COFFEY v. BUREAU OF LAND MANAGEMENT
MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on September 29, 2017. (lcegs2)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
) Civil Action No. 16-653 (EGS)
BUREAU OF LAND MANAGEMENT,
Plaintiff Debbie Coffey submitted a request under the
Freedom of Information Act ("FOIA") to obtain certain
communications between the Bureau of Land Management (the
"Bureau" or "BLM") employees and individuals or organizations
interested in purchasing wild horses or burros under the
agency's management. Approximately five months after Ms. Coffey
submitted her request, the Bureau produced to her roughly 670
pages of records it deemed responsive to the request. After
reviewing the records she received, Ms. Coffey filed an appeal
with the agency and, five months later, this lawsuit alleging
violations of the Freedom of Information Act, 5 U.S.C. § 552.
Both parties now move for summary judgment. For the reasons set
forth below, and because the Court will order additional
searches and/or the filing of additional declarations by the
Bureau, the Court stays further proceedings and holds in
abeyance a final ruling on the pending motions.
The Bureau of Land Management is charged with protecting
and managing populations of wild horses and burros (i.e., wild
donkeys) on public lands pursuant to the 1971 Wild Free-Roaming
Horses Act of 1971, 16 U.S.C. §§ 1331-1340. Coffey v. Bureau of
Land Mgmt., No. 16-CV-508, 2017 WL 1411465, at *1 (D.D.C. Apr.
20, 2017). Wild horses and burros live on segments of public
land that cover 31.6 million acres across 10 western states,
with the Bureau of Land Management tasked with overseeing 26.9
million acres of that land. See Bureau of Land Management, Wild
Horse and Burro Program website, available at
https://www.blm.gov/programs/wild-horse-and-burro (last visited
on September 29, 2017). As part of the Bureau's efforts to
sustain populations of wild horses and burros at a level that
will "achieve and maintain a thriving natural ecological balance
on the public lands," 16 U.S.C. § 1333, the agency created the
Wild Horse and Burro Program. Among other tasks, the Wild Horse
and Burro Program oversees sales and adoptions of these animals
to private individuals and organizations that will provide "good
homes and humane care." Pl.'s Mot. for Summ. J. Ex. A at 1, ECF
No. 18-1. An individual or group seeking to purchase more than
four animals in a six-month period is "required to submit a
proposal detailing where animals will be kept, plans to provide
humane care including adequate forage, water, hoof and
veterinary care, fencing, and the intended use for the animals."
Id. at 6.
Ms. Coffey is the Vice President and Director of Wild Horse
Affairs for the Wild Horse Freedom Federation, a federallyregistered 501(c)(3) non-profit organization dedicated to both
educating the public on wild horse and burro issues and
advocating for the protection and welfare of wild horses and
burros on America's public lands. See Pl.'s Mot. for Summ. J.,
Declaration of Debbie Coffey ("Coffey Decl.") ¶ 2, ECF No. 18-1.
Ms. Coffey has a particular interest "in what happens to our
wild horses & burros," including with respect to "wild horses
being sold by the BLM." See Def.'s Mot. for Summ. J, Declaration
of Ryan Witt ("Witt Decl.") Ex. 1 ("FOIA Request") at 2, ECF No.
15-3. Unable to find the information she sought about "the
activities and operations regarding the sale and disposition of
the wild horses & burros" in public sources or on the Bureau's
website, Ms. Coffey submitted the FOIA request at issue here.
Id. at 3.
In her request, which she sent to the Bureau via email on
April 27, 2015, Ms. Coffey sought communications between Bureau
employees and individuals or organizations interested in buying
or selling wild horses and burros. Id. at 1. In particular, Ms.
