                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

                                                      )
JUDICIAL WATCH, INC.                                  )
                                                      )
                Plaintiff,                            )
                                                      )
       v.                                             )   Civil Action No. 15-1776 (RMC)
                                                      )
UNITED STATES DEPARTMENT                              )
OF THE TREASURY,                                      )
                                                      )
               Defendant.                             )
                                                      )

                                  MEMORANDUM OPINION

               Wasn’t it Bernie Sanders who expressed exasperation at the continuing attention

to Hillary Clinton’s emails some 18-20 months ago? He spoke too soon. Many interested

parties have used the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (2012) to try to find

traces of the former Secretary of State’s use of a private email server in emails at other federal

agencies. Plaintiff Judicial Watch, which sued the Treasury Department to enforce its FOIA

request for such emails, cannot believe that none were found; it wants a broader search.

Treasury insists its three searches were appropriate enough, and has filed a Motion for Summary

Judgement [Dkt. 7], asserting they have met their FOIA obligations. Judicial Watch has

opposed, [Dkt. 12], and Treasury has replied [Dkt. 13]. The Court agrees with Treasury.

Summary judgment will be granted to the Department.

                                        I. BACKGROUND

               Plaintiff Judicial Watch Inc. is a nonprofit education institution that regularly

requests records under FOIA to “shed light on the operations of the federal government and to

educate the public about those operations.” Compl. [Dkt. 1] ¶ 3. Judicial Watch submitted a



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FOIA request to the Department of the Treasury seeking any and all email correspondence

between specific Treasury departments and any “clintonemail.com” address between February 2,

2009 and January 31, 2013. Id. ¶ 5. Specifically, Judicial Watch requested any such emails from

the following three Treasury departments: (1) the Office of Foreign Assets (OFAC); (2) the

Committee on Foreign Investment (CFIUS); and (3) the Office of the Secretary of the Treasury.

Id.

               In response, the three named Treasury departments independently conducted

searches for responsive documents. See Def.’s Mem. in Support of Mot. for Sum. J. (MSJ

Mem.) [Dkt. 7-1] at 2; Mot. Sum. J (MSJ) Ex. B [Dkt. 7-4], Ex. C [Dkt. 7-5]. The searches was

limited to the “senior policy officials within each of the[] three offices,” including “Secretaries of

the Treasury, Associate Directors, Assistant Directors, the Deputy Director, and Director of

OFAC, and the Directors of CFIUS.” MSJ Ex. A (Law Decl.) [Dkt. 7-3] ¶ 5. The Secretary’s

Office and CFIUS searched for any email communication to or from any “clintonemail.com”

address. Id. OFAC, for each individual searched, searched for email communications using

either “clintonemail.com.” “clintonemail” or “clinton” as search terms. Id. No search identified

any responsive documents.

                                     II. LEGAL STANDARD

               Summary judgment is the typical vehicle to resolve an action brought under

FOIA. See McLaughlin v. U.S. Dep’t of Justice, 530 F. Supp. 2d 210, 212 (D.D.C.2008). Under

Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate if the

pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of

law. Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial burden of



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demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).

               In considering whether there is a triable issue of fact, the Court must draw all

reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986). The party opposing a motion for summary judgment, however, “may not

rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts

showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248.

               FOIA requires federal agencies to release government records to the public upon

request, subject to certain exceptions. See 5 U.S.C. § 552(b); Wolf v. C.I.A., 473 F.3d 370, 374

(D.C. Cir. 2007). The defendant in a FOIA case must show that its search for responsive records

was adequate. See Sanders v. Obama, 729 F. Supp. 2d 148, 154 (D.D.C. 2010). In assessing

whether an agency has met its obligations, the inquiry therefore goes to the adequacy of the

search, not whether other responsive records may conceivably exist elsewhere. Steinberg v.

Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). A search’s adequacy is measured by a

standard of reasonableness and depends on the individual circumstances of each case. Truitt v.

Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990); Judicial Watch, Inc. v. Dep’t of State, 177 F.

Supp. 3d 450, 455 (D.D.C. 2016).

               “A requester dissatisfied with the agency’s response that no records have been

found may challenge the adequacy of the agency’s search by filing a lawsuit in the district court

after exhausting any administrative remedies.” Valencia–Lucena v. U.S. Coast Guard, 180 F.3d

321, 326 (D.C. Cir. 1999). “[T]he agency must demonstrate beyond material doubt that its

search was reasonably calculated to uncover all relevant documents.” Nation Magazine, Wash.

Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995). An agency must search for



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documents in good faith, using methods that are reasonably expected to produce the requested

information. Valencia–Lucena, 180 F.3d at 326 (citing Oglesby v. U.S. Dep’t of Army, 920 F.2d

57, 68 (D.C. Cir. 1990)). The principal issue is not whether the agency’s search uncovered

responsive documents, but whether the search was reasonable. Oglesby, 920 F.2d at 67 n.13

(citing Meeropol v. Meese, 790 F.2d 942, 952–53 (D.C. Cir. 1986)). The agency need not search

every record in the system or conduct a perfect search. SafeCard Servs., Inc. v. SEC, 926 F.2d

1197, 1201 (D.C. Cir. 1991); Meeropol, 790 F.2d at 952, 956.

                                         III. ANALYSIS

               Treasury argues that its searches for documents were adequate, and it is therefore

entitled to summary judgment. MSJ Mem. at 1. Judicial Watch counters that Treasury has not

shown that its search, limited only to senior officials, was appropriate. Opp. at 3. Specifically,

Judicial Watch argues that Treasury has not demonstrated that it was unable to perform a global

search of all employees’ emails in the three offices. Id. If Treasury is able to execute such a

search, Judicial Watch argues, then “Treasury’s decision to narrow the search [to senior agency

officials] would not be reasonable or appropriate.” Id.

               However, the operative question is not whether a global search of all employees is

technically possible, but whether Treasury’s searches were “reasonably calculated to uncover all

relevant documents.” Nation Magazine, 71 F.3d at 890. Treasury has proffered, through its

supporting affidavits, that senior agency officials were “the only people in each office who could

reasonably have communicated with Ms. Clinton or one of her senior aides, while Ms. Clinton

was serving as Secretary of State.” Law Decl. ¶ 5. Treasury asserts that, because of this fact,

only a search of those officials’ emails would be reasonably likely to uncover any relevant

records.



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               Judicial Watch has given the Court no reason to doubt Treasury’s

commonsensical explanation. While it may be the case that Treasury could perform a global

search of all its employees’ emails, there is no indication that such a search of non-senior

employees would be reasonably calculated to uncover relevant documents. There is further no

allegation or indication that Treasury undertook its searches in bad faith. Treasury identified the

relevant records to search and searched them using appropriate search terms. FOIA requires no

more.

                                         CONCLUSION

                  Because Treasury’s searches for documents were adequate, the Court will grant

its Motion for Summary Judgment. A memorializing Order accompanies this Memorandum

Opinion.



 Date: March 31, 2017                                                /s/
                                                      ROSEMARY M. COLLYER
                                                      United States District Court




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