UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARYELLEN TRAUTMAN, et al.,
Plaintiffs,
v. Civil Action No. 16-cv-1629 (DLF)
DEPARTMENT OF JUSTICE, et al.,
Defendants.
MEMORANDUM OPINION
Maryellen Trautman and Anthony Clark bring this suit alleging that the Department of
Justice and the National Archives and Records Administration (NARA) unlawfully withheld
records in violation of the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Before the
Court is the defendants’ Motion for Summary Judgment. Dkt. 23. For the reasons that follow,
the Court will grant the motion in part and deny it in part.
I. BACKGROUND
A decade ago, Maryellen Trautman, then a NARA employee, filed a complaint with
NARA alleging that the Archivist of the United States, Allen Weinstein, engaged in
“inappropriate or improper conduct.” See Simms Decl. ¶ 10, Dkt. 23-2. Trautman’s complaint
triggered a criminal investigation that started as a joint investigation with the Federal Bureau of
Investigation (FBI). Id. ¶ 12. Ultimately, however, no criminal charges were filed. Id.
On July 8, 2016, Trautman and author Anthony Clark (collectively the “plaintiffs”)
submitted joint FOIA requests to NARA and the following Department of Justice components:
Office of the Attorney General; Office of the Deputy Attorney General; Office of the Associate
Attorney General; FBI; and the Executive Office of United States Attorneys (collectively the
“defendants”). See Defs.’ Statement of Undisputed Material Facts ¶¶ 1, 7, 11, 17, Dkt. 23-10.
Although varying in scope, the plaintiffs’ FOIA requests generally sought agency records
relating to the earlier criminal investigation (identified as FBI Case Number 58A-WF-237717).
Id.
On August 11, 2016, the plaintiffs filed a complaint in this Court alleging that the
defendants had unlawfully withheld records responsive to the plaintiffs’ FOIA requests. Compl.
¶¶ 10, 15, 19, 23, Dkt. 1. That complaint was amended twice. 1 See First Am. Compl., Dkt. 3;
Second Am. Compl., Dkt. 5. On November 30, 2016, NARA answered the second amended
complaint, but the Department of Justice moved to dismiss all of count one against the offices of
the Attorney General, Deputy Attorney General, and Associate Attorney General, as well as part
of count two against the Executive Office of United States Attorneys. Dep’t of Justice’s Partial
Mot. to Dismiss at 1, Dkt. 11. The Department of Justice argued that dismissal was warranted
because the plaintiffs failed to exhaust their administrative remedies. Dep’t of Justice’s Br. in
Support of Partial Mot. for Summ. J. at 4, Dkt. 11.
That same day, the plaintiffs maneuvered to revive their requests for records from the
offices of the Attorney General, Deputy Attorney General, and Associate Attorney General by
submitting three new FOIA requests to the Office of Information Policy. See Castellano Decl.
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At the direction of the previously assigned judge, the plaintiffs amended their initial complaint
to comply with the Court’s local civil rule that governs the proper captioning of a civil
complaint. See Minute Order of Aug. 12, 2016; First Am. Compl. at 1, Dkt. 3; LCvR 5.1(c)(1).
Over a month later, the plaintiffs filed a second complaint amending count two, which claimed
FOIA violations by the Executive Office of United States Attorneys. See Second Am. Compl.
¶¶ 11–16, Dkt. 5.
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¶ 10, Dkt. 23-5; Defs.’ Statement of Undisputed Material Facts ¶ 11. Also, on December 20,
2016, the plaintiffs submitted a new FOIA request to the Executive Office for United States
Attorneys that asked for the same records previously sought in their July 8, 2016 request. See
Francis Decl. ¶ 15, Dkt. 23-6. The following day, the parties moved to stay proceedings before
this Court pending the plaintiffs’ exhaustion of administrative proceedings to address their new
FOIA requests. See Joint Mot. to Stay Proceedings, Dkt. 14.
After the administrative proceedings concluded, the parties returned to this Court. See
Joint Status Report ¶ 4, Dkt. 15 (indicating that the plaintiffs administratively exhausted their
FOIA claims). On March 17, 2017, the plaintiffs amended their complaint a third time to
“replace[] . . . the original FOIA claims with new, properly exhausted FOIA claims.” Joint
Status Report, Dkt. 15; see also Third Am. Compl., Dkt. 17. The Department of Justice and
NARA answered the amended complaint that same day. See Answer to Third Am. Compl., Dkt.
