UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) BLANK ROME LLP, ) ) Plaintiff, ) ) v. ) Case No: 15-cv-1200-RCL ) DEPARTMENT OF THE AIR FORCE, ) ) Defendant. ) )

MEMORANDUM OPINION

I. INTRODUCTION

This case concerns a Freedom of Information Act (“FOIA”) request sent by plaintiff, Blank

Rome LLP, to defendant, Department of the Air Force on March 25, 2014. Plaintiff challenges

the sufficiency of defendant’s response to its request. Defendant has moved to dismiss, or, in the

alternative, for summary judgment. Plaintiff opposes defendant’s motion and has cross moved for

partial summary judgment. For the reasons stated below, defendant’s motion to dismiss is granted

as to Count II of plaintiff’s Complaint. Defendant’s motion for summary judgment is granted as

to the adequacy of the search, and plaintiff’s cross motion for summary judgment. As to the

propriety of Exemption 5, defendant’s motion for summary judgment is granted in part and denied

in part, and plaintiff’s cross-motion for summary judgment is granted in part and denied in part.

II. BACKGROUND

The FOIA request at issue in this case centers around a termination for convenience of a

utility contract at Fort Monroe, Virginia. In 2004, the Defense Energy Support Center and

Dominion Virginia Power (“DVP”) signed a 50-year utility privatization contract for Fort Eustis,

Fort Story, and Fort Monroe, three Army bases in Virginia. Pl.’s Response to Def.’s Statement of

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Facts ¶ 4, ECF No. 20-1. As part of a base closure and realignment action, Fort Monroe was

scheduled to close on September 15, 2011. Id. ¶ 5. The Air Force 633d Contracting Squadron

(“CONS”) subsequently submitted a notice of partial termination for convenience to DVP for

Contract Line Item 0007 (“CLIN0007”). Id. ¶ 7. On March 25, 2014, plaintiff submitted a FOIA

request to the Air Force seeking ten categories of records dated or created between January 1, 2009

and March 25, 2014. Id. ¶¶ 1, 3. All of the listed categories of documents sought are

communications related to the termination of CLIN0007. Id. ¶ 3.

After plaintiff submitted its request, Timothy A. Lyon—Air Force Base Records, FOIA,

and Privacy Act Manager for Joint Base Langley Eustis (“JBLE”)—forwarded the request to

Technical Sergeant Bradley Benedictus to perform the search for responsive records. First

Benedictus Decl. ¶ 5, ECF No. 17-1. TSgt. Benedictus worked as a contract administrator at the

633d CONS at JBLE and, as such, was responsible for administering the contract at issue from

January 2012 through December 2014. Id. ¶ 1. With the exception of email records, the 633d

CONS at JBLE held all records responsive to the FOIA request; if any records were generated in

different sections of the Air Force, they were provided to the 633d CONS. Second Benedictus

Decl. ¶ 3, ECF No. 22-1. As the contract administrator, TSgt. Benedictus was most familiar with

the termination of CLIN0007 and was included on all or virtually all email communications

regarding the termination of CLIN0007. First Benedictus Decl. ¶ 5. TSgt. Benedictus reviewed

the request, which specified ten categories of information, but did not read it to be limited to those

ten categories. Second Benedictus Decl. ¶ 2. Accordingly, he searched for all records that would

fall within the ten categories, as well as other records regarding the termination of CLIN0007. Id.

TSgt. Benedictus conducted the following searches for documents responsive to the FOIA

request: 1) TSgt. Benedictus pulled all responsive documents related to CLIN0007 from the 633d

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CONS’s hard copy records; 2) TSgt. Benedictus copied all documents related to CLIN0007 from

the 633d CONS’s shared drive; 3) TSgt. Benedictus conducted a search of his active electronic

mail and personal storage email file. First Benedictus Decl. ¶ 6. Regarding the email search

specifically, TSgt. Benedictus stored all emails related to the termination of CLIN0007 in a

separate folder, and copied all of those emails as responsive. Id. ¶ 9. He also searched through

his uncategorized emails in search of any related to the termination of CLIN0007. Id. He

additionally reviewed emails from the former contract administrator, SSgt. Andrew Smith. Id. ¶ 6.

Meanwhile, the parties exchanged several communications regarding plaintiff’s FOIA

request in which plaintiff raised concerns over defendant’s delay and failure to produce responsive

documents. Compl. ¶ 17–24, ECF No. 1. After not receiving a satisfactory answer or any

production of documents, plaintiff, on July 28, 2014, filed its first administrative appeal for

constructive denial and arbitrary and capricious action to withhold records. Id. ¶ 25. In the fall of

2014, after several more communications between the parties, the Air Force released to plaintiff

eighty-two responsive documents, along with a List of Denied Records and a Release Letter, and

withheld all other responsive documents under FOIA Exemption 5,

(b)(5), claiming

deliberative process privilege or attorney-client privilege. See

¶¶ 26–30, First Lyon Decl. ¶ 3,

ECF No. 17-2. Plaintiff complained that the production was deficient and on January 26, 2015,

filed its second administrative appeal arguing that the search was inadequate and that Exemption

5 was inapplicable. Compl. ¶¶ 32–40. After several more communications between the parties

regarding the processing of the second appeal, plaintiff filed the instant lawsuit on July 24, 2015.

¶¶ 41–47.

After plaintiff filed this lawsuit, the Air Force expanded its search to include documents

held by Air Force members besides TSgt. Benedictus who worked on the CLIN0007 termination

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settlement negotiations. First Lyon Decl. ¶ 4. TSgt. Benedictus provided the following names of

those Air Force employees who provided input on the CLIN0007 termination negotiations to

Captain David Mitchell at the Air Force Legal Operations Agency: 1) Colonel Christopher

Wegner, 2) Rosita Goodrum, 3) Stacy Ellingsen, 4) Margaret Patterson, 5) Thomas White, and 6)

Elijah Horner. First Benedictus Decl. ¶ 10. Captain Mitchell requested that each of the six listed

individuals search their email for responsive records using the search terms “Dominion,” “DVP,”

“CLIN 0007,” “SP0600-04-C-8253,” “Virginia Power,” “termination,” and “Fort Monroe.” First

Lyon Decl. ¶ 5. Colonel Wegner did not find any responsive documents, Ms. Goodrum found two

responsive documents, and Ms. Patterson found eight responsive documents.

