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State ex rel. Schmidt v. United States Department of Defense

United States District Court, D. Kansas

March 21, 2018

STATE OF KANSAS, ex rel. DEREK SCHMIDT, in his official capacity as Attorney General of the State of Kansas, Plaintiff,


          Daniel D. Crabtree United States District Judge

         When reviewing whether an agency fulfills its duties in response to a Freedom of Information Act (“FOIA”) request, the court must ensure the agency faithfully adheres to the delicate balance FOIA aims to achieve. On one hand, FOIA desires “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption[, ] and to hold governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). So, courts must construe FOIA requests broadly to favor disclosure. Trentadue v. Integrity Comm., 501 F.3d 1215, 1226 (10th Cir. 2007). But FOIA's disclosure requirements have their limits. FOIA does not require agencies to conduct an exhaustive search of every record they possess. Trentadue v. FBI, 572 F.3d 794, 797 (10th Cir. 2009). And FOIA allows agencies to withhold certain types of information. See 5 U.S.C. § 552(b).

         Here, Kansas-the plaintiff-asked the United States Department of Defense-the defendant-to produce documents about President Obama's plan to close the military detention center in Guantanamo Bay (“GTMO”). When defendant did not comply with plaintiff's request immediately, plaintiff filed this suit. See Doc. 1. Defendant since has produced more than 2, 000 pages of documents about GTMO's closure. Defendant now moves for summary judgment, arguing that its response achieves the balance FOIA desires (Doc. 21). Plaintiff argues that the court should deny the motion because defendant has conducted an insufficient search, withheld documents impermissibly, and produced insufficient information to fulfill one of plaintiff's requests.

         For reasons explained below, the court grants defendant's motion in part and denies it in part. After reviewing the parties' submissions, the court concludes that no genuine dispute of material fact exists that defendant failed its FOIA obligations except for five documents, which the court will review in camera to determine if defendant properly withheld some information. After discussing the facts governing this motion, the court explains its reasoning.

         I. Facts

         The following facts are uncontroverted or, where controverted, are stated in the light most favorable to plaintiff, the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007).


         GTMO is a U.S. Naval base on the island of Cuba. In 2002, the U.S. government began detaining combatants captured in the Middle East. The base has been the source of controversy and in 2009, President Obama signed an Executive Order directing defendant to research the feasibility of closing GTMO and transferring detainees to, among other places, the U.S. mainland. Exec. Order No. 13, 492, 74 Fed. Reg. 4, 897, 4, 898 (Jan. 22, 2009). Soon after that order, defendant tasked the Office of Detainee Policy (“ODP”) to lead this research. The ODP is a department within the Office of the Undersecretary of Defense and is the lead office within defendant for detainee policy. When ODP began working on the GTMO closure plan, it required all employees to save emails about that plan in a separate folder in their email boxes and place any documents about the closure plan in a designated folder on the ODP's shared drive.

         On December 16, 2015, plaintiff sent defendant a FOIA request. Plaintiff asked defendant to produce information created between December 26, 2013, and December 16, 2015, about:

(a) the implementation of [President Obama's Executive Order], concerning the disposition of individuals detained at [GTMO] and the closure of the detention facilities located there;
(b) the transfer or potential transfer to the United States mainland of individuals currently detained at [GTMO];
(c) site visits to military bases or detention facilities in Kansas or any other State as part of, or related to, an effort to find a facility to house individuals currently detained at [GTMO];
(d) the modification or construction of any military base or federal or state-owned prison, penitentiary, or other detention facility for the purpose of housing individuals currently detained at [GTMO];
(e) any assessment of the suitability of any location at Fort Leavenworth, Kansas, or elsewhere within the State of Kansas, as a site for potentially housing individuals currently detained at [GTMO];
(f) surveys or questionnaires regarding potential transfer sites on the United States mainland for individuals currently detained at [GTMO];
(g) any expenditures of funds related to (a) through (f), including any travel or personnel costs related to surveying potential transfer sites on the United States mainland for individuals currently detained at [GTMO]; [and]
(h) the legal basis for any violation of the funding restrictions Congress has imposed [preventing the federal government from spending money on activities related to GTMO's closure].