Coffey requested "all emails, faxes, letters, and notes from
telephone calls" between any Bureau employee who had "done work
in the capacity of" a "Marketing Specialist," "Supervisory
Marketing Specialist," or "Outreach Specialist" for the Bureau's
Wild Horse and Burro Program and any individual or organization
that were "proposals for selling/buying wild horses and burros
(whether or not the proposals ever came to fruition)." Id. The
request further specified that Ms. Coffey sought records that
included the words "wild horses, wild burros, horses, burros,
sales, special sales, buy, buying, sell, selling,
transportation, long term holding, short term holding, holding
facility, transportation and truck." Id. Finally, the request
specified that it sought communications made by, among others,
Bureau employees Sally J. Spencer and Debbie Collins, both of
whom, based on Ms. Coffey's knowledge, had served in marketing
positions in the Wild Horse and Burro Program. Id. She provided
the email addresses and other identifying information for both
these employees. Id. at 1-2.
Ms. Coffey's email also included a request for a fee waiver
on the grounds that the records she requested would be
"meaningfully informative to the public with respect to the
Bureau's operations and activities in connection with its Wild
Horses and Burro Program." Id. at 2. She explained that there
was "no information available publicly" about the topic of her
request, and that she intended to "disseminate the information"
she received through her FOIA request "to a large segment of the
public at large" via online news articles and radio interview
broadcasts across the United States. Id. at 2-4; see also 5
U.S.C. § 552(a)(4)(A)(iii) (requiring reduction or waiver of
fees "if disclosure of the information is in the public interest
because it is likely to contribute significantly to public
understanding of the operations or activities of the government
and is not primarily in the commercial interest of the
The Bureau acknowledged receipt of Ms. Coffey's FOIA
request by email on April 28, 2015. Witt Decl. ¶ 3, ECF No. 152. In a letter dated May 26, 2015, the Bureau denied Ms.
Coffey's fee-waiver request on the grounds that Ms. Coffey had
"fail[ed] to articulate how . . . [she] would convey the
information to a reasonably broad audience of persons interested
in the subject and how that disclosure w[ould] contribute to
their understanding, as opposed to [her] individual
understanding." Witt Decl. Ex. 3 at 3. The Bureau informed Ms.
Coffey that the estimated cost of processing her request was
$2,440.00. Id. Ms. Coffey mailed a check to the Bureau for that
amount on June 1, 2015. Coffey Decl. ¶ 13.
By letter dated September 30, 2015, the Bureau responded
substantively to Ms. Coffey's FOIA request, producing 671 pages
of responsive documents. Witt Decl. ¶ 23. Of those 671 pages,
240 pages were partially withheld under 5. U.S.C. § 552(b)(6),
pursuant to which an agency need not produce "personnel and
medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy."
Witt Decl. ¶ 23.
On November 9, 2015, Ms. Coffey submitted an administrative
appeal of the Bureau's response to her FOIA request. Id. ¶ 24.
At the same time, she also requested a refund of the $2440.00
fee that she had paid on the ground that the agency had failed
to meet the statutory deadline in responding to her request.
Coffey Decl. ¶ 13; see also 5 U.S.C. § 552(a)(4)(A)(viii)(I)
(prohibiting an agency from assessing search or duplication fees
"if the agency has failed to comply with" applicable time
limits). Although the Bureau "determined that it [wa]s
appropriate to refund Plaintiff's fee" as a result of its delay
in processing the FOIA request, see Witt Decl. ¶ 11, the Bureau
did not refund Ms. Coffey's fee until February 21, 2017, see
Coffey Decl. ¶ 13. As of the filing of this suit on April 7,
2016, the Bureau was still "in the process of preparing its
response to Plaintiff's appeal." Witt Decl. ¶ 25.
FOIA requires that "each agency, upon any request for
records which (i) reasonably describes such records and (ii) is
made in accordance with published rules . . . shall make the
records promptly available to any person." 5 U.S.C. §
552(a)(3)(A). "To fulfill its disclosure obligations, an agency
must conduct a comprehensive search tailored to the request and
release any responsive material not protected by one of FOIA's
enumerated exemptions." Tushnet v. United States Immigration &
Customs Enf't, No. 15-CV-00907, 2017 WL 1208397, at *4 (D.D.C.
