GAWKER MEDIA, LLC et al v. DEPARTMENT OF STATE

Filing 48

MEMORANDUM OPINION AND ORDER denying Plaintiffs' 44 Cross-Motion for Discovery and setting a briefing schedule on Defendant's 41 Motion for Summary Judgment. See attached document for details. Signed by Judge Ketanji Brown Jackson on 7/17/2017. (lckbj3)

Case 1:15-cv-00363-KBJ Document 48 Filed 07/17/17 Page 1 of 17

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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Plaintiffs,
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v.
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UNITED STATES DEPARTMENT
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OF STATE,
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Defendant.
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______________________________________ )
GAWKER MEDIA, LLC, et al.,

Civil No. 15-cv-0363 (KBJ)

MEMORANDUM OPINION AND ORDER
In a case brought under the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552, the parties are typically engaged in a pitched battle over the agency’s alleged
satisfaction of certain core responsibilities, the most prominent of which is an agency’s
duty under the FOIA to make “records promptly available to any person” who submits a
proper request for records (subject to certain statutory exemptions). Id. § 552(a)(3)(A).
Additionally, as a threshold matter, agencies have a statutory duty to “make reasonable
efforts to search for the [requested] records[.]” Id. § 552(a)(3)(C). The instant
squabble involves a dispute regarding, in essence, whether the FOIA requires an agency
to go beyond the ordinary scope of these search-related requirements, by making
reasonable efforts to locate and produce requested records that are outside of the
agency’s immediate possession and control, because the requested documents are solely
in the custody of a former agency official.
To be specific, Gawker Media, LLC and Tim Cook (collectively, “Plaintiffs”)
have filed the instant case to enforce the obligation that they say the Department of

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State (“State”) has under the FOIA to produce “all e-mail communications between”
former Deputy Assistant Secretary of State Philippe Reines and a list of 34 media
outlets with which Reines communicated while he was employed at State. (See Compl.,
ECF No. 1, ¶ 13.) State has searched and produced the non-exempt responsive records
that exist in its own files. (See Def.’s Mem. in Supp. of Def.’s Mot. for Summ. J.
(“Def.’s Mot. for Summ. J.”), ECF No. 41-2, at 6.) 1 State has also reached out to the
former employee (Reines), and in response, Reines provided State with 20 boxes of
additional records, consisting primarily of emails sent to or from Reines’s personal,
non-government email account that Reines has (belatedly) determined might constitute
federal records. (See Def.’s Mem. in Opp’n to Pls.’ Mot. for Discovery (“Def.’s
Opp’n”), ECF No. 45, at 6−7.) Having searched this additional trove of documents,
State has now produced those records that it considers non-exempt and responsive to
Plaintiffs’ document request, and it has also filed a motion for summary judgment in the
instant case, claiming that the agency’s production is complete and that summary
judgment should be granted in the agency’s favor because it has satisfied its FOIA
obligations in full. (See generally Def.’s Mot. for Summ. J.)
Not surprisingly, Plaintiffs have announced their intent to file a brief in
opposition to State’s summary judgment motion. (See Dec. 19, 2016 Joint Status
Report, ECF No. 39, at 1.) But, first—and before this Court at present—is Plaintiffs’
Cross-Motion for Discovery, which seeks an order compelling Reines to produce
additional information about his own records review, including an affidavit that details
the methodology Reines employed to search his private email for government

1

Page-number citations to documents the parties have filed refer to the page numbers that the Court’s
electronic filing system assigns.