Ms. Ellingsen

and Mr. Horner were no longer Air Force employees and did not have access to their Air Force

email accounts.

Mr. White was also no longer an Air Force employee and could not be located.

Accordingly, on December 15, 2015, Captain Mitchell requested that the Air Force Cyber

Operations Center conduct a search for the stored emails of Colonel Wegner, Ms. Ellingsen, Mr.

Horner, and Mr. White.

. An account and electronic mailbox for Colonel Wegner could be

restored only as of July 14, 2015, outside the date range of plaintiff’s FOIA request.

There

were no accounts or electronic mailboxes available for Ms. Ellingsen and Mr. White, and although

there was an account for Mr. Horner, there was no electronic mailbox.

Thus, the Air Force

was unable to find responsive documents from these four accounts. Additionally, after

determining that responsive documents may have existed in the Department of the Army, the

Defense Contract Audit Agency (“DCAA”), and the Government Accountability Office (“GAO”),

the Air Force referred plaintiff’s FOIA request to these organizations on November 10, 2015.

.

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On November 18, 2015, after reviewing the documents previously withheld, the Air Force

released an additional 177 documents in full, and produced 25 documents partially redacted under

Exemption 5.

. On November 20, 2015 the Air Force produced two emails from Ms.

Goodrum, which were partially redacted, and on December 16, 2015 the Air Force produced eight

emails from Ms. Patterson, three of which were partially redacted.

. Defendant also

produced a Vaughn Index, which accompanied the first Benedictus and Lyon declarations and its

Motion to Dismiss/Motion for Summary Judgment, and listed thirty documents that it had redacted

under Exemption 5. See Vaughn Index, ECF No. 17-1. Defendant claimed that the deliberative

process privilege or the attorney-client privilege applied to the redactions. See

In early 2016,

after TSgt. Benedictus conducted a second review of the documents withheld or redacted under

Exemption 5, the Air Force released Vaughn Index Items 2, 24, and 30, and released the first

redaction in Item 1. Second Benedictus Decl. ¶ 7. On March 3, 2016, the Air Force produced

Vaughn Index Items 20–23. Third Benedictus Decl. ¶ 2, ECF. No. 30-1.

Then, on April 15, 2016, the Air Force produced a Rule 4 File in

, an

appeal of a Contracting Officer’s Final Decision arising out the termination of CLIN0007. Pl.’s

Supp. Br. In Opp’n 3, ECF No. 29. Although plaintiff’s FOIA request sought some of the same

documents produced in the Rule 4 File, the Rule 4 File contained documents within the FOIA

request’s specifications that were not produced or listed on defendant’s Vaughn Index.

On

June 3, 2016 the Air Force sent plaintiff 128 documents responsive to the FOIA request which

were produced in the Rule 4 filing, most of which had previously been released in prior

productions. Third Benedictus Decl. ¶ 3. Finally, on June 15, 2016, the Air Force released to

plaintiff Vaughn Index Items 1, 4–19, 25, 26, and 29.

. Thus, the only Vaughn Index Items

currently withheld by the Air Force under Exemption 5 are Items 3, 27, and 28.

In addition,

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the Air Force has refused to produce a DCAA Audit Report from September 30, 2015, claiming it

is as outside the date range of plaintiff’s request. Pl.’s Reply Br. 5, ECF No. 26.

On December 23, 2015, defendant filed a motion to dismiss, or in the alternative, motion

for summary judgment, arguing that it fulfilled its obligations under FOIA and properly withheld

information under Exemption 5. Def.’s Mot. to Dismiss 3, ECF No. 17. Plaintiff subsequently

cross-moved for partial summary judgment and asked the Court to conduct an in camera review

of the redacted documents, order the Air Force to produce the unredacted copies, and order the Air

Force to complete the required search and production. Pl.’s Opp’n to Def.’s Mot. to Dismiss 2,

ECF No. 20.

III. LEGAL STANDARDS

A. Summary Judgment

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. PROC. 56(a). It is “appropriate only in circumstances where ‘the evidence is such that a

reasonable jury could not return a verdict for the nonmoving party.’” Washington Post Co. v. U.S.

Dep’t of Health & Human Servs.,

(D.C. Cir. 1989) (quoting Anderson v. Liberty

Lobby, Inc.,

(1986)). The Court must view all evidence “in the light most

favorable to the nonmoving party” and, if a genuine dispute exists, “then parties should be given

the opportunity to present direct evidence and cross-examine the evidence of their opponents in an

adversarial setting.”

These standards apply to FOIA actions. Id.; Nat’l Sec. Counselors v.

C.I.A.,

(D.D.C. 2013) (“FOIA cases typically and appropriately are

decided on motions for summary judgment.” (internal quotation marks omitted)).

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B. Adequacy of a Search

When an agency receives a FOIA request it is obligated to “conduct a search reasonably

calculated to uncover all relevant documents.” Truitt v. Dep’t of State,

(D.C.

Cir. 1990) (internal quotation marks omitted). To determine whether a search was adequate, courts

consider “a standard of reasonableness” asking “not whether any further documents might

conceivably exist but rather whether the government’s search for responsive documents was

adequate.”

(internal quotation marks omitted). Thus, an 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 v. U.S. Dep’t of Army,

(D.C. Cir. 1990). An agency need not, however, “search every record system,” or

conduct a perfect search. See id.; SafeCard Servs., Inc. v. SEC,

(D.C. Cir.

1991).

At the summary judgment stage, the agency bears the burden of showing that it complied

with FOIA and it may meet this burden “by providing ‘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.’” Iturralde v. Comptroller of Currency,

,

313–14 (D.C. Cir. 2003). Courts may rely on these declarations to grant summary judgment, see

Morley v. C.I.A.,

(D.C. Cir. 2007), but they must be must be “relatively

detailed and non-conclusory,” Defs. of Wildlife v. U.S. Border Patrol,

(D.D.C. 2009) (quoting SafeCard,

). The plaintiff may then “provide

‘countervailing evidence’ as to the adequacy of the agency’s search.” Iturralde,

.

