, at sixteen minutes past

midnight. Although Plaintiffs contend that the Court should just “ignore” the Rule 59 deadline

since their motion’s untimeliness was “de minimus,” see Reply [Dkt. 34] at 3, the deadline is a

hard and fast rule and the Court has no authority to extend it. See Fed. R. Civ. P. 6(b). 3

Plaintiffs’ motion under Rule 60 also must be denied. Plaintiffs allege that the

Court mistakenly asserted that ELSUR files and shared drives could be found in CRS, when they

are actually in separate systems, and that the failure of the FBI to search ELSUR and shared

drives constitutes manifest injustice. Plaintiffs’ allegation of mistake is based on a

misunderstanding of the FBI’s position and the Court’s Opinion. Further, Plaintiffs have not

shown extraordinary circumstances that would justify relief from the final judgment.

The FBI’s standard practice is to search ELSUR only when a FOIA requester

specifically makes such a request or when factual information in CRS indicates that a responsive

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Even if Plaintiffs had been timely, their motion for reconsideration does not meet the standard.
See Fox v. Am. Airlines Inc., 389 F.3d 1291, 1296 (D.C. Cir. 2004) (Rule 59(e) motion need not
be granted unless there is an intervening change of controlling law, new evidence is available, or
there is a need to correct a clear error or prevent manifest injustice).

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ELSUR record exists. Opp’n to Mot. Recons. [Dkt. 33], Ex. 1 (4th Hardy Decl.) [Dkt. 33-1] ¶

11. The Plaintiffs asked the FBI to search ELSUR specifically in only one of their requests at

issue here, Request No. 1177831-000. 4 In response to that particular Request, the FBI conducted

an ELSUR search by using the same forty-three search terms used during the search of CRS, id.

¶ 12 n.3, but did not locate any responsive records, id. ¶ 12.

Further, as the Court explained in its summary judgment Opinion, the FBI

searched CRS because that is the place where records responsive to Plaintiffs’ requests were

most likely to be kept. See Op. at 11 (citing Supp. Hardy Decl. ¶¶ 5-6, 10). Mr. Hardy noted

that CRS is the FBI’s repository for information compiled for law enforcement purposes as well

as administrative, applicant, criminal, personnel, and other files and that “[g]iven its

comprehensive nature, the CRS is the principal search mechanism employed [by the FBI] . . . to

locate records responsive to FOIA requests.” Supp. Hardy Decl. ¶ 5. Further, Mr. Hardy

explained that the search of CRS would have identified both potentially responsive main files as

well as cross references, id. ¶¶ 6, 8, and these main files and cross references would have

identified relevant ELSUR files and shared drives if they existed, id. ¶ 9. Contrary to Plaintiffs’

assertion, neither Mr. Hardy not the Court indicated that the ELSUR records or shared drives

were contained within CRS. The FBI did not locate files or cross references during its search of

CRS that would lead it to conclude that there are ELSUR records or files on shared drives

responsive to Plaintiffs’ requests or that there are responsive records in any system outside of

CRS. Id. ¶¶ 8-9; 4th Hardy Decl. ¶¶ 11, 13.

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Plaintiffs made the following requests for records: Request Nos. 1176349-000, 1176937-000
(reopened as 1176937-001), 1177831-000, 1178216-000, and 1191931-000. Plaintiffs also made
Request No. 1182695-000 but waived all claims regarding it. See Opp’n [Dkt. 13] at 7 n.6.

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 The FBI was not required to search every record system; it was only required to

conduct a reasonable search of those systems of records likely to possess the requested

information. Oglesby, 920 F.2d at 68; see Sennett v. DOJ, Civ. No. 12-495 (JEB), 2013 WL

4517177, at *4 (D.D.C. Aug. 27, 2013) (holding that the FBI’s decision not to search ELSUR

was reasonable when it was unlikely that responsive records would be located there); Mobley v.

CIA, 924 F. Supp. 2d 24, 44-45 (D.D.C. 2013) (finding the agency’s failure to search shared

drives did not render the search inadequate because there was no indication that such a search

would reveal responsive records); cf. ACLU v. FBI, Civ. No. 12-03728 SI, 2013 WL 3346845, at

*3 (N.D. Cal. July 1, 2013) (finding that additional briefing was needed regarding adequacy of

search where FBI did not sufficiently explain why it did not search shared drives). The FBI

searched a comprehensive record system likely to contain responsive records, i.e. CRS. Mr.

Hardy’s Declarations are presumed to be in good faith, and they are not rebutted by Plaintiffs’

speculative claims that other responsive records exist. SafeCard, 926 F.2d at 1200. The FBI

sufficiently explained why it did not search ELSUR and shared drives in response to all of

Plaintiffs’ FOIA Requests.

Plaintiffs further allege that the FBI’s search for records must have been

inadequate because the FBI located one record in another case, Shapiro v. FBI, Civ. No. 13-595

(RMC), that would be responsive to the requests in this case regarding the Occupy encampments.

Shapiro involves FOIA requests for records related to “Occupy Houston” and other Occupy

encampments. In Shapiro, the FBI located a document entitled “FBI Intelligence Watch

Report,” indicating that a person or group (the reference is redacted) planned to engage in sniper

attacks against protestors in Houston. See Shapiro v. FBI, Civ. No. 13-595 (RMC), Hardy Decl.

[Dkt. 9-2], Ex. P (FBI Intelligence Watch Report). The Intelligence Watch Report produced in

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Shapiro, however, does not contain any of the search terms used in this case. Mr. Hardy

explained:

While it is true that the report may have been responsive to a
number of [P]laintiffs’ requests, the report was not indexed in such
a way so that the FBI would have been able to locate it through its
searches of the CRS. . . . [T]he decision to index names other than
subjects, suspects, and victims is a discretionary decision made by
the FBI Special Agent (“SA”) assigned to work the investigation,
the Supervisory SA (“SSA”) in the field office conducting the
investigation, the SSA at FBI [Headquarters], and other FBI
support personnel involved with the investigation. The FBI does
not index every name in its files; rather, it indexes only that
information it considers to be pertinent, relevant, or essential for
future retrieval. In this case, the report identified by plaintiffs was
not indexed in such a way so that the FBI would have been able to
retrieve it using any of the 43 search terms it used here . . . .

4th Hardy Decl. ¶ 6 (internal citations omitted). Mr. Hardy further notes that the report released

in Shapiro was not located via a CRS search; instead it was specifically requested by the

plaintiff, Mr. Shapiro, and the FBI conducted a targeted search, which included following leads

from other documents produced in that litigation. Id. The FBI has now released the same report

to Plaintiffs here.

Accordingly, Plaintiffs have not met their burden of proving that reconsideration

is warranted. They have not demonstrated “mistake” or “extraordinary circumstances” that

would justify relief from the final judgment under Rule 60(b)(1) or (6).

IV. CONCLUSION

For the reasons set forth above, Plaintiffs’ motion for reconsideration [Dkt. 30]

will be denied. A memorializing Order accompanies this Memorandum Opinion.

Date: October 16, 2013
/s/
ROSEMARY M. COLLYER
United States District Judge

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