Mar. 31, 2017).
The "vast majority" of FOIA cases can be resolved on
summary judgment. Brayton v. Office of the U.S. Trade
Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). A court may
grant summary judgment only if there is "no genuine dispute as
to any material fact and the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(a). Likewise, in ruling on
cross-motions for summary judgment, the court shall grant
summary judgment only if one of the moving parties is entitled
to judgment as a matter of law upon material facts that are not
genuinely disputed. See Citizens for Responsibility & Ethics in
Wash. v. U.S. Dep't of Justice, 658 F. Supp. 2d 217, 224 (D.D.C.
2009) (citation omitted). Under FOIA, the underlying facts and
inferences drawn from them are analyzed in the light most
favorable to the FOIA requester, and summary judgment is
appropriate only after the agency proves that it has fully
discharged its FOIA obligations. Moore v. Aspin, 916 F. Supp.
32, 35 (D.D.C. 1996) (citing Weisberg v. U.S. Dep't of Justice,
705 F.2d 1344, 1350 (D.C. Cir. 1983)).
When considering a motion for summary judgment under FOIA,
the court must conduct a de novo review of the record. See 5
U.S.C. § 552(a)(4)(B). The court may grant summary judgment
based on information provided in an agency's affidavits or
declarations when they are "relatively detailed and nonconclusory," SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197,
1200 (D.C. Cir. 1991) (citation and internal quotation marks
omitted), and "not controverted by either contrary evidence in
the record nor by evidence of agency bad faith," Larson v. Dep't
of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citation and
internal quotation marks omitted). Such affidavits or
declarations are "accorded a presumption of good faith, which
cannot be rebutted by 'purely speculative claims about the
existence and discoverability of other documents.'" SafeCard
Servs., 926 F.2d 1197 at 1200 (citation omitted).
The central issue on summary judgement is the adequacy of
the Bureau's search.
"An agency fulfills its obligations under FOIA if it can
demonstrate beyond material doubt that its search was
'reasonably calculated to uncover all relevant documents.'"
Valencia-Lucena v. Coast Guard, 180 F.3d 321, 325 (D.C. Cir.
1999) (quoting Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C.
Cir. 1990)); see also Steinberg v. Dep't of Justice, 23 F.3d
548, 551 (D.C. Cir. 1994). Where a plaintiff challenges the
adequacy of an agency's search, the question for the court is
"'whether the search was reasonably calculated to discover the
requested documents, not whether it actually uncovered every
document extant.'" Judicial Watch, Inc. v. United States Dep't
of State, 681 Fed. Appx. 2, 4 (D.C. Cir. 2017) (quoting SafeCard
Servs., 926 F.2d at 1201). In other words, the adequacy of a
search is "generally determined not by the fruits of the search,
but by the appropriateness of the methods used to carry out the
search." Iturralde v. Comptroller of Currency, 315 F.3d 311, 315
(D.C. Cir. 2003).
The adequacy of an agency's search is "measured by a
'standard of reasonableness' and is 'dependent upon the
circumstances of the case.'" Weisberg v. U.S. Dep't of Justice,
705 F.2d 1344, 1351 (D.C. Cir. 1983)(citations omitted). To meet
its burden at summary judgment, an agency may provide "'a
reasonably detailed affidavit, setting forth the search terms
and the type of search performed, and averring that all files
likely to contain responsive materials ... were searched.'"
Iturralde, 315 F.3d at 313-14 (citation omitted). Any factual
assertions in such an affidavit will be accepted as true unless
the requesting party submits affidavits or other documentary
evidence contradicting those assertions. Wilson v. U.S. Dep't of
Transp., 730 F. Supp. 2d 140, 148 (D.D.C. 2010) (citing Neal v.
Kelly, 963 F.2d 453, 456-57 (D.C. Cir. 1992)).
Ms. Coffey challenges the adequacy of the Bureau's search
on three grounds. The Court examines each argument in turn.