However, “[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.’”

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SafeCard,

. They may, however, be rebutted by evidence of bad faith.

In

addition, summary judgment is not appropriate when “a review of the record raises substantial

doubt, particularly in view of ‘well defined requests and positive indications of overlooked

materials.’” Valencia-Lucena v. U.S. Coast Guard,

(D.C. Cir. 1999) (quoting

Founding Church of Scientology v. Nat’l. Sec. Agency,

(D.C. Cir. 1979)).

C. Deliberative Process Privilege

An agency claiming an exemption to FOIA bears the burden of establishing that the

exemption applies. Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill,

(1979). An agency satisfies that burden by submitting affidavits that “describe the justifications

for nondisclosure with reasonably specific detail, demonstrate that the information withheld

logically falls within the claimed exemption, and are not controverted by either contrary evidence

in the record nor by evidence of agency bad faith.” Larson v. Dep’t of State,

(D.C. Cir. 2009) (internal quotation marks omitted). FOIA requires that “[a]ny reasonably

segregable portion of a record shall be provided to any person requesting such record after deletion

of the portions which are exempt.”

(b). District Courts have a duty to consider

the issue of segregability, even if not raised by the parties. Trans-Pac. Policing Agreement v. U.S.

Customs Serv.,

(D.C. Cir. 1999).

FOIA Exemption 5, which encompasses the deliberative process privilege, applies to

“inter-agency or intra-agency memorandums or letters that would not be available by law to a party

other than an agency in litigation with the agency.”

(b)(5). “[T]he ultimate purpose

of this long-recognized privilege is to prevent injury to the quality of agency decisions.” N.L.R.B.

v. Sears, Roebuck & Co.,

(1975). Three policy bases underlie this privilege:

First, it protects creative debate and candid consideration of alternatives within an agency, and, thereby, improves the quality of agency policy decisions. Second, it

8

protects the public from the confusion that would result from premature exposure to discussions occurring before the policies affecting it had actually been settled upon. And third, it protects the integrity of the decision-making process itself by confirming that “officials should be judged by what they decided(,) not for matters they considered before making up their minds.”

Russell v. Dep’t of the Air Force,

(D.C. Cir. 1982) (quoting Jordan v. U.S.

Dep’t of Justice,

, 772–73 (D.C. Cir. 1978)). Therefore, Exemption 5 “protects not

only communications which are themselves deliberative in nature, but all communications which,

if revealed, would expose to public view the deliberative process of an agency.” Id. at 1048.

In order for material to qualify for withholding or redaction under Exemption 5, it “must

be both ‘predecisional’ and part of the ‘deliberative process.’” McKinley v. Bd. of Governors of

Fed. Reserve Sys.,

(D.C. Cir. 2011) (internal quotation marks omitted). A

document is predecisional if it is “prepared in order to assist an agency decisionmaker in arriving

at his decision, and may include recommendations, draft documents, proposals, suggestions, and

other subjective documents which reflect the personal opinions of the writer rather than the policy

of the agency.” Formaldehyde Inst. v. Dep’t of Health & Human Servs.,

(D.C. Cir. 1989) (internal citations and quotation marks omitted). To qualify a document as

predecisional, “a court must be able ‘to pinpoint an agency decision or policy to which the

document contributed.’” Senate of the Com. of Puerto Rico on Behalf of Judiciary Comm. v. U.S.

Dep’t of Justice,

(D.C. Cir. 1987). A predecisional document may lose its status

if it is later adopted as an agency position. Coastal States Gas Corp. v. Dep’t of Energy,

(D.C. Cir. 1980). A document is part of the deliberative process “if the disclosure of

[the] materials would expose an agency’s decisionmaking process in such a way as to discourage

candid discussion within the agency and thereby undermine the agency’s ability to perform its

functions.” Formaldehyde Inst.,

(internal quotation marks omitted). In addition,

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“[f]actual material is not protected under the deliberative process privilege unless it is ‘inextricably

intertwined’ with the deliberative material.” Judicial Watch, Inc. v. Dep’t of Justice,

(D.C. Cir. 2005).

Exemption 5 may shield draft documents from disclosure. See Coastal States Gas Corp.,

; Exxon Corp. v. Dep’t of Energy,

(D.D.C. 1983) (“Draft

documents, by their very nature, are typically predecisional and deliberative.”). However,

“[a]lthough an agency may properly withhold drafts pursuant to Exemption 5, the defendants’

designation of a document as a ‘draft’ does not automatically trigger proper withholding under

Exemption 5.” Defs. Of Wildlife v. U.S. Dep’t of Agric.,

(D.D.C. 2004).

The agency must still show that the document is both predecisional and deliberative.

IV. ANALYSIS

A. Adequacy of the Search

1. Defendant has met its burden of showing that it conducted an adequate search for responsive documents

Based on the declarations submitted by TSgt. Benedictus and Mr. Lyon, the Court

concludes that the Air Force has met its burden of showing that it conducted a reasonable search

and fulfilled its obligations under FOIA. The declarations are detailed and non-conclusory

regarding the search undertaken by defendant in response to plaintiff’s FOIA request. TSgt.

Benedictus’ declarations establish that the 633d CONS at JBLE was the location most likely to

hold responsive documents. TSgt. Benedictus declared, “[a]s the office servicing the Contract and

handling the termination negotiations for CLIN0007, the 633d CONS holds all of the contract

administration records responsive to the FOIA request and is included on all email

correspondence.” First Benedictus Decl. ¶ 4. If any records were generated in other sections of

the Air Force for the benefit of the 633d CONS, they were provided to the 633d CONS. Second

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Benedictus Decl. ¶3. They also establish that TSgt. Benedictus was the individual most familiar

with the termination of CLIN0007. TSgt. Benedictus declared, “I administered the contract from

January 2012 thru December 2014 and was the most familiar with the termination negotiations

and processing for CLIN0007 of the Contract. I also was the primary recipient, sender, or carbon

copied on all email communications about the same. I furthermore was present for all meetings

discussing the termination of CLIN0007.” First Benedictus Decl. ¶ 5. Therefore, the search was

properly limited to the place most likely to contain responsive documents. See Defs. Of Wildlife

v. U.S. Dep’t of Interior,

(D.D.C. 2004) (rejecting the plaintiff’s argument

that the search was inadequate because the files of only three individuals were searched because

the defendant’s declarations established that “there was no reason to believe that responsive

materials would be located anywhere but in the files of the three named individuals”); Schrecker

v. U.S. Dep’t of Justice,

(D.D.C. 2002) (RCL), aff’d,

(D.C.

