319 F. Supp. 3d 431
D.C. Cir.2018Background
- Judicial Watch filed two FOIA requests seeking emails involving former AAG for Legislative Affairs Peter Kadzik after media reports of a purported personal-email to John Podesta released by WikiLeaks.
- DOJ OIP searched Kadzik's official DOJ account using terms including “Clinton,” “HRC,” “Hillary,” “Podesta,” “Palmieri,” and “Fallon” and produced 56 pages; it also produced two chains forwarded from Kadzik’s personal account.
- OIP contacted Kadzik and the Office of Legislative Affairs to assess whether responsive agency records might exist only in Kadzik’s personal Gmail; DOJ policy requires forwarding personal account official emails to the official account.
- Kadzik performed multiple searches of his entire personal Gmail (no date or folder limits): electronic term searches (using at minimum the DOJ search terms and later specifically “Podesta” and “johnpodesta@gmail.com” and variants) and thorough manual reviews of inbox, sent, trash, and archived folders (≈600 emails total).
- Judicial Watch challenged adequacy of the searches, arguing Brinkmann’s declaration lacked sufficient detail about the personal-account search terms and methods; DOJ submitted a supplemental Brinkmann declaration clarifying search scope and Kadzik’s recollection and representations.
- The district court found the supplemental declarations sufficiently detailed and credited Kadzik’s searches and representations, granted DOJ summary judgment, and denied Judicial Watch’s cross-motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DOJ conducted an adequate FOIA search of Kadzik’s personal Gmail | Brinkmann decl. lacked specifics on personal-account search terms and methods, so adequacy cannot be shown | DOJ and Kadzik performed comprehensive electronic and manual searches across entire Gmail using relevant terms and reviewed folders; supplemental declaration provides needed detail | Search was adequate; DOJ entitled to summary judgment |
| Whether DOJ needed to use the same search terms in personal account as in official account | DOJ’s failure to use identical terms suggests incomplete search | DOJ used the DOJ terms “to a minimum” and additional variants; manual review backstopped any omission | No requirement for identical terms; combined electronic/manual searches sufficient |
| Whether declarant’s “to the best of his recollection” qualifier undermines credibility | Phrase indicates uncertain memory and possible incomplete search | Such qualifiers are customary in affidavits and do not defeat credibility; manual review compensates for any uncertainty | Qualifier acceptable; does not make search inadequate |
| Whether presumption that employees forward personal official emails eliminates need to search personal accounts here | Judicial Watch argues presumption rebutted by Podesta email; so personal search required and must be thorough | DOJ still searched both official and personal accounts and confirmed via Kadzik that no agency records remained in Gmail | Because DOJ searched both and Kadzik represented compliance, DOJ satisfied its burden |
Key Cases Cited
- Kowalczyk v. Dep't of Justice, 73 F.3d 386 (D.C. Cir.) (agency must show search reasonably calculated to uncover relevant documents)
- Perry v. Block, 684 F.2d 121 (D.C. Cir.) (agency affidavits presumed in good faith; need reasonable specificity)
- SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir.) (search need not uncover every document, only be reasonably calculated)
- Weisberg v. DOJ, 627 F.2d 365 (D.C. Cir.) (affidavits must describe search with sufficient detail to permit challenge)
- Reporters Comm. for Freedom of the Press v. FBI, 877 F.3d 399 (D.C. Cir.) (agency must provide sufficiently detailed declarations when adequacy is challenged)
- Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157 (U.S. Supreme Court) (presumption of legitimacy for government officials’ conduct)
- DOJ v. Julian, 486 U.S. 1 (U.S. Supreme Court) (FOIA requires disclosure of agency records unless they are exempt)
- Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344 (D.C. Cir.) (agency must show beyond material doubt that search was reasonably calculated to uncover all relevant documents)