COZEN O'CONNOR v. THE OFFICE OF FOREIGN ASSETS CONTROL

Filing 17

MEMORANDUM AND OPINION. SIGNED BY HONORABLE JAN E. DUBOIS ON 11/29/17. 11/30/17 ENTERED & E-MAILED.(fdc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
COZEN O’CONNOR,
Plaintiff,

CIVIL ACTION

v.
THE OFFICE OF FOREIGN ASSETS
CONTROL,
Defendant.

NO. 17-1490

DuBois, J.

November 29, 2017
MEMORANDUM

I.

INTRODUCTION

In this suit under the Freedom of Information Act (―FOIA‖), plaintiff law firm asserts
that defendant Office of Foreign Assets Control (―OFAC‖) failed to conduct a search for
requested documents that could reasonably be expected to produce those documents. Currently
before the Court is defendant‘s Motion for Summary Judgment and plaintiff‘s Cross-Motion for
Summary Judgment. Because plaintiff has shown that there is no genuine issue of material fact
that defendant‘s search was not reasonably calculated to uncover all relevant documents,
plaintiff‘s Cross-Motion for Summary Judgment is granted and defendant‘s Motion for Summary
Judgment is denied.
II.

BACKGROUND

The facts below are drawn from the record before the Court, which the Court construes in
the light most favorable to the nonmoving party, as it must in a motion for summary judgment.
Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). The undisputed facts set forth in the record
before the Court may be summarized as follows:

The timeline of plaintiff‘s request is fairly straightforward. On January 29, 2016,
plaintiff submitted a FOIA request to the Department of Treasury, of which OFAC is a
subdivision. Def. St. Mat. Facts, Doc. No. 11 ¶ 9.1 The Department of Treasury did not receive
plaintiff‘s request until May 10, 2016, when plaintiff sent an email to the Treasury Office of
Privacy, Transparency, and Records. Id. ¶ 10. On June 3, 2016, the Department of Treasury
acknowledged receipt of plaintiff‘s request and assigned the request to OFAC and, ultimately,
the OFAC FOIA Office. Id. ¶ 11, 14.
In its request assigned to OFAC, plaintiff sought: ―all documents related to [OFAC‘s]
procedures for granting licenses to persons and companies to conduct business in the Republic of
Cuba pursuant to 31 C.F.R. Part 515, Subpart E, including but not limited to: a) Documents
related to the creation of these procedures; b) Documents related to the process by which OFAC
reviews applications from potential licensees; and c) Documents related to the criteria that
OFAC uses to determine whether to grant such licenses.‖ Def. Mot. Summ. J., Doc. No. 10, ex.
A.
From June 3, 2016, until January 11, 2017, the parties engaged in a series of
communications regarding the status of plaintiff‘s request. Doc. No. 11 ¶¶ 11-20. On January
12, 2017, OFAC issued a final response to plaintiff‘s request, stating that OFAC did not have
responsive documents. Id. ¶ 21. On February 3, 2017, plaintiff filed an administrative appeal of
OFAC‘s decision. Id. ¶ 22. In its administrative appeal, plaintiff asserted, ―It is hard to believe
that OFAC does not have any procedures to determine who is eligible for these licenses and to

1

Plaintiff ―largely does not dispute OFAC‘s recitation of the chronology of [its] FOIA Request
and subsequent appeal.‖ Pl. Cross-Mot. Summ. J., Doc. No. 13 at 3. Plaintiff does not identify
any disputed material facts in its briefing, and this Court was unable to identify any.
Consequently, this Court will treat defendant‘s Statement of Material Facts as undisputed.
2