Doc. 1-1 (FOIA Request) at 2-3. The parties made two modifications to plaintiff's request. First, plaintiff agreed to change (a) so that it included only information about the possible relocation of GTMO detainees to Kansas. Doc. 1-3 (FOIA Modification Email) at 2. Second, plaintiff agreed to modify (g) so that it included only information about expenditures defendant incurred traveling to and surveying potential GTMO detainee relocation sites. Id. Shortly after the parties agreed to these modifications, President Obama released his GTMO closure plan. Defendant did not comply with plaintiff's request immediately. So, on July 22, 2016, plaintiff filed this suit, claiming that defendant had a duty under FOIA to release the information plaintiff sought. After plaintiff filed this suit, defendant initially produced a one-page document addressing plaintiff's modified request (g). On November 15, 2016, defendant provided non-classified system documents responsive to plaintiff's request. After that, defendant released the responsive classified documents on a rolling basis, delivering the last set of documents in March 2017. In all, defendant has produced more than 2, 000 pages of responsive documents.

         Search Process

         As noted above, before defendant received plaintiff's FOIA request, the ODP had segregated emails and documents about GTMO's closure. When defendant began searching for the information that plaintiff had requested, defendant determined that ODP was the only agency with relevant information because it led President Obama's GTMO closure plan development. And it coordinated all communications between the relevant governmental agencies. So, defendant concluded, any information stored outside ODP would duplicate information it possessed.

         Three ODP employees then began the search process. They started in ODP's shared drive and the emails ODP had saved when it started the GTMO closure project. They also searched ODP's classified and unclassified system using the search terms “Kansas, Colorado, Charleston, Florence, Leavenworth, Brig, BOP, USDB, CONUS, and closure.” Doc. 22-1(Herrington Decl.) ¶ 8.[1] Finally, they scanned 20 paper documents that ODP had produced during the GTMO closure project. Id. ¶ 9. After redacting what ODP thought it should withhold, defendant released the documents to plaintiff.

         II. Legal Standard

         Summary judgment is appropriate if the moving party demonstrates that “no genuine dispute [about] any material fact” exists and that it “is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When applying this standard, the court views the evidence and draws inferences in the light most favorable to the non-moving party. Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010). To prevail on a summary judgment motion in a FOIA case, “the defending agency has the burden of showing that its search was adequate and that any withheld documents fall within an exemption to FOIA.” Whitson v. U.S. Forest Serv., 253 F.Supp.3d 1133, 1139 (D. Colo.), reconsidered and reversed on other grounds by 264 F.Supp.3d 1096 (D. Colo. 2017). Defendant meets its burden if it provides specific, non-conclusory affidavits that are consistent with the record and submitted in good faith. Hull v. IRS, U.S. Dep't of Treasury, 656 F.3d 1174, 1177-78 (10th Cir. 2011).

         III. Discussion

         Defendant asks the court to grant summary judgment against plaintiff's claim, arguing that it has complied fully with its FOIA obligations. Plaintiff opposes this request for three reasons. First, plaintiff argues that defendant conducted an inadequate search. Second, plaintiff asserts that defendant improperly exempted certain portions of the documents it released. And last, plaintiff argues that defendant has failed to produce adequate information to satisfy its request for information about the expenditures defendant incurred surveying possible GTMO detainee relocation sites. The court addresses these arguments in the next three subsections, below.

         A. The Adequacy of the Search Plaintiff first quarrels with the adequacy of defendant's search. When assessing the adequacy of an agency's search, a court must focus on the search process-not the search results. FBI, 572 F.3d at 797. “The reasonableness of an agency's search turns on ‘the likelihood that it will yield the sought-after information, the existence of readily available alternatives, and the burden of employing those alternatives.'” Id. at 798 (quoting Davis v. DOJ, 460 F.3d 92, 105 (D.C. Cir. 2006)). To establish that it conducted a reasonable search, the agency must explain that it searched all files likely to have relevant information and that further investigation would prove unduly burdensome. Knight v. FDA, 938 F.Supp. 710, 716 (D. Kan. 1996). And the agency must describe the type of search it conducted, including any search terms it used. Id.

