United States District Court, S.D. Florida
CECILIA M. ALTONAGA UNITED STATES DISTRICT JUDGE
CAUSE came before the Court on Defendants, the
United States Department of Justice and the Federal Bureau of
Investigation's Motion for Summary Judgment on Count I
(“Second MSJ”) [ECF No. 66], and Motion for
Partial Summary Judgment on Count I (“Third MSJ”)
[ECF No. 83]. The Court has carefully considered the Motions;
Plaintiffs, Broward Bulldog, Inc. and Dan Christensen's
Opposition memoranda [ECF Nos. 73, 87; Defendants' Replies
[ECF Nos. 79, 88; the parties' additional written
submissions; and applicable law.
bring this case against the Government under the Freedom of
Information Act (“FOIA”), 5 U.S.C. section 552,
seeking records from a commission created to investigate the
September 11, 2001 terrorist attacks (the “Meese
Commission”). (See generally Complaint [ECF
No. 1]). The Court summarized the factual background
underlying Plaintiffs' FOIA request in the February 27
Order. (See February 27 Order 2-6). Because that
factual background remains the same, it is incorporated here.
Government first moved for summary judgment on December 30,
2016, seeking judgment on Counts II and III of the Complaint.
(See generally Motion for Summary Judgment
(“First MSJ”) [ECF No. 27]). At that time, the
Government had not fully processed Plaintiffs' first FOIA
request (see February 27 Order [ECF No. 58]
which was submitted by Plaintiffs to the FBI on April 8,
2015. Plaintiffs' first request sought transcripts of the
Meese Commission proceedings; an April 30, 2014 Memorandum
for the Record; drafts of the final Commission report;
several FBI briefings and summaries given to the Commission;
and a case file reviewed by the Commission regarding a family
that once lived in Sarasota, Florida (“First
Request” or “Count I”). (See
Defs.' SUF ¶¶ 1-2).
February 27, 2017, the Court issued an Order granting in part
and denying in part Defendants' First MSJ. (See
generally February 27 Order). Five days before the Court
issued its Order, the Government filed a Motion for
Continuance (“Extension Motion”) [ECF No. 52],
requesting leave to move for summary judgment on Count I on
the basis it was unable to do so in the First MSJ. The
Government explained it had just finished producing records
responsive to Count I and wanted an opportunity to move for
summary judgment, as “FOIA cases are generally and most
appropriately resolved on motions for summary
judgment.” (Id. 4 (citations omitted)). At
calendar call, on February 28, 2017 (see Minute
Entry [ECF No. 59]), the Court granted in part
Defendants' Extension Motion and allowed the Government
to file a second motion for summary judgment to address Count
I (see Order [ECF No. 60]).
Government filed its Second MSJ on March 14, 2017 (see
generally Second MSJ); however, more than two weeks
later, on March 31, 2017, it filed a Motion for Leave [ECF
No. 75], to file a third motion for summary judgment. In the
Motion for Leave, the Government explained it had located an
additional 302 pages of records responsive to Count I and
sought to supplement its Second MSJ, stating a ruling on the
pending motion would not fully resolve the case. (See
Id. 4-5). After considering the parties' submissions
(see generally id.; Plaintiffs' Opposition [ECF
No. 80]; Defendants' Reply [ECF No. 81]), the Court
granted the Motion for Leave (see Order [ECF No.
82]), and the Government filed its Third MSJ on April 6,
Second and Third MSJ Issues
Second and Third Motions, the Government requests summary
judgment on Count I of the Complaint, corresponding to
Plaintiffs' First Request. (See generally Second
MSJ; Third MSJ). Defendants argue the Court should rule as a
matter of law: (1) they have conducted a reasonable search to
“locate all records responsive to Plaintiffs' FOIA
request, ” and (2) the FBI “lawfully asserted
FOIA exemptions to withhold certain information.”