2

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documents, and a sworn certification that Reines has turned over all government-related
records in his private email accounts. (See Pls.’ Mem. in Supp. of Pls.’ Cross-Mot. for
Discovery (“Pls.’ Mot.”), ECF No. 44-1, at 4.)
For the reasons explained fully in Part III below, Plaintiffs’ Cross-Motion for
Discovery will be DENIED. In short, this Court rejects Plaintiffs’ contention that the
Court cannot adequately assess the extent to which State successfully discharged its
FOIA search obligations (the issue in State’s pending motion for summary judgment)
without further details regarding the nature of Reines’s threshold search of his personal
files. (See id. at 6−7.) To the contrary, the Court concludes that the FOIA imposes no
obligation on an agency to solicit or produce documents held solely by a former agency
official, at least in the absence of evidence indicating that the agency or its former
employee maintained the documents outside the agency’s custody in an attempt to
thwart FOIA obligations. Cf. Judicial Watch v. Dep’t of State, No. 13-1363, 2016 U.S.
Dist. LEXIS 62283, at *11−13 (D.D.C. May 4, 2016). Thus, in this Court’s view,
information regarding the scope and nature of a former official’s initial records review
is irrelevant to resolving the issue of the adequacy of the agency’s search for records.
What is more, the additional search-related details that Plaintiffs request in their
discovery motion are well beyond the scope of what a court ordinarily considers in a
typical case—i.e., when evaluating the adequacy of an agency’s search of its own
files—which means that such information likewise plays no role in this Court’s
assessment of whether State has conducted a reasonable search for records and is
entitled to summary judgment.

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I.

BACKGROUND
Plaintiffs’ complaint alleges that, “[b]y letter dated September 24, 2012, Gawker

and Mr. Cook submitted a FOIA request to State for all e-mail communications between
Assistant Secretary Reines and reporters from a list of 34 different media outlets.”
(Compl. ¶ 13.) Approximately ten months later, on July 16, 2013, State informed
Plaintiffs that it had identified the two agency record systems most likely to maintain
the responsive records, but that, after a “thorough search” of those systems, no
responsive records were located. (See id. ¶ 14.) Plaintiffs then submitted a timely
administrative appeal, and provided State with specific evidence indicating that email
communications between Reines and at least one of the identified media organizations
existed. (See id. ¶ 15; see also id. at 1.) Plaintiffs further noted that the proffered
communications had already been published online. (See id. ¶ 15; see also id. at 1.)
In response to Plaintiffs’ appeal, on March 5, 2014, State notified Plaintiffs that
it was remanding the FOIA request for additional searches. (See id. ¶ 16.) Plaintiffs
initiated this lawsuit after more than twenty working days elapsed without any response
from State regarding these additional searches; their one-count complaint challenges
State’s failure to conduct an adequate search, and to produce responsive records in the
allotted time. (See id. ¶¶ 13−18; see also id. at 2.)
Two days prior to Plaintiffs’ initiation of this lawsuit, and purportedly
“[i]ndependent of this case and in furtherance of its Federal Records Act obligations”
(Def.’s Opp’n at 6), State wrote a letter to Reines—who had left State in February 2013
and was no longer an agency employee at the time State wrote to him (see Decl. of Eric
Stein (“Stein Decl.”), ECF No. 41-1, at 9 n.6)—requesting that Reines “provide any

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federal records in his possession from his tenure at State, including e-mails sent to or
from a personal e-mail account that were not otherwise contained in State’s
recordkeeping system” (Def.’s Opp’n at 6−7). (See also March 11, 2015 Letter from
Patrick F. Kennedy, Ex. A to Def’s Opp’n, ECF No. 45-2, at 2−3.) On July 28, 2015, in
response to State’s letter, Reines provided State with 20 boxes of materials that
Reines’s counsel characterized as “potential[] . . . federal record[s].” (See July 28,
2015 Letter from Beth A. Wilkinson, Ex. B to Def.’s Opp’n, ECF No. 45-3, at 2 (“The
production of a given document herein does not indicate that we believe it is potentially
a federal record. Rather, we have been over-inclusive in our review[.]”).) State then
made a preliminary determination that the records Reines had provided might contain
materials responsive to Plaintiffs’ FOIA request, and indicated to this Court in the
context of the instant action that the agency would require additional time to complete
its search and production of both the records that were originally in its possession and
those that Reines had returned. (See Aug. 3, 2015 Joint Status Report, ECF No. 13, at
4−8.)
Plaintiffs filed a motion that they styled as a “Motion to Compel” following
State’s revelation of the potentially responsive records on Reines’s private email
account. (See generally Pls.’ Mot. to Compel, ECF No. 24.) Complaining that “[f]or
more than two years after Mr. Reines left State, he apparently failed to take any steps to
notify State regarding the private e-mail accounts he had used for official work
purposes,” Plaintiffs urged the Court to order State to produce sworn affidavits from
appropriate officials. (Pls.’ Mot. to Compel at 8; see also id. at 1 (asking for sworn
statements that addressed, inter alia, Reines’s authorization to use a non-government

