Government Accountability Project v. U.S. Department of Justice
2012 U.S. Dist. LEXIS 43212
| D.D.C. | 2012Background
- GAP filed FOIA action against DOJ’s Criminal Division seeking records related to a World Bank referred case (Satyam/Mohamed Vazir Mushin) withheld by CRM.
- GAP previously requested all correspondence 2005–present; initial DOJ responses (Feb 26 and July 27, 2009) indicated no responsive records.
- GAP later learned of a March 14–21, 2006 World Bank meeting and DOJ review letter, prompting a renewed search and additional documents.
- CRM located 18 responsive items in Dec 11, 2009 release (six letters, eleven emails, one notes page) but withheld 13; some records described as nonresponsive.
- OIP directed additional searches in Feb 2010; further searches were fruitless for the March 21, 2006 letter.
- By Dec 29, 2010, GAP’s administrative appeals were denied for exemptions under FOIA, and GAP filed suit on Feb 9, 2011; DOJ moved to dismiss for exhaustion and for summary judgment; GAP cross-moved for summary judgment; subsequent releases narrowed issues to exhaustion, search adequacy, and Exemption 5 applicability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exhaustion for the July 27, 2009 response | GAP argues informal communications constitute a search appeal. | DOJ requires a written appeal per 28 C.F.R. § 16.9(a). | GAP failed to exhaust; July 27, 2009 appeal improper; dismissal of those claims. |
| Adequacy of the DOJ search | DOJ searches were inadequate and possibly in bad faith. | DOJ conducted multiple searches, supplemented with updated searches; no bad faith shown. | Search deemed adequate; no genuine issue of material fact; summary judgment for DOJ. |
| Exemption 5 applicability to six documents | Exemption 5 not properly invoked for deliberative process/work product. | Documents are intra-agency, deliberative pre-decisional communications and attorney work product. | Exemption 5 asserted appropriately; six documents withheld; work product and deliberative process protections upheld. |
Key Cases Cited
- Morley v. Cent. Intelligence Agency, 508 F.3d 1108 (D.C. Cir. 2007) (requires a reasonably calculated search to uncover documents)
- Oglesby v. Dept. of Army, 920 F.2d 57 (D.C. Cir. 1990) (advertised search methodologies acceptable if reasonably designed)
- Pub. Citizen v. Office of Mgmt. & Budget, 598 F.3d 865 (D.C. Cir. 2010) (deliberative process and waiver principles in FOIA)
- Coastal States Gas Corp. v. Dept. of Energy, 617 F.2d 854 (D.C. Cir. 1980) (deliberative process framework for Exemption 5)
- Landry v. FDIC, 204 F.3d 1125 (D.C. Cir. 2000) (head of department requirement for privilege assertion)
- Hidalgo v. FBI, 344 F.3d 1256 (D.C. Cir. 2003) (exhaustion and proper appeal procedures under FOIA regulations)
- Wilbur v. CIA, 355 F.3d 675 (D.C. Cir. 2004) (adequacy of search; mere possibility of additional records does not undercut search)