ensure that individual licenses to not run afoul of the [Cuba] embargo.‖ Id ¶ 24. On March 20,
2017, the Director of OFAC denied plaintiff‘s appeal. Id. ¶ 26.
OFAC‘s internal processing of plaintiff‘s request is set forth in a declaration by Marshall
H. Fields, Jr., Assistant Director, Information Disclosure and Records Management Division,
Office of Sanctions Support Operations (―Fields Declaration‖). Doc. No. 10-1. According to the
Fields Declaration, the OFAC FOIA Office assigned plaintiff‘s request to the OFAC Licensing
Division. Id. ¶ 18. The OFAC FOIA Office ―determined that the Licensing Division is the only
place where responsive records were likely to be located.‖ The OFAC FOIA Office based its
determination on its ―knowledge of the records maintained by OFAC offices‖ and ―its
knowledge of and research into the subject of the request.‖ Id. ¶ 19. The Licensing Division
tasked senior licensing officials within the Licensing Division to search paper and electronic files
for responsive documents, and on January 6, 2017, the Licensing Division reported to the OFAC
FOIA Office that no responsive documents were located. Id. ¶ 20.
The Fields Declaration states that following denial of plaintiff‘s administrative appeal,
the OFAC FOIA Office requested that the Licensing Division supplement its search in July
2017. Fields Declaration, Doc. No. 10-1 ¶ 23. The Licensing Division searched for the terms
―Cuba,‖ ―policy,‖ ―procedure,‖ ―licensing policy,‖ and ―licensing procedure‖ across the OFAC
system where OFAC maintains licensing records, the Licensing Division‘s internal shared
network drive, the Licensing Division‘s internal intranet website, and the Licensing Division‘s
hardcopy paper files. Id. These terms, defendant contends, ―are derived from and go to the heart
of plaintiff‘s request.‖ Doc. No. 16 at 4. None of these searches located responsive documents.
Doc. No. 10-1 ¶ 23.
Plaintiff filed its Complaint for Declaratory and Injunctive Relief in this Court on April 3,
2017. In the Complaint, plaintiff asserts a single violation of FOIA for ―failing to make a good
3

faith effort to conduct a search for the requested records using methods which could reasonably
be expected to produce those records.‖ Comp. ¶ 5. Plaintiff also alleges that defendant failed to
provide responsive records within a reasonable time. Id. Neither party, however, has moved for
summary judgment on that basis. Consequently, this Memorandum will address only the
question whether defendant‘s search could reasonably be expected to produce the requested
records.
On August 4, 2017, defendant filed its Motion for Summary Judgment. Doc. No. 10. On
August 30, 2017, plaintiff filed a Cross-Motion for Summary Judgment and Opposition to
Defendant Office of Foreign Assets Control‘s Motion for Summary Judgment. Doc. No. 13.
Defendant filed a Reply in Support of Its Motion for Summary Judgment on September 8, 2017.
Doc. No. 16. These Motions are now ripe for decision.
III.

LEGAL STANDARD

Motions for summary judgment under FOIA will be granted only if they meet the
standard ―as in any other[]‖ case. Founding Church of Scientology, Inc. v. Nat’l Sec. Agency,
610 F.2d 824, 836 (1979). In general, a motion for summary judgment will be granted if ―the
movant shows that 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); see Celotex Corp. v. Catrett, 477 U.S.
317, 322–23 (1986). In the FOIA context, an agency‘s motion for summary judgment will be
granted only if it ―show[s] beyond material doubt that it has conducted a search reasonably
calculated to uncover all relevant documents.‖ Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir.
2007) (quoting Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). ―The
relevant inquiry is not ‗whether there might exist any other documents possibly responsive to the
request, but rather whether the search for those documents was adequate.‘‖ Abdelfattah v.
United States Dep’t of Homeland Sec., 488 F.3d 178, 182 (3d Cir. 2007) (quoting Weisberg v.
4

U.S. Dep’t of Justice, 745 F.2d, 1476, 1485 (D.C. Cir. 1984)). ―To demonstrate the adequacy of
its search, the agency should 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.‘‖ Abdelfattah, 488 F.3d at 182 (3d Cir. 2007) (quoting ValenciaLucena v. United States Coast Guard, FOIA/PA Records Mgmt., 180 F.3d 321, 326 (D.C. Cir.
1999)). However, ―the requester may nonetheless produce countervailing evidence, and if the
sufficiency of the agency‘s identification or retrieval procedure is genuinely in issue, summary
judgment [for the agency] is not in order.‖ Founding Church of Scientology, 610 F.2d at 836.
IV.

DISCUSSION

In its Motion for Summary Judgment, defendant argues that the Fields Declaration shows
that its search was reasonably calculated to uncover all relevant documents and that its Motion
should be granted. In its Cross-Motion, plaintiff argues that defendant‘s search was inadequate
because (1) the scope of the search did not include divisions outside the Licensing Division,
(2) defendant‘s search terms were inadequate, and (3) publicly available documents from
defendant‘s website show that defendant has responsive documents in its possession. Taken
together, the issues identified by plaintiff show that there is no genuine issue of material fact that
defendant‘s search was not reasonably calculated to uncover all relevant documents.
Consequently, plaintiff‘s Cross-Motion will be granted and defendant‘s Motion will be denied.
A. Scope of the Search
The parties‘ Motion and Cross-Motion for Summary Judgment focus largely on the scope
of defendant‘s search. Defendant argues that the Fields Declaration shows that its search was
reasonably calculated to uncover all relevant documents. Doc. No. 10 at 10. Plaintiff, however,
contends that the Fields Declaration fails to explain why OFAC‘s search was limited to the
Licensing Division. Doc. No. 13.
5

