UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
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JUDICIAL WATCH, INC., )
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Plaintiff, )
)
v. ) Civil Action No. 11-500 (GK)
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UNITED STATES DEPARTMENT )
OF JUSTICE, )
)
Defendant. )
______________________________)
MEMORANDUM OPINION
Plaintiff Judicial Watch, Inc., brings this action against
Defendant, the United States Department of Justice (“DoJ”), under
the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Plaintiff
seeks records of any communications between the Civil Rights
Division of DoJ and the National Association for the Advancement of
Colored People Legal Defense Fund (“NAACP-LDF”) concerning U.S. v.
New Black Panther Party for Self-Defense, Case No. 2:09-cv-0065
(E.D. Pa. filed Jan. 7, 2009) (“NBPP”). This matter is before the
Court on Defendant’s Motion for Summary Judgment [Dkt. No. 10].
Upon consideration of the Motion, Opposition, and Reply, and the
entire record herein, and for the reasons set forth below,
Defendant’s Motion for Summary Judgment is granted.
I. BACKGROUND1
Plaintiff is a non-profit educational foundation seeking to
promote “integrity, transparency, and accountability in
government.” Compl. ¶ 3 [Dkt. No. 1]. This case concerns
Plaintiff’s efforts to investigate Defendant’s dismissal of voter
intimidation claims against three defendants in NBPP. On November
2, 2010, Plaintiff sent Defendant a FOIA request seeking access to
any and all records of communications between the “Civil Rights
Division and the [NAACP] Legal Defense Fund (including, but not
limited to communications with Kristen Clarke, Director of
Political Participation) concerning, regarding, or relating to U.S.
v. New Black Panther Party for Self-Defense, et. al.” Plaintiff
limited the relevant time period for the request to November 4,
2008, to May 22, 2009.
On March 9, 2011, Plaintiff filed this suit seeking to compel
Defendant to search for and produce all non-exempt records
responsive to Plaintiff’s FOIA request. At the time the Complaint
was filed, Plaintiff had not received any response from Defendant
regarding its FOIA request. Compl. ¶ 6. In a letter dated April 19,
2011, Defendant informed Plaintiff that a search had been conducted
and that it had not located any records responsive to the request.
1
Unless otherwise noted, the facts set forth herein are
undisputed and drawn from the parties’ Statements of Undisputed
Material Facts submitted pursuant to Local Civil Rule 7(h).
2
On May 6, 2011, Defendant filed the present Motion for Summary
Judgment. On May 27, 2011, Plaintiff filed its Opposition [Dkt. No.
11]. On June 10, 2011, Defendant filed its Reply [Dkt. No. 12].
II. STANDARD OF REVIEW
FOIA cases are typically and appropriately decided on motions
for summary judgment. Gold Anti-Trust Action Comm., Inc. v. Bd. of
Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123, 130 (D.D.C.
2011); Defenders of Wildlife v. United States Border Patrol, 623 F.
Supp. 2d 83, 87 (D.D.C. 2009). “The standard governing a grant of
summary judgment in favor of an agency’s claim that it has fully
discharged its disclosure obligations under FOIA is well-
established . . . . [T]he agency bears the burden of showing that
there is no genuine issue of material fact, even when the
underlying facts are viewed in the light most favorable to the
requester.” Weisberg v. United States Dep't of Justice, 705 F.2d
1344, 1350 (D.C. Cir. 1983); see also Fed. R. Civ. P. 56(c).
The purpose of FOIA is to “facilitate public access to
Government documents” and “to pierce the veil of secrecy and to
open agency action to the light of public scrutiny.” McCutchen v.
United States Dep’t of Health & Human Servs., 30 F.3d 183, 184
(D.C. Cir. 1994) (internal quotations omitted). In responding to a
FOIA request, an agency is under an obligation to conduct a
reasonable search for responsive records. Oglesby v. United States
3
Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). To win summary
judgment on the adequacy of a search, the agency must demonstrate
beyond material doubt that its search was “reasonably calculated to
uncover all relevant documents.” Weisberg, 705 F.2d at 1351.
To show reasonableness at the summary judgment phase and to
allow the court to determine if the search was adequate, an agency
must provide “[a] reasonably detailed affidavit, 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.” Oglesby, 920 F.2d at 68. Such affidavits or
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
Servs., Inc. v. Sec. & Exch. Comm’n, 926 F.2d 1197, 1200 (D.C. Cir.
