                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
JUDICIAL WATCH, INC.,         )
                              )
          Plaintiff,          )
                              )
     v.                       )          Civil Action No. 11-500 (GK)
                              )
UNITED STATES DEPARTMENT      )
OF JUSTICE,                   )
                              )
          Defendant.          )
______________________________)


                            MEMORANDUM OPINION

     Plaintiff Judicial Watch, Inc., brings this action against

Defendant, the United States Department of Justice (“DoJ”), under

the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Plaintiff

seeks records of any communications between the Civil Rights

Division of DoJ and the National Association for the Advancement of

Colored People Legal Defense Fund (“NAACP-LDF”) concerning U.S. v.

New Black Panther Party for Self-Defense, Case No. 2:09-cv-0065

(E.D. Pa. filed Jan. 7, 2009) (“NBPP”). This matter is before the

Court on Defendant’s Motion for Summary Judgment [Dkt. No. 10].

Upon consideration of the Motion, Opposition, and Reply, and the

entire   record   herein,   and   for   the   reasons   set   forth   below,

Defendant’s Motion for Summary Judgment is granted.
I.   BACKGROUND1

     Plaintiff is a non-profit educational foundation seeking to

promote     “integrity,        transparency,       and     accountability     in

government.”      Compl.   ¶   3   [Dkt.     No.   1].    This   case   concerns

Plaintiff’s efforts to investigate Defendant’s dismissal of voter

intimidation claims against three defendants in NBPP. On November

2, 2010, Plaintiff sent Defendant a FOIA request seeking access to

any and all records of communications between the “Civil Rights

Division and the [NAACP] Legal Defense Fund (including, but not

limited   to     communications     with     Kristen     Clarke,   Director   of

Political Participation) concerning, regarding, or relating to U.S.

v. New Black Panther Party for Self-Defense, et. al.” Plaintiff

limited the relevant time period for the request to November 4,

2008, to May 22, 2009.

     On March 9, 2011, Plaintiff filed this suit seeking to compel

Defendant   to    search   for     and   produce    all    non-exempt   records

responsive to Plaintiff’s FOIA request. At the time the Complaint

was filed, Plaintiff had not received any response from Defendant

regarding its FOIA request. Compl. ¶ 6. In a letter dated April 19,

2011, Defendant informed Plaintiff that a search had been conducted

and that it had not located any records responsive to the request.




     1
       Unless otherwise noted, the facts set forth herein are
undisputed and drawn from the parties’ Statements of Undisputed
Material Facts submitted pursuant to Local Civil Rule 7(h).

                                         2
      On May 6, 2011, Defendant filed the present Motion for Summary

Judgment. On May 27, 2011, Plaintiff filed its Opposition [Dkt. No.

11]. On June 10, 2011, Defendant filed its Reply [Dkt. No. 12].

II.   STANDARD OF REVIEW

      FOIA cases are typically and appropriately decided on motions

for summary judgment. Gold Anti-Trust Action Comm., Inc. v. Bd. of

Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123, 130 (D.D.C.

2011); Defenders of Wildlife v. United States Border Patrol, 623 F.

Supp. 2d 83, 87 (D.D.C. 2009). “The standard governing a grant of

summary judgment in favor of an agency’s claim that it has fully

discharged     its     disclosure     obligations         under     FOIA   is   well-

established . . . . [T]he agency bears the burden of showing that

there   is   no   genuine     issue      of    material    fact,    even   when     the

underlying facts are viewed in the light most favorable to the

requester.” Weisberg v. United States Dep't of Justice, 705 F.2d

1344, 1350 (D.C. Cir. 1983); see also Fed. R. Civ. P. 56(c).

      The    purpose    of   FOIA   is    to “facilitate          public   access   to

Government documents” and “to pierce the veil of secrecy and to

open agency action to the light of public scrutiny.” McCutchen v.

United States Dep’t of Health & Human Servs., 30 F.3d 183, 184

(D.C. Cir. 1994) (internal quotations omitted). In responding to a

FOIA request, an agency is under an obligation to conduct a

reasonable search for responsive records. Oglesby v. United States


                                           3
Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). To win summary

judgment on the adequacy of a search, the agency must demonstrate

beyond material doubt that its search was “reasonably calculated to

uncover all relevant documents.” Weisberg, 705 F.2d at 1351.

     To show reasonableness at the summary judgment phase and to

allow the court to determine if the search was adequate, an agency

must 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 (if such records

exist) were searched.” Oglesby, 920 F.2d at 68. 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., Inc. v. Sec. & Exch. Comm’n, 926 F.2d 1197, 1200 (D.C. Cir.

