United States District Court, D. Kansas
STATE OF KANSAS, ex rel. DEREK SCHMIDT, in his official capacity as Attorney General of the State of Kansas, Plaintiff,
UNITED STATES DEPARTMENT OF DEFENSE, Defendant.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
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).
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.
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
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
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.
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
(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
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
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.
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. 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
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).
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.
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
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.
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.
The Search Location
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).
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.
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.
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.