1991) (quoting Ground Saucer Watch, Inc. v. Cent. Intelligence
Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).
III. ANALYSIS
Plaintiff opposes Defendant’s Motion on the ground that
Defendant’s search for responsive documents was inadequate. Pl.’s
Opp’n 4. As noted above, to demonstrate that a search is adequate,
the agency must “show that it 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.” Oglesby,
920 F.2d at 68. Agencies must “follow through on obvious leads to
4
discover requested documents.” Valencia-Lucena v. United States
Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999). There is no
requirement, however, that an agency search every record system in
which responsive documents might conceivably be found. Oglesby, 920
F.2d at 68. Still, the agency cannot limit its search to only one
record system if there are others that are likely to produce the
information requested. Nation Magazine v. United States Customs
Serv., 71 F.3d 885, 892 (D.C. Cir. 1995).
According to the Declaration of Nelson D. Hermilla, the Chief
of the Freedom of Information/Privacy Act Branch of the Civil
Rights Division of the Department of Justice, on November 10, 2010,
Defendant commenced a three-prong search for documents in response
to Plaintiff’s request. Hermilla Decl. ¶¶ 1, 5-6 [Dkt. No. 10-3].
First, Defendant conducted a tailored search within the records of
the Voting Section, the Section within the Civil Rights Division
that handled the prosecution of NBPP. Id. ¶¶ 5-6. The Voting
Section conducted searches of all emails, networks, and local files
for “Kristen Clarke” and “NAACP.” Id. ¶¶ 8-9. The search term
“NAACP” was used because it is included in the suffix of the
business email addresses of all NAACP-LDF employees, i.e,
"___@NAACPLDF.org," and therefore would retrieve any emails from or
to NAACP-LDF employees. Id. ¶ 8. The Voting Section conducted
additional searches within the requested date range of November 4,
5
2008, through May 22, 2009, in order to confirm that all responsive
documents were found.2 Id. ¶ 10.
Second, Defendant reviewed “the results of prior searches for
NBPP-related records in response to requests from other FOIA
requesters and the United States Commission on Civil Rights
(‘USCCR’), which examined the Department’s handling of the New
Black Panther Party case.” Id. ¶ 6. Because the Civil Rights
Division had received a number of previous, broader FOIA requests
for Voting Section records related to NBPP, the Division had a set
of previously collected materials referred to as the “NBPP
Collection.” Id. ¶¶ 12-15. This collection contained the results
from searches of all Division activity in connection with NBPP, and
constituted the Division’s most comprehensive compilation of NBPP
records. Id. ¶ 14. The materials included all the paper and
electronic records of Civil Division employees who had worked on
NBPP, collected by “the Office of the Assistant Attorney General,
Administrative Management, and the Appellate, Criminal, Housing,
Civil Enforcement, and Voting Sections.” Id.
2
In its Motion, Defendant states that these additional
searches were actually a “date-range search for records in the
period ‘November 4, 2008 through May 22, 2009,’” the results of
which were reviewed for responsive communications. Def.’s Mot. 6.
However, the Hermilla Declaration is not so specific, and only
references “searches within the requested date range . . . to be
certain that the search for responsive records was as thorough as
possible.” Hermilla Decl. ¶ 10.
6
The Civil Rights Division reviewed the NBPP collection for
responsiveness to Plaintiff’s request by conducting searches within
the collection for terms such as “Kristen Clarke,” “National
Association for the Advancement of Colored People,” and
permutations of these names. Id. ¶ 16. The Division also used
synonym lists and combinations of the search parameters, which
included terms and dates, in order to find those records in which
there were misspellings, nicknames, or poor quality or bad optical
character resolution. Id.
Third, Defendant searched USCCR’s website, which contained
various documents and materials relating to the NBPP litigation.
Id. ¶ 17. On that website, the Division found copies of four emails
from Civil Rights Division employees “forwarding news articles
about the New Black Panther Party case to Kristen Clarke.” Id. ¶
18. Of the four, only one email was within the time period of
Plaintiff’s request. Id.
Thereafter, Defendant conducted a search using the employees’
names, the dates of emails, and “unique words and language” found
in the text of all four of the emails on the USCCR website. Id. ¶
19. Defendant searched “all Voting Section emails, network, and
local files, as well as the NBPP Collection.” Id. Defendant also
conducted searches in the files of the employees who sent the
emails displayed on the USCCR’s site. Id. ¶ 20. Despite these
searches, however, the “Defendant did not locate either the
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specific emails from Ms. Clarke’s deposition,” conducted on January
8, 2010, by the USCCR, “or any other responsive records.” Id.