(Second MSJ 35; Third MSJ 20). Plaintiffs dispute this,
insisting: (1) “the FBI has not shown” it
“conducted an adequate search for responsive records,
” and (2) disputed issues of material fact remain
regarding exemptions asserted by the FBI to redact and
withhold information. (Second Resp. 41; see Third
Resp. 5, 23). There is also a third issue regarding whether
the FBI must produce certain records in this case which are
also before Judge William Zloch for review in Broward
Bulldog, Inc., et al. v. U.S. Department of Justice, et
al., 12-CV-61735-WJZ (S.D. Fla. 2012)
(“Broward Bulldog I”). The FBI asserts
it does not have to reproduce these records (see
Second Reply 2-4), while Plaintiffs maintain the FBI must
provide them (see Second Resp. 9-14).
The FOIA and Summary Judgment Generally
purpose of FOIA is to encourage public disclosure of
information so citizens may understand what their government
is doing.” Office of Capital Collateral Counsel, N.
Region of Fla. ex rel. Mordenti v. U.S. Dep't of
Justice, 331 F.3d 799, 802 (11th Cir. 2003).
“Congress enacted FOIA to ‘enable the public to
have access to government information that is unnecessarily
shielded from public view.'” Miccosukee Tribe
of Indians of Fla. v. United States, 516 F.3d 1235, 1244
(11th Cir. 2008) (quoting Nadler v. U.S. Dep't of
Justice, 955 F.2d 1479, 1484 (11th Cir.1992)).
Accordingly, “the records at issue . . . are presumed
to be subject to disclosure unless” Defendants
“affirmatively establish . . . the requested records
fall into one of FOIA's exemptions.” Office of
Capital Collateral Counsel, 331 F.3d at 802 (alterations
added; citation omitted); see also Light v. U.S.
Dep't of Justice, 968 F.Supp.2d 11, 26 (D.D.C. 2013)
(“It is clear that ‘disclosure, not secrecy, is
the dominant objective of the [FOIA].'” (alteration
added; citation omitted)).
FOIA “vests jurisdiction in federal district courts to
enjoin an ‘agency from withholding agency records and
to order the production of any agency records improperly
withheld from the complainant.'” Kissinger v.
Reporters Comm. for Freedom of the Press, 445 U.S. 136,
139 (1980) (quoting 5 U.S.C. § 552(a)(4)(B)). Courts
review an agency's decision to withhold its records
de novo, and the Government bears the burden of
justifying any disputed exemptions. See id.; see
also Miccosukee Tribe of Indians of Fla., 516 F.3d at
1258. In assessing the evidence, courts must determine
whether the agency had an “adequate factual
basis” for invoking the exemptions. Miccosukee
Tribe of Indians of Fla., 516 F.3d at 1244. “[I]n
this Circuit, an adequate factual basis may be established,
depending on the circumstances of the case, through
affidavits, a Vaughn Index,  in camera review,
or through a combination of these methods.”
Id. at 1258 (alteration and footnote call number
added; emphasis in original; citation omitted).
cases are generally resolved on motions for summary judgment.
Id. The court may only enter summary judgment if the
pleadings, discovery and disclosure materials on file, and
any affidavits show “there is no genuine issue as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a), (c). An issue of
fact is “material” if it might affect the outcome
of the case under the governing law. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). It is
“genuine” if the evidence could lead a reasonable
jury to find for the non-moving party. See id.;
see also Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
relevant question on summary judgment, viewed in the light
most favorable to the person making the FOIA request, is
whether an agency conducted a reasonable and adequate search
‘calculated to uncover all relevant documents' and
whether any withholdings were justified.” Guidry v.
Comey, No. 4:15CV23-RH/CAS, 2016 WL 1068611, at *3 (N.D.
Fla. Feb. 4, 2016), report and recommendation
adopted, No. 4:15CV23-RH/CAS, 2016 WL 1069669 (N.D. Fla.
Mar. 17, 2016) (citations omitted). Where “the moving
party fails to demonstrate the absence of a genuine issue of
material fact, the motion should be denied.” Kernel
Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir.