18. FOIA processing continued and was completed on June 29, 2017. See Defs.’ Statement of
Undisputed Material Facts ¶ 6 (stating that NARA’s Office of the Inspector General provided its
final response on that date). The Department of Justice and NARA then moved for summary
judgment on October 30, 2017. See Defs.’ Mot. for Summ. J., Dkt. 23. This case was reassigned
to the undersigned on December 4, 2017.
The issues in dispute have narrowed considerably since the inception of this lawsuit and
even more so since the defendants filed their motion for summary judgment. At the summary
judgment stage, the parties agreed the only remaining dispute was the adequacy of the
defendants’ searches. See Mem. in Support of Defs.’ Mot. for Summ. J. at 1, Dkt. 23 (“By
agreement of the parties, the only remaining issue to be resolved on summary judgment is the
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adequacy of defendants’ searches for responsive records.”). After the defendants filed their
motion for summary judgment, however, the plaintiffs conceded the adequacy of all of the
searches conducted by the Department of Justice and NARA’s Office of Inspector General. Pls.’
Opp’n at 4, Dkt. 24. As a result, the plaintiffs’ only remaining challenge is to the searches
performed by NARA’s Office of General Counsel, Equal Employment Opportunity Office, and
Office of Human Capital. Id. at 1.
II. LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure mandates that “[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In FOIA
litigation, when a federal agency moves for summary judgment all facts and inferences must be
viewed in the light most favorable to the requester, and the agency bears the burden of showing
that it complied with FOIA. Chambers v. U.S. Dep’t of Interior, 568 F.3d 998, 1003 (D.C. Cir.
2009).
To prevail under Rule 56, a federal agency “must prove that each document that falls
within the class requested either has been produced, is unidentifiable, or is wholly exempt from
the (FOIA’s) inspection requirements.’” Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982) (per
curiam) (quoting Nat’l Cable Television Ass’n, Inc. v. F.C.C., 479 F.2d 183, 186 (D.C. Cir.
1973)). The agency “must demonstrate that it conducted a search reasonably calculated to
uncover all relevant documents,” Weisberg v. Department of Justice, 705 F.2d 1344, 1350–51
(D.C. Cir. 1983) (internal quotation marks omitted), and must also explain in reasonable detail
why an exemption applies to any withheld records, Judicial Watch, Inc. v. Food & Drug Admin.,
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449 F.3d 141, 147 (D.C. Cir. 2006). “The system of disclosure established by the FOIA is
simple in theory . . . [a] federal agency must disclose agency records unless they may be
withheld pursuant to one of the nine enumerated exemptions listed in [5 U.S.C.] § 552(b).” U.S.
Dep’t of Justice v. Julian, 486 U.S. 1, 8 (1988).
“The peculiarities inherent in FOIA litigation, with the responding agencies often in sole
possession of requested records and with information searches conducted only by agency
personnel, have led federal courts to rely on government affidavits to determine whether the
statutory obligations of the FOIA have been met.” Perry, 684 F.2d. at 126. Accordingly, “[i]n
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 and alteration marks omitted). In the absence of evidence to the contrary, the agency’s
affidavit is presumed to have been submitted in good faith. SafeCard Servs., Inc. v. S.E.C., 926
F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks omitted).
If, on the other hand, “material facts are genuinely in issue or, though undisputed, are
susceptible to divergent inferences bearing upon an issue critical to disposition of the case,
summary judgment is not available” to the agency. Alyeska Pipeline Serv. Co. v. U.S. E.P.A.,
856 F.2d 309, 314 (D.C. Cir. 1988). That said, courts in this jurisdiction recognize that “the vast
majority of FOIA cases can be resolved on summary judgment.” Brayton v. Office of the U.S.
Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).
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III. ANALYSIS
Because the plaintiffs now concede that the searches by the Department of Justice and
NARA’s Office of Inspector General were adequate, the Court will grant summary judgment in
the defendants’ favor as to counts one, two, and three of the plaintiffs’ Third Amended
Complaint. See Pls.’ Opp’n at 4. As a result, the only outstanding dispute is whether the
searches conducted by NARA’s Office of General Counsel, Equal Employment Opportunity
Office, and Office of Human Capital were adequate.
