Wright v. Administration for Children and Families

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CHRIS WRIGHT,

Plaintiff,
Civil Action No. 15-218
v.
Chief Judge Beryl A. Howell
ADMINISTRATION FOR CHILDREN AND
FAMILIES, (U.S. Department of Health and
Human Services),

Defendant.

MEMORANDUM OPINION

The plaintiff, Chris Wright, who is proceeding pro se, brings this lawsuit under the

Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, against the defendant Administration for

Children and Families (“ACF”), which is a division of the U.S. Department of Health and

Human Services (“HHS”), challenging the agency’s response to his request for “information for

use in news stories about unaccompanied alien children1 . . . and the government’s shelter

program.” Compl. ¶ 3, ECF No. 1; Answer ¶ 4, ECF No. 9. Having already granted partial

summary judgment to HHS, pursuant to the parties’ Joint Stipulation of Issues to be Briefed,

ECF No. 12, see Order (Aug. 3, 2015), ECF No. 13, pending before the Court is HHS’s Motion

for Summary Judgment (“Def.’s Mot.”), ECF No. 16, on the four remaining issues in the case.

For the reasons set out below, HHS’s motion is granted.

1
“Unaccompanied alien children” refers to “unaccompanied foreign children who illegally enter the United
States from countries that do not border the United States,” for whom “[t]he U.S. Department of Health and Human
Services is required by law to take custody . . . and provide care . . . .” Def.’s Mot., Ex. 1, Decl. of Kimberly Epstein
(“Epstein Decl.”) ¶¶ 7, 10, ECF No. 16–1; see also Def.’s Statement Material Facts (“Def.’s SMF”) ¶¶ 1–3, ECF
No. 16.

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I. BACKGROUND

The plaintiff explains that “[t]his case relates to the ‘border surge’ in the summer of 2014,

the high-profile influx of [unaccompanied alien children] which generated voluminous news

coverage.” Pl.’s Mem. P. & A. Opp’n Def.’s Mot. Summ. J. (“Pl.’s Opp’n”) at 1, ECF No. 19.

In a FOIA request transmitted via email on October 24, 2014, the plaintiff requested records

from ACF regarding fifteen categories of information (“Items 1–15”) related to “grant award

90ZU0102 in the amount of $190,707,505,” made to Baptist Children and Family Services (now

BCFS Health and Human Services) (“BCFS”) for the provision of residential shelter services to

unaccompanied alien children. Compl. Ex. 1 (“Pl.’s Request”) at 1–2, ECF No. 1. Relevant

here, one of those fifteen categories of information was described by the plaintiff as “[n]arrative

status reports” (“Item 1”). Id. at 1. The plaintiff also requested five broader categories of

information (“Items 16–20”) “[w]ith respect to BCFS and related entities in general,” regarding

(a) “discussions of why these organizations maintain an office, employees, or agents outside of

the United States”; (b) “BCFS’ grants or assistance to foreign governments, organizations, and

individuals”; (c) “BCFS’ grants or assistance to governments, organizations and individuals in

the United States for Education Training Vouchers [ETVs]”; (d) “BCFS’ grants or assistance to

governments, organizations and individuals in the United States for ORR allowance grants”; and

(e) “discussion of BCFS’ failure to properly report lobbying expenditures on its tax forms.” Id.

at 2.

On December 10, 2014, an ACF Freedom of Information Officer acted upon the

plaintiff’s email request by requesting a search for responsive records from the ACF Office of

Refugee Resettlement (“ACF-ORR”), which “has jurisdiction over funding the unaccompanied

minors residential services program and monitors grantee performance,” and the ACF Office of

2
Grants Management (“ACF-OGM”), which “has jurisdiction over financial management and

reporting for all ACF grant programs.” Def.’s Mot., Ex. 1, Decl. of Kimberly N. Epstein

(“Epstein Decl.”) ¶¶ 10–11.

As of February 12, 2015, when the plaintiff filed the Complaint in this action, HHS had

released no documents or information to the plaintiff in response to his request. See generally

Compl.; Epstein Decl. ¶ 28. Between March 2, 2015, and September 2, 2015, however, HHS

made fourteen separate releases of information in response to the plaintiff’s request, totaling

many hundreds of pages. Epstein Decl. ¶ 28; Pl.’s Opp’n at 2–3. These releases included, inter

alia, financial reports, Performance Progress Reports (“PPRs”), Situation Reports, monitoring

reports, internal memoranda, and emails among various ORR and ACF staff and executives

regarding BCFS’s grant award 90ZU0102. Epstein Decl. ¶ 28.

HHS construed the plaintiff’s request for “narrative status reports” (Item 1), a term HHS

does not itself use in categorizing its documents, as a request for PPRs and Situation Reports in

connection with BCFS’s grant award 90ZU0102. Id. ¶¶ 15–16. Employing that construction of

the term, HHS released to the plaintiff, inter alia, “all [PPRs] concerning BCFS for grant number

90ZU0102” produced between July 7, 2014, the date the grant was awarded, and December 10,

2014, the date the search for responsive records commenced, Def.’s SMF ¶¶ 9, 16, as well as all

Situation Reports sent by BCFS to ACF-ORR Federal Field Specialists during that time frame,

id. ¶¶ 19–22.

With respect to the plaintiff’s requests for more generalized information regarding BCFS’

domestic and foreign operations (Items 16–20), “OGM and ORR officials advised [the ACF

FOIA Officer] that ACF does not routinely collect or maintain information responsive to [Items

16–20] as they are outside the scope of the relationship with the grantee.” Epstein Decl. ¶ 26.

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Nevertheless, an electronic search of the ACF-OGM and ACF-ORR files containing grantee

records and programmatic and financial reports was performed, using key words drawn from the

request, i.e., “lobbying,” “ETV,” and “foreign government.” Id. ¶¶ 23–24. According to HHS,

no responsive documents were found. Id.

