890 F. Supp. 2d 121
D.D.C.2012Background
- Toensing and diGenova, private attorneys, sued DOJ under FOIA seeking records related to a Delaware USAO criminal investigation in which they were subpoenaed to testify before a grand jury.
- Plaintiffs submitted eight FOIA requests from 2007 to 2010 to EOUSA, Criminal Division, and FBI; only three requests are at issue here (2007, 2008, and 2010), with extensive holdings and ex parte communications alleged by plaintiffs.
- Allegations include secret tape recordings and related misconduct by Delaware officials, including claims that a New Castle County employee was secretly recorded during official communications.
- DOJ components produced some records and withheld others under exemptions; plaintiffs pursued multiple administrative appeals and later filed suit in 2011 challenging the 2010 requests.
- Court addresses whether the searches were adequate, whether withholding decisions were properly justified, and issues of administrative exhaustion and potential remand.
- Court ultimately grants in part and denies in part DOJ motions, dismisses some withholding-based claims for failure to exhaust, and remands for an expanded search regarding subpoena records.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exhaustion and scope of review for unexhausted claims | Toensing/diGenova may challenge 2007-2008 issues via later exhausted requests. | Exhaustion bars review of unappealed 2007-2008 withholding decisions; later requests cannot revive them. | Claims related to 2007-2008 withholding dismissed; review limited to issues appealed with the 2009-2010 requests. |
| Adequacy of EOUSA search for tapes and recordings | EOUSA failed to search for tapes/transcripts and relied on logs only. | Search was adequate for tapes/transcripts because the agent reviewed a comprehensive log. | EOUSA search for tapes/transcripts was adequate; summary judgment in favor for that category. |
| Adequacy of EOUSA search for documents reflecting an intent to tape | EOUSA failed to search for documents reflecting intent to tape as added in 2010 request. | Search limited to relevant files; no responsive documents found. | Search for documents reflecting intent to tape was adequate; DOJ granted summary judgment on this category. |
| Adequacy of EOUSA subpoena-records search and handling of six excluded categories | Six categories were not searched and should have been reviewed; exclusion undermines search. | Categories were non-responsive/exempt or not reasonably likely to contain records. | 2007 subpoena-record search inadequate due to exclusion of six categories; partial denial for subpoena-search part; remand requested. |
| Remand and Vaughn indices relate to withholding decisions | Vaughn indices and exemptions should be evaluated; in camera review possible. | Exemptions properly applied; no need for in-camera review. | Withholding-based claims dismissed for lack of exhaustion; remand to expand search and clarify documentation procedures. |
Key Cases Cited
- Hidalgo v. FBI, 344 F.3d 1257 (D.C. Cir. 2003) (exhaustion when appeals filed before agency acts on request; importance of placing issues before OIP)
- Wilbur v. CIA, 355 F.3d 675 (D.C. Cir. 2004) (late but accepted administrative appeals can revive exhausted review)
- Spannaus v. U.S. Dep't of Justice, 824 F.2d 52 (D.C. Cir. 1987) (exhaustion principles and resuscitation of time-barred FOIA claims via new actions)
- Oglesby v. U.S. Dep't of Army, 920 F.2d 57 (D.C. Cir. 1990) (requirements for adequate search and how to demonstrate search adequacy)
- Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344 (D.C. Cir. 1983) (standard for adequacy of FOIA searches and avoiding mere speculation)
- SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) (agency affidavits must be detailed and non-conclusory to prove search adequacy)