         Here, defendant only searched ODP-the agency leading the GTMO closure plan. When it conducted its search, ODP used three of its employees. They started their search by looking in a folder on ODP's shared drive where ODP had centralized all documents about GTMO's closure. They also asked other ODP employees to move all emails they saved about GTMO's closure to a folder created in response to plaintiff's FOIA request. Finally, they electronically searched ODP's system using the search terms “Kansas, Colorado, Charleston, Florence, Leavenworth, Brig, BOP, USDB, CONUS, and closure.” Herrington Decl. ¶ 8.

         Plaintiff takes exception to two aspects of defendant's search: where defendant searched and how it searched. Doc. 27 at 17. The court addresses these arguments, below.

         1. The Search Location

         To satisfy its FOIA obligations, an agency need not search every place responsive records might exist; instead, the agency only needs to search those places that are reasonably likely to yield relevant records. See Knight, 938 F.Supp. at 716. In Knight, plaintiff sought information from the FDA about himself relating to a Pepsi extortion and tampering hoax. Id. at 712. The FDA responded, explaining that its Office of Criminal Investigations (“OCI”) had discovered just two responsive documents. Id. at 713. When searching for the documents plaintiff requested, OCI looked through a database of witnesses to, victims of, and subjects of investigations it conducted. Id. at 714. Then it looked through its paper files for a file on Pepsi and did a keyword search through its electronic files using the terms “Pepsi, ” “PepsiCo, ” and “Pepsi tampering.” Id. Last, it emailed OCI officials asking if they had any information about plaintiff or the Pepsi investigation. Id. OCI explained by affidavit that only OCI was likely to have the relevant files because that office “ʻwas the component of the FDA responsible for carrying out investigations of potentially criminal violations, and all of the tampering investigations were potentially criminal matters.'” Id. at 713 (quoting the agency's affidavit).

         Defendant filed a summary judgment motion asking the court to find that it fully had complied with FOIA's obligations. Id. at 716. Plaintiff opposed this motion, arguing that defendant's search was inadequate. Id. Specifically, plaintiff argued that an adequate search required defendant to search outside the OCI. Id. Judge Crow disagreed, concluding that “ʻ[t]here is no requirement that an agency search every record system, '” particularly when “the request does not specifically state the place of search.” Id. (quoting Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). Instead, Judge Crow held, all an agency must do is explain that no other department is likely to have relevant information. Id. Judge Crow concluded that the OCI's affidavit satisfied that standard and thus found that it conducted an adequate search. Id. at 716-71.

         Here, the court is faced with a similar situation. Plaintiff's request does not specify where in defendant's many offices to search. See FOIA Request at 1. And defendant has explained that ODP is the only department likely to possess files relevant to plaintiff's request because it led the effort to close GTMO. Herrington Decl. ¶ 6. Other agencies, defendant explains, likely have no additional information. Id. The court thus concludes FOIA only requires defendant to search ODP.

         Plaintiff argues it is implausible that one small office handled the entire GTMO closure plan. But plaintiff never identifies any evidence in the record that creates a genuine issue about the summary judgment facts. Indeed, defendant has explained that while other agencies helped with the closure plan, ODP was the hub. Id. It oversaw all communications about the project- both within and outside defendant. Id. While it's possible that other information may reside in another department's system, FOIA does not require an agency to search everywhere-only those places reasonably likely to have relevant information. Knight, 938 F.Supp. at 716. Since ODP coordinated the entire GTMO closure effort, it is the only place likely to have relevant information. The court thus rejects plaintiff's argument that defendant must search places outside ODP.

         2. The ...

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