The Court agrees with plaintiff that an adequate search should have covered not only the
Licensing Division, but other divisions in OFAC as well. Although ―[t]here is no requirement
that an agency search every record system,‖ an agency ―cannot limit its search to only one record
system if there are others that are likely to turn up the information requested.‖ Oglesby v. United
States Dep’t of Army, 920 F.2d 57, 68 (1990). The Fields Declaration states that because ―the
Licensing Division is the OFAC entity responsible for handling all OFAC licensing requests,‖
the Licensing Division would be the ―only place where responsive records were likely to be
located.‖ Doc. No. 10-1, ex. A at 5. Based on that statement, defendant argues that it searched
the system on which OFAC maintains its licensing records, the Licensing Division‘s internal
shared network drive, the Licensing Division‘s internal intranet, and the Licensing Division‘s
hardcopy paper files. Id.
Plaintiff‘s argument, however, shows there is no genuine issue of material fact that the
scope of defendant‘s search was inadequate. Although defendant argues the Licensing Division
is the only place that could contain responsive documents, it provides no reasons to support this
contention. The Fields Declaration states that the OFAC FOIA Office concluded the Licensing
Division was the only entity within OFAC with responsive documents based on its ―knowledge‖
of the entities within OFAC. The Fields Declaration does not state what ―knowledge‖ the OFAC
FOIA Office relied on or what reasoning it employed in concluding that other divisions or
entities within OFAC would not be included in a reasonable search.
In fact, the Fields Declaration shows the opposite: there are divisions or entities within
OFAC that should have been included in defendant‘s search. The Fields Declaration states that
the Office of Compliance and Enforcement ―provides guidance to the regulated community.‖
Doc. No. 10-1 ¶ 8. Plaintiff‘s request deals not just with licensing records, but with the policies
and procedures for reviewing and granting licenses. Guidance provided by the Office of
6

Compliance and Enforcement could reasonably address the procedures for granting licenses or
the process for reviewing applications. Defendant has provided no reasons why other entities
within OFAC, including the Office of Compliance and Enforcement, would not have relevant
documents or why it did not search those entities.
The courts of appeals have reversed grants of summary judgment for defendant agencies
where the agencies failed to provide reasons why they did not search other divisions or entities.
In Oglesby v. U.S. Department of Army, 920 F.2d at 60–61, a plaintiff filed suit against the
United States Department of State and other agencies, alleging they improperly denied his FOIA
requests in connection with a book about German general Reinhard Gehlen. The district court in
Oglesby granted each of the agencies‘ motions for summary judgment. Id. at 61. On appeal,
plaintiff argued, among other things, that the State Department‘s search for documents was
inadequate because its affidavit stated that it had searched only the record system it deemed
―most likely‖ to contain the requested information. Id. at 67. The State Department‘s affidavit
further stated that ―based upon the information contained in Mr. Oglesby‘s letter, and consistent
with customary practice and established procedure, a search was initiated of the Department
record system most likely to contain the [requested] information.‖ Id. at 68. The Court of
Appeals for the District of Columbia Circuit agreed with the plaintiff and rejected the State
Department‘s search as inadequate, stating:
[An] agency cannot limit its search to only one record system if there are others
that are likely to turn up the information requested. It is not clear from State‘s
affidavit that the Central Records system is the only possible place that responsive
records are likely to be located. At the very least, State was required to explain in
its affidavit that no other record system was likely to produce responsive
documents.
Id. at 68.