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email account for work-related purposes).) In addition, Plaintiffs’ motion implored this
Court to request that Reines act voluntarily to produce a sworn affidavit which detailed,
among other things, the methods he employed to identify work-related emails in his
private email account. (See id.) In an oral ruling on December 10, 2015, this Court
denied Plaintiffs’ motion to compel, explaining that because the document-production
process was still ongoing, the Court would not require State to secure affidavits about
the scope of the search at that time. (See Dec. 10, 2015 Hr’g Tr., ECF No. 28, at
38−40.)
Thereafter, State completed its processing of responsive documents, and filed a
motion for summary judgment. (See generally Def.’s Mot. for Summ. J.) In response
to State’s summary judgment motion, Plaintiffs filed the instant cross-motion, which
they have styled as a “Cross-Motion for Discovery[,]” and which seeks a court order
that compels Reines to produce an affidavit that provides certain information: (1) the
specific non-government email addresses that Reines used for government work-related
purposes (and in particular, the ones he ultimately searched for potential agency
records); (2) the particular methods Reines employed when he identified all
government-related emails stored on his private email accounts; and (3) a sworn
certification that Reines has turned over all government-related emails that were located
in his private email accounts. (See Pls.’ Mot. at 4.) 2 In their cross-motion for
discovery, Plaintiffs argue that the requested information about the scope of Reines’s
document-collection efforts is warranted, because the circumstances justify this Court’s

2

Upon its receipt of Plaintiffs’ cross-motion for discovery, this Court stayed Plaintiffs’ obligation to
respond to Defendant’s motion for summary judgment until further order of the Court. (See Min. Order
of April 17, 2017.)

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consideration of that information as part of its assessment of the adequacy of State’s
search. (See id. at 5−10.) Plaintiffs also maintain that the Federal Rules authorize this
Court to order discovery under the instant circumstances, because the information
Plaintiffs seek is relevant and beneficial, and is not duplicative or burdensome. (See id.
at 10−14.) Plaintiffs further insist that discovery has been permitted in other FOIA
cases where, as here, a sufficient question as to the agency’s good faith in processing
documents in response to a FOIA request has been raised. (See id. at 5−6.)
For its part, in its brief in opposition to Plaintiffs’ discovery motion, State
vehemently contends that the salient question for FOIA purposes is whether State
conducted an adequate search of the materials that Reines returned, and not whether
Reines properly conducted the search for federal records in his email account in the
first place; therefore, State says, Plaintiffs’ requested discovery is irrelevant. (See
Def.’s Opp’n at 14.) State further emphasizes that, to the extent that Plaintiffs seek
discovery because they believe that Reines might not have given all pertinent federal
records back to the agency, “[t]he basis for the instant discovery motion is purely
speculative.” (Id. at 10.) State also maintains that Plaintiffs have offered no evidence
to indicate that the agency acted in bad faith when responding to Plaintiffs’ FOIA
request. (See id. at 9−10.)
Plaintiffs’ cross-motion for discovery is currently ripe for this Court’s review
(see Pls.’ Mot.; Def.’s Opp’n; Pls.’ Reply in Support of Pls.’ Mot. (“Pls.’ Reply”), ECF
No. 46, at 4), and the Court held a hearing on the motion on June 20, 2017 (see
generally June 20, 2017 Hr’g Tr (“Hr’g Tr.”)).

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II.

LEGAL STANDARD
“Courts have broad discretion to manage the scope of discovery in FOIA cases.”