When the adequacy of an agency’s search is contested, the factual question is “whether
the search was reasonably calculated to discover the requested documents, not whether it actually
uncovered every document extant.” SafeCard Servs., 926 F.2d at 1201. To secure summary
judgment, an 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 v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). To do so, the
agency must submit “[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 . . . .” Id. If “the agency affidavits . . . do not denote which files
were searched or by whom, do not reflect any systematic approach to document location, and do
not provide information specific enough to enable [a plaintiff] to challenge the procedures
utilized,” then genuine issues of material fact may exist about the adequacy of the agency’s
search. Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365, 371 (D.C. Cir. 1980). Significantly, the
D.C. Circuit recently emphasized that agency affidavits must “set forth the search terms and the
type of search performed with the specificity [this Circuit’s] precedent requires.” Reporters
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Comm. for Freedom of Press, 877 F.3d at 403 (internal quotation marks and alteration marks
omitted).
The defendants’ description of the searches conducted by NARA’s Office of General
Counsel, Equal Employment Opportunity Office, and Office of Human Capital fall short of this
standard. To support its argument that NARA’s searches were adequate, NARA relies on the
declaration of Joseph A. Scanlon, the FOIA and Privacy Act Officer in the Office of General
Counsel who “personally handled plaintiffs’ FOIA request,” and is therefore “aware of how
NARA . . . responded to plaintiffs’ request for information, as well as with how NARA responds
generally to requests for access.” Scanlon Decl. ¶¶ 1, 2, Dkt. 23-3. According to Scanlon, on
July 8, 2016, the plaintiffs submitted a FOIA request to NARA seeking “copies of all records
created, received and/or maintained by the [NARA], including cross-references, memorializing
the investigation initiated in reliance upon the complaint made Ms. Trautman and which was
memorialized in FBI Case Number: 58A-WF-237717.” Id. ¶ 5. The plaintiffs confined their
requested search to the period from June 1, 2007 through December 31, 2009, id. ¶ 7, and
demanded that NARA’s search should include the following record systems: “1) NARA 17:
Grievance Records; 2) NARA 18: General Law Files; 3) NARA 22: Employee-Related Files;
4) NARA 23: Office of Inspector General Investigative Case Files; 5) NARA 28: Tort and
Employee Claim Files; and 6) NARA 32: Alternate Dispute Resolution Files,” id. ¶ 6.
Scanlon’s declaration describes how he determined where records responsive to the
plaintiffs’ FOIA request were reasonably likely to be located. Id. ¶ 13. Scanlon explains that he
relied on his “familiarity with NARA, and the office’s function and responsibilities” and focused
his search efforts on offices responsible for investigative activity “based on employee
complaints, performance issues, or conduct issues.” Id. Scanlon also targeted the record systems
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that the plaintiffs identified in their FOIA request, except for the system described as NARA 22:
Employee-Related Files, which Scanlon “determined, based upon [his] knowledge of the records
system and the nature of the request . . . was not reasonably likely to hold responsive records.” 2
Id. ¶ 12.
Scanlon also identified “key” staff members in NARA offices who were reasonably
likely to contain potentially responsive records.” Id. ¶¶ 13–19. In particular, he directed the
staff members in the Office of General Counsel, the Equal Employment Opportunity Office, and
the Office of Human Capital to review paper files and electronic records for all agency records
related to the plaintiffs’ FOIA request. Id. ¶ 14; see also id., Ex. A at 1. Scanlan’s directive
quoted the plaintiffs’ FOIA request letter verbatim, and he provided staff with a copy of the
FOIA letter. Id. ¶ 14. Scanlan “identified the type of records to search for, locations to search
for the records, and the information for which they should search.” Id. And he directed the staff
members “to search for any potentially responsive records that may have been stored in the staff
members’ desks, file cabinets, file drawers, file rooms; in any account on desktop PCs, laptops,
smart phones, or other media; sent via email; or stored in any other location where agency
information is stored.” Id.