2012) (citations omitted).
Exemptions 1, 3, 5, 6, 7(C)-(E)
Government may invoke nine statutory exemptions to withhold
records from public disclosure. See 5 U.S.C.
§§ 552(b)(1)-(9); see also Chilivis v.
S.E.C., 673 F.2d 1205, 1210-11 (11th Cir. 1982)
(“[R]ecords and documents held by federal agencies are
presumed subject to disclosure unless the agency can
establish that the material falls into one of the FOIA's
nine exemptions.” (alteration added; citations
omitted)). These exemptions attempt to “balance the
public's need for access to information with the
Government's need, under some circumstances, for
confidentiality.” Chilivis, 673 F.2d at 1210
(citation omitted). Because of the FOIA's presumption in
favor of public disclosure, these “exemptions are . . .
narrowly construed.” F.B.I. v. Abramson, 456
U.S. 615, 630 (1982) (alteration added; citation omitted).
is a summary of the seven statutory exemptions the Government
invokes in its Motions to withhold and redact information.
Exemption 1 - Classified Information
1 protects classified information from disclosure; it exempts
documents “specifically authorized under criteria
established by an Executive order to be kept secret in the
interest of national defense or foreign policy and . . .
[documents that] are in fact properly classified pursuant to
such Executive order.” 5 U.S.C. § 552(b)(1)
(alterations added). Because of the possible strong
implications for national security, courts should defer to an
agency's decision to withhold information under Exemption
1. See Halperin v. Cent. Intelligence Agency, 629
F.2d 144, 147-48 (D.C. Cir. 1980); see also Military
Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.
1981) (stating courts are required to “accord
substantial weight to an agency's affidavit concerning
the details of the classified status of the disputed
record” (internal quotation marks and citation
the burden of proof is on the Government, “a reviewing
court ‘must recognize that the Executive departments
responsible for national defense and foreign policy matters
have unique insights into what adverse affects [sic] might
occur as a result of public disclosures of a particular
classified record.'” Krikorian v. U.S.
Dep't of State, 984 F.2d 461, 464 (D.C. Cir. 1993)
(alteration in original) (quoting Military Audit
Project, 656 F.2d at 738). “Judges, moreover, lack
the expertise necessary to second-guess such agency opinions
in the typical national security FOIA case.”
Id. (quoting Halperin, 629 F.2d at 148).
However, the Government must present “reasonable
specificity of detail rather than merely conclusory
statements” to be entitled to summary judgment in its
favor under Exemption 1. Halperin, 629 F.2d at 148.
If the Government provides a detailed explanation, “the
court is not to conduct a detailed inquiry to decide whether
it agrees with the agency's opinions; to do so would
violate the principle of affording substantial weight to the
expert opinion of the agency.” Id.
Exemption 3 - Information Exempted from Disclosure by
3 protects from disclosure documents that are
“specifically exempted from disclosure by
statute.” 5 U.S.C. § 552(b)(3). It “allows
for legislative override of [the] FOIA's presumption of
disclosure.” Castagna v. Sec'y of Health &
Human Servs., No. 99-411V, 2011 WL 4348135, at *16 (Fed.
Cl. Aug. 25, 2011) (alteration added). As with Exemption 1,
courts should defer to an agency's decision to withhold
information under Exemption 3. See Halperin, 629
F.2d at 147-48. Under Exemption 3, the Government need only
show a statute falls under Exemption 3 and that the withheld
material falls within the statute. See Larson v.
Dep't of State, 565 F.3d 857, 865 (D.C. Cir. 2009).
This exemption is different from other FOIA exemptions
because “its applicability depends less on the detailed
factual contents of specific documents; the sole issue for
decision is the existence of a relevant statute and the
inclusion of withheld material within that statute's
coverage.” Goland v. Cent. Intelligence
Agency, 607 F.2d 339, 350 (D.C. Cir. 1978).