1991) (quoting Ground Saucer Watch, Inc. v. Cent. Intelligence

Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).

III. ANALYSIS

     Plaintiff      opposes   Defendant’s     Motion    on    the     ground   that

Defendant’s search for responsive documents was inadequate. Pl.’s

Opp’n 4. As noted above, to demonstrate that a search is adequate,

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,

920 F.2d at 68. Agencies must “follow through on obvious leads to


                                      4
discover requested documents.” Valencia-Lucena v. United States

Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999). There is no

requirement, however, that an agency search every record system in

which responsive documents might conceivably be found. Oglesby, 920

F.2d at 68. Still, the agency cannot limit its search to only one

record system if there are others that are likely to produce the

information requested. Nation Magazine v. United States Customs

Serv., 71 F.3d 885, 892 (D.C. Cir. 1995).

     According to the Declaration of Nelson D. Hermilla, the Chief

of the Freedom of Information/Privacy Act Branch of the Civil

Rights Division of the Department of Justice, on November 10, 2010,

Defendant commenced a three-prong search for documents in response

to Plaintiff’s request. Hermilla Decl. ¶¶ 1, 5-6 [Dkt. No. 10-3].

First, Defendant conducted a tailored search within the records of

the Voting Section, the Section within the Civil Rights Division

that handled the prosecution of NBPP. Id. ¶¶ 5-6. The Voting

Section conducted searches of all emails, networks, and local files

for “Kristen Clarke” and “NAACP.” Id. ¶¶ 8-9. The search term

“NAACP” was used because it is included in the suffix of the

business   email   addresses   of   all   NAACP-LDF   employees,   i.e,

"___@NAACPLDF.org," and therefore would retrieve any emails from or

to NAACP-LDF employees. Id. ¶ 8. The Voting Section conducted

additional searches within the requested date range of November 4,




                                    5
2008, through May 22, 2009, in order to confirm that all responsive

documents were found.2 Id. ¶ 10.

          Second, Defendant reviewed “the results of prior searches for

NBPP-related records in response to requests from other FOIA

requesters      and   the   United   States   Commission    on   Civil      Rights

(‘USCCR’), which examined the Department’s handling of the New

Black Panther Party case.” Id. ¶ 6. Because the Civil Rights

Division had received a number of previous, broader FOIA requests

for Voting Section records related to NBPP, the Division had a set

of   previously       collected   materials   referred     to    as   the    “NBPP

Collection.” Id. ¶¶ 12-15. This collection contained the results

from searches of all Division activity in connection with NBPP, and

constituted the Division’s most comprehensive compilation of NBPP

records. Id. ¶ 14. The materials included all the paper and

electronic records of Civil Division employees who had worked on

NBPP, collected by “the Office of the Assistant Attorney General,

Administrative Management, and the Appellate, Criminal, Housing,

Civil Enforcement, and Voting Sections.” Id.




      2
       In its Motion, Defendant states that these additional
searches were actually a “date-range search for records in the
period ‘November 4, 2008 through May 22, 2009,’” the results of
which were reviewed for responsive communications. Def.’s Mot. 6.
However, the Hermilla Declaration is not so specific, and only
references “searches within the requested date range . . . to be
certain that the search for responsive records was as thorough as
possible.” Hermilla Decl. ¶ 10.

                                        6
     The Civil Rights Division reviewed the NBPP collection for

responsiveness to Plaintiff’s request by conducting searches within

the collection for terms such as “Kristen Clarke,” “National

Association   for      the    Advancement   of    Colored    People,”     and

permutations of these names. Id. ¶ 16. The Division also used

synonym lists and combinations of the search parameters, which

included terms and dates, in order to find those records in which

there were misspellings, nicknames, or poor quality or bad optical

character resolution. Id.

     Third, Defendant searched USCCR’s website, which contained

various documents and materials relating to the NBPP litigation.

Id. ¶ 17. On that website, the Division found copies of four emails

from Civil Rights Division employees “forwarding news articles

about the New Black Panther Party case to Kristen Clarke.” Id. ¶

18. Of the four, only one email was within the time period of

Plaintiff’s request. Id.

     Thereafter, Defendant conducted a search using the employees’

names, the dates of emails, and “unique words and language” found

in the text of all four of the emails on the USCCR website. Id. ¶

19. Defendant searched “all Voting Section emails, network, and

local files, as well as the NBPP Collection.” Id. Defendant also

conducted searches in the files of the employees who sent the

emails displayed on the USCCR’s site. Id. ¶ 20. Despite these

searches,   however,    the   “Defendant    did   not   locate   either   the


                                     7
specific emails from Ms. Clarke’s deposition,” conducted on January

8, 2010, by the USCCR, “or any other responsive records.” Id.