Staff from NARA’s Equal Employment Opportunity Office, Office of Human Capital,
and the attorney responsible for NARA’s alternative dispute resolution program found no
responsive records during their searches. Id. ¶ 15. As a result, Scanlon asked these offices for
more information about how they conducted the searches. The Equal Employment Opportunity
2
Scanlon noted in his declaration that NARA’s Office of Inspector General “held responsive
records” but that office “is an independent unit responsible for its own records and FOIA
requests.” Scanlon Decl. ¶ 11. Scanlon’s search was therefore limited to “NARA’s non-OIG
operational records . . . .” Id. As noted, supra p. 6, the plaintiffs concede that the search
conducted by NARA’s OIG was adequate.
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Office staff reported that “they searched staff email accounts, the shared and personal electronic
drives, and the office computer library and found no responsive records related to any
communications or complaints made by Ms. Trautman.” Id. Staff at the Office of Human
Capital reported that “they searched the Employee Relations database, where any potentially
relevant records would have been located, but found no records.” Id. The attorney responsible
for NARA’s alternative dispute resolution program reported that Trautman did not participate in
the program during the attorney’s tenure, and that any records from the timeframe identified in
the plaintiffs’ FOIA request had been properly disposed of in accordance with the office’s
documented destruction policy before the date of the plaintiff’s FOIA request. Id.
Scanlon also contacted NARA’s General Counsel who conducted a search and forwarded
Scanlon’s search request to an attorney in the Office of General Counsel and the Deputy
Archivist. Id. ¶ 16. NARA’s General Counsel “searched the folder he identified that could
reasonably contain potentially responsive records, including e-mails, regarding the matter at
issue in the plaintiffs’ request.” Id. ¶ 17. The other attorney in the Office of General Counsel
searched his email archive using the term “Trautman” and also “searched the folder identified
that could reasonably contain potentially responsive records.” Id. Finally, the Deputy Archivist
searched “her email and network drives for potentially responsive documents using the search
terms ‘MaryEllen,’ ‘Trautman,’ and ‘FBI and Weinstein.’” Id. None of these individuals found
responsive records. Id. ¶ 18.
Notwithstanding these descriptions of NARA’s searches, the plaintiffs contend that
Scanlon’s declaration is deficient because it fails to identify the search terms that the staff in the
Equal Employment Opportunity Office and the Office of Human Capital used to conduct their
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searches. Pls.’ Opp’n at 5. 3 NARA counters that “agencies are not required to provide
individualized descriptions of staff members’ efforts to locate records in different offices.”
Defs.’ Reply at 2, Dkt. 25. NARA asserts “[i]t is well-settled that in cases where documents are
collected from several different offices, unit-specific descriptions are not required, and the
affidavit of the officer ultimately responsible for the supervision of the FOIA search is
sufficient,” id. at 3 (internal quotation marks and alteration marks omitted), and cites four cases
in support of this proposition: Sea Shepherd Conservation Soc’y v. Internal Revenue Serv., 208
F. Supp. 3d 58 (D.D.C. 2016); Cause of Action v. Internal Revenue Serv., 125 F. Supp. 3d 145
(D.D.C. 2015); Judicial Watch, Inc. v. United States Dep’t of Health & Human Serv., 27 F.
Supp. 2d 240 (D.D.C.1998); and Exxon Corp. v. Federal Trade Comm., 466 F. Supp. 1088
(D.D.C. 1978). These cases, however, predate the D.C. Circuit’s recent decision in Reporters
Committee for Freedom of Press. That case makes clear that an agency declaration’s failure to
3
The plaintiffs also take issue with the fact that the Office of General Counsel, Equal
Employment Opportunity Office, and Office of Human Capital “provided differing levels of
detail with respect to the various electronic repositories that were searched but provided no
discernable reason for that distinction.” Pls.’ Opp’n at 5. The Court needs more detail from
NARA to assess this argument. Although Scanlon does not expressly say so, his declaration
suggests that the electronic repositories searched by these offices differed at least in part because
the plaintiffs’ FOIA request specified repositories that they wanted NARA to search, not all of
which appear to be used by every office that conducted a search. Scanlon Decl. ¶ 13; see also id.