Many of the documents released to the plaintiff were partially redacted pursuant to FOIA

Exemptions 4, 5, 6, and 7(C). 2 Id. ¶ 28. In August and September 2015, upon the determination

that Exemption 5 did not actually apply, HHS voluntarily released full, non-redacted versions of

two documents that were initially released to the plaintiff with redactions under FOIA

Exemption 5. Id. The two documents that remain partially redacted under Exemption 5, as

listed in the agency’s Vaughn Index, consist of emails compiled from the accounts of various

agency officials, with redactions on about half, or nineteen, of the thirty-nine total pages. Def.’s

Mot. Ex. 3, Vaughn Index, ECF No. 16-3. Larger portions of these documents were redacted

when initially released on July 20, 2015 and July 22, 2015, but those were later supplemented

with versions containing fewer redactions, released on July 27, 2015 and August 18, 2015,

respectively, to “provide consistent disclosure.” Epstein Decl. ¶ 28.

II. LEGAL STANDARD

Congress enacted the FOIA as a means “to open agency action to the light of public

scrutiny,” ACLU v. U.S. Dep’t of Justice, 750 F.3d 927, 929 (D.C. Cir. 2014) (quoting Dep’t of

Air Force v. Rose, 425 U.S. 352, 361 (1976)), and “to promote the ‘broad disclosure of

Government records’ by generally requiring federal agencies to make their records available to

2
The plaintiff does not contest any of the redactions made pursuant to Exemptions 4, 6, or 7(C), which
protect “trade secrets and commercial or financial information obtained from a person and privileged or
confidential;” “personnel and medical files and similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy;” and “records or information compiled for law enforcement purposes, but
only to the extent that the production of such law enforcement records or information . . . could reasonably be
expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(4)–(7).

4
the public on request,” DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (citing U.S.

Dep’t of Justice v. Julian, 486 U.S. 1, 8 (1988)). As the Supreme Court has “consistently

recognized[,] . . . the basic objective of the Act is disclosure.” Chrysler Corp. v. Brown, 441

U.S. 281, 290 (1979). At the same time, the statute represents a “balance [of] the public’s

interest in governmental transparency against legitimate governmental and private interests [that]

could be harmed by release of certain types of information.” United Techs. Corp. v. U.S. Dep’t

of Def., 601 F.3d 557, 559 (D.C. Cir. 2010) (internal quotation marks and citations omitted).

Reflecting that balance, the FOIA contains nine exemptions set forth in 5 U.S.C. § 552(b), which

“are explicitly made exclusive and must be narrowly construed.” Milner v. U.S. Dep’t of Navy,

562 U.S. 562, 565 (2011) (internal quotation marks and citations omitted) (citing FBI v.

Abramson, 456 U.S. 615, 630 (1982)); see Murphy v. Exec. Office for U.S. Attys., 789 F.3d 204,

206 (D.C. Cir. 2015); Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice

(“CREW”), 746 F.3d 1082, 1088 (D.C. Cir. 2014); Pub. Citizen, Inc. v. Office of Mgmt. &

Budget, 598 F.3d 865, 869 (D.C. Cir. 2010). “[T]hese limited exemptions do not obscure the

basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Rose, 425 U.S. at

361.

The agency invoking an exemption to the FOIA has the burden “to establish that the

requested information is exempt.” Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443

U.S. 340, 352 (1979); see U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489

U.S. 749, 755 (1989); DiBacco, 795 F.3d at 195; CREW, 746 F.3d at 1088; Elec. Frontier

Found. v. U.S. Dep’t of Justice, 739 F.3d 1, 7 (D.C. Cir. 2014), cert. denied sub nom. Elec.

Frontier Found. v. Dep’t of Justice, 135 S. Ct. 356 (2014); Assassination Archives & Research

Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003). To carry this burden, an agency must submit

5
sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents,3 or

both, to demonstrate that the government has analyzed carefully any material withheld, to enable

the court to fulfill its duty of ruling on the applicability of the exemption, and to enable the

adversary system to operate by giving the requester as much information as possible, on the basis

of which the requester’s case may be presented to the trial court. See Oglesby v. U.S. Dep’t of

Army (Oglesby II), 79 F.3d 1172, 1176 (D.C. Cir. 1996) (“The description and explanation the

agency offers should reveal as much detail as possible as to the nature of the document, without

actually disclosing information that deserves protection . . . [which] serves the purpose of

providing the requestor with a realistic opportunity to challenge the agency’s decision.” (citation

omitted)); see also CREW, 746 F.3d at 1088 (“The agency may carry that burden by submitting

affidavits that ‘describe the justifications for nondisclosure with reasonably specific detail,

demonstrate that the information withheld logically falls within the claimed exemption, and are

not controverted by either contrary evidence in the record nor by evidence of agency bad faith.’”

(quoting Larson v. U.S. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). While “an agency’s

task is not herculean[,]” it must “describe the justifications for nondisclosure with reasonably

specific detail and demonstrate that the information withheld logically falls within the claimed

exemption.” Murphy, 789 F.3d at 209 (internal quotation marks omitted) (citing Larson, 565

F.3d at 862).

The FOIA provides federal courts with the power to “enjoin the agency from withholding

agency records and to order the production of any agency records improperly withheld from the

complainant,” 5 U.S.C. § 552(a)(4)(B), and “directs district courts to determine de novo whether

non-disclosure was permissible,” Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 777

3
“A Vaughn index describes the documents withheld or redacted and the FOIA exemptions invoked, and
explains why each exemption applies.” Prison Legal News v. Samuels, 787 F.3d 1142, 1145 n.1 (D.C. Cir. 2015).

6
F.3d 518, 522 (D.C. Cir. 2015). A district court must review the Vaughn index and any

supporting declarations “to verify the validity of each claimed exemption.” Summers v. U.S.

Dep’t of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). Moreover, a district court has an

“affirmative duty” to consider whether the agency has produced all segregable, non-exempt

information. Elliott v. U.S. Dep’t of Agric., 596 F.3d 842, 851 (D.C. Cir. 2010) (referring to

court’s “affirmative duty to consider the segregability issue sua sponte ”) (quoting Morley v.

CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007)); see Stolt–Nielsen Transp. Grp. Ltd. v. United

States, 534 F.3d 728, 734 (D.C. Cir. 2008) (“[B]efore approving the application of a FOIA

exemption, the district court must make specific findings of segregability regarding the

documents to be withheld.”) (quoting Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116

(D.C. Cir. 2007)); Trans–Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028

(D.C. Cir. 1999) (“[W]e believe that the District Court had an affirmative duty to consider the

segregability issue sua sponte . . . even if the issue has not been specifically raised by the FOIA

plaintiff.”); see also 5 U.S.C. § 552(b) (“Any reasonably segregable portion of a record shall be

provided to any person requesting such record after deletion of the portions which are exempt

under this subsection.”).

Summary judgment is appropriate when “there is no genuine dispute as to any material

fact.” Fed. R. Civ. P. 56. “In FOIA cases, summary judgment may be granted on the basis of

agency affidavits if they contain reasonable specificity of detail rather than merely conclusory

statements, and if they are not called into question by contradictory evidence in the record or by

evidence of agency bad faith.” Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C.

Cir. 2013) (internal quotation marks omitted) (quoting Consumer Fed’n of Am. v. U.S. Dep’t of

Agric., 455 F.3d 283, 287 (D.C. Cir. 2006)). “Ultimately, an agency’s justification for invoking

7
a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Judicial Watch, Inc. v. U.S.

Dep’t of Def., 715 F.3d 937, 941 (D.C. Cir. 2013) (quoting ACLU v. U.S. Dep’t of Def., 628 F.3d

612, 619 (D.C. Cir. 2011)); Larson, 565 F.3d at 862 (quoting Wolf v. CIA, 473 F.3d 370, 374–75

(D.C. Cir. 2007)).

III. DISCUSSION

The plaintiff’s requests for Item 1 and Items 16–20 are the only requests that remain at

issue following this Court’s Order granting partial summary judgment to HHS. Order ¶¶ 1–2.

For these Items in his original request, the plaintiff contends that summary judgment should be

denied because: (1) HHS failed to perform an adequate search for responsive materials; and (2)

the deliberative process privilege does not warrant redaction of the documents produced. Pl.’s

Reply Supp. Mot. Opp’n (“Pl.’s Reply”) at 2–4, 7–9, ECF No. 21. The discussion that follows

addresses these issues seriatim.

A. ADEQUACY OF THE AGENCY’S SEARCH

The plaintiff criticizes the adequacy of the search conducted by ACF for responsive

documents for several reasons. First, the plaintiff complains that the search did not include

ACF-ORR “[r]egional offices” in Texas and Oklahoma; the “Office of the Secretary”; “former

employees”; “consultations with agency personnel concerning the grant and controversies in

question”; and “[o]ther record systems.” Pl.’s Opp’n at 3–5. Second, the plaintiff asserts that the

methods used to search email accounts, and the “lack of description in the FOIA Officer’s

Declaration of what is meant by searches of email accounts,” support a finding of inadequacy.

Id. at 6–7. Relatedly, the plaintiff argues that the personal communications of relevant personnel

are subject to the FOIA and requests sworn declarations from all relevant agency personnel

attesting “they did not use personal email, instant messaging, or text accounts to conduct official

8
business” related to his request. Id. at 8–11. Finally, the plaintiff contends that Items 16–20

“extend to all BCFS entities, not just BCFS HHS, and is not limited to the grant otherwise at

issue in this case,” but that HHS improperly searched only for records relating to BCFS HHS and

grant award 90ZU0102. Id. at 3–7. HHS defends its “search for responsive records [as] both

adequate and reasonable,” because “a comprehensive search was performed for documents

responsive to [the plaintiff’s] request, including of the email boxes of all persons copied on

responsive emails.” Def.’s Mem. Supp. Def.’s Mot. Summ. J. (“Def.’s Mem.”) at 7, ECF No.

16.

1. Applicable Legal Principles

Upon receiving a FOIA request, federal agencies are “required to perform more than a

perfunctory search” to identify potential responsive records, Ancient Coin Collectors Guild v.

U.S. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011), and must demonstrate “a ‘good faith

effort to conduct a search using methods which can be reasonably expected to produce the

information requested,’” DiBacco, 795 F.3d at 188 (internal alterations omitted) (quoting

Oglesby v. U.S. Dep’t of Army (Oglesby I), 920 F.2d 57, 68 (D.C. Cir. 1990)). To meet this

burden, the agency must “demonstrate beyond material doubt that its search was ‘reasonably

calculated to uncover all relevant documents.’” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d

321, 325 (D.C. Cir. 1999) (quoting Truitt v. U.S. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir.

1990)). At the summary judgment stage, an agency may meet this burden by submitting “‘[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.’” Ancient Coin Collectors Guild, 641 F.3d at 514 (quoting Valencia–Lucena, 180 F.3d

at 326). Such an affidavit must “‘explain in reasonable detail the scope and method of the search

9
conducted by the agency.’” See Morley, 508 F.3d at 1121 (quoting Perry v. Block, 684 F.2d 121,

127 (D.C. Cir. 1982)).

Although an agency “has a duty to construe a FOIA request liberally,” Nation Magazine

v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995), the FOIA “demands only a reasonable

search tailored to the nature of a particular request.” Campbell v. U.S. Dep’t of Justice, 164 F.3d

20, 28 (D.C. Cir. 1998), as amended (Mar. 3, 1999). “[I]t is long settled that the failure of an

agency to turn up one specific document in its search does not alone render a search inadequate.

. . . Rather, the adequacy of a FOIA search is generally determined not by the fruits of the search,

but by the appropriateness of the methods used to carry out the search.” Iturralde v. Comptroller

of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (citations omitted). Thus, “[t]here is no

requirement that an agency search every record system,” although “the agency cannot limit its

search to only one record system if there are others that are likely to turn up the information

requested.” Oglesby I, 920 F.2d at 68. Furthermore, agencies are not obligated to search

“beyond ‘the four corners of the request,’ nor are they ‘required to divine a requester's intent.’”