Plaintiff argues that these Civil Rights Division searches
were deficient because they failed to locate an email sent on
January 19, 2009, from Judith Reed, an employee of Defendant, to
Kristen Clarke. Pl.’s Opp’n 4. Plaintiffs state that this email was
introduced during the USCCR’s deposition of Ms. Clarke. Id. at 4-5.
Plaintiff argues that because “Defendant admits it used the
Commission’s records when formulating its search and still did not
discover the January 19, 2009 e-mail, Defendant has clearly failed
to demonstrate that its search was reasonable.” Id. at 5.
Similarly, Plaintiff argues that because the Division claims to
have used “___@NAACPLDF.org” as a search term, it is unlikely that
the January 19, 2009, email, which contained the term, would not
have been uncovered by a reasonable document search. Id.
Defendant’s affidavit provides a plausible explanation for the
failure of a reasonable search to locate a copy of the email to
Kristen Clarke on the USCCR’s website. The Division’s policy “is to
retain emails that are appropriate for preservation because they
contain substantive information concerning agency activities.”
Hermilla Decl. ¶ 21. Emails that “contain minimal or no documentary
or evidential value . . . are not retained.” Id. “Further,
documents deleted within twenty-four hours are not retained in any
electronic repository.” Id.
8
In response to Defendant’s explanation of its email retention
procedure, Plaintiff argues that the January 19, 2009, email
“clearly contains more than a forwarded newspaper article” because
a statement in the email, “Don’t know if you were aware of this
latest lawsuit,” suggests prior communications. Pl.’s Opp’n 5
(emphasis in Plaintiff’s Opposition). Plaintiff contends that this
language indicates that “Ms. Reed had had prior communications with
Ms. Clarke about the Black Panther litigation.” Id.
Plaintiff’s argument is, to say the least, creative. The
logical reading of the phrase “latest lawsuit” is simply that Ms.
Reed was identifying the lawsuit to which she was referring as the
most recent in time. The phrase “latest lawsuit” does not
unambiguously demonstrate that Ms. Reed contacted Ms. Clarke about
any other lawsuit or topic. Plaintiff’s argument is the type of
“‘purely speculative claim[] about the existence and
discoverability of other documents’” which is insufficient to rebut
the “presumption of good faith” accorded to the Hermilla
Declaration. SafeCard, 926 F.2d at 1200 (quoting Ground Saucer
Watch, 692 F.2d at 771).
Moreover, “adequacy of a search is not determined by its
results, but by the method of the search itself.” Saldana v. Fed.
Bureau of Prisons, 715 F. Supp. 2d 24, 26 (D.D.C. 2010) (citing
Weisberg v. United States Dep’t of Justice, 745 F.2d 1476, 1485
(D.C. Cir. 1984)). Indeed, “an agency’s failure to find a
9
particular document does not undermine the determination that the
search was adequate” and “there could be several possible reasons
other than an inadequate search for why particular records are not
located.” Jefferson v. Bureau of Prisons, 578 F. Supp. 2d 55, 58
(D.D.C. 2008) (citing Wilbur v. Cent. Intelligence Agency, 355 F.3d
675, 678 (D.C. Cir. 2004)). As our Court of Appeals has stated,
“there is no requirement that an agency produce all responsive
documents.” Nation Magazine, 71 F.3d at 892 n.7 (emphasis in
original). Plaintiff is simply wrong, therefore, when it argues
that Defendant’s search was inadequate “[b]ecause at least one
record exists that is responsive to Plaintiff’s request,” which was
not produced. Pl.’s Opp’n 5. To the contrary, Defendant has
submitted a reasonably detailed affidavit explaining a three-
pronged search that was “reasonably calculated to uncover all
relevant documents.” Weisberg, 705 F.2d at 1351.
IV. CONCLUSION
For the reasons set forth above, Defendant’s Motion for
Summary Judgment is granted. An Order shall accompany this
Memorandum Opinion.
/s/
August 22, 2011 Gladys Kessler
United States District Judge
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Judicial Watch, Inc. v. U.S. Department of Justice
Combined Opinion