613 F.Supp.3d 219
D.D.C.2020Background
- In August 2018 American Oversight filed two FOIA requests to OMB seeking all communications between specified OMB officials (Mulvaney, Vought, and their delegates) and (a) White House Office addresses re the FBI headquarters consolidation project, and (b) individuals/addresses associated with the Trump Organization and certain search terms; requests sought all communications types (emails, texts, voicemails, attachments, etc.) from Jan. 20, 2017 onward.
- OMB limited its searches primarily to emails and to a narrow set of search terms focusing on phrases like “FBI HQ,” “FBI” within 25 words of “headquarters,” and HQ within 25 words of project/renovation/relocation/Trump; OMB declined many of American Oversight’s suggested terms as overly broad.
- OMB’s searches returned a small number of responsive documents (15 for request 1; 7 for request 2); OMB produced some documents (with Exemption 5 and 6 redactions) and withheld others in full under FOIA Exemption 5 (deliberative process and presidential communications privilege).
- American Oversight sued after OMB missed the statutory response deadline, alleging inadequate searches and improper withholdings; both parties moved for summary judgment.
- The Court held OMB’s searches for both FOIA requests to be inadequate (search terms and subject-matter narrowing were unreasonable), required OMB to supplement its record and re-run searches (including non-email records), and granted OMB summary judgment only as to three documents properly withheld under the presidential communications privilege; American Oversight’s cross-motion was denied without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of search for Request 1 (FBI HQ project) | American Oversight: OMB omitted obvious synonyms/aliases (e.g., JEH, Hoover Building) and refused requested terms, so search was not reasonably calculated to find responsive records | OMB: Plaintiff cannot dictate terms; OMB used narrower terms to avoid overbroad, impertinent results and to limit delay | Held: OMB’s search was inadequate — omission of obvious alternative names (including JEH) and insufficient justification for refusing plaintiff’s terms rendered the search unreasonable |
| Adequacy of search for Request 2 (Trump Org/hotel communications and listed terms) | American Oversight: Requested direct searches for communications with listed Trump individuals and for listed terms; OMB improperly imposed a subject-matter limitation tied to the FBI HQ project | OMB: Requests were overly broad and lacked subject matter; it reasonably limited searches to FBI HQ/trump-related subset to manage volume | Held: OMB unreasonably narrowed the requests by importing a subject-matter limitation not present in the requests; searches inadequate |
| Scope of searched communications (emails vs. other media) | American Oversight: Requests expressly sought all communications media (texts, voicemails, messaging platforms, paper files) and OMB’s initial email-only search was insufficient | OMB: Initially limited to email but later searched paper records, electronic work folders, and shared drives | Held: OMB must search non-email records as requested and justify any categorical limitations in a supplemental declaration; email-only searches were insufficient without adequate justification |
| Withholding under Presidential Communications Privilege (Exemption 5) | American Oversight: OMB improperly withheld several responsive documents under the presidential communications privilege | OMB: Withheld documents memorialize or reflect communications solicited by the President or immediate advisers and thus are privileged | Held: Court sustained the privilege for three documents (Docs. #014–016) that related to presidential decisionmaking; for other withheld records OMB failed to show they related to presidential decisionmaking and must supplement the record |
Key Cases Cited
- Kowalczyk v. Dep’t of Justice, 73 F.3d 386 (D.C. Cir. 1996) (agency must demonstrate beyond material doubt that search was reasonable)
- Reporters Comm. for Freedom of Press v. FBI, 877 F.3d 399 (D.C. Cir. 2017) (agency must make good-faith search using methods reasonably expected to produce requested information)
- Oglesby v. U.S. Dep’t of Army, 920 F.2d 57 (D.C. Cir. 1990) (standard for adequacy of search)
- SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) (agency affidavits presumptively valid if detailed and uncontradicted)
- Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476 (D.C. Cir. 1984) (adequacy judged by reasonableness of search, not whether all documents were found)
- Nat’l Cable Television Ass’n v. Fed. Commc’ns Comm’n, 479 F.2d 183 (D.C. Cir. 1973) (agency must produce, identify, or prove exemption for each requested document)
- Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108 (D.C. Cir. 2004) (scope and application of presidential communications privilege)
- Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521 (D.C. Cir. 2011) (most FOIA cases resolved on summary judgment)