A. Follow-Up Searches
Ms. Coffey first contends that the agency failed to conduct
"follow-up" searches for documents purportedly attached to or
referenced in records produced by the Bureau. Pl.'s Mem. in Opp.
to Def.'s Mot. for Summ. J. and Cross-Mot. for Summ. J. ("Pl.'s
Opp.") at 7-9, ECF No. 18. In particular, Ms. Coffey points to
four instances in which "responsive records which she was
provided expressly refer to an attachment in the body of an
email, and where the additional 'attached' responsive records
were not ever provided." Id. at 7. Ms. Coffey also points to
"six additional instances of . . . records that were expressly
cross-referenced within the materials provided, that have not
yet been provided to Plaintiff by the BLM." Id. at 8. Ms. Coffey
argues that the agency "had a legal duty to follow-up on each of
the . . . referenced leads in the records" and "has clearly
violated that duty by failing to undertake any follow-up search
actions reasonably calculated to located these additional
responsive records." Id. at 9.
In response, the Bureau submitted a supplemental
declaration. See Def.'s Opp. to Pl.'s Cross-Mot. for Summ. J.
and Reply in Supp. of Mot. for Summ. J. ("BLM Reply"),
Supplemental Declaration of Ryan Witt ("Supp. Witt Decl."), ECF
No. 21-1. 1 In this declaration, Mr. Witt avers that he "reviewed
the specific examples Plaintiff provided in her filing of
attachments that she alleged were in scope and not included in
the response." Id. ¶ 7 (emphasis added). According to Mr. Witt,
those documents "were not produced in the search, which was
reasonably calculated to produce all documents." Id. The Bureau
argues that it need not do anything more, as it "is not required
to speculate about potential leads." BLM Reply at 4 (quoting
Kowalczyk v. Dep't of Justice, 73 F.3d 386, 389 (D.C. Cir.
The Bureau's argument misses the mark. Where "specific
records, photographs, or attachments are referenced in [an
agency's] documents, it is no longer 'mere speculation' that the
files exist." Hall v. C.I.A., 881 F. Supp. 2d 38, 61-62 (D.D.C.
Although this declaration was attached to the Bureau's
reply memorandum in support of its motion for summary judgment,
the Court can "'rel[y] on supplemental declarations submitted
with an agency's reply memorandum to cure deficiencies in
previously submitted declarations'" where a plaintiff has not
challenged the supplemental declaration. See Walston v. United
States Dep't of Def., 238 F. Supp. 3d 57, 64 (D.D.C. 2017)
(citing DeSilva v. U.S. Dep't of Housing and Urban Dev., 36 F.
Supp. 3d 65, 72 (D.D.C. 2014)).
2012). Here, the Bureau produced documents that reference other
specific, potentially responsive records that have not been
produced. Indeed, Ms. Coffey's opposition brief and accompanying
declaration highlight ten specific instances in which produced
documents reference missing records. See Pl.'s Opp. at 7-8;
Coffey Decl. ¶¶ 10-11. Moreover, the Bureau's conclusory
supplemental declaration – which, in two sentences, merely
states that the agency reviewed the examples of missing
"attachments" provided by plaintiff and found them to be outside
the scope of her FOIA request "as written," see Witt Decl. ¶ 7 –
is not sufficient for the Bureau to meet its burden on summary
judgment with respect to these missing documents. The agency's
supplemental declaration, for example, nowhere mentions the six
instances of records "that were expressly cross-referenced
within the materials" produced. See Pl.'s Opp. at 8. Rather, it
only states that the agency reviewed the identified
"attachments" to emails. Supp. Witt Decl. ¶ 7.