7

The Oglesby court ruled that the agency had not carried its burden to show that it
conducted a search reasonably calculated to uncover all relevant documents and remanded the
case for further proceedings. Id. The court stated that, on remand, ―the district court may order
State to submit a reasonably detailed affidavit upon which the reasonableness of its search can be
judged.‖
Similarly, in Campbell v. United States Department of Justice, 164 F.3d 20, 28 (D.C. Cir.
1998), the District of Columbia Circuit reversed a grant of summary judgment for the defendant
agency because the agency had improperly limited its search to one record system. Plaintiff in
that case filed a FOIA request with the Department of Justice, seeking documents for a
biography of James Baldwin. Id. at 26. The district court granted the Department of Justice‘s
motion for summary judgment and denied plaintiff‘s cross motion. Id. at 26–27. The plaintiff
appealed, arguing that the Department of Justice‘s search was inadequate because it had been
limited to the agency‘s central records system. Id. at 27. An adequate search, the plaintiff
argued, would have included a separate file on electronic surveillance. Id. In its affidavit, the
Department of Justice stated that in the ―vast majority of cases‖ searches outside the central
records system were ―unnecessary.‖ Id. The District of Columbia Circuit rejected the
Department of Justice‘s argument, holding that it ―must search‖ electronic surveillance files in
addition to its central records system ―in response to a general FOIA request for which
[electronic surveillance files] may be relevant.‖ Id. at 28. On remand, the agency was directed
to search the electronic surveillance file and respond to plaintiff‘s request accordingly. Id. at 29.
Similarly, in this case, defendant has failed to explain why it limited its search to the
Licensing Division, when the agency‘s own declaration shows that documents in the possession
of other divisions ―may be relevant.‖ Viewing the record in the light most favorable to

8

defendant, the Court concludes that there is no genuine issue of material fact that the scope
defendant‘s search was inadequate.
B. Search Terms Used
Plaintiff also argues that defendant‘s search was not reasonably calculated to uncover all
relevant documents because its selected search terms were inadequate. In addition to OFAC‘s
search for the terms ―Cuba,‖ ―policy,‖ ―procedure,‖ ―licensing policy,‖ and ―licensing
procedure,‖ plaintiff argues that defendant should have used additional terms such as
―guidelines,‖ ―directions,‖ ―instructions,‖ or ―guidance.‖ This Court agrees that the search terms
used by defendant were inadequate, although for different reasons than plaintiff provides. Cf.
Physicians for Human Rights v. United States DOD, 675 F. Supp. 2d 149, 164 (D.D.C. 2009)
(stating that agencies may ―properly exercise[] their discretion in crafting lists of search terms‖
and ―there is no bright-line rule requiring agencies to use the search terms proposed‖ by a
requester).
It is clear from the record that defendant‘s search terms were not reasonably calculated to
uncover documents relevant to plaintiff‘s third request for the ―criteria that OFAC uses to
determine‖ whether to grant licenses. None of the search terms used by defendant are related to
that ―criteria.‖ Defendant‘s search terms instead focus only on plaintiff‘s first two requests
covering defendant‘s procedures and policies for reviewing applications. Consequently, the
Court concludes that, viewed in the light most favorable to defendant, the record leaves no
genuine issue of material fact that the search terms used by the defendant were inadequate.
C. Positive Indications of Overlooked Materials
As a final point, plaintiff argues that documents posted to defendant‘s website
demonstrate that defendant has responsive documents in its possession that it failed to produce.
Doc. No. 13 at 3. The Court concludes that, taken with the other inadequacies in defendant‘s
9

search, the existence of such documents shows that there is no genuine issue of material fact that
defendant‘s search was inadequate. Although ―it 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 . . . [i]n
certain circumstances, a court may place significant weight on the fact that a records search
failed to turn up a particular document in analyzing the adequacy of a records search.‖ Duenas
Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). If ―a review of the
record raises substantial doubt, particularly in view of ‗well-defined requests and positive
indications of overlooked materials,‘ summary judgment [for the agency] is inappropriate.‖
Valencia-Lucena, 180 F.3d at 326 (quoting Founding Church of Scientology, 610 F.2d at 837).
To support its argument, plaintiff has supplemented the record with publicly available
documents from defendant‘s website. Doc. No. 13 at 3. One document outlines the differences
between a ―general license‖ provided by regulation and a ―specific license‖ provided by OFAC.
Id., ex. A. That document states that ―the Regulations now contain[] general licenses
authorizing, with certain limitations . . . person[s] subject to the jurisdiction of the United States
to engage in certain transactions involving the United States and Cuba.‖ Id. The document
further provides that, for activities not covered by a general license, an applicant must seek a
specific license from OFAC on a ―case-by-case‖ basis; the document then lists the materials
required in an application for a specific license. Id. A second document provides links to
guidance on licenses for certain publishing activities, guidance on licenses to transfer claims
against Cuba certified by the Foreign Claims Settlement Commission, and ―guidance on OFAC
licensing policy.‖ Doc. No. 13, ex. B.
In response, defendant argues that ―not one of the webpages . . . references or alludes to
any procedures relating to granting licenses to do business in Cuba,‖ but instead addresses only
the procedures for applying for a license. Doc. No. 16 at 2.
10