Exemption 5 - Privileged Documents
5 allows the Government to withhold “inter-agency or
intra-agency memorandums or letters that would not be
available by law to a party other than an agency in
litigation with the agency.” 5 U.S.C. § 552(b)(5).
“This means, in effect, privileged documents that
originated with the agency.” Touarsi v. U.S.
Dep't of Justice, 78 F.Supp.3d 332, 344 (D.D.C.
2015) (citation omitted).
the recognized privileges is the “deliberative
process” privilege, which encompasses documents
“reflecting advisory opinions, recommendations, and
deliberations comprising part of a process by which
governmental decisions and policies are formulated.”
Moye, O'Brien, O'Rourke, Hogan & Pickert v.
Nat'l R.R. Passenger Corp., 376 F.3d 1270, 1277
(11th Cir. 2004) (citation omitted); see also U.S.
Dep't of Interior v. Klamath Water Users Protective
Ass'n, 532 U.S. 1, 8 (2001). “The purpose of
this privilege is to allow agencies to freely explore
possibilities, engage in internal debates, or play
devil's advocate without fear of public scrutiny.”
Moye, O'Brien, O'Rourke, Hogan &
Pickert, 376 F.3d at 1277 (citing Klamath Water
Users, 532 U.S. at 8-9).
fall within the deliberative process privilege, a document
must be both ‘predecisional' and
‘deliberative.'” Id. (citation
omitted). A document is predecisional if it was
“prepared in order to assist an agency decision-maker
in arriving at his decision and may include recommendations,
draft documents . . . and other subjective documents which
reflect the personal opinions of the writer rather than the
policy of the agency.” Id. (alteration added;
citations omitted). “A document is
‘deliberative' if the disclosure of the materials
would expose an agency's decision-making process in such
a way as to discourage candid discussion within the agency
and, thereby, undermine the agency's ability to perform
its functions.” Id. at 1278 (citations
Environmental Protection Agency v. Mink,  the Supreme
Court “distinguished between deliberative and factual
materials: ‘Exemption 5 . . . requires different
treatment for material reflecting deliberative or
policy-making processes on the one hand, and purely factual,
investigative matters on the other.'” Trentadue
v. Integrity Comm., 501 F.3d 1215, 1227 (10th Cir. 2007)
(quoting Mink, 410 U.S. at 73). It held
“memoranda consisting only of compiled factual
material” were not protected unless the factual
material was intertwined with deliberative process material.
Mink, 410 U.S. at 89.
Eleventh Circuit, “[t]he only inquiry that should be
made in deciding whether something should be denoted opinion,
and hence deliberative, is: Does the information reflect the
give-and-take of the consult[at]ive process?” Fla.
House of Reps. v. U.S. Dep't of Commerce, 961 F.2d
941, 949 (11th Cir. 1992) (alterations added). “The
underlying purpose of the deliberative process privilege is
to ensure that agencies are not forced to operate in a fish
bowl. . . . Therefore, courts must focus on the effect of the
material's release.” Moye, O'Brien,
O'Rourke, Hogan, & Pickert, 376 F.3d at 1278
(internal citations omitted; alteration added).
Exemption 6 - Exemption of Personnel and Medical
6 allows the Government to withhold “personnel and
medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(6). In Department
of Air Force v. Rose, 425 U.S. 352 (1976), the Supreme
Court held Exemption 6 does not “create a blanket
exemption for personnel files, ” id. at 371
(alteration added), and “does not protect against
disclosure every incidental invasion of privacy[, ] [but]
only such disclosures as constitute ‘clearly
unwarranted' invasions of personal privacy, ”
id. at 382 (alterations added). The “primary
purpose” of Exemption 6 is to “protect
individuals from the injury and embarrassment that
can result from the unnecessary disclosure of
personal information.” News-Press v. U.S.
Dep't of Homeland Sec., 489 F.3d 1173, 1196 (11th
Cir. 2007) (emphasis in original; internal quotation marks
omitted) (quoting U.S. Dep't of State v. Wash. Post
Co., 456 U.S. 595, 599 (1982)).