Long v. Immigration & Customs Enf’t, 149 F. Supp. 3d 39, 58 (D.D.C. 2015) (internal
quotation marks and citation omitted). As a general rule, “[d]iscovery in FOIA is rare
and should be denied where an agency’s declarations are reasonably detailed, submitted
in good faith and the court is satisfied that no factual dispute remains.” Landmark
Legal Found. v. EPA, 959 F. Supp. 2d 175, 183 (D.D.C. 2013) (citing Baker &
Hostetler LLP v. Dep’t of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006)). However,
limited discovery may be appropriate in certain circumstances, such as when “it appears
an agency has not undertaken an adequate search for responsive documents,” Taylor v.
Babbitt, 673 F. Supp. 2d 20, 22 (D.D.C. 2009) (citation omitted), or “when a plaintiff
raises a sufficient question as to the agency’s good faith in processing documents in
response to a FOIA request[,]” Judicial Watch, 2016 U.S. Dist. LEXIS 62283, at *9.
Absent such a showing, “the judge has broad discretion to forgo discovery.” Jarvik v.
CIA, 741 F. Supp. 2d 106, 122 (D.D.C. 2010).
III.

DISCUSSION
Plaintiffs’ discovery request seeks certain details about how Philippe Reines (a

former State Department official) searched his private email account for any federal
records still in his possession after State approached him and asked him to return any
such documents to the agency. According to Plaintiffs, this Court cannot assess the
adequacy of State’s search for records that are responsive to their specific FOIA request
for the purpose of ruling on State’s pending motion for summary judgment without the
requested discovery about the nature and scope of Reines’s records review. (See Pls.’

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Mot. at 6−9.) But that contention rests on the mistaken premise that State’s FOIA duty
to make reasonable efforts to locate and produce records in response to a document
request extends to records that are outside of the agency’s immediate possession and
control, as explained below. Plaintiffs are also mistaken to insist that the information
that they are requesting “is the same type of information that would have been provided
in such an agency affidavit if Mr. Reines had properly conducted his official State
business on a U.S. Government system, as opposed to his private e-mail account(s).”
(Pls.’ Reply at 4.)
To the contrary, for the reasons explained below, this Court concludes that the
requested details about Reines’s threshold search for records have no bearing on the
question of the adequacy of State’s FOIA search, and in any event, Plaintiffs are
seeking information that is far beyond what courts typically consider when they answer
this FOIA question. Accordingly, Plaintiffs’ motion for discovery will be denied.
A.

The FOIA Does Not Obligate An Agency To Retrieve And Search
Documents In The Possession Of Its Former Employees; Therefore,
Plaintiffs’ Discovery Request Is Not Relevant To The Issue Of The
Adequacy Of State’s Search

Subject to certain statutory exemptions, the FOIA requires federal agencies to
make “records promptly available to any person” who submits a proper request for
records. 5 U.S.C. § 552(a)(3)(A). Pursuant to this duty of disclosure, agencies must
undertake searches that are “reasonably calculated to uncover all relevant documents[,]”
Weisberg v. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983); furthermore, “[i]n
order to obtain summary judgment[,] the agency must show that it made a good faith
effort to conduct a search for the requested records, using methods which can be
reasonably expected to produce the information requested[,]” Oglesby v. Dep’t of Army,

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920 F.2d 57, 68 (D.C. Cir. 1990).
Notably, in the fulfillment of these duties, an agency need not move heaven and
earth to locate and produce requested records, and this is so even when the sought-after
documents are known to exist and to have once been in the agency’s possession. See
Bigwood v. U.S. Dep’t of Def., 132 F. Supp. 3d 124, 135 (D.D.C. 2015) (remarking that
“[t]he adequacy of a FOIA search is generally determined by the appropriateness of the
methods used to carry out the search, and not by the actual search results” (citation
omitted)); see also Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir.
2003) (“[I]t is long settled that the failure of an agency to turn up one specific
document in its search does not alone render a search inadequate.”). And, indeed, the
Supreme Court has made crystal clear that an agency need only conduct a reasonable
search of its own files in response to a FOIA request, because “possession or control”
of the documents at issue is, in most circumstances, “a prerequisite to FOIA disclosure
duties[.]” Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152
(1980).
In Kissinger, the Supreme Court specifically held that the FOIA did not require
an agency to undertake retrieval of documents that it no longer possessed at the time the
FOIA request was made (even if the removal of the documents was arguably improper),
because “Congress did not mean that an agency improperly withholds a document
which has been removed from the possession of the agency prior to the filing of the
FOIA request.” Id. at 150. The Kissinger Court reasoned that, “[i]n such a case, the
agency has neither the custody or control necessary to enable it to withhold” the
records. Id. at 150−51; see also id. at 150 (explaining that Congress did not intend,

