                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
___________________________________
                                    )
DAVID COLE,                         )
                                    )
     Plaintiff,                     )
                                    )
 v.                                 )    Civil Action No.
                                    )    15-1991 (EGS)
                 1
KENT B. ROCHFORD, et al.,           )
                                    )
     Defendants.                    )
___________________________________)

                  MEMORANDUM OPINION AND ORDER


     Plaintiff David Cole seeks records from the Federal

Emergency Management Agency ("FEMA") under the Freedom of

Information Act ("FOIA"), 5 U.S.C. § 552. Although Mr. Cole

submitted his request in May 2011, FEMA failed to produce any

documents until April 2016, approximately five months after Mr.

Cole filed this lawsuit. Since that time, FEMA has produced

responsive records and a Vaughn index, and the parties have made

efforts to narrow the areas of dispute remaining between them.

Unable to make further progress, but before either party had

filed a motion for summary judgment, Mr. Cole filed the instant

motion for leave to take limited discovery. See Pl.'s Mot. for




1    Pursuant to Federal Rule of Civil Procedure 25(d), the
Court substitutes as defendant the Acting Director of the
National Institute for Standards and Technology, Kent B.
Rochford, for former Director of the National Institute for
Standards and Technology, Willie E. May.
                                1
Discovery ("Pl.'s Mot."), ECF No. 15. As explained more fully

below, Mr. Cole's motion for discovery is denied.

I.   BACKGROUND

     A.   Plaintiff's FOIA Request

     On May 20, 2011, plaintiff David Cole submitted a FOIA

request to FEMA for certain documents related to the collapse of

World Trade Center buildings on September 11, 2001. See Compl. ¶

9, ECF No. 1. Specifically, Mr. Cole requested "all background

or raw data used for the FEMA 403 Building Performance Study"

regarding the World Trade Center buildings, "including

photographs, video, audio, field notes, memoranda, lab samples,

and lab results." Id.

     B.   The Government's Efforts to Respond to Plaintiff's
          FOIA Request

     FEMA acknowledged receipt of Mr. Cole's request six days

after receiving it, and the agency advised Mr. Cole that it had

"queried the appropriate component of FEMA for responsive

records." See Pl.'s Mot. Ex. 9, ECF No. 15-14. On December 23,

2011, FEMA sent Mr. Cole a letter explaining that, while it had

been unable to locate any responsive records, it understood that

the information sought by Mr. Cole was "under the purview of the

National Institute of Standards and Technology ("NIST")." Pl.'s

Mot. Ex. 6, ECF No. 15-11. FEMA therefore transferred Mr. Cole's

FOIA request to NIST for processing. Id. On June 29, 2012, NIST

confirmed that it had searched for records responsive to Mr.
                                2
Cole's request and had determined that 3,789 pages of records

were releasable in whole or in part. Pl.'s Mot. Ex. 7, ECF No.

15-12.

     On August 30, 2012, FEMA notified Mr. Cole that it had

approximately 490,000 pages of boxed records pertaining to the

World Trade Center in storage at the National Archives and

Records Administration ("NARA"). Pl.'s Mot. Ex. 8, ECF No. 15-

13. Although the inventory of those records did "not readily

indicate any additional responsive material," FEMA explained

that Mr. Cole could "submit a new FOIA request if [he] was

interested in searches being conducted on these records." Id.

     Having not received any documents from either FEMA or NIST,

Mr. Cole filed this lawsuit on November 12, 2015. See Compl. ¶

23, ECF No. 1; Pl.'s Mot. Ex. 5 ¶ 8, ECF 15-10. FEMA finally

produced documents in April 2016, almost five years after Mr.

Cole submitted his FOIA request. See Second Joint Status Report

at 1 (June 7, 2016), ECF No. 9. Mr. Cole reviewed the records he

received and, on June 7, 2017, sent an email to defendants'

counsel identifying "a preliminary list of responsive records,

and in some cases individually identifiable responsive records,

not provided" to him in FEMA's production. Pl.'s Mot. Ex. 1 at

1, ECF No. 15-3. For example, Mr. Cole noted that a document

produced by FEMA "show[ed] that a set of WTC7 drawings was sent

. . . to FEMA contractor Gilsanz Murray Steficek" but that those

                                3
drawings were not produced by FEMA. Id. Mr. Cole also pointed to

an inventory of records transferred from FEMA to NIST which

listed CDs and drawings that he believed were responsive to his

FOIA request but had not been produced. Id. at 1-2.

     The government responded to Mr. Cole's email on August 23,

2016. See Pl.'s Mot. Ex. 2, ECF No. 15-7. With respect to the

CDs and video Mr. Cole had specifically inquired about in his

June email, FEMA explained that it had been "unable to locate

any additional drawings" in its search for responsive records.

Id. at 1 (emphasis added). With respect to drawings and other

documents requested by Mr. Cole, FEMA explained that it had

"been unable to locate" those records "in a search of the

materials in the Disclosure Branch, where the documents returned

by NIST have been retained because of Mr. Cole's FOIA requests."