Rose, the Supreme Court explained Exemption 6
requires “a balancing of the individual's right of
privacy against the preservation of the basic purpose of the
[FOIA] to open agency action to the light of public
scrutiny.” 425 U.S. at 372 (alteration added; internal
quotation marks omitted). The Eleventh Circuit has stated
“the crux of Exemption 6 is its second prong, which
asks whether disclosure ‘would constitute a clearly
unwarranted invasion of personal privacy.'”
News-Press, 489 F.3d at 1197 (citations omitted).
The Eleventh Circuit has also described “an
agency's burden under Exemption 6” as
“onerous.” Id. at 1198 (alteration
added) (citing Stern v. F.B.I., 737 F.2d 84, 91
(D.C. Cir. 1984) (Exemption 6's language
“require[s] a balance tilted emphatically in favor of
disclosure” (alteration added)) (other citations
Exemption 7(C) - Protection of Personal Privacy
7(C) covers records compiled for law enforcement purposes and
allows the Government to withhold information that
“could reasonably be expected to constitute an
unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(7)(C). Exemption 7(C) is similar to Exemption 6
but less onerous, see News-Press, 489 F.3d at 1198,
because the agency need only show disclosure “could
reasonably be expected” to constitute an unwarranted
invasion of personal privacy. 5 U.S.C. § 552(b)(7)(C).
Under Exemption 6, the Government must show disclosure
“would” constitute an unwarranted invasion of
personal privacy. Id. § 552(b)(6); see also
U.S. Dep't of Def. v. Fed. Labor Relations Auth.,
510 U.S. 487, 496 n.6 (1994) (“Exemption 7(C) is more
protective of privacy than Exemption 6 . . . . Exemptions
7(C) and 6 differ in the magnitude of the public interest
that is required to override the respective privacy interests
protected by the exemptions.” (alteration added)).
Exemption 7(D) - Confidential Source Information
7(D) permits withholding of information that “could
reasonably be expected to disclose the identity of a
confidential source.” 5 U.S.C. § 552(b)(7)(D). It
“has long been recognized as the strongest of all of
[the] FOIA's law enforcement exemptions.”
Bullock v. F.B.I., 587 F.Supp.2d 250, 253 (D.D.C.
2008) (alteration added; citation omitted). “A source
is confidential within the meaning of exemption 7(D) if the
source provided information under an express assurance of
confidentiality or in circumstances from which such an
assurance could be reasonably inferred.” Williams
v. F.B.I., 69 F.3d 1155, 1159 (D.C. Cir. 1995) (internal
quotation marks and citations omitted). The inquiry focuses
on whether “the particular source spoke with
an understanding that the communication would remain
confidential.” U.S. Dep't of Justice v.
Landano, 508 U.S. 165, 172 (1993) (emphasis in
Landano, the Supreme Court held “the
Government is not entitled to a presumption that a source is
confidential within the meaning of Exemption 7(D) whenever
the source provides information to the FBI in the course of a
criminal investigation.” Id. at 181. Instead,
circumstances such as the nature of the crime and the
source's relation to the crime must be considered in
determining whether the source spoke with the understanding
the information would remain confidential. See id.
Exemption 7(E) - Law Enforcement Techniques and
7(E) applies to information that “would disclose
techniques and procedures for law enforcement investigations
or prosecutions . . . if such disclosure could reasonably be
expected to risk circumvention of the law.” 5 U.S.C.