Cir. 2003) (finding the search adequate because “the FBI searched for ticklers in places that the

FBI believed were most likely to contain responsive ticklers”).

In addition, the declarations detail three searches undertaken by TSgt. Benedictus—a hard

copy search, a shared drive search, and an “exhaustive” email search—as well as the parameters

of the search, i.e., anything related to the termination of CLIN0007. First Benedictus Decl. ¶¶ 6–

9; Second Benedictus Decl. ¶ 2. Furthermore, TSgt. Benedictus provided the names of all other

Air Force members likely to have responsive email communications to the Air Force FOIA

manager, Mr. Lyon. First Benedictus Decl. ¶ 10. Defendant then conducted a search of the those

individuals’ email accounts using specific search terms related to the termination of CLIN0007 as

well as to Virginia Power and Fort Monroe generally, and conducted a search of the stored email

communications for those individuals no longer employed by the Air Force. First Lyon Decl.

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¶¶ 4–6. Finally, after determining that responsive documents may have existed in the control of

other agencies, defendant referred plaintiff’s request to the appropriate agencies. First Lyon Decl.

¶ 10. Regarding the search generally, TSgt. Benedictus declared that the “[t]he 633d CONS and

the additional email accounts of the Air Force employees that I provided are all of the locations

where records responsive to the FOIA request could exist.” Second Benedictus Decl. ¶ 3. Mr.

Lyon declared that “[t]he search conducted was reasonably calculated to uncover all responsive

documents.” First Lyon Decl. ¶ 11.

The Court concludes that defendant has met its burden of showing that it complied with

FOIA by “by providing ‘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.” Iturralde,

; see also Elec. Privacy Info. Ctr. v. Dep’t of Justice Criminal

Div.,

(D.D.C. 2015) (finding that the FBI’s search was adequate when it

used the key term “WikiLeaks” to search its central records system and then used those results to

locate case agents with potentially responsive material); Sanders v. Obama,

(D.D.C. 2010) (finding the search adequate when the FOIA liaison for the USAO searched

the electronic database with keywords related to the FOIA request, searched the physical file likely

to contain responsive documents, and “declared that she searched everywhere it was likely that

responsive records would exist and that there were no other logical places for her to search”).

Thus, it falls to plaintiff to provide countervailing evidence as to the adequacy of the search. See

Iturralde,

2. Plaintiff has failed to provide sufficient evidence showing that defendant’s search was inadequate

Plaintiff’s arguments that the search was inadequate are unavailing. Plaintiff argues that

the search was inadequate for the following reasons: 1) defendant failed to search for and/or

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uncover several categories of documents and subsequently found several documents which should

have originally been produced; 2) defendant improperly delayed in referring plaintiff’s request to

other agencies and in producing responsive documents; and 3) defendant failed to search the

records of several dozen Air Force employees involved in the termination of CLIN0007. The

Court takes each of these arguments in turn and finds that none establish that defendant’s search

was inadequate.

a. Failure to search for and/or produce responsive documents

Plaintiff argues in large part that defendant’s search was inadequate due to the existence

of—or claimed existence of—other responsive documents not produced. Originally, plaintiff

claimed that the Air Force failed to search for four of the ten categories of information contained

in the request—records submitted to the Base Adjustment and Realignment Commission

(“BRAC”), DCAA audit reports concerning the termination of CLIN0007, records provided to the

GAO, and records provided to Congress. Pl.’s Opp’n to Def.’s Mot. to Dismiss 9. After the

subsequent Rule 4 File release, plaintiff pointed to the fact that several documents released as part

of the Rule 4 File should have been released as responsive to its FOIA request, and argued that

this was evidence of a genuine dispute of material fact regarding the adequacy of the search and

was an admission that defendant’s prior FOIA productions were incomplete. Pl.’s Supp. Br. In

Opp’n 4. Both of these arguments fail.

If the adequacy of a search is challenged, the court must ask whether “the search was

reasonably calculated to discover the requested documents, not whether it actually uncovered

every document extant.” SafeCard,

. Uncovering additional responsive

documents does not render the original search inadequate. See Hodge v. F.B.I.,

,

579–80 (D.C. Cir. 2013). “[T]he adequacy of a FOIA search is generally determined not by the

13

fruits of the search, but by the appropriateness of the methods used to carry out the search.”

Iturralde,

. If an agency fulfills its obligation to conduct searches reasonably

calculated to uncover all relevant documents, the question is “whether the requester can identify

any additional searches that must be conducted.” Hodge,

. However, “[m]ere

speculation that as yet uncovered documents may exist does not undermine the finding that the

agency conducted a reasonable search for them.” SafeCard,

.

i. Failure to search for four categories of documents

Considering plaintiff’s argument regarding the four categories allegedly not searched, the

Court first finds that plaintiff’s argument that defendant’s declarations fail to describe a search for

documents responding to the four categories does not have merit. As already described, TSgt.

Benedictus read the request to cover all documents related to the termination of CLIN0007.

Second Benedictus Decl. ¶ 2. This encompasses each of the four categories at issue. The search

was reasonably calculated to uncover relevant documents, even if defendant’s declarations did not

specifically address the four categories.

Plaintiff infers that because certain presumably responsive documents to the four categories

exist elsewhere, others must also exist that defendant did not search for. Specifically, it cites a

document available on DOD’s BRAC website regarding the costs of the BRAC at Fort Monroe,

Pl.’s Opp’n to Def.’s Mot. to Dismiss 10, two DCAA audit reports,

at 10–11, Pl.’s Reply Br. 7,

a 2013 GAO report that noted the termination cost for Fort Monroe, and an email produced by

defendant in response to the FOIA request confirming that defendant prepared documents for the

GAO Report, Pl.’s Opp’n to Def.’s Mot. to Dismiss 11. From these, plaintiff concludes that other

responsive documents must exist and that defendant failed to search for them. Id. at 10.

