Cole v. May
Civil Action No. 2015-1991
D.D.C.Jan 3, 2018Background
- David Cole submitted a FOIA request to FEMA on May 20, 2011 seeking raw/background data for the FEMA 403 Building Performance Study (photos, video, audio, field notes, drawings, lab results).
- FEMA acknowledged the request, then transferred it to NIST; by June 2012 NIST reported 3,789 releasable pages.
- FEMA told Cole in August 2012 that it had an inventory of ~490,000 WTC pages at NARA and later suggested responsive records might exist in regional off‑site archives.
- Cole received no documents until April 2016 (after he filed suit in Nov. 2015); he then identified specific missing items (CDs, drawings, video) and questioned FEMA’s search and explanations.
- FEMA conducted follow‑up searches, gave inconsistent explanations about the location of records (NARA, regional archives, then denying the existence of Region 2 archives), and ultimately stated no additional responsive records would be produced.
- Cole moved for leave to take limited discovery to investigate the adequacy and good faith of FEMA’s searches; the Court denied the motion as premature pending the government’s summary judgment filings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether limited discovery is warranted in this FOIA case | Cole: FEMA’s delays, inconsistent responses, and identified missing records raise serious doubt about the adequacy and good faith of searches and justify limited discovery (including depositions). | FEMA: Discovery in FOIA cases is extraordinary; agency declarations normally resolve search adequacy and discovery should await the government’s summary judgment motion. | Denied as premature; Court said discovery is exceptional and should await the government’s dispositive motion and affidavits. |
| Whether the Court has enough factual basis to find a genuine dispute over search adequacy | Cole: Correspondence and missing items create factual questions about what was searched and why items are missing. | FEMA: Has offered explanations and will file affidavits with summary judgment to detail searches. | Court: Current record lacks agency affidavits; cannot yet determine if factual dispute exists—Cole may renew after summary judgment filings. |
| Proper procedural mechanism to obtain discovery or challenge affidavits | Cole: Motion for leave to take limited discovery now. | FEMA: Plaintiff should wait and use Rule 56(d) after government moves for summary judgment or challenge affidavits in opposition. | Court: Plaintiff should use Rule 56(d) and challenge agency declarations at summary judgment stage; discovery only if declarations are inadequate. |
| Whether government’s delay or inconsistent statements alone justify discovery | Cole: Long delay and inconsistent statements reflect bad faith or extreme delay warranting discovery. | FEMA: Delay/communications alone do not automatically justify discovery without detailed affidavits. | Court: Troubled by delay/inconsistencies but held they do not by themselves permit immediate discovery; must await summary‑judgment record. |
Key Cases Cited
- Weisberg v. U.S. Dep't of Justice, 627 F.2d 365 (D.C. Cir. 1980) (agency affidavits must provide specific information to permit challenge to search procedures)
- SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197 (D.C. Cir. 1991) (reasonably detailed, good‑faith affidavits normally preclude discovery)
- Baker & Hostetler LLP v. U.S. Dep't of Commerce, 473 F.3d 312 (D.C. Cir. 2006) (denial of discovery where plaintiff offered no evidence of agency bad faith)
- Landmark Legal Found. v. E.P.A., 959 F. Supp. 2d 175 (D.D.C. 2013) (ordered discovery where record suggested officials used personal emails and initial searches excluded key custodians)
- Taylor v. Babbitt, 673 F. Supp. 2d 20 (D.D.C. 2009) (discovery in FOIA is extraordinary and, if allowed, should generally occur after the government files its summary judgment motion)