§ 552(b)(7)(E) (alteration added). “A highly
specific burden of showing how the law will be circumvented
is not required; instead, exemption 7(E) only requires that
the agency demonstrate logically how the release of the
requested information might create a risk of circumvention of
the law.” Touarsi, 78 F.Supp.3d at 348
(alterations, internal quotation marks, and citations
omitted). “While Exemption 7(E)'s protection is
generally limited to techniques or procedures that are not
well-known to the public, even commonly known procedures may
be protected from disclosure if the disclosure could reduce
or nullify their effectiveness.” Am. Immigration
Lawyers Ass'n v. U.S. Dep't of Homeland Sec.,
852 F.Supp.2d 66, 78 (D.D.C. 2012) (citations omitted).
issue in the Second and Third Motion are: (1) the adequacy of
the Government's search for responsive records; (2)
whether the FBI must reproduce records already provided in
Broward Bulldog I; and (3) the adequacy of various
statutory exemptions claimed by the Government in withholding
information. The Government asserts it conducted an adequate
search for records, properly withheld documents duplicative
of records produced in Broward Bulldog I, and
correctly withheld information under numerous exemptions.
(See generally Second MSJ; Third MSJ). Plaintiffs
argue genuine issues of material fact remain regarding the
adequacy of the FBI's search and the claimed exemptions,
and contend the FBI must produce records in this case already
furnished in Broward Bulldog I. (See
generally Second Resp.; Third Resp.). Defendants
submitted the disputed documents, unredacted, for in
camera review,  along with a Vaughn index
(see Unclassified Summary Vaughn Index
(“Vaughn Index”) [ECF No. 76-1-76-18]);
as well as three declarations from David M. Hardy
explaining the applicability of the invoked exemptions
(see generally Second Hardy Decl.; Fourth Hardy
Decl.; Fifth Hardy Decl.).
Court will first address the adequacy of the FBI's search
for responsive records, and then consider whether the FBI
must produce the records already produced in Broward
Bulldog I. Finally, and most exhaustively, the Court
examines the redacted and withheld disputed documents one by
one, redaction by redaction, to determine whether the
Government has met its burden of “affirmatively
establish[ing] . . . the requested records fall into one of
[the] FOIA's exemptions.” Office of Capital
Collateral Counsel, 331 F.3d at 802 (alterations added)
(citing Chilivis, 673 F.2d at 1210-11).
Adequacy and Reasonableness of the FBI's Search
asserts it conducted an adequate and extensive search,
processing 1, 416 pages of responsive records. (See
Third MSJ 4-5). It assures Plaintiffs' concerns regarding
any possible deficiencies in the search and production of
records have been addressed. (See Id. 7). For their
part, Plaintiffs vehemently dispute the adequacy of the
search, accusing the Government of submitting declarations
that “contain blatantly misleading statements and raise
numerous factual issues.” (Second Resp. 17). According
to Plaintiffs, there are “red flag[s]” suggesting
the FBI “intentionally concealed responsive records,
” thereby “creating serious questions regarding
the completeness of the production.” (Id.
19-20, 22 (alterations added)). Because the law only requires
the FBI's search be reasonable, not exhaustive, the Court
finds the Government - through detailed declarations - has
met its burden of showing the search was adequate and
[the] FOIA, an adequate search is one that is
‘reasonably calculated to uncover all relevant
documents.'” Davidson v. U.S. Dep't of
State, 206 F.Supp.3d 178, 190 (D.D.C. 2016) (alteration
added) (quoting Morley v. C.I.A., 508 F.3d 1108,
1114 (D.C. Cir. 2007)). The agency does not “need to
show that its search was exhaustive, ” DelVecchio
v. I.R.S., 360 F. App'x 104, 108 (11th Cir. 2010)
(internal quotation marks and citation omitted), but it
“must conduct a good faith, reasonable search of those
systems of records likely to possess the requested”
documents, Marino v. Dep't of Justice, 993
F.Supp.2d 1, 9 (D.D.C. 2013) (citation omitted); see also
Pavlenko v. I.R.S., 356 F. App'x 293, 294 (11th Cir.
an agency seeks summary judgment on the basis that it
conducted an adequate search, it must provide a
‘reasonably detailed' affidavit describing the
scope of that search.” Davidson, 206 F.Supp.3d
at 190 (citations omitted). “It is not enough . . . for
the affidavit to state in conclusory fashion that the agency
conducted a review of [the files] which would contain
information that [the plaintiff] requested and did not find
anything responsive to the request.” Id.