The Bureau also suggests that its search was adequate
because these "extrinsic items" – i.e., the attachments and
documents cross-referenced in produced emails – "go beyond the
scope of Plaintiff's very specific document request." BLM Reply
at 4. Although the Bureau does not elaborate on its
interpretation of the scope of Ms. Coffey's request or on why
these particular documents fall outside of that scope, the Court
notes that an agency has a duty to construe FOIA requests
liberally, see Nation Magazine v. United States Customs Service,
71 F.3d 885, 890 (D.C. Cir. 1995), and Ms. Coffey's request
clearly encompasses "all emails," see FOIA Request at 1. To the
extent the agency intends to argue that the attachments should
be treated as separate "records" from the emails to which they
were attached, the Court rejects this approach. Many of the
emails cited by Ms. Coffey make explicit reference to, or
include discussion of, the missing attachments. See, e.g.,
Coffey Decl. Ex. B at 4 ("Attached are the completed sales
applications for Turning Pointe Donkey Rescue and Crossroad
Donkey Rescue. There is also an approved proposal if Turning
Pointe Donkey Rescue purchases more than four sale eligible
burros."); id. at 6 ("Attached is a pdf file with Wendy
Bierling's sale questionnaire, signed bill of sale, and receipt
for payment of the horses."). Although the Court need not adopt
a per se rule that an email and its attachment must be treated
as a single record, the Court finds that many of these
attachments should reasonably be considered part and parcel of
the email by which they were sent. See, e.g., Parker v. United
States Dep't of Justice, Office of Prof'l Responsibility, No.
15-CV-1070, 2017 WL 3531507, at *3 (D.D.C. Aug. 16, 2017)
(concluding that a draft attachment and the letter to which it
was attached should reasonably be treated as a single "record"
for purposes of FOIA where the letter "itself touche[d] on the
subject matter of the attachment and refer[red] the recipient to
examine its contents"). In such instances, FOIA "compels
disclosure of the responsive record – i.e., as a unit – except
insofar as the agency may redact information falling within a
statutory exemption." Am. Immigration Lawyers Ass'n v. Exec.
Office for Immigration Review, 830 F.3d 667, 677 (D.C. Cir.
2016). As such, the Bureau must either produce any attachments
to responsive emails or make a showing that the attachments fall
within a statutory exemption from disclosure.
In short, although the Bureau is not obligated to search
for every record "referenced in the responsive documents that
were released," Morley v. CIA, 508 F.3d 1108, 1121 (D.C. Cir.
2007), the Bureau must demonstrate that it conducted a
reasonable, good-faith search for the cross-referenced documents
identified by Ms. Coffey and that it (1) produced those
documents; (2) was unable to locate those documents; (3)
withheld those documents under an applicable FOIA exemption; or
(4) determined that those documents were unresponsive to Ms.
Coffey's FOIA request, liberally construed. In addition, the
Bureau must search for attachments to emails already deemed
responsive and either produce them or explain why they are
exempt from disclosure.
B. Search Terms
Ms. Coffey next contends that the Bureau's search was
inadequate because the agency failed to search for the term
"proposal" in responding to the FOIA request. Pl.'s Opp. at 10.
Because Ms. Coffey's request squarely sought records pertaining
to "proposals" for the sale or purchase of wild horses and
burros – and because the agency itself uses the term "proposal"
to describe the form application that must be submitted by a
purchaser seeking to obtain four or more animals – Ms. Coffey
argues that the Bureau's search improperly "fail[ed] to track
the subject matter of records expressly sought in [her] FOIA
request." Id. at 9-11.
The Bureau acknowledges that it did not include the word
"proposal" in its search terms, but argues that its failure to
do so does not render its search inadequate. BLM Reply at 5.
According to the Bureau, although Ms. Coffey's FOIA request
sought records related to "proposals for selling/buying wild
horses and burros, . . . very few individuals or organizations
interested in purchasing horses or burros submit proposals."
