412 F.Supp.3d 98
D.D.C.2019Background:
- Watkins Law & Advocacy submitted FOIA requests in 2015 to VA, DOJ (OAG), FBI, and ATF seeking records about VA procedures and inter‑agency agreements for reporting veterans (including allegedly financially incompetent ones) to NICS under the Brady Act.
- VA searched components (OGC, VBA, OPIA), produced some records, and withheld 94 documents in full; plaintiff challenged 71 of those as responsive and not exempt.
- FBI initially produced the 2012 MOU and withheld pages (then later concluded some were not responsive); after plaintiff challenged search terms, FBI ran supplemental searches, found additional records (including the 1998 MOU), and produced/redacted material.
- DOJ (OAG) searched limited terms, found no responsive records (except a control sheet), and declined to produce additional material; plaintiff challenged the adequacy of that search.
- ATF identified four responsive documents (27 pages) and withheld one internal briefing (talking points/legal guidance) in full under Exemption 5; court reviewed that document in camera.
- Court reviewed each agency’s searches and withholdings under FOIA standards, granted judgment for VA, FBI, and ATF, but remanded DOJ for a more adequate search.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope/responsiveness of VA withholdings (pre‑2013 docs) | Pre‑2013 records can "set out or reflect" procedures in effect 2013–present and thus are responsive | VA: request limited to records "in effect" 2013–present; pre‑2013 docs not responsive | Court: pre‑2013 records that "set out or reflect" procedures in effect in 2013 are responsive; VA initially treated them as responsive so must be considered |
| VA withholdings under Exemption 5 (attorney‑client & deliberative process) | Withheld records are substantive and should be disclosed | VA: records are privileged communications or predecisional/deliberative drafts/opinions; segregability reviewed | Court: VA met its burden; 43 documents protected by attorney‑client privilege, remaining properly withheld under deliberative process; segregability satisfied |
| Adequacy of FBI search and withholdings/segregability | FBI search omitted obvious terms and missed the 1998 MOU initially; search inadequate | FBI: initial search reasonable; ran supplemental searches (including plaintiff’s suggested terms), located additional material, produced/redacted accordingly; declarations justify withholdings and segregability | Court: FBI search and supplemental efforts were reasonable; withholdings justified under Exemptions 5, 6, 7 and segregability met; summary judgment for FBI |
| Adequacy of DOJ (OAG) search | DOJ’s search used only four terms and omitted obvious keywords (e.g., "mental defective", "VHA", "VBA"); therefore inadequate | DOJ: its chosen terms were reasonably tailored to the request; no responsive records located | Court: DOJ search was not reasonably calculated to locate all responsive records; denied summary judgment and remanded for an adequate search |
| ATF withholding of internal briefing under Exemption 5 and segregability | Briefing contains factual parts that could be segregated and released | ATF: briefing is predecisional/deliberative talking points prepared by counsel; factual material is intertwined and non‑segregable | Court: in camera review confirmed briefing is predecisional and deliberative; withholding proper and no segregable information; summary judgment for ATF |
Key Cases Cited
- Oglesby v. U.S. Dep’t of Army, 920 F.2d 57 (D.C. Cir. 1990) (agency must conduct a search reasonably calculated to uncover responsive records)
- U.S. Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001) (scope of Exemption 5 privileges)
- Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242 (D.C. Cir. 1977) (attorney‑client protections under Exemption 5 and need for Vaughn‑style justifications)
- Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (D.C. Cir. 1980) (deliberative process privilege protects predecisional, deliberative materials)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (purpose and scope of deliberative process privilege)
- Valencia‑Lucena v. U.S. Coast Guard, 180 F.3d 321 (D.C. Cir. 1999) (agencies must follow obvious leads and make more than perfunctory searches)
- Iturralde v. Comptroller of Currency, 315 F.3d 311 (D.C. Cir. 2003) (adequacy of FOIA search judged by methods, not fruits)
- SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) (agency affidavits entitled to presumption of good faith)