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through the FOIA, “to permit private actions to recover records wrongfully removed
from Government custody”); Founding Church of Scientology of Washington, D.C. v.
Regan, 670 F.2d 1158, 1164 (D.C. Cir. 1981) (reversing district court order directing
agency to obtain records in the possession of an international organization). And as far
as this Court can tell, the only circumstance in which an agency’s FOIA obligations
might extend to documents that are not in the agency’s immediate custody or control
arises when there is evidence to suggest that the requested records are outside of the
agency’s control precisely because the agency has attempted to shield its records from
search or disclosure under the FOIA. See, e.g., Judicial Watch, 2016 U.S. Dist. LEXIS
62283, at *12−*13; Landmark, 959 F. Supp. 2d at 184 cf. Kissinger, 445 U.S. at 155 n.9
(“We need not decide whether this [possession or control] standard might be displaced
in the event that it was shown that an agency official purposefully routed a document
out of agency possession in order to circumvent a FOIA request.”). 3
In the instant case, Plaintiffs insist that this Court cannot evaluate whether or not
State has satisfied its FOIA duties without information regarding the threshold search
that Reines conducted when he gathered records that were unquestionably outside of

3

Plaintiffs here do not appear to rely upon any argument related to the timing of Reines’s departure
relative to the submission of the FOIA request. See Kissinger, 445 U.S. at 155 n.9 (suggesting that the
agency possesses the requested records if the records are in agency custody at the time the FOIA
request is filed, and “express[ing] no opinion as to whether an agency withholds documents which have
been wrongfully removed by an individual after a request is filed” (emphasis added)). Regardless, this
Court considers the fact that Plaintiffs’ FOIA request was submitted to State prior to Reines’s departure
to be of no moment under the circumstances presented here. This is because, in the absence of any
evidence of purposeful displacement of the records in order to evade production under the FOIA, the
realities of electronic storage and extended delays in document processing are now such (some 35-plus
years after Kissinger was authored) that it is exceedingly difficult to ascertain why, and under what
circumstances, it matters that the agency may have possessed a responsive record when the FOIA
request is received, but does not when the agency actually undertakes to process the request. Cf.
Bigwood, 132 F. Supp. 3d at 135 (“The adequacy of a FOIA search is generally determined by the
appropriateness of the methods used to carry out the search, and not by the actual search results.”
(citing Iturralde, 315 F.3d at 315)).

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State’s custody or control. However, Plaintiffs have failed to identify any affirmative
obligation on State’s part to retrieve records from former employees in the course of
responding to a FOIA request (see Hr’g Tr. at 19:23−20:16), and they have not
explained how, absent any such duty to search and retrieve the records that Reines
maintained outside of State’s custody, any failure of Reines to search adequately, or
tender properly, the government-related emails contained in his private email account
has any bearing whatsoever on the question of whether State has conducted an adequate
search of its records for FOIA purposes. Plaintiffs have also been unable to identify
anything in the record here that even remotely suggests bad faith—i.e., that State was
attempting to thwart its FOIA obligations by encouraging its employees to use personal
email accounts, or that Reines was engaged in a deliberate effort to prevent the
requested documents from being produced. (See, e.g., id. at 13:13−15:17.) And
without any such evidence, this Court finds that the contention that it cannot proceed to
evaluate State’s summary judgment arguments without gathering additional details
regarding Reines’s threshold records review makes little sense. 4
Put another way, it is clear to this Court that the FOIA obligates State—not
Reines—to search for any responsive records that are in the agency’s possession or
control, and here, State has proffered a declaration that details the methods that the
agency employed to search both the documents that were originally in its custody and