Ex. A at 1 (listing record systems to be included in NARA’s searches). For example, Scanlon
contacted the Office of General Counsel about the repositories identified as NARA 18: General
Law Files, NARA 28: Tort and Employee Claim Files, and NARA 32: Alternate Dispute
Resolution Files, which the plaintiffs requested be searched. Id. Scanlon did not, however,
identify any repositories associated with the Equal Employment Opportunity Office, presumably
because none of the repositories identified by the plaintiffs are used by that office, but the
declaration is unclear on this point. Id. ¶ 13. Moreover, Scanlon indicated that he contacted the
Office of Human Capital about searching NARA 17: Grievance Records, id., but there is no
other reference to this repository in the declaration. The declaration states that the Office of
Human Capital searched the “Employee Relations” database because that database was “where
any potentially relevant records would have been located.” Id. ¶ 15. Scanlon does not explain,
however, whether the “Employee Relations” database is the same as NARA 17; nor does he
explain why NARA 17 was never searched.
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identify both the type of search performed and the terms used to search electronically-stored
materials results in a “principal flaw” even when components, offices, units, or divisions within
an agency conduct searches as part of a broader agency search. 877 F.3d at 403.
Reporters Committee for Freedom of Press involved a challenge to a FOIA search
conducted by several components of the FBI: three “divisions,” an “office,” a “unit,” and a
“section” of the FBI. In that case, the D.C. Circuit explicitly rejected the government’s argument
that “[a]n agency affidavit, describing a targeted search of a specific office as part of a broader
search, does not need to elaborate further to achieve the level of detail FOIA requires.” Id. at
404 (internal quotation marks omitted). The Circuit found fault with the FBI’s failure to “set
forth the search terms and the type of search performed with the specificity our precedent
requires.” Id. at 402 (internal quotation marks and alteration omitted). Based on the reasoning of
Reporters Committee for Freedom of Press, NARA must set forth the search terms and the type
of search performed with specificity.
NARA next argues that any defect in Scanlon’s description of the searches conducted by
NARA’s Office of General Counsel, Equal Employment Opportunity Office, and the Office of
Human Capital is irrelevant because Scanlon ultimately determined that NARA’s Office of the
Inspector General was the only office that had responsive records. Defs.’ Reply at 4–5. But
Scanlon’s declaration expressly states that he made this determination “[b]ased on the responses
received from the offices that searched for responsive records and the information provided to
me by individuals with direct knowledge of the events that are the subject of the request.”
Scanlon Decl. ¶ 20 (emphasis added). Because the searches conducted by NARA’s Office of
General Counsel, Equal Employment Opportunity Office, and Office of Human Capital informed
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Scanlon’s determination that the Office of the Inspector General was the only office with
responsive records, those offices’ searches are relevant.
NARA’s final counterargument fails for the same reason. According to NARA, the
plaintiffs’ claim against NARA in count four is moot because NARA’s Office of Inspector
General “ultimately located, processed, and produced the very records that plaintiffs sought—
i.e.,[] records ‘memorializing’ the investigation in question . . . .” Defs.’ Reply at 6 (“Having
received precisely the records they requested, and having waived any challenge to redactions or
withholdings in those records, plaintiffs are not suffering any cognizable injury that is
redressable under FOIA.”). As noted, however, NARA’s assertion that the records from the
Office of the Inspector General were the only records responsive to the plaintiffs’ FOIA request
is derived, at least in part, from the searches conducted by NARA’s Office of General Counsel,
Equal Employment Opportunity Office, and Office of Human Capital. Scanlon Decl. ¶ 20. But
the Court concludes that it has insufficient information to assess the adequacy of those searches,
and if additional searches wind up being necessary, there remains the possibility that NARA
might find additional responsive records.
Absent additional information about the searches conducted by NARA’s Office of
General Counsel, Equal Employment Opportunity Office, and Office of Human Capital, the
Court is unable to determine whether these searches were adequate. Accordingly, consistent
with this Circuit’s precedent, NARA shall identify the search terms that the staff members in
these offices used to search their electronic records, as well as the reason for any differences in
the record systems they searched. See Reporters Comm. for Freedom of Press, 877 F.3d at 403.
NARA shall also clarify how staff members searched their desks, file cabinets, file drawers and
file rooms for nonelectronic records. See id.
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CONCLUSION
For the foregoing reasons, the defendants’ Motion for Summary Judgment, Dkt. 23, is
granted in part with respect to counts one, two and three of the Third Amended Complaint, Dkt.
17, and denied in part without prejudice with respect to count four. A separate order consistent
with this decision accompanies this memorandum opinion.
________________________
DABNEY L. FRIEDRICH
United States District Judge
Date: July 17, 2018
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