(first alteration added; second and third alterations in
original; internal quotation marks and citation omitted). The
affidavit must be “reasonably detailed and not
controverted by contrary evidence or evidence of bad
faith.” Marino, 993 F.Supp.2d at 9 (citation
omitted). “Once an agency has made a prima
facie showing of adequacy, the burden shifts to the
plaintiff to provide countervailing evidence as to the
adequacy of the agency's search, ” Schoenman v.
F.B.I., 764 F.Supp.2d 40, 46 (D.D.C. 2011) (internal
quotation marks and citation omitted), and “demonstrate
the lack of a good faith search, ” Marino, 993
F.Supp.2d at 9 (citation omitted).
declarations describe how the FBI conducted its
search. (See generally Hardy
Fourth Decl.; Hardy Fifth Decl.). Upon receipt of
Plaintiffs' FOIA request, the FBI directed its search for
records to the FBI Director's Office, where two employees
directly involved with the Meese Commission's work
conducted the search. (See Hardy Fifth Decl. ¶
8). The two employees identified an electronic storage site
where documents related to the Meese Commission were stored,
and because the FBI “believed this electronic storage
contained all the [Meese] Commission records [P]laintiffs
were seeking, ” it did not look elsewhere.
(Id. (alterations added)). It then conducted
“a document-by-document search of all records” on
the electronic storage site and “located 896
pages” of responsive records. (Id. ¶ 9).
At that time, the FBI did not believe responsive records
existed in any other location and did not conduct additional
searches. (See id.).
the FBI produced its first batch of documents, Plaintiffs
questioned whether the search had been adequate, identifying
a list of missing records. (See Id. ¶ 10). The
FBI maintains even though it believed its original search
efforts were reasonable, it attempted to address
Plaintiffs' concerns by contacting the two employees who
conducted the original search. (See id.).
“[A]dditional inquiries” were made and “for
the first time” the FBI learned of “the existence
of” another electronic case file and “additional
records they believed” had been
“destroyed.” (Id. (alteration added)).
Some of the additional documents were located in Washington,
DC and were scheduled to be destroyed after having been held
for a year. (See id.). Upon learning the documents
still existed, the FBI requested the responsive documents be
produced to Plaintiffs. (See Id. ¶¶
11-12). Plaintiffs were notified of these additional
documents on March 24, 2017. (See Id. ¶ 12).
declarations regarding the FBI's search for records is
reasonably detailed, describing the steps the FBI took to
locate responsive records. (See, e.g., Hardy Fifth
Decl.). Because the declarations are detailed, the burden
shifts to Plaintiffs to “demonstrate the lack of a good
faith search, ” Marino, 993 F.Supp.2d at 9
(citations omitted), and “produce ‘countervailing
evidence' suggesting a genuine dispute of material fact
exists as to the adequacy of the search, ” Hunton
& Williams LLP v. U.S. Envtl. Prot. Agency, No. 15-
CV-1203-RC, 2017 WL 1207410, at *8 (D.D.C. Mar. 31, 2017)
state Hardy's “declarations” contain
“blatantly misleading statements and raise numerous
factual issues.” (Second Resp. 17). In support, they
note the FBI incorrectly anticipated producing documents in
December 2016 but was unable to meet this deadline. (See
Id. 17). Plaintiffs further question why the FBI
initially chose not to search the central records system and
instead relied on the Director's Office to respond to the
requests. (See Id. 17-18). They assert the FBI's
decision to maintain the Meese Commission records out of the
FBI's central records system raises a “red
flag” (id. 18), and contend the FBI's
identification of new records in March 2017 suggests the
“FBI Director” “intentionally concealed
responsive records” (id. 20). Plaintiffs argue
there is substantial evidence of bad faith on the FBI's
part and the searches were inadequate because the agency did
not immediately produce the responsive documents and instead
produced them late in in several rounds. They claim