Am. Chemistry Council, Inc. v. U.S. Dep't of Health & Human Servs., 922 F. Supp. 2d 56, 62

(D.D.C. 2013) (quoting Landmark Legal Found. v. EPA, 272 F. Supp. 2d 59, 64 (D.D.C. 2003)).

If an agency has made a prima facie showing of the adequacy of its search, “[t]he

plaintiff may then provide ‘countervailing evidence’ as to the adequacy of the agency’s search.

. . . ‘If a review of the record raises substantial doubt, particularly in view of well defined

requests and positive indications of overlooked materials, summary judgment is inappropriate.’”

Iturralde, 315 F.3d at 314 (internal quotation marks omitted) (quoting Founding Church of

Scientology of Washington, D.C., Inc. v. Nat’l Sec. Agency, 610 F.2d 824, 836 (D.C. Cir. 1979);

then quoting Valencia-Lucena, 180 F.3d at 326).

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 2. Analysis

The plaintiff’s first criticism of the agency’s search is that certain locations, such as

regional offices, the Office of the Secretary, unnamed former employees, and other record

systems, were not searched for records responsive to Items 1 and 16-20. Evaluating whether the

search conducted by the agency was properly and reasonably focused to uncover responsive

records turns on the nature of the request. See Campbell, 164 F.3d at 28 (“[The] FOIA demands

only a reasonable search tailored to the nature of a particular request.”). The plaintiff’s request

in Item 1 for “narrative status reports,” which is not a term used by the agency, regarding the

identified grant to BCFS was construed liberally, with HHS identifying categories of records

believed to be within the intent of the plaintiff’s request. Epstein Decl. ¶ 15. Specifically, this

term was construed to refer to PPRs, quarterly and annual reports provided to the agency by

grantees, and Situation Reports, which “were sent [to the agency] by BCFS-HHS via email . . . to

provide updates on the emergency situation of providing residential services to the sudden large

influx of unaccompanied children during the summer of 2014.” Id. at ¶ 15–16. Based on this

construction of Item 1, HHS then identified the two offices where “the requested records were

most likely to be located,” id. ¶ 10, and searched their electronic databases as well as the

“individual email accounts” of relevant personnel, id. ¶ 14; hired an outside consultant to retrieve

responsive documents identified as outstanding, id. ¶ 20; and ultimately released, over the course

of several disclosures, more than seventy PPRs and Situation Reports to the plaintiff, id. ¶¶ 15–

21.

In regard to Items 16–20, which sought categories of information “[w]ith respect to

BCFS-HHS and related entities in general,” Pl.’s Request at 2, the ACF FOIA Officer explains

that she consulted a number of officials at OGM and ORR regarding “other locations that should

11
be searched” for responsive documents. Epstein Decl. ¶ 25. She avers those officials “advised

[her] that ACF does not routinely collect or maintain information responsive to these items as

they are outside the scope of the relationship with the grantee.” Id. ¶ 26. Nevertheless, OGM

and ORR performed searches for responsive documents but, consistent with the information that

no such records are kept by the agency, the search uncovered no responsive records. Id. ¶ 22–24.

The plaintiff complains that the search for documents responsive to his requests for Item

1 and Items 16–20 was inadequate because the agency did not search all the locations he thinks

should have been searched. See Pl.’s Opp’n at 3–5. 4 To the contrary, an agency’s failure to take

every step desired by a requester does not automatically render the search not “reasonably

calculated to uncover all relevant documents.” Valencia-Lucena, 180 F.3d at 325 (internal

quotation marks omitted). With respect to Item 1, the ACF FOIA officer has explained that all

responsive PPRs and Situation Reports were identified, specifically noting that the “OGM

maintains PPRs in the Grant Notes section of grantee files,” that it “provided the BCFS-HHS

PPRs for grant number 90ZU0102” to the plaintiff, and that “all Situation Reports that were

responsive were provided to the requester.” Epstein Decl. ¶¶ 17–21. The plaintiff has not

pointed to any “positive indications of overlooked materials,” nor has he shown that the “agency

has reason to know that certain places [not searched] may contain” additional documents

responsive to Item 1. Valencia-Lucena, 180 F.3d at 326–27.

Similarly, with respect to Items 16–20, HHS has demonstrated that the scope of its search

of offices, records systems, and employees was adequate. The ACF FOIA Officer attests she

4
The cases relied upon by the plaintiff do not dictate a result in his favor. For example, in Church of
Scientology v. IRS, 792 F.2d 146 (D.C. Cir. 1986), cited by the plaintiff, see Pl.’s Opp’n at 3, the D.C. Circuit
concluded that the plaintiff was not entitled to its requested search of regional offices of the IRS in view of the
requester’s failure to comply with the IRS’s rules requiring such requests be made to the regional offices directly.
Church of Scientology, 792 F.3d at 150. At best, the cited cases demonstrate no more than that the locations
plaintiff identifies may in some circumstances properly be searched in response to a FOIA request.

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was advised by OGM and ORR officials that “ACF is unlikely to have responsive records as

these matters lie outside the scope of ACF’s relationship with its grantees.” Epstein Decl. ¶ 22.

Specifically, she notes that applicable regulations “state that an agency may solicit only the

standard, OMB-approved government-wide data elements for collection of financial

information,” which would bar the collection of the information requested in Items 16–20. Id. ¶

26. On that basis, the ACF FOIA Officer “determined that ACF is not reasonably likely to be in

possession of records responsive to Items 16–20 of the request.” Id. Notwithstanding this

conclusion, the OGM and ORR identified the files they deemed most likely to contain responsive

documents, if any existed, and searched those files using parameters derived from the plaintiff’s

request. See id. ¶ 23–24.

Having attested to the unlikelihood of the existence of any responsive agency records,

HHS was not required to perform the more exhaustive search the plaintiff apparently demands. 5

On the contrary, an agency is only required to search record systems “likely” to yield responsive

documents. See, e.g., Ancient Coin Collectors Guild, 641 F.3d at 514 (noting agency must

“aver[] that all files likely to contain responsive materials (if such records exist) were searched”

(quoting Valencia–Lucena, 180 F.3d at 326)). Consequently, courts have found searches

adequate where no search was performed of entities “unlikely” to possess responsive documents.

