                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA


 INTERNATIONAL COUNSEL BUREAU,
            Plaintiff,

                   v.                                           Civil Action No. 13-1591 (JDB)
 UNITED STATES DEPARTMENT OF
 DEFENSE, et al.,
            Defendants.


                                     MEMORANDUM OPINION

        In this FOIA litigation, the question is simple: did the FBI conduct an adequate search?

Unfortunately, the Court is unable to answer that inquiry with confidence.                    The affidavits

provided by the FBI fail to adequately explain the agency’s recordkeeping system. As a result,

the Court cannot determine whether a search of a single database was sufficient—because it does

not know what else might be searchable. Until the FBI clarifies the scope of its search, judgment

for either party is premature.

                                             BACKGROUND

        In May 2013, International Counsel Bureau filed another in a series of FOIA requests

pertaining to certain Guantanamo detainees. This request, filed with the Federal Bureau of

Investigation, 1 pertained to Fayiz Mohammed Ahmed Al Kandari and Fawzi Khaled Abdullah

Fahad Al Odah. It demanded “[a]ny and all records created on or after September 30, 2011,

relating to or reflecting any alleged breaches or violations [by Al Kandari or Al Odah] of any

governing rules of discipline and/or behavior during their detention,” as well as those records




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          ICB filed FOIA requests with a number of other agencies, which are now co-defendants in this lawsuit.
This opinion pertains only to the FBI request.

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“relating to or reflecting any investigations into alleged abuse or mistreatment” of those

detainees. Ex. A to Argall Decl. [ECF No. 20-1].

       Three months later, the FBI responded.         It averred that it was unable to identify

responsive records as to Al Kandari. See Ex. C to Argall Decl. As to Al Odah, the FBI had not

searched its records at all, as the records pertained to a third party, and ICB had not, in the

agency’s view, provided adequate justification for their release. See Ex. G to Argall Decl. ICB

filed administrative appeals of both decisions, and, when those appeals remained unresolved, this

suit seeking the requested records was initiated. See Compl. [ECF No. 1] at ¶ 75. The FBI and

ICB have now filed cross-motions for summary judgment.

       Over the course of briefing these motions, some initial disputes have dropped out of the

case. For instance, the FBI clarified some of its positions, see Hardy Decl. [ECF No. 32-1] ¶ 7,

and performed new searches under different spellings of the detainees’ names, see id. ¶ 14. Most

significantly, the FBI reconsidered its position on the Al Odah request, and performed a records

search under his name—though to no avail. See id. ¶¶ 18–20. At this stage, then, the questions

are identical as to both requests: the FBI searched its Central Records System, which “consist[s]

of administrative, applicant, criminal, personnel, and other files compiled for law enforcement

purposes,” Argall Decl. ¶ 16, and it came up empty-handed. ICB is unconvinced that a search of

CRS alone is an adequate one.

                                     LEGAL STANDARD

       “FOIA cases typically and appropriately are decided on motions for summary judgment.”

Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). Summary

judgment is appropriate where “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).



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       “To prevail on summary judgment when the adequacy of an agency’s search is at issue,

‘the defending agency must show beyond material doubt that it has conducted a search

reasonably calculated to uncover all relevant documents.’” Int’l Counsel Bureau v. U.S. Dep’t of

Defense, 657 F. Supp. 2d 33, 38 (D.D.C. 2009) (quoting Morley v. CIA, 508 F.3d 1108, 1114

(D.C. Cir. 2007)). In making that determination, the Court “may be warranted in relying upon

agency affidavits.” Morley, 508 F.3d at 1116 (internal quotation marks and citation omitted).

But “such reliance is only appropriate when the agency’s supporting affidavits are relatively

detailed[,] nonconclusory[,] and submitted in good faith.” Id. (internal quotation marks, citation,

and alteration omitted). As to the last point, “[a]gency affidavits 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, 926 F.2d 1197, 1200 (D.C.

Cir. 1991) (internal quotation marks and citation omitted).

                                           ANALYSIS

       “There is no requirement that an agency search every record system.” Oglesby v. U.S.

Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). But “the agency cannot limit its search to only

one record system if there are others that are likely to turn up the information requested.” Id. To

that end, courts require “[a] reasonably detailed affidavit . . . averring that all files likely to

contain responsive materials (if such records exist) were searched.” Id. “Such an affidavit

would presumably identify the searched files and describe at least generally the structure of the

agency’s file system which makes further search difficult.” Church of Scientology of Calif. v.

IRS, 792 F.2d 146, 151 (D.C. Cir. 1986). And “[c]onclusory statements that the agency has

reviewed relevant files are insufficient to support summary judgment.” Nation Magazine, Wash.

Bureau v. United States, 71 F.3d 885, 890 (D.C. Cir. 1995) (citation omitted).



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       Here, the government has made some strides towards meeting that standard, but

ultimately falls just short.   The Hardy Declaration avers that “a search of the CRS could

reasonably be expected to produce the information requested.” Hardy Decl. ¶ 9; see also id.

¶ 19. “Moreover,” it explains, “the FBI has no reason to believe that any records responsive to

the request at issue in this case would have been stored in a system other than the CRS, nor has

plaintiff provided any particular information that would tend to indicate responsive records even

exist.” Id. ¶ 9. That is all the declaration provides.

       But it is not the plaintiff’s burden to supply particularities. See Morley, 508 F.3d at 1114.

And although the Court takes the agency’s declarations in good faith, that principle does not

absolve the FBI of its responsibility to provide a “reasonably detailed affidavit.” Oglesby, 920

F.2d at 68. The FBI simply “did not describe its recordkeeping system in sufficient detail to

permit [the Court] to identify what subject matter files, other than those in the [CRS], might hold

responsive information.” Nation Magazine, 71 F.3d at 891; cf. Int’l Counsel Bureau, 657 F.

Supp. 2d at 41 (holding that the Department of Defense satisfied this requirement where its

declaration “describes the structure of Joint Task Force-Guantanamo and the records maintained

by its offices and subordinate components” and “permits plaintiffs to evaluate the Defense

Department’s assertion that only three components of the Joint Task Force maintain records

responsive to plaintiffs’ request”).

       The FBI knows how to produce adequate explanations when it wants to. Indeed, the

Hardy Declaration adequately addresses ICB’s concern that the FBI had not searched the

National Name Check Program. As the declaration explains, that program merely “disseminates

information from FBI files in response to name check requests received from [f]ederal agencies.”

Hardy Decl. ¶ 11. Thus, the program is not a database itself, but “conducts searches of the



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CRS.” Id. This simple explanation effectively ameliorates ICB’s concerns as to the National

Name Check Program. A similar description of the rest of the FBI’s system would do much to

streamline what remains of this case.

       Unfortunately, the declaration is not quite as helpful as regards the other specific program

to which ICB has pointed: the Data Integration and Visualization System. The declaration

explains that the system is “a tool that facilitates the sharing of information from internal and

external data sources, to include the CRS.” Id. ¶ 12. As a result, the declaration avers, a search

of this program “would merely duplicate search efforts of the CRS already performed.” Id. But

the declaration only states that the Data Integration and Visualization System includes CRS: it

does not say that CRS is the exclusive source of information in that system. And it provides no

information about any other systems that might inform the search, which might not be

duplicative at all. These “[c]onclusory statements” are insufficient. Nation Magazine, 71 F.3d at

890.

           Thus, the FBI has not yet demonstrated that it has conducted an adequate search, and

does not merit summary judgment. But the statements in the Hardy Declaration are enough to

defeat summary judgment for ICB for now: the Court is not yet convinced that the FBI has not

completed a satisfactory search, it just cannot tell. Hence, the Court will give the FBI one more

chance to explain why it has searched only CRS—and what databases, therefore, it has ignored.

This may settle the case. But if it does not, the parties will be free to file renewed dispositive

motions.

                                        CONCLUSION

       For the reasons set forth above, the Court will deny without prejudice both parties’

motions for summary judgment. A separate Order has issued on this date.



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                                        /s/
                                 JOHN D. BATES
                            United States District Judge
Dated: April 29, 2015




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