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The Court finds, however, that plaintiff is merely speculating that such documents

currently exist and are within the possession of the Air Force. It is well-established that speculation

is not enough to undermine a finding that an agency conducted a reasonable search. SafeCard,

. In Light v. Department of Justice, the plaintiff rested its claim that responsive

documents must have existed within FBI’s control that it failed to release on the existence of an

email relating to the subject matter of the FOIA request. Light v. Dep’t of Justice,

(D.D.C. 2013). And, in Schoenman v. F.B.I., the plaintiff claimed that other documents

must have existed to generate a document included on the defendant’s Vaughn Index. Schoenman

v. F.B.I.,

(D.D.C. 2008). In both of these cases, the courts found that the

plaintiffs were merely speculating regarding the existence of uncovered documents and rejected

the plaintiffs’ arguments. See Light, 968 F. Supp. 2d at 25–26; Schoenman,

. Here also, plaintiff is merely speculating that other documents must exist within the Air

Force’s control. TSgt. Benedictus declared that he searched for all documents related to the

termination of CLIN0007 and that he provided “all of the locations where records responsive to

the FOIA request could exist.” Second Benedictus Decl. ¶ 3. Mr. Lyon declared that “any other

documents that Blank Rome is expecting to find do not exist or are maintained at other agencies,

not the Department of the Air Force.” Second Lyon Decl. ¶ 5. TSgt. Benedictus’ and Mr. Lyon’s

declarations “are presumed to be in good faith, and they are not rebutted by speculative claims that

other responsive documents exist.” Light, 968 F. Supp. 2d at 25–26.

Moreover, plaintiff appears to be seeking documents that may be in the possession of the

four agencies named, not the Air Force. The Air Force, as the recipient of the FOIA request, was

under an obligation to search its own records or records in its possession for responsive documents.

15

It was under no obligation to search for documents within the custody of other agencies. If plaintiff

seeks records in the possession of other agencies, its remedy lies with them.

ii. Failure to produce documents released in Rule 4 File

Next, the Court finds that defendant’s search was not rendered inadequate due to its failure

to uncover documents later released as part of the Rule 4 File. If an agency uncovers previously

unreleased responsive documents, and then releases them, the search is not deemed inadequate.

See Hodge, 703 F.3d at 579–80. In Hodge v. F.B.I., the FBI uncovered 6,000 pages of potentially

responsive materials after the plaintiff filed suit, and released 1,762 pages to the plaintiff. Id. at

579. Although the plaintiff claimed that the FBI must have therefore possessed additional

responsive documents, he failed to “identif[y] any specific additional searches that he believes the

FBI should have conducted,” and “offer[ed] no basis for concluding that those documents might

exist.” Id. Similarly here, after defendant discovered the missing documents, it released them to

plaintiff. See Third Lyon Decl. ¶ 3 (“I released all of the documents, including duplicate

documents.”). Plaintiff has not identified additional locations that defendant should have searched

or searches that it should have conducted to uncover the missing documents. It merely claims that

the existence of the responsive documents not produced raises a genuine dispute regarding the

adequacy of the search, and assumes that TSgt. Benedictus intentionally omitted responsive

documents from defendant’s previous productions. See Pl.’s Supp. Br. In Opp’n 3–4. TSgt.

Benedictus submitted a sworn declaration that he “did not intentionally withhold any releasable

responsive documents from Blank Rome or our FOIA Office for this case.” Third Benedictus

Decl. ¶ 5. Plaintiff has submitted no evidence—other than its own assertions—that convinces the

court that this statement is untrue.

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b. Defendant’s referral and production delays

Next, plaintiff takes issue with the timing of the Air Force’s referral letters to other agencies

with potentially responsive documents, which were sent in late 2015, and with the fact that the Air

Force failed to produce documents held by the recipients of these letters. Pl.’s Opp’n to Def.’s

Mot. to Dismiss 12–14; Pl.’s Reply Br. at 5.1 Plaintiff also argues that the adequacy of defendant’s

response to its request is called into serious question by defendant’s substantial delays generally.

Pl.’s Reply Br. at 8–10.

First, plaintiff’s argument that defendant failed to produce documents held by the agencies

that received the referral letters is fruitless. Courts may order an agency to produce “agency

records.”

(a)(4)(B). The Supreme Court has held that materials are only “agency

records” if 1) an agency created or obtained the materials, and 2) the agency was “in control of the

requested materials at the time the FOIA request is made.” U.S. Dep’t of Justice v. Tax Analysts,

(1989). In addition, an agency is not “required to recreate or to reacquire a

document that it no longer has.” SafeCard,

. As Mr. Lyon declared, “[w]hen we

refer a FOIA request to another agency because there is a possibility that another agency may have

responsive records, the agency to which we refer the FOIA request, responds directly to the

requester.” Second Lyon Decl. ¶ 3. If plaintiff seeks records in the control of other agencies, it

should send FOIA requests to those agencies.

1 As evidence of an inadequate search, plaintiff also argues that defendant, in its referral letters to other agencies, assigned a new case number to plaintiff’s request so it would appear that the request was new, and had not been pending for twenty months. Pl.’s Opp’n to Def.’s Mot. to Dismiss 13. Plaintiff also states that defendant omitted one of the categories of the FOIA request in the transmittal letter to the other agencies.

Defendant has explained, however, that the case number used in the referral letters was the appeal case number assigned to plaintiff’s request, which occurs when a requester submits an administrative appeal as plaintiff did. Second Lyon Decl. ¶ 9. In addition, defendant declared that the omission of a category in the referral letters was an administrative oversight. Id. ¶ 5. When defendant referred the request to the other agencies, it sent an electronic copy of the request. Id. ¶ 3. The Court therefore finds that plaintiff’s arguments do not raise a genuine dispute as to the adequacy of defendant’s search.