See All Party Parliamentary Grp. on Extraordinary Rendition v. U.S. Dep’t of Def., 134 F. Supp.

5
The plaintiff asserts that “[g]iven the [d]efendant’s credibility problems, the court should not rely on [its]
pronouncement. . . . It is not credible that there is no record of any discussion with a politically-connected CEO or
other BCFS representative concerning the controversy about BCFS’ lobbying expenditures or its foreign activities
. . . .” Pl.’s Opp’n at 5. Yet, “[a]gency affidavits 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. S.E.C., 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d
770, 771 (D.C. Cir. 1981)); see also Hayden v. Nat'l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1387 (D.C. Cir.
1979) ("The sufficiency of the affidavits is not undermined by a mere allegation of agency misrepresentation or bad
faith, nor by past agency misconduct in other unrelated cases"). The plaintiff’s assertions amount to nothing more
than speculation, and, accordingly, cannot overcome the agency’s attestation as to the likelihood of the existence of
documents to Items 16–20.

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3d 201, 206 (D.D.C. 2015) (“The NSA . . . argues that, because its function is limited solely to

signals intelligence, it is unlikely to possess any [responsive] documents . . . and is not required

to search its records. . . . The Court agrees and concludes that a search for the documents

requested would be futile . . . .”); Reyes v. EPA, 991 F. Supp. 2d 20, 26 (D.D.C. 2014) (“Where

the Government’s declarations establish that a search would be futile[,] the reasonable search

required by FOIA may be no search at all.” (quoting Amnesty Int’l USA v. CIA, No. 07-Civ.-

5435, 2008 WL 2519908, at *11 n.17 (S.D.N.Y. June 19, 2008))); Brehm v. Dep’t of Defense,

593 F. Supp. 2d 49, 50 (D.D.C. 2009) (finding search adequate based on, inter alia, the

declarant’s “conclusion that ‘it is unlikely that other CIA directorates would possess records

responsive to Plaintiff’s request’”); cf. Am. Immigration Council v. U.S. Dep’t of Homeland

Sec., 21 F. Supp. 3d 60, 72 (D.D.C. 2014) (“[A]n attestation that the agency searched filing

systems ‘likely to contain responsive records’ also requires an accompanying averment that ‘it is

unlikely that other directorates would possess records responsive to Plaintiff’s request.’”

(quoting Am. Immigration Council v. U.S. Dep’t of Homeland Sec., 950 F. Supp. 2d 221, 230

(D.D.C. 2013) (alterations omitted)).

The plaintiff next complains that summary judgment should be denied “because of a lack

of description in the FOIA Officer’s Declaration of what is meant by searches of email

accounts,” id. at 6, urging that more detail, e.g., information regarding “[h]ow . . . Boolean

operators [were] treated,” id., should have been included. Contrary to the plaintiff’s assertion,

the ACF FOIA Officer sufficiently described the manner in which email accounts were searched,

noting that the agency searched “the email boxes of the Federal Field Specialists and any other

individuals assigned to BCFS-HHS” for Situation Reports and, upon discovering that twenty-two

Situation Reports “remained outstanding,” hired a consultant, which searched “six mailboxes of

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central office staff and Federal Field Specialists,” using the search terms “‘BCFS’ plus ‘SitRep’

(the short-hand term BCFS-HHS used for Situation Reports) plus ‘Ft. Sill’ and/or ‘Lackland’

and/or ‘Juliet’ and/or ‘Kilo’ (the short-hand terms BCFS-HHS used for the Ft. Sill and Lackland

sites)” and identifying the dates of the missing Situation Reports. Epstein Decl. ¶ 17–20; see

Ancient Coin Collectors Guild, 641 F.3d at 514 (explaining “a court may rely on 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 . . . were searched”) (emphasis added).

Accordingly, the Court is not persuaded that the criticisms raised by the plaintiff of the

agency’s searches for documents responsive to Item 1 and Items 16–20 raise sufficient genuine

issues of material fact to deny summary judgment to HHS.

3. Personal Email Accounts of Agency Officials

The plaintiff’s FOIA request specifically asked that HHS search, among other records,

“electronic mail (including from personal accounts)” for responsive materials. Pl.’s Request at 1.

In support of that search, the plaintiff asserts a “substantial likelihood that personal accounts

were used to evade public scrutiny in this case,” citing the lack of responsive information found

as to Items 16–20 as support for his theory of intentional evasion. Pl.’s Opp’n at 10.

Alternatively, the plaintiff seeks an order “requir[ing] all agency officials involved with

administering the grant in question or with any BCFS entity more generally to submit a sworn

declaration that they did not use personal email, instant messaging, or text accounts to conduct

official business with respect to the oversight of grant award 90ZI0102 or Items 16–20 of [the

plaintiff’s] FOIA request,” a request which “extends up to and include[s] the Secretary of HHS

and all other political appointees.” Id. at 11; see Pl.’s Reply at 7.

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 HHS takes exception to the plaintiff’s requested form of relief, asserting that the “FOIA

does not provide a statutory mechanism to evaluate whether agency employees are complying

with rules requiring them to conduct agency business on their official email accounts instead of

personal accounts.” Def.’s Reply Supp. Def.’s Mot. Summ. J. (“Def.’s Reply”) at 10, ECF No.

20. Moreover, HHS points out that employees’ personal accounts “are not within an agency’s

possession or control and thus are not part of an agency’s search obligation,” and that “the proper

mechanism for reviewing the employee’s conduct would be an administrative proceeding under

the Federal Records Act, not FOIA.” Id. at 10–11.