4

The total absence of any indicia of bad faith distinguishes the instant case from prior FOIA cases
involving State Department employees and the use of private email servers. See, e.g., Judicial Watch,
2016 U.S. Dist. LEXIS 62283, at *11−13 (permitting limited discovery in light of evidence that a
private email server “was established eight days prior” to Secretary Clinton being sworn in as Secretary
of State, as well as emails acknowledging that any government email account would be subject to the
FOIA); Judicial Watch v. Dep’t of State, No. 14-1242, 2016 WL 1270980, at *1 (D.D.C. Mar. 29, 2016)
(permitting discovery based on “the facts and circumstances surrounding Secretary Clinton’s
extraordinary and exclusive use of her” private email account).

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the documents that the agency came to possess when Reines returned them. (See Stein
Decl. at 5−14.) Plaintiffs have not shown that this Court’s analysis of State’s summary
judgment motion requires anything more.
B.

Plaintiffs’ Discovery Request Seeks Information Above And Beyond
That Typically Available When State Conducts A Search Of Records
In Its Custody

Even assuming, arguendo, that State had an obligation under the FOIA to
retrieve and search records outside of its custody and control in order to fulfill its duty
to respond to Plaintiffs’ document request, this Court finds that Plaintiffs’ request for
information about the nature and scope of Reines’s record search would still be far out
of bounds. As noted, Plaintiffs are asking this Court to require Reines to produce a
sworn affidavit that identifies “the specific non-U.S. Government email addresses he
used for U.S. Government (‘USG’) work-related purposes” and that “detail[s] the
methods he employed (and the individuals with whom he coordinated and/or
consulted)” during his record-retrieval process, among other things. (Pls.’ Mot. at 4.)
Plaintiffs insist that this information “is the same type of information that would have
been provided in such an agency affidavit if Mr. Reines had properly conducted his
official State business on a U.S. Government system, as opposed to his private e-mail
account(s)” (Pls.’ Reply at 4), and thus, unless this Court orders discovery, two
different legal systems will effectively be created—one for records properly stored on
government systems, and one for records maintained outside of these systems (see id. at
6).
Plaintiffs are flatly wrong about these contentions, for one simple reason: as
defense counsel clearly and cogently explained during the motion hearing, an agency’s

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threshold determination regarding which records to retain in its files is entirely distinct
from the agency’s subsequent search of maintained records pursuant to the FOIA—and
these two duties should not be conflated. (See Hr’g Tr. at 28:10−29:6.) With respect to
the initial retention decision, State has policies that require individual employees to
determine whether a document (including an email) qualifies as a federal record that
must be retained, or is instead a non-federal record that need not be retained. (See id.
(citing 5 F.A.M. § 443.2)); see also 5 F.A.M. § 443.2 (“E-mail message creators and
recipients must decide whether a particular message is appropriate for preservation. In
making these decisions, all personnel should exercise the same judgment they use when
determining whether to retain and file paper records.”). State does not directly oversee
or inspect its employees’ retention determinations, nor does it ever require employees
to provide, in the FOIA context, a declaration explaining how they reached these
retention decisions. (See Hr’g Tr. at 28:21−29:3, 43:19−44:3.) Instead, the employees’
individual retention decisions, taken together, effectively create the universe of records
that State maintains, and eventually searches, when the agency receives a FOIA request.
(See id. at 43:24−44:21 (defense counsel confirming that only those documents that are
retained are searched for FOIA purposes).) Thus, even when a court is evaluating the
adequacy of the agency’s search of records that have always remained under the
agency’s control, the affidavit that the agency provides in support of any motion for
summary judgment describes only how its agent or employee conducted a search of the
records that have been retained, and never addresses how each individual employee
reached the threshold retention decision with respect to the records that were searched.
(See id.)