Witt Decl. ¶ 14. Rather, the Wild Horse and Burro Program office
"routinely receives inquiries in communications that do not
include the word 'proposal,'" and the Bureau itself "does not
exclusively use the word 'proposal' in discussing sale and
adoption inquiries." Supp. Witt Decl. ¶ 6. Thus, the Bureau
submits that the search terms actually used – "sales, special
sales, buy, buying, sell, selling, transportation, long term
holding, holding facility, transportation, and truck," Witt
Decl. ¶ 18 – were, in fact, "much broader and retrieved
documents that were responsive to the request that did not
include the word proposal," Supp. Witt Decl. ¶ 6. 2
In general, "[f]ederal agencies have discretion in crafting
a list of search terms that 'they believe to be reasonably
tailored to uncover documents responsive to the FOIA request.'"
Agility Pub. Warehousing Co. K.S.C. v. Nat'l Sec. Agency, 113 F.
Supp. 3d 313, 339 (D.D.C. 2015) (citation omitted). So long as
the "search terms are reasonably calculated to lead to
responsive documents, the Court should not 'micro manage' the
agency's search." Liberation Newspaper v. U.S. Dep't of State,
80 F. Supp. 3d 137, 146 (D.D.C. 2015) (citation omitted); see
also Johnson v. Executive Office for U.S. Attorneys, 310 F.3d
771, 776 (D.C. Cir. 2002) ("FOIA, requiring as it does both
systemic and case-specific exercises of discretion and
administrative judgment and expertise, is hardly an area in
Although Ms. Coffey's FOIA request also specified four
additional search terms – "wild horses, wild burros, horses, and
burros" – the Bureau's search did not use these terms because
"these words appeared on every email and correspondence" sent by
many Bureau employees as part of the signature block. Witt Decl.
¶¶ 18, 21, 22. Plaintiff does not challenge the Bureau's
omission of these terms.
which the courts should attempt to micro manage the executive
Based on the Bureau's representations, the Court concludes
that the Bureau's decision not to use the term "proposal" to
search for records responsive to Ms. Coffey's FOIA request was
reasonably calculated to find responsive materials. Although Ms.
Coffey specified a host of search terms for the agency to use in
conducting its search, it is significant that this list did not
include the term "proposal." See FOIA Request at 1. Ordinarily,
"[a]n agency presented with a FOIA request which expressly
prescribes a set of search terms . . . is not required to
conceive of additional search terms that might produce
responsive documents." Leopold v. Dep't of Justice, 130 F. Supp.
3d 32, 45 (D.D.C. 2015). Rather, it is "reasonable for an agency
to presume that [the FOIA requester] has selected them because
the requester believes that those terms are reasonably
calculated to identify responsive documents." Id. If "proposal"
was an obvious search term for the Bureau to use, Ms. Coffey
could have identified it herself in her FOIA request.
Moreover, Mr. Witt has stated in his supplemental
declaration that, although the agency did not search for the
term "proposal," the terms that it did use were "much broader
and retrieved documents that were responsive to the request that
did not include the word proposal." Supp. Witt Decl. ¶ 6
(further explaining that documents potentially responsive to the
substance of Ms. Coffey's FOIA request are "not limited to
formal documents styled as either applications or proposals, but
routinely take the form of simple inquiries by email"). Indeed,
at least some of the documents produced do not appear to contain
the term "proposal" at all. See, e.g., Coffey Decl. Ex. B at 1-2
(referring to "sale paperwork," "sale questionnaire," and
"application for 2 sale burros" in discussing the purchase of
burros but not using the term "proposal"). For all these
reasons, the Court rejects Ms. Coffey's challenge to the
sufficiency of the Bureau's search terms.
C. Scope of the Bureau's Search
Finally, Ms. Coffey asserts that there is "undisputed
evidence in the record suggesting that the BLM improperly
limited its search for responsive records to those records
located within the BLM's Wild Horse and Burro Office in
Washington, D.C." as opposed to "other BLM offices located
throughout the nation." Pl.'s Opp. at 11.