Indisputably, the FOIA extends only to materials qualifying as “agency records.” 5

U.S.C. § 552(a)(4)(B); see U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 141 (1989)

(noting 5 U.S.C. § 552(a)(4)(B) “confers jurisdiction in the district courts when ‘agency records’

have been ‘improperly withheld’”). The Supreme Court has explained that “agency records”

include only those records “either create[d] or obtain[ed]” by an agency and subject to its control

“at the time the FOIA request is made.” Tax Analysts, 492 U.S. at 144–45. “Control” means

“that the materials have come into the agency’s possession in the legitimate conduct of its

official duties,” although “the term ‘agency records’ is not so broad as to include personal

materials in an employee’s possession, even though the materials may be physically located at

the agency.” Id. at 145. Thus, generally speaking, personal communications of agency

employees are not subject to the FOIA.

The D.C. Circuit recently clarified the scope of the FOIA’s “agency record” requirement

in Competitive Enterprises Institute v. Office of Science & Technology Policy, 827 F.3d 145

(D.C. Cir. 2016). In that case, the plaintiff requested from the Office of Science and Technology

Policy (“OSTP”) “all policy/OSTP-related email sent to or from” OSTP’s director’s “nonofficial

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[email] account.” Id. at 146. The district court granted the agency’s motion to dismiss on the

ground that the requested emails were not “agency records” because they were “not under the

control of the agency.” Id. at 147. The D.C. Circuit reversed, see id. at 150, rejecting the

agency’s argument that the requested records “were in an account that is under the control of . . .

a private organization” on the basis that “the [account’s] user . . . maintains the account,” not the

domain host, id. at 147 (emphasis added) (internal quotation marks omitted). The Court

explained that “an agency always acts through its employees and officials. If one of them

possesses what would otherwise be agency records, the records do not lose their agency

character just because the official who possesses them takes them out the door . . . .” Id. at 149.

Consequently, the Court concluded that “[i]f the agency head controls what would otherwise be

an agency record, then it is still an agency record and still must be searched or produced.” Id.

Thus, Competitive Enterprises established that agency employees’ communications on

non-agency accounts may constitute “agency records” subject to the FOIA. Nevertheless, “a

FOIA requestor is not entitled to a search of files specified by the requestor, but rather to a

search of files ‘that are likely to turn up the information requested.’” Tunchez v. U.S. Dep’t of

Justice, 715 F. Supp. 2d 49, 54 (D.D.C. 2010) (quoting Oglesby I, 920 F.2d at 68). With respect

to official communications created on agency employees’ personal accounts, throughout the

period of time for which documents generated are subject to the plaintiff’s request, federal law

has required that such communications be preserved within and by the agency. See 36 C.F.R. §

1236.22(b) (effective Nov. 2, 2009) (“Agencies that allow employees to send and receive official

electronic mail messages using a system not operated by the agency must ensure that Federal

records sent or received on such systems are preserved in the appropriate agency recordkeeping

system.”); see also 44 U.S.C. § 2911(a) (effective Nov. 26, 2014) (prohibiting agency

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employees from “creat[ing] or send[ing] a record using a non-official electronic messaging

account,” unless they properly document said record with the agency). In view of this

requirement, the presumption applies that agency employees comply with applicable law and,

consequently, that agency records responsive to a FOIA request would unlikely be located solely

in their personal email accounts, rendering a search of those accounts unnecessary. See, e.g.,

Bracy v. Gramley, 520 U.S. 899, 909 (1997) (“Ordinarily, we presume that public officials have

‘properly discharged their official duties.’” (quoting United States v. Armstrong, 517 U.S. 456,

464 (1996)); Stone v. Stone, 136 F.2d 761, 763 (D.C. Cir. 1943) (“In an action which challenges

the conduct of a public officer, a presumption of law is indulged in his favor that his official

duties were properly performed.”).

This presumption may be subject to rebuttal, but the plaintiff concedes that he “has no

specific information that agency personnel conducted official business through personal email in

this case” and, in fact, explains that the agency’s “former counsel . . . advised [the plaintiff] that

he had consulted agency personnel and had no reason to believe they used personal email to

conduct official business.” Pl.’s Opp’n at 8–9. Nevertheless, the plaintiff contends that “it

cannot be the law that representations of government counsel are dispositive of the issue.” Id. at

9. The plaintiff misconstrues the nature of his burden to submit “countervailing evidence” to

raise a “substantial doubt” as to the adequacy of the agency’s search. See Iturralde, 315 F.3d at

314. In other words, the requester bears the burden of rebutting the presumption of good faith

required to be accorded to the agency’s declarations, and the plaintiff has not overcome the

presumption that agency records are unlikely to exist on the agency employees’ personal

accounts. See Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013) (upholding agency response to

FOIA request where requester “has not presented sufficient evidence to rebut . . . presumption”

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accorded to the agency’s averments); Chambers v. U.S. Dep’t of Interior, 568 F.3d 998, 1003

(D.C. Cir. 2009) (recognizing substantial weight traditionally accorded agency affidavits in

FOIA “adequacy of search” cases).

While Competitive Enterprises suggests that this presumption may be rebutted by, e.g.,

evidence “from a Vaughn Index in another, earlier FOIA litigation that the [agency employee’s

private email] address had apparently been used for some work-related correspondence,”

Competitive Enter. Inst., 827 F.3d at 146, the plaintiff has pointed to no such evidence in this

case. Accordingly, the plaintiff’s purely speculative contentions cannot render the agency’s

search inadequate. Moreover, in view of the limited remedies available pursuant to the FOIA,

the plaintiff’s request for sworn declarations from all agency officials must be rejected. See

Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 777 (D.C. Cir. 2002) (“FOIA

represents . . . a comprehensive scheme, which provides requesters with the potential for

injunctive relief only, either to enjoin the withholding of documents or to compel production of

agency records.”).

Accordingly, the Court finds that the agency’s search for responsive records was

adequate.

B. FOIA EXEMPTION 5: DELIBERATIVE PROCESS PRIVILEGE

Two of the documents released to the plaintiff were partially redacted under FOIA

Exemption 5, 5 U.S.C. § 552(b)(5), the “deliberative process privilege.” See Vaughn Index.