Id. at 1-2. FEMA further stated that the requested materials

"may be available in [FEMA Region 2's] Regional off site

archives" and that the agency would be "willing to send two of

its personnel to the warehouse to perform a reasonable search"

for the records. Id.

     Mr. Cole agreed that FEMA should conduct a search of its

Region 2 archives and proposed that, if the records were not

found, FEMA should "explain how it could be that these records .

. . cannot be found, and state what happened to them." Pl.'s

Mot. Ex. 3, ECF No. 15-8. Approximately six weeks later, FEMA

                                4
responded that, "[a]fter consulting with the [subject-matter

expert], it was determined that there is no FEMA Region 2

archive and the responsive records were not sent to the NARA

archives." See Pl.'s Mot. Ex. 4 at 2-4, ECF No. 15-9. FEMA

explained that this was its "final response" and that no

additional records would be produced. Id. at 1.

     C.     Plaintiff's Request for Discovery

     On March 27, 2017, Mr. Cole filed the instant motion for

leave to conduct limited discovery. See Pl.'s Mot., ECF No. 15.

Mr. Cole argues that discovery "is appropriate in a FOIA action

when it is apparent that the Defendant agency had not provided

complete disclosure of the records responsive to the plaintiff's

FOIA request." Pl.'s Mem. in Supp. of Pl.'s Mot. at 2, ECF No.

15-1. According to Mr. Cole, the Court should allow discovery

"regarding the nature and scope of Defendants' records searches

(or lack thereof)" here because Mr. Cole has "presented evidence

that raises serious doubt about . . . whether Defendants have

made a complete disclosure and conducted an adequate search."

Id. at 8.

     Mr. Cole further argues that FEMA's responses to his FOIA

request "raise serious questions regarding whether Defendants'

search for and production of documents . . . has been in good

faith." Id. at 10. For example, Mr. Cole points to FEMA's

"completely off point" statement that it was unable to locate

                                  5
"additional drawings" in response to Mr. Cole's inquiry about

CDs and a video. Id. In addition, Mr. Cole asserts that FEMA's

responses raise questions as to whether it "engaged in blatantly

inadequate search efforts" and whether it had "complied with

FOIA's mandate that the agency conduct a reasonable search for

the records in electronic form or format." Id. at 14-15.

      Based on these allegations, Mr. Cole seeks leave to conduct

limited discovery pursuant to a joint discovery plan that he

intends to submit after consultation with government counsel.

Id. at 20. As part of this limited discovery, Mr. Cole requests

that the Court grant him leave to take "at least some

depositions" because "[d]epositions have the greatest potential

for determining the adequacy of Defendants' search efforts and

why key records have not been produced." Id.

II.   LEGAL STANDARD

      It is well established that discovery is rare in FOIA

cases. See, e.g., Harrison v. Fed. Bureau of Prisons, 681 F.

Supp. 2d 76, 80 (D.D.C. 2010) ("'[d]iscovery is not favored in

lawsuits under the FOIA'") (citation omitted); Thomas v. Food &

Drug Admin., 587 F. Supp. 2d 114, 115, n.1 (D.D.C. 2008)

("discovery is an extraordinary procedure in a FOIA action").

Indeed, in the FOIA context, courts have permitted discovery

only in exceptional circumstances where a plaintiff raises a

sufficient question as to the agency's good faith in searching

                                 6
for or processing documents. See, e.g., Citizens for

Responsibility & Ethics in Washington v. U.S. Dep't of Justice,

No. 05-CV-2078, 2006 WL 1518964, at *3-6 (D.D.C. June 1, 2006)

(permitting discovery in a FOIA action where the government

engaged in extreme delay); Landmark Legal Found. v. E.P.A., 959

F. Supp. 2d 175, 184 (D.D.C. 2013) (ordering discovery in a FOIA

action on the question of whether senior administrators used

personal emails for official business and whether the EPA

excluded key officials from their initial search); see also

Baker & Hostetler LLP v. U.S. Dep't of Commerce, 473 F.3d 312,

318 (D.C. Cir. 2006) (district court properly denied plaintiff's

discovery request where plaintiff "offered no evidence of bad

faith to justify additional discovery"). Discovery may also be

appropriate if agency affidavits "do not provide information

specific enough to enable [the plaintiff] to challenge the

procedures utilized." Weisberg v. Dep't of Justice, 627 F.2d

365, 371 (D.C. Cir. 1980).

     A district court has "broad discretion" in denying

discovery in FOIA cases. Beltranena v. Clinton, 770 F. Supp. 2d

175, 187 (D.D.C. 2011). In determining whether limited discovery

may be appropriate, a court typically evaluates an agency's

affidavits regarding its search; where such affidavits are

"reasonably detailed" and "submitted in good faith," discovery

is ordinarily denied. See SafeCard Servs., Inc. v. S.E.C., 926

                                7
F.2d 1197, 1200 (D.C. Cir. 1991); Pinson v. U.S. Dep't of

Justice, 55 F. Supp. 3d 80, 82 (D.D.C. 2014). Because an agency

usually submits these affidavits in support of its summary

judgment motion, courts generally do not allow discovery in FOIA

actions until after the government has moved for summary

judgment. See, e.g., Taylor v. Babbitt, 673 F. Supp. 2d 20, 23

(D.D.C. 2009) ("in the exceptional case in which a court permits

discovery in a FOIA action, such discovery should only occur

after the government has moved for summary judgment"); Murphy v.