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In the instant case, State has proffered a declaration from Eric Stein (an agency
official who is responsible for responding to FOIA requests) which explains the
methods Stein used to search for records responsive to Plaintiffs’ FOIA request. (See
Stein Decl. at 5−14.) In particular, Stein details the processes he employed to search
both the records originally in State’s possession and also those records that State later
collected from Reines. (See id.) In their opposition to State’s summary judgment
motion, Plaintiffs may, of course, challenge the adequacy of Stein’s methodology; such
challenges to an agency’s search of the records in its possession are commonplace at the
summary judgment stage. What will not be countenanced is Plaintiffs’ extraordinary
attempt to mount an adequacy challenge on the grounds that the threshold retention
decisions may have been improper.
It is clear to this Court that when Reines searched his private email account for
federal records, he was operating in the realm of making the same type of initial
retention decisions that are, as a matter of State Department policy, always delegated to
individual employees and rarely, if ever, detailed in a FOIA affidavit. Plaintiffs may
reasonably be concerned that Reines should have undertaken his retention
responsibilities prior to his departure from State, but the fact that he failed to search his
private email account for federal records before leaving the government does not
change the fundamental nature of his task, nor does it alter the reality that State
employees are not ordinarily required to provide an account of their retention decisions
in a FOIA affidavit. Thus, far from being deprived of salient details regarding the
agency’s search with respect to records kept in personal email accounts, Plaintiffs here
are seeking more information than would otherwise be available to them had the

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requested records been properly stored on government systems.
Undaunted, Plaintiffs point to the fact that State regularly asks the agency
employees who prepared the relevant records to conduct searches in response to FOIA
requests, such that, had Reines been employed by State at the time that State processed
Plaintiffs’ request, State may well have directed Reines to search his email account in
response to Plaintiffs’ FOIA request, and thereafter detail the search terms employed in
the form of an affidavit. (See Hr’g Tr. at 38:1−23; see also Pls.’ Reply at 4.) But even
if that is true, this contention once again fails to appreciate the distinction between the
retention decision and an agency’s search processes under the FOIA. That is, in all
likelihood, the hypothetical Reines declaration would describe the process Reines
employed when searching for records responsive to Plaintiffs’ specific FOIA request,
and would not cover Reines’s threshold retention determinations, per State’s usual
practices as explained above. Nevertheless, for reasons that are not entirely clear,
Plaintiffs here contend that the requested information regarding Reines’s threshold
retention assessment—a type of information that is ordinarily not made available to
FOIA plaintiffs and is not used by courts in evaluating the adequacy of an agency’s
search under the FOIA—is important enough that this Court cannot proceed to evaluate
the adequacy of State’s search without it.
Plaintiffs are mistaken.
IV.

ORDER
This Court concludes that the requested discovery is not relevant to the adequacy

of the agency’s search (the issue presented in Defendant’s pending summary judgment

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motion), and that, regardless, Plaintiffs’ discovery request seeks information beyond
that typically available to FOIA requesters. Accordingly, it is hereby
ORDERED that Plaintiffs’ [44] Cross-Motion for Discovery is DENIED. It is
FURTHER ORDERED that the following expedited briefing schedule shall be
implemented, given that the sole outstanding issue in this matter is the adequacy of
State’s search (see Dec. 19, 2016 Joint Status Report, ECF No. 39, at 1), and State’s
motion for summary judgment on this issue has been pending since January 31, 2017:
Plaintiffs’ opposition to Defendant’s [41] motion for summary judgment and any crossmotion for summary judgment is due on or before August 4, 2017; Defendant’s
consolidated summary judgment reply and cross-motion opposition is due on or before
August 18, 2017; and Plaintiffs’ cross-motion reply is due on or before August 29,
2017. No requests for extensions of time will be granted. Alternatively, Plaintiffs may
notify the Court within the time period set for its consolidated cross-motion and
opposition brief that litigation will no longer be necessary in light of the Court’s ruling
on the instant motion for discovery.
DATE: July 17, 2017

Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge

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