These documents were comprised of “emails between HHS staff,” which the agency asserts meet

the Exemption 5 criteria. Def.’s Mem. at 7. Citing HHS’s “lack of credibility,” the plaintiff

questions the veracity of the description of the withheld information provided by the agency in

its Vaughn Index. Pl.’s Opp’n at 7. Noting “[t]he deliberative process privilege is negated by

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the government misconduct exception,” and thus does not protect “illicit discussions undertaken

with nefarious or political motives” from disclosure, id. at 7–8, the plaintiff asks this Court to

“review all redactions in camera,” id. at 7.

1. Applicable Legal Principles

The deliberative process privilege, 5 U.S.C. § 552(b)(5), “protects ‘documents reflecting

advisory opinions, recommendations and deliberations comprising part of a process by which

governmental decisions and policies are formulated,’” Loving v. Dep’t of Def., 550 F.3d 32, 38

(D.C. Cir. 2008) (quoting Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1,

8 (2001)), so as to encourage “open and frank discussion” among government officials, Klamath

Water, 532 U.S. at 9. “To qualify for the deliberative process privilege, an intra-agency

[communication] must be both pre-decisional and deliberative.” Abtew v. U.S. Dep’t of

Homeland Sec., 808 F.3d 895, 898 (D.C. Cir. 2015) (citing Coastal States Gas Corp. v. Dep’t of

Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)); Whitaker v. U.S. Dep’t of State, No. 14-5275, 2016

U.S. App. LEXIS 1086, at *3–4 (D.C. Cir. Jan. 21, 2016) (per curiam) (internal quotation marks

and citation omitted) (“To fall under the privilege’s penumbra, documents must be both pre-

decisional and deliberative.”).

In general, a “document is predecisional if it was ‘prepared in order to assist an agency

decisionmaker in arriving at his decision,’ rather than to support a decision already made.”

Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (quoting

Renegotiation Bd. v. Grumman Aircraft, 421 U.S. 168, 184 (1975)); see also Leopold v. CIA, 89

F. Supp. 3d 12, 19 (D.D.C. 2015) (quoting Petroleum Info. Corp., 976 F.2d at 1434). While the

D.C. Circuit has observed that the “term ‘deliberative’ does not add a great deal of substance to

the term ‘pre-decisional,’” Nat’l Sec. Archive v. CIA, 752 F.3d 460, 463 (D.C. Cir. 2014) (citing

20
Access Reports v. U.S. Dep’t of Justice, 926 F.2d 1192, 1195 (D.C. Cir. 1991)), “‘deliberative’ in

this context means, in essence, that the communication is intended to facilitate or assist

development of the agency’s final position on the relevant issue,” id. (citing Russell v. Dep’t of

the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982)).

The deliberative process privilege “does not protect documents in their entirety; if the

government can segregate and disclose non-privileged factual information within a document, it

must.” Loving, 550 F.3d at 38 (citing Army Times Publ’g Co. v. Dep’t of Air Force, 998 F.2d

1067, 1071 (D.C. Cir. 1993)). The D.C. Circuit has held that an agency may satisfy its

segregability obligations by (1) providing a Vaughn index that adequately describes each

withheld document and the exemption under which it was withheld; and (2) submitting a

declaration attesting that the agency released all segregable material. See, e.g., id. at 41 (stating

that “the description of the document set forth in the Vaughn index and the agency’s declaration

that it released all segregable material” are “sufficient for [the segregability] determination”);

Johnson, 310 F.3d at 776 (upholding agency’s segregation efforts based on “comprehensive

Vaughn index” and “the affidavits of” agency officials).

2. Analysis

“Here, portions of two documents comprised of emails totaling 39 pages [were] withheld

in part pursuant to the deliberative process privilege.” Epstein Decl. ¶ 31. As reflected in HHS’s

Vaughn Index, the redactions affect eight separate emails among members of ACF or HHS staff.

See Vaughn Index. The ACF FOIA officer attests that the first of the two documents, released to

the plaintiff on August 18, 2015, “discusses possible and optimal uses of unspent funds and the

effect of the unspent funds on requests for future funding for the ORR program,” and that “[t]he

redacted portions of the emails contain staff and grantee personnel opinions and proposals about

21
the funds before ACF made a final decision as to use of the funds and whether to request future

funding for the ORR program.” Id. ¶ 33. She further attests that the second document, released

to the plaintiff on July 27, 2015, “consists of an email exchange between HHS staff pertaining to

an incident involving an [unaccompanied child],” and that “the redacted portions cover[] a staff

discussion of relevant facts and recommendations relating to possible funding and cost savings in

the [unaccompanied alien children] program.” Id. ¶ 34. The Vaughn index reflects these

assertions and provides additional detail regarding the authors, recipients, and contents of each

redacted intra-agency email. Finally, the ACF FOIA Officer’s declaration attests to personal

review of all records in this case, and her belief that “all reasonably segregable, non-exempt

information has been released.” Id. ¶ 36.

The Court is satisfied that HHS has “provide[d] in its declaration and Vaughn index

precisely tailored explanations for each withheld record at issue,” Nat’l Sec. Counselors v. CIA,

960 F. Supp. 2d 101, 188 (D.D.C. 2013), and that those explanations adequately display the pre-

decisional and deliberative nature of each of the documents described therein.

The plaintiff appears to concede that Exemption 5 applies to the withheld information as

described by the agency, but nevertheless asserts he is entitled to in camera review of the

information withheld under Exemption 5 on two grounds. First, the plaintiff asserts a need to

test the veracity of the agency’s attestations, contending that a “lack of credibility is present in

the case at bar” such that “the [d]efendant cannot be trusted to provide accurate descriptions of

redactions listed in a Vaughn index.” Pl.’s Opp’n at 7. In support of this contention, he cites

Judicial Watch, Inc. v. Dep’t of the Army, 402 F. Supp. 2d 241, 248 (D.D.C. 2005), in which the

court conducted in camera review after learning that the agency had in an earlier Vaughn Index

mischaracterized information withheld from the plaintiff. The court explained that it could not

22
“be sure that the defendant’s error [in describing withheld information] was not repeated,” and

thus undertook the in camera review the defendant sought. Id. In this case, by contrast, no

reason has been presented by the plaintiff or the procedural history of this case to cast any doubt

on the agency’s descriptions of withheld information. Accordingly, in camera review of the

withheld information in this case is not warranted on the first ground advanced by the plaintiff.