Ms. Coffey's argument appears to misread the Bureau's
declaration. Mr. Witt attests that he "determined that all
responsive records would be located in BLM's Wild Horse and
Burro Office (WHBO) because the WHBO is the sole office
responsible for proposals regarding selling/buying wild horses
and burros." Witt Decl. ¶ 13. Nowhere does Mr. Witt suggest that
the agency's search for records was contained to the Wild Horse
and Burro Office located in Washington, D.C. To the contrary,
Mr. Witt made clear in his initial declaration that the agency
searched the email records of Debbie Collins, see id. ¶ 20, an
employee who, according to Ms. Coffey's own FOIA request, worked
"in the Oklahoma Field Office," see FOIA Request at 1. Moreover,
to the extent any ambiguity as to the geographic scope of the
Bureau's search remains, Mr. Witt's supplemental declaration
provides even more clarity:
Plaintiff claims that only the Washington,
D.C. location of the Wild Horse and Burro
Program Office (WHBO) was searched. This is
incorrect. We searched all locations within
the WHBO that were reasonably calculated to
have records responsive to Plaintiff's
request, including WHBO locations outside of
Supp. Witt Decl. ¶ 5 (emphasis added). An agency may limit its
search to places "likely" to contain responsive documents, see
DiBacco v. U.S. Army, 795 F.3d 178, 190 (D.C. Cir. 2015), and
the Bureau did precisely that by searching for records within
the Wild Horse and Burro Program Office.
In her reply, Ms. Coffey pivots, arguing that even if the
agency did search other offices, it is still not entitled to
summary judgement on this issue because its declarations "fail
to list or describe any of those other search locations, or the
agency system of records or search methodologies allegedly
employed [in] those other locations." Pl.'s Reply in Supp. of
Cross-Motion for Summ. J. at 3, ECF No. 23.
This argument fares better. When a FOIA requester
identifies a "gap" in the agency's search, the agency must
"fill" the "gap" "to carry its burden as to the adequacy of its
search." Ancient Coin Collectors Guild v. U.S. Dep't of State,
641 F.3d 504, 515 (D.C. Cir. 2011). In particular, the agency
should "inform the Court and plaintiff whether [any other
records] of any potential relevance exist; if so whether their
responsive material is reasonably likely to add to that already
delivered; and, if these questions are answered affirmatively,
whether there is any practical obstacle to searching them." Id.
"Without such an explanation, and even if the Court can make
'reasonable guesses about the answers to these questions,' the
Court cannot award the agency summary judgment on the adequacy
of its search." Davidson v. United States Dep't of State, 206 F.
Supp. 3d 178, 191 (D.D.C. 2016) (quoting Negley v. FBI, 169 Fed.
Appx. 591, 595 (D.C. Cir. 2006)).
Here, Ms. Coffey identified a specific "gap" in the
Bureau's search – i.e., she points to "additional locations, and
additional email addresses" that should have been searched for
responsive records. Pl.'s Opp. at 11; see also Coffey Decl. Ex.
C. Although the Bureau states that it searched "WHBO locations
outside of Washington, D.C.," it has not adequately explained
which other offices were searched, the type of search performed,
or the names of any custodians that were searched. Nor has the
agency explained whether the additional custodians identified by
Ms. Coffey are likely to have responsive material and, if so,
whether there is any practical obstacle to searching for those
materials. Accordingly, on this record, the Court cannot
determine the adequacy of the Bureau's search for records in
Wild Horse and Burro Program offices outside of Washington, D.C.
See, e.g., Aguirre v. S.E.C., 551 F. Supp. 2d 33, 61 (D.D.C.
2008) (finding that the agency's search was inadequate where,
although agency "list[ed] the specific offices queried for
documents," it "fail[ed] to describe in detail how each office
conducted its search").
In view of the foregoing, and because material issues of
fact exist as to the adequacy of the Bureau's search, the Court
directs the Bureau to supplement the record as appropriate
pursuant to the Order accompanying this opinion.
Under the circumstances, the Court will not address at this
time the issue of whether Ms. Coffey is a prevailing party
within the meaning of the FOIA statute. 5 U.S.C. § 552(a)(4)(E).
Emmet G. Sullivan
United States District Judge
September 29, 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?