17

Regarding defendant’s delay, the Court agrees with plaintiff that defendant appears to have

taken an undue amount of time to respond fully to plaintiff’s FOIA request. It has offered no

explanation for why it waited over a year and a half to refer plaintiff’s request to these other

agencies, nor does it offer an explanation for the production delays generally. Nonetheless, the

fact of delay is not enough to cast sufficient doubt on the reasonableness of the search; “the timing

of a search is irrelevant, so long as an adequate search has been conducted and all redactions from

responsive documents are justified.” Nance v. F.B.I.,

(D.D.C. 2012);

see also Iturralde,

(D.C. Cir. 2003) (“[I]nitial delays in responding to a FOIA

request are rarely, if ever, grounds for discrediting later affidavits by the agency.”); Landmark

Legal Found. v. E.P.A.,

(D.D.C. 2003) (“When exactly a reasonable search

was conducted is irrelevant.”). The issue remains whether the search, whenever conducted, was

“reasonably calculated to uncover all relevant documents.” Truitt,

. In Nance v.

F.B.I., the court found that “[i]f the FBI demonstrates that it conducted an adequate search with

proper redactions at some point prior to filing for summary judgment, Nance’s distinction between

pre-suit and post-suit searches becomes irrelevant.” Nance,

. Here, because

defendant has demonstrated that it conducted a reasonable search and produced responsive

documents, it is irrelevant that it delayed in referring the search to other agencies and in producing

documents. Thus, although the Court is sympathetic to plaintiff’s frustration, it does not find that

the delays render the search itself unreasonable.

c. Failure to search records of individuals involved in CLIN0007 termination

Finally, plaintiff asserts that Air Force should have conducted searches of the records of

fifty three Air Force employees it claims were involved with the Air Force’s consideration of

DVP’s termination settlement proposal, twenty-three of whom it deems “key participants.” Pl.’s

18

Reply Br. 4–5. Plaintiff has not, however, explained why these individuals should be considered

key participants, nor has it even explained the role that these individuals played in the contract

settlement negotiation. Defendant has, in contrast, declared that these individuals played only

“minor, insignificant roles, if any role at all, in the termination of CLIN0007.” Third Benedictus

Decl. ¶ 3. As previously described, TSgt. Benedictus declared that the individuals with key

involvement included himself and six others. Defendant conducted searches of those individuals’

email accounts—where available—and produced responsive documents from those accounts to

plaintiff. As plaintiff has not offered evidence to the contrary, the Court has no reason to doubt

defendant’s declarations. See SafeCard,

. It appears that plaintiff is asking the

Court to order defendant to conduct a perfect search, “[a]nd adequacy—not perfection—is the

standard that FOIA sets.” DiBacco v. U.S. Army,

(D.C. Cir. 2015). The Court,

relying on defendant’s declarations which have not been sufficiently rebutted by plaintiff, sees no

compelling reason to force defendant to conduct an additional fifty-three searches.

B. Deliberative Process Privilege

Although defendant initially listed thirty documents on its Vaughn Index for which it

claimed the deliberative process privilege of Exemption 5 applied, only three remain in dispute.

All others have been released to plaintiff, see Third Lyon Decl. ¶¶ 2–4, and the parties’ arguments

regarding the propriety of Exemption 5 as to those documents are therefore moot. See Perry v.

Block,

(D.C. Cir. 1982). The documents that remain contested are Vaughn

Index Items Nos. 3, 27, and 28. Each of these documents are draft letters to DVP regarding the

Fort Monroe termination settlement proposal. The final memorandum letter was released on

March 7, 2014. Defendant claims that the redacted information is information not included in the

final memorandum submitted to DVP. With respect to these documents, defendant states,

19

The information included in the final drafts represents the official communications of the agency on the matters contained therein. The contracting officer who signed the final memoranda provided to DVP specifically rejected the inclusion of the withheld information from the final memoranda. Air Force members and representatives working on the termination of CLIN0007, in editing drafts to produce the final memoranda, engaged in a process of give and take where ideas were proposed, debated, considered and ultimately included or rejected in the final draft. Releasing information not included in the final drafts [would] chill open and honest communications within the agency. The information redacted from these documents is the minimum amount necessary to ensure open, frank and thoughtful agency deliberations.

Second Benedictus Decl. ¶ 8. Plaintiff argues that designating a document as “draft” does

not protect it from disclosure and that defendant must show how each redaction “relates to

the deliberative, decision-making process with respect to terminating CLIN0007, and that

they do not contain any purely factual information that must be disclosed.” Pl.’s Reply Br.

17–18, 22–23.

The Court, at plaintiff’s request, has reviewed Items 3 and 27 in camera. After this

in camera review, the Court concludes that three of the redactions were improper under

Exemption 5, but that all others were proper. Therefore, the Court grants in part and denies

in part defendant’s motion for summary judgment as to the propriety of Exemption 5, and

grants in part and denies in part plaintiff’s motion for summary judgment.

1. Improper Redactions

The Court first finds that redaction 6 in Vaughn Index Item 3 (January 30, 2014 draft) and

redactions 7 and 8 in Vaughn Index Item 27 (August 5, 2013 draft) were improper. Redaction 6

is the first redaction on page three of Vaughn Index Item 3 and is number (4) in the list beginning

on page two. Redaction 7 is the last redaction on page two of Vaughn Index Item 27 and is number

(4) in the list beginning on page two. Redaction 8 is the first redaction on page three of Vaughn

Index Item 27. It is the sentence immediately preceding “Future costs and costs incurred after 15

September are unallowable.”

20

After an in camera review, the Court finds that the redacted material is identical to material

released in the final memorandum. The Court concludes that these redactions do not qualify as

predecisional. Although they were generated before the Air Force’s final decision regarding the

Fort Monroe termination settlement proposal, which was released March 7, 2014, and were

therefore predecisional at that time, the material in these redactions lost their predecisional status

when they were adopted in the Air Force’s final memorandum. See Coastal States Gas Corp.,

.

