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Broward Bulldog, Inc. v. United States Department of Justice

United States District Court, S.D. Florida

May 16, 2017

BROWARD BULLDOG, INC., et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.

          ORDER

          CECILIA M. ALTONAGA UNITED STATES DISTRICT JUDGE

         THIS 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[1]; Defendants' Replies [ECF Nos. 79, 88[2]; the parties' additional written submissions;[3] and applicable law.

         I. BACKGROUND

         Plaintiffs 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”[4]). (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.

         A. Procedural Background

         The 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] 5[5]), 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).

         On 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]).

         The 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, 2017.

         B. Second and Third MSJ Issues

         In the 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).

         II. LEGAL STANDARDS

         A. The FOIA and Summary Judgment Generally

         “The 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)).

         The 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, [6] in camera review, or through a combination of these methods.” Id. at 1258 (alteration and footnote call number added; emphasis in original; citation omitted).

         FOIA 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).

         “The 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).

         B.FOIA Exemptions 1, 3, 5, 6, 7(C)-(E)

         The 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).

         Below is a summary of the seven statutory exemptions the Government invokes in its Motions to withhold and redact information.

         1. Exemption 1 - Classified Information

         Exemption 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 omitted)).

         While 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.

         2. Exemption 3 - Information Exempted from Disclosure by Statute

         Exemption 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).

         3. Exemption 5 - Privileged Documents

         Exemption 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).

         One of 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).

         “To 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 omitted).

         In Environmental Protection Agency v. Mink, [7] 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.

         In the 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).

         4. Exemption 6 - Exemption of Personnel and Medical Files

         Exemption 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)).

         In 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 omitted).

         5. Exemptions 7(C)-(E)

         a. Exemption 7(C) - Protection of Personal Privacy

         Exemption 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)).

         b. Exemption 7(D) - Confidential Source Information

         Exemption 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 original).

         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.

         c. Exemption 7(E) - Law Enforcement Techniques and Procedures

         Exemption 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).

         III. ANALYSIS

         A. Introduction

         At 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, [8] along with a Vaughn index (see Unclassified Summary Vaughn Index (“Vaughn Index”) [ECF No. 76-1-76-18]); as well as three declarations[9] from David M. Hardy[10] explaining the applicability of the invoked exemptions (see generally Second Hardy Decl.; Fourth Hardy Decl.; Fifth Hardy Decl.).

         The 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).

         B. Adequacy and Reasonableness of the FBI's Search

         The FBI 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 reasonable.

         “Under [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. 2009).

         “When 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).

         Hardy's declarations describe how the FBI conducted its search.[11] (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.).

         After 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).

         Hardy's 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) (citation omitted).

         Plaintiffs 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.[12] They claim “[m]any ...


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