F.B.I., 490 F. Supp. 1134, 1136 (D.D.C. 1980) ("Whether the

instant case warrants discovery is a question of fact that can

only be determined after the defendants file their dispositive

motion and accompanying affidavits.").

III. ANALYSIS

     Based on the facts above, Mr. Cole has raised significant

questions as to whether FEMA has processed documents in good

faith in response to Mr. Cole's FOIA request. Indeed, the Court

is troubled by multiple aspects of the government's actions at

issue here. Mr. Cole submitted his FOIA request in May 2011 but

did not receive any documents until after he filed this lawsuit

almost five years later in April 2016. This is all the more

concerning given that NIST had determined that it possessed

3,789 pages of responsive records by the end of June 2012.

     The Court is also troubled by the government's

                                8
inconsistent, even contradictory, responses to Mr. Cole's

inquiries regarding his FOIA request. For example, FEMA

initially represented that it had located 490,000 pages of

potentially responsive records in storage at NARA. See Pl.'s

Mot. Ex. 8, ECF No. 15-13. Later, FEMA also represented that

potentially responsive records may be located in regional

offsite archives. Pl.'s Mot. Ex. 2, ECF No. 15-7. But in its

final response, FEMA stated that no such archives existed and

that it had been unable to find any additional responsive

documents. Pl.'s Mot. Ex. 4, 15-9. In this correspondence, FEMA

nowhere provided a clear explanation as to its changing position

regarding the availability of additional records.

     Despite these concerns, the Court concludes that discovery

is premature at this juncture. Discovery in FOIA cases is the

exception, and it is generally limited to cases in which factual

disputes persist – for example, where "the adequacy of the

[agency's] search remains in doubt." Weisberg v. U.S. Dep't of

Justice, 627 F.2d 365, 371 (D.C. Cir. 1980). Although that may

indeed be the case here, because the government has not yet

moved for summary judgment – and therefore has not submitted any

declarations setting forth details related to its search for

documents responsive to Mr. Cole's request – the Court does not

have sufficient information to determine whether a genuine

factual dispute exists or whether Mr. Cole requires additional

                                9
facts essential to oppose the government's motion. Therefore,

the Court cannot determine at this time whether discovery is

warranted and, if it is, how it should be limited in scope. See,

e.g., Murphy v. F.B.I., 490 F. Supp. 1134, 1137 (D.D.C. 1980)

("In the instant case, the government has yet to file its

affidavits. The plaintiff therefore cannot possess the

prescience to predict whether a factual issue will emerge.").

     Once the government moves for summary judgment, Mr. Cole

may renew his motion for discovery if he is able to show "by

affidavit or declaration that, for specified reasons, [he]

cannot present facts essential to justify [his] opposition" to

the government's motion. See Fed. R. Civ. P. 56(d); Taylor v.

Babbitt, 673 F. Supp. 2d 20, 23 (D.D.C. 2009) ("The plaintiff

claims that without this information, he will be unable to

effectively oppose a potential motion for summary judgment made

by the defendants. The appropriate mechanism for the plaintiff

to seek such relief, however, is through a Rule [56(d)] motion

filed after the government submits its renewed motion for

summary judgment."). Moreover, if Mr. Cole believes that FEMA's

declarations are insufficient to show that its search was

adequate, he may oppose the government's motion for summary

judgment on that ground. If the Court agrees with Mr. Cole, it

may reconsider Mr. Cole's request for discovery at the summary-

judgment stage. See Leopold v. Nat'l Sec. Agency, No. 14-CV-

                               10
0919, 2015 WL 12964654, at *1 (D.D.C. Feb. 20, 2015) (explaining

that an argument that an agency's affidavits are deficient is

often "best presented in the context of an opposition to

Defendant's motion for summary judgment or as a cross-motion for

summary judgment, rather than as a basis for seeking

discovery"); North v. U.S. Dep't of Justice, 729 F. Supp. 2d 74,

77–78 (D.D.C. 2010) (explaining that "if Plaintiff believes that

the declarations submitted by [the agency] are inadequate to

establish that the agency's searches were adequate," plaintiff

should "explain his argument in his opposition" to the agency's

summary-judgment motion).

IV.   CONCLUSION

      For the foregoing reasons, it is hereby ORDERED that [15]

Mr. Cole's motion for discovery is DENIED. It is FURTHER ORDERED

that the parties shall submit a joint status report with a

recommendation for further proceedings, including, if

appropriate, a proposed schedule for briefing on summary

judgment, by no later than January 22, 2018.


      SO ORDERED.

Emmet G. Sullivan
United States District Court
January 3, 2018




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