      Plaintiff argues that these Civil Rights Division searches

were deficient because they failed to locate an email sent on

January 19, 2009, from Judith Reed, an employee of Defendant, to

Kristen Clarke. Pl.’s Opp’n 4. Plaintiffs state that this email was

introduced during the USCCR’s deposition of Ms. Clarke. Id. at 4-5.

Plaintiff   argues    that      because       “Defendant   admits    it   used    the

Commission’s records when formulating its search and still did not

discover the January 19, 2009 e-mail, Defendant has clearly failed

to   demonstrate     that    its    search      was   reasonable.”    Id.    at   5.

Similarly, Plaintiff argues that because the Division claims to

have used “___@NAACPLDF.org” as a search term, it is unlikely that

the January 19, 2009, email, which contained the term, would not

have been uncovered by a reasonable document search. Id.

      Defendant’s affidavit provides a plausible explanation for the

failure of a reasonable search to locate a copy of the email to

Kristen Clarke on the USCCR’s website. The Division’s policy “is to

retain emails that are appropriate for preservation because they

contain substantive information concerning agency activities.”

Hermilla Decl. ¶ 21. Emails that “contain minimal or no documentary

or   evidential    value    .   .   .   are    not    retained.”    Id.   “Further,

documents deleted within twenty-four hours are not retained in any

electronic repository.” Id.


                                          8
       In response to Defendant’s explanation of its email retention

procedure, Plaintiff argues that the January 19, 2009, email

“clearly contains more than a forwarded newspaper article” because

a statement in the email, “Don’t know if you were aware of this

latest lawsuit,” suggests prior communications. Pl.’s Opp’n 5

(emphasis in Plaintiff’s Opposition). Plaintiff contends that this

language indicates that “Ms. Reed had had prior communications with

Ms. Clarke about the Black Panther litigation.” Id.

       Plaintiff’s argument is, to say the least, creative. The

logical reading of the phrase “latest lawsuit” is simply that Ms.

Reed was identifying the lawsuit to which she was referring as the

most    recent    in   time.    The    phrase    “latest     lawsuit”         does   not

unambiguously demonstrate that Ms. Reed contacted Ms. Clarke about

any other lawsuit or topic. Plaintiff’s argument is the type of

“‘purely        speculative     claim[]         about      the        existence      and

discoverability of other documents’” which is insufficient to rebut

the     “presumption    of     good    faith”     accorded       to     the    Hermilla

Declaration. SafeCard, 926 F.2d at 1200 (quoting Ground Saucer

Watch, 692 F.2d at 771).

       Moreover, “adequacy of a search is not determined by its

results, but by the method of the search itself.” Saldana v. Fed.

Bureau of Prisons, 715 F. Supp. 2d 24, 26 (D.D.C. 2010) (citing

Weisberg v. United States Dep’t of Justice, 745 F.2d 1476, 1485

(D.C.    Cir.    1984)).     Indeed,    “an     agency’s    failure       to    find   a


                                         9
particular document does not undermine the determination that the

search was adequate” and “there could be several possible reasons

other than an inadequate search for why particular records are not

located.” Jefferson v. Bureau of Prisons, 578 F. Supp. 2d 55, 58

(D.D.C. 2008) (citing Wilbur v. Cent. Intelligence Agency, 355 F.3d

675, 678 (D.C. Cir. 2004)). As our Court of Appeals has stated,

“there is no requirement that an agency produce all responsive

documents.” Nation Magazine, 71 F.3d at 892 n.7 (emphasis in

original). Plaintiff is simply wrong, therefore, when it argues

that Defendant’s search was inadequate “[b]ecause at least one

record exists that is responsive to Plaintiff’s request,” which was

not produced.      Pl.’s   Opp’n   5.   To    the   contrary,    Defendant has

submitted a reasonably detailed affidavit explaining a three-

pronged search that was “reasonably calculated to uncover all

relevant documents.” Weisberg, 705 F.2d at 1351.

IV.   CONCLUSION

      For the reasons set forth above, Defendant’s Motion for

Summary   Judgment    is   granted.      An    Order   shall    accompany   this

Memorandum Opinion.




                                               /s/
August 22, 2011                               Gladys Kessler
                                              United States District Judge



                                        10