The Court finds that there is no danger of chilling agency debate and discussion in this case

where the redacted material at issue has fully survived the drafting process and has been released

to the public. Cf. Afshar v. Dep’t of State,

(D.C. Cir. 1983) (“To the extent

the reasoning of the [predecisional] recommendations is expressly adopted [in final, nonexempt

memorandum], there is no longer any need to protect the consultative process.”); United States v.

Philip Morris USA Inc.,

(D.D.C. 2003) (“[A]n agency employee is unlikely

to be chilled by the fear that her advice will become public if it is adopted.”). Because the redacted

material identified above was released in identical form in the final letter, the deliberative process

privilege does not apply. The Court orders defendant to release the content of these redactions to

plaintiff.2

2. Proper Redactions

The Court finds that the remaining redactions—all those other than the three identified

above—were proper. After an in camera review, the Court finds that the redacted material relates

2 Plaintiff has asked the Court to review in camera Vaughn Index Items 3 and 27. Pl.’s Opp’n to Def.’s Mot. to Dismiss 20–21, 27. Item 28, portions of which defendant has withheld under the deliberative process privilege, is also a draft letter to DVP regarding the Fort Monroe termination settlement proposal, dated February 24, 2015. To the extent that any redacted material in Item 28 appears in identical form in the final letter, defendant is ordered to produce that material in accordance with the above reasoning.

21

to the Air Force’s discussions and decisions regarding DVP’s settlement proposal for the closure

of Fort Monroe and termination of CLIN0007. This information relates generally to recoverable

costs, cost estimates and breakdowns, settlement term, and the reasoning behind these decisions.

The Court concludes that the redactions described above were proper under Exemption 5

because the information redacted from the drafts was both predecisional and deliberative. First,

the drafts are predecisional; they were prepared in the process of assisting the Air Force in coming

to a decision regarding DVP’s settlement proposal. See Formaldehyde Inst.,

.

They were written after the contract termination but before the Air Force came to its final

conclusion regarding DVP’s settlement proposal, which it released on March 7, 2014. Cf. Murphy

v. Tenn. Valley Auth.,

(D.D.C. 1983). In contrast to the documents in

Coastal States Gas Corp., which “discus[ed] established policies and decisions the agency

regulations in the light of a specific, and often hypothetical, fact pattern,” and therefore “[n]o

‘decision’ [was] being made or ‘policy’ being considered,”

, the redacted material

here relates directly to the Air Force’s decision regarding DVP’s settlement proposal, and it was

not included in the final memorandum letter. The information redacted was “directed at a very

specific decision,” the decision to whether to accept DVP’s settlement proposal. See Mead Data

Central, Inc. v. U.S. Dep’t of Air Force,

(D.C. Cir. 1978) (finding that

Exemption 5 applied to cost comparisons and feasibility opinions regarding the Air Force’s

decision of whether to accept the plaintiff’s proposal to use its computerized system).

The drafts are also deliberative in nature. They reflect the Air Force’s decisionmaking

process with regard to DVP’s settlement proposal. See Formaldehyde Inst.,

;

Giovanetti v. F.B.I., No. CV 13-1807,

(D.D.C. Mar. 31, 2016) (“[T]he

documents contain information reflecting the internal deliberations of the agency in preparing

22

‘documents ultimately filed with the court.’”); Life Extension Found., Inc. v. I.R.S.,

(D.D.C. 2013), aff’d,

(D.C. Cir. 2014) (finding that the exempt

documents “were generated as part of a continuous process of agency decision-making, namely

what determination the IRS should make with regard to plaintiff’s tax-exempt status”). The

information redacted does not merely consist of declarations of existing policy. See Pub. Citizen,

Inc. v. Office of Mgmt. & Budget,

(D.C. Cir. 2010) (“A document that does

nothing more than explain an existing policy cannot be considered deliberative.”). Rather, the

material was deleted or changed and was and not included in the final version of the letter. These

“omission[s] reveal[] an agency deliberative process: for some reason, the agency decided not to

rely on [those] fact[s] or argument[s] after having been invited to do so.” Exxon Corp. v. Dep’t of

Energy,

(D.D.C. 1983) (internal quotation marks omitted). In addition,

material in draft agency documents that has undergone stylistic changes prior to release of the final

document may qualify for redaction under Exemption 5.3 Changes to wording that give insight

into the agency’s decisionmaking process and discourage candid discussion may be deliberative

in nature. See Russell,

(“[T]he exemption protects not only communications

which are themselves deliberative in nature, but all communications which, if revealed, would

expose to public view the deliberative process of an agency.”). The Court finds that disclosure of

the redacted material here would “discourage candid discussion within the agency.”

Formaldehyde Inst.,

.

Other members of this Court have considered similar factual situations, and have found

that Exemption 5 applies. In Fischer v. U.S. Department of Justice, the plaintiff sought records

3 The Court notes that this, like many deliberative process privilege issues, is a fact intensive question based on the documents and circumstances at hand. See Coastal States Gas Corp.,

(“The cases in this area are of limited help to us, because the deliberative process privilege is so dependent upon the individual document and the role it plays in the administrative process.”).

23

related to his criminal conviction for the purpose of helping him prove his innocence. Fischer v.

U.S. Dep’t of Justice,

(D.D.C. 2010). The defendant asserted Exemption

5 with respect to two drafts of a settlement agreement prepared for internal purposes, but produced

partially redacted versions.

at 113–14. Citing the defendant’s declarations, the court concluded

that documents were properly withheld:

They were part of the government’s negotiations and preparations for a final settlement agreement, and as a result of their advisory nature their release could affect employees’ candor with their colleagues on similar matters in the future. The drafts originated from a government agency—the U.S. Attorney’s Office. They are predecisional because, as proposed terms for a document which the government would later sign, they had a concrete role within a decision-making process. Finally, the redacted terms composed advice and not facts, thus constituting deliberative material.

(internal citations omitted).

Similarly, In Murphy v. Tennessee Valley Authority, TVA contracted with Zurn Industries

for the construction of cooling towers at two nuclear power plants. Murphy,

.

After TVA decided to defer construction, it negotiated and reached a final contract settlement with

Zurn.