The Court agrees with plaintiff. Defendant‘s arguments notwithstanding, these document
reference defendant‘s policies and procedures for granting licenses to do business in Cuba. The
documents distinguish between general and specific licenses, instruct applicants on what to
include in applications for specific licenses, and provide guidance to applicants on specific
topics. It is reasonable to infer that defendant has additional documents related to the policies
and procedures embodied in the documents supplied by plaintiff. Considered in light of the
inadequacy of the scope of defendant‘s search and the inadequacy of the search terms used by
the defendant, the ―positive indications of overlooked materials‖ in this case show that there is
no genuine issue of material fact as to the inadequacy of defendant‘s search.
The courts of appeals have reversed grants of summary judgment for defendant agencies
where there are positive indications of overlooked materials. In Oglesby v. United States
Department of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996), plaintiff sought documents from
various agencies, including the United States Army, for a book about German general Reinhard
Gehlen. Following an earlier remand from the District of Columbia Circuit, the district court
granted various motions for summary judgment filed by the agencies, including the Army. Id.
The Army had previously explained in a letter to plaintiff that it had searched two indices of
records in response to plaintiff‘s request. Id. at 1185. On appeal, plaintiff argued that the Army
had failed to explain why it had searched only those two indices. Id. To support his argument,
plaintiff supplemented the record with an earlier book about Gehlen by another author that stated
the author had received ―well over a thousand documents‖ from the Army in response to FOIA
requests. Id. The District of Columbia Circuit held that ―[a]lthough information in the record
fails to reveal the precise nature of the FOIA request the book author submitted‖ and therefore
could not ―prove‖ that the Army‘s search was inadequate, plaintiff had sufficiently ―raise[d]
enough of a doubt to preclude summary judgment in the absence of an affidavit describing
11

Army‘s filing system and decision to search only the [two identified] indices.‖ Id. The District
of Columbia Circuit remanded the case and directed that, on remand, the Army must provide ―a
relatively detailed affidavit addressing the issue.‖ Id.
Similarly, in Aguiar v. Drug Enforcement Agency, 865 F.3d 730, 733 (D.C. Cir. 2017), a
plaintiff sued the DEA for failure to provide documents in response to plaintiff‘s FOIA request
related to his conviction of narcotics offenses. In particular, plaintiff sought four administrative
subpoenas that the DEA had issued during its investigation of plaintiff‘s offenses, but was unable
to find in response to plaintiff‘s request. Id. The district court granted the DEA‘s motion for
summary judgment, relying on the DEA‘s affidavit that its search of two particular case files
―would have uncovered all subpoena related information‖ in its possession. Id. at 734. The
District of Columbia Circuit reversed, stating that the DEA affidavit stated only that ―no other
record systems [were] reasonably likely to contain‖ the subpoenas, but did not explain why that
was the case. Id. at 739. There was no dispute that the subpoenas had once existed. Id. Where
there were such ―positive indications of overlooked materials,‖ the agency was required to
explain why the requested documents were unlikely to be located elsewhere or conduct an
adequate search for those documents. Id. The District of Columbia Circuit remanded and stated
that, on remand, the agency could file a new declaration explaining why the two files were the
only ones ―likely to contain the subpoenas.‖ Id.
Taken as whole, the record in this case—including the scope of defendant‘s search, the
terms used in that search, and the indications of overlooked materials—shows there is no
genuine issue of material fact that defendant‘s search was inadequate. Defendant failed to
search beyond a single division or use search terms responsive to each of plaintiff‘s requests, and
the ―positive indications of overlooked materials‖ support plaintiff‘s contention that defendant‘s
search was inadequate. Defendant has failed to explain why its search did not included divisions
12

other than the Licensing Division or why it selected the search terms it used. Even in the light
most favorable to defendant, the record leaves no genuine issue of material fact that defendant‘s
search was not reasonably calculated to uncover all relevant materials. Thus, plaintiff‘s CrossMotion for Summary Judgment is granted; defendant‘s Motion for Summary Judge is denied.
V.

CONCLUSION

For the foregoing reasons, plaintiff Cozen O‘Connor‘s Cross-Motion for Summary
Judgment is granted and defendant Office of Foreign Assets Control‘s Motion for Summary
Judgment is denied. Defendants shall conduct additional searches in accordance with this
Memorandum. Before doing so, the parties shall meet and confer regarding the scope of
defendant‘s searches and defendant‘s selected search terms within ten (10) days. After any
disputes regarding the scope of defendant‘s searches and selected search terms are resolved by
agreement or supplemental court order, defendant shall perform the searches and produce any
responsive documents within thirty (30) days. An appropriate order follows.

13