As a second basis for in camera review of the withheld material, the plaintiff argues that

“[t]he deliberative process privilege is unavailable when government misconduct is present,”

invoking what he styles as an “exception” to Exemption 5’s protection for materials covered by

that privilege. Pl.’s Opp’n at 7–8. In support of the existence of that purported exception, he

cites Neighborhood Assistance Corp. of Am. v. U.S. Dep’t of Housing & Urban Dev., 19 F. Supp.

3d 1, 14 (D.D.C. 2013), which, after explaining that “our Court of Appeals has never squarely

applied [a government misconduct] exception,” went on to conclude that “to preclude application

of the deliberative process privilege in the FOIA context, the claimed governmental misconduct

must be severe enough to qualify as nefarious or extreme government wrongdoing.” Id. at 13–

14. Neighborhood Assistance cites two other district court opinions finding that a “narrow[]”

“government-misconduct exception” applies and can overcome the deliberative process privilege

otherwise available under the FOIA. See Nat’l Whistleblower Ctr. v. Dep’t of Health & Human

Servs., 903 F. Supp. 2d 59, 66, 69 (D.D.C. 2012); ICM Registry, LLC v. U.S. Dep’t of

Commerce, 538 F. Supp. 2d 130, 133 (D.D.C. 2008). These cases rely, in turn, upon the D.C.

Circuit’s decision in In Re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997), in which the Court stated

that “where there is reason to believe . . . documents sought may shed light on government

misconduct, the [deliberative process] privilege is routinely denied.” Id. at 738 (internal

quotation marks omitted).

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 This Court is not persuaded that the so-called “government misconduct” exception

suggested in In Re Sealed Case applies in the FOIA context. In Re Sealed Case did not involve

consideration of the FOIA, addressing instead the scope of the “common law” deliberative

process privilege where the White House withheld documents in response to a grand jury

subpoena. See id. at 734, 737. Nor did that decision suggest that its discussion of alleged

government misconduct and the deliberative process privilege applied in the context of the

FOIA. On the contrary, In Re Sealed Case specifically notes that any ability of the deliberative

process privilege to be overcome by a demonstrated need “is not an issue in FOIA cases because

the courts have held that the particular purpose for which a FOIA plaintiff seeks information is

not relevant in determining whether FOIA requires disclosure.” Id. at 737 n.5.

This reading of In Re Sealed Case is in accordance with an understanding of the FOIA

well-established in this Circuit: Exemption 5’s protection of privileged materials is not subject to

the same exceptions to which the common law privilege is susceptible. As the D.C. Circuit has

explained, “Exemption 5 ‘protects only those memoranda which would not normally be

discoverable in civil litigation against an agency,’” and thus, the exemption protects from

disclosure some materials that, if the common law privilege were at issue, might be disclosed

pursuant to “case-specific exceptions.” Stonehill v. IRS, 558 F.3d 534, 539 (D.C. Cir. 2009)

(emphasis added) (quoting Ryan v. Dep’t of Justice, 617 F.2d 781, 790 (D.C. Cir. 1980)); see

also Williams & Connolly v. SEC, 662 F.3d 1240, 1244 (D.C. Cir. 2011) (noting under the

FOIA, a party’s “notes not turned over in [a] criminal trial still remain . . . work product material

not ordinarily discoverable in civil proceedings” and thus protected by the FOIA, even though

“[i]n criminal trials, evidentiary privileges may give way for any number of reasons”).

Accordingly, the Court concludes that the government misconduct exception recognized in In Re

24
Sealed Case cannot overcome an otherwise valid withholding pursuant to Exemption 5. For this

reason, the plaintiff’s request for in camera review on the ground of a government misconduct

exception to Exemption 5 is rejected.

The plaintiff further contends that “a finding of bad faith is not a prerequisite to in

camera review,” Pl.’s Reply at 4, citing Meeropol v. Meese, 790 F.2d 942, 958 (D.C. Cir. 1986),

in which the D.C. Circuit explained that “a trial judge may order such an inspection ‘on the basis

of an uneasiness, on a doubt he wants satisfied before he takes responsibility for a de novo

determination,’” id. (quoting Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978)). Yet, while

district courts generally enjoy broad discretion in determining whether to conduct in camera

review in FOIA proceedings, the D.C. Circuit has cautioned that “when the agency meets its

burden by means of affidavits, in camera review is neither necessary nor appropriate.” Larson,

565 F.3d at 870 (internal quotation marks omitted); see also ACLU v. U.S. Dep’t of Justice, 640

Fed. App’x 9, 12 (D.C. Cir. 2016) (per curiam) (“find[ing] it unnecessary to review the

documents to determine whether the information has been properly withheld” given the

sufficiency of the agency declaration). In light of HHS’s thorough declaration and Vaughn Index

appropriately describing the bases for invoking the deliberative process privilege and satisfying

its segregability obligations, in camera review is “neither necessary nor appropriate.” Larson,

565 F.3d at 870. 6

Consequently, this Court declines to review the redacted documents in camera.

IV. CONCLUSION

As explained above, the Court finds that the agency conducted an adequate search for

records responsive to requests in Items 1 and 16–20 and appropriately invoked the deliberative

6
The ACF FOIA Officer’s declaration as to the segregability of the information contained within the two
documents at issue additionally satisfies the agency’s segregability obligations. See Loving, 550 F.3d at 41.

25
process privilege under FOIA Exemption 5 to withhold information in a small part of the

produced records. Accordingly, the agency’s Motion for Summary Judgment is GRANTED.

Date: October 11, 2016 Digitally signed by Hon.
Beryl A. Howell
DN: cn=Hon. Beryl A.
Howell, o=U.S. District
Court for the District of
Columbia, ou=Chief Judge,
email=Howell_Chambers@
dcd.uscourts.gov, c=US
Date: 2016.10.11 10:51:43
-04'00'
__________________________
BERYL A. HOWELL
Chief Judge

26