The plaintiff filed a FOIA request in part seeking documents relating to TVA’s

negotiations and settlement with Zurn, several of which were withheld under Exemption 5. See

The documents at issue were written by staff members who were “involved in resolving Zurn’s

contract claims but did not themselves have authority to settle them.”

. The court,

holding that Exemption 5 applied, found that the documents were predecisional as “they were

written after TVA decided to wind down its cooling tower projects but before the Board voted to

approve the $17.5 million settlement recommendation,” and deliberative because they

“contain[ed] staff evaluations, recommendations, proposals, and suggestions concerning the Zurn

settlement process.”

.

24

Furthermore, despite plaintiff’s argument that Exemption 5 was improperly used to

withhold factual information such as calculations and estimates regarding termination costs,4 the

Court finds that any factual information redacted was “inextricably intertwined” with deliberative

material. See Judicial Watch, Inc.,

. Not only was this information not included

in the final agency letter, any calculations or estimates were used in the Air Force’s decision

regarding whether to accept DVP’s settlement proposal and its own calculation of settlement

amount owed to DVP. The D.C. Circuit has considered, albeit in a different context, whether cost

estimates qualify for redaction as part of the deliberative process. In Quarles v. Department of

Navy, the court considered whether the deliberative process privilege applied “to certain cost

estimates prepared by Navy officials in the course of the Navy’s selecting homeports for ships in

a new battleship group.” Quarles v. Dep’t of Navy,

(D.C. Cir. 1990). Finding

that “[n]umbers have a surface precision that may lead the unsophisticated to think of them as

fixed,” the cost estimates at issue “derive[d] from a complex set of judgments—projecting needs,

studying prior endeavors and assessing possible suppliers. They partake of just that elasticity that

has persuaded courts to provide shelter for opinions generally.”

at 392–93. Finding that harm

to the decisionmaking process would occur if the cost estimates were disclosed, the court

concluded that “high officials might be inclined either not to call for cost estimates, or to call only

for fuzzy ones expressed as wide ranges.”

.

This Court is persuaded that disclosure of any cost estimates redacted from the materials

here would also expose the deliberative process with respect to Air Force’s consideration of DVP’s

termination settlement proposal. Cf. Brinderson Constructors, Inc. v. U.S. Army Corps of

4 The Court notes that is unclear from plaintiff’s briefs whether it claims that factual information was improperly redacted from Vaughn Index Items 3, 27, and 28 specifically. Plaintiff argues generally that the government’s calculations and estimates regarding its termination costs is factual and not exempt as deliberative process. See Pl.’s Opp’n to Def.’s Mot. to Dismiss 18–19, Pl.’s Reply Br. 12–13.

25

Engineers, No. CIV. A. 85-0905,

, at *5 (D.D.C. June 11, 1986) (finding, in the

context of documents containing information regarding the plaintiff’s claims for compensation for

work performed for the defendant that “the factual material withheld, namely the computations

and other data, is also exempt from disclosure as it pertains to the merits of plaintiff’s claim for

additional compensation” and “[i]t is well-settled that such computations are certainly part of the

deliberative process”). This Court therefore concludes that the deliberative process privilege of

Exemption 5 applies to the redactions described above.

Finally, the Court finds that all reasonably segregable portions of the materials were

produced to plaintiff. As noted above, all documents were produced in full except Vaughn Index

Items 3, 27, and 28. Based on the above-described in camera review, the large majority of the

redacted material was properly withheld under Exemption 5. The Court has identified the material

improperly withheld and has ordered defendant to release this material. Therefore, all non-exempt

portions of the documents either have been produced or will be produced upon execution of this

Court’s Order. See Trans-Pac. Policing Agreement, 177 F.3d at 1026–27.

C. 2015 DCAA Audit Report

Plaintiff specifically asks this Court to order the release of the September 30, 2015 DCAA

Audit Report, arguing that the Air Force is blocking the production of a responsive, non-exempt

document. Pl.’s Reply Br. 5–6. While “[t]he clear purpose of the FOIA is to assure that the public

has access to all government documents, subject to only nine specific limitations, to be narrowly

interpreted,” Coastal States Gas Corp.,

, the document at issue here simply is not

responsive to plaintiff’s FOIA request. Plaintiff’s FOIA request specified a date range of January

1, 2009 to March 25, 2014. Compl. ¶ 15. The record at issue was created on September 30, 2015,

plainly outside this date range. Second Lyon Decl. ¶ 4. DCAA and Air Force consider the

26

document to be an Air Force record.

If plaintiff wants the Air Force to produce this record, its

remedy is to file a new FOIA request for the document, with the proper date range.

D. Plaintiff’s APA Claim

Count II of plaintiff’s Complaint is brought under the Administrative Procedure Act

(“APA”) for an agency action unlawfully withheld and unreasonably delayed. Compl. ¶¶ 57–61.

Under the APA, judicial review exists for an agency action only when “there is no other adequate

remedy in a court.”

. As defendant correctly notes, FOIA provides a remedial

scheme which confers jurisdiction on the District Courts of the United States to “to enjoin the

agency from withholding agency records and to order the production of any agency records

improperly withheld from the complainant.”

(a)(4)(B). Because plaintiff here seeks

relief in the form of an order to disclose the requested records and an injunction preventing the

defendant from withholding or redacting the requested records, Compl. Prayer for Relief ¶¶ B–C,

the Court declines to exercise jurisdiction over plaintiff’s APA claim. See e.g., Feinman v. F.B.I.,

(D.D.C. 2010) (“This Court and others have uniformly declined jurisdiction

over APA claims that sought remedies made available by FOIA.”). The Court therefore will

dismiss Count II of plaintiff’s Complaint.

V. CONCLUSION

For the foregoing reasons, defendant’s motion to dismiss is GRANTED as to Count II of

plaintiff’s Complaint. The Court finds that defendant conducted an adequate search. Defendant’s

motion for summary judgment is therefore GRANTED as to the adequacy of the search, and

plaintiff’s cross motion for summary judgment as to the adequacy of the search is DENIED. The

Court finds that defendant improperly redacted certain information from Vaughn Index Items 3

and 27. Therefore, as to the propriety of Exemption 5, defendant’s motion for summary judgment

27