UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) JEFFREY A. DANIK, ) ) Plaintiff, ) ) v. ) Civil Action No. 17-cv-1792 (TSC) ) U.S. DEPARTMENT OF JUSTICE, ) ) Defendant. ) )

MEMORANDUM OPINION

Plaintiff Jeffrey Danik has sued the U.S. Department of Justice (DOJ) to compel

disclosure of information responsive to his Freedom of Information Act (FOIA) request to the

FBI. Before the court are DOJ’s motion for summary judgment under Federal Rule of Civil

Procedure 56 and Danik’s cross-motion for summary judgment.

For the reasons set forth below, the court will DENY DOJ’s Motion for Summary

Judgment (ECF No. 29), and DENY Danik’s Cross-Motion for Summary Judgment (ECF No.

32).

I. BACKGROUND

Danik is a retired FBI agent who submitted two FOIA requests to the FBI regarding

former FBI Deputy Director Andrew McCabe. The first request sought texts and emails related

to conflicts of interest, financial disclosures, and McCabe’s spouse’s political campaign. 1 (ECF

1 Danik specifically requested records related to McCabe involving: “(1) conflicts-of-interests; (2) McCabe’s wife (Dr. Jill McCabe’s) political campaign; (3) his reporting to the FBI of any job interviews or offers during the period or that specifically contain the following word-phrases or common variants of: Common Good VA; Terry McAuliffe, Clinton, The Virginia Democratic Party; and Jill McCabe; (4) financial disclosure forms that contain any information for former Deputy Director McCabe between January 2015 and October 2016; (5) entries for McCabe in the FBI ‘EPAS’ system related to reporting conflicts of interest, job interviews and employment No. 29-3, First Hardy Decl., at Ex. A.) The second sought texts and emails regarding any act by

McCabe to “interfere, insert himself, control, impede, manage or influence the referral to or

investigation of the Clinton email server case.” (Id. at Ex. M.) This request also asked for

McCabe-related texts or emails containing twenty-three specific words or phrases. (Id.)

The FBI searched for only six of the requested search terms, and claims the remainder are

too broad. (First Hardy Decl. ¶ 31.) It searched emails but did not search McCabe’s text

messages. (First Hardy Decl. ¶ 33.) The FBI identified 178 pages of responsive records and

released 169 pages in full or part, and withheld nine pages in full, withholding information under

Exemptions 5, 6, 7(C), and 7(E). (First Hardy Decl. ¶ 28.)

Danik contends that the FBI’s searches were inadequate because it did not search

McCabe’s text messages and did not search records using all his requested search terms. (ECF

No. 31, Pl. Br., at 2.) Danik further challenges the FBI’s withholding under Exemption 5. (Id. at

3–10.)

II. LEGAL STANDARD

“FOIA provides a ‘statutory right of public access to documents and records’ held by

federal government agencies.” Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Justice,

(D.D.C. 2009) (quoting Pratt v. Webster,

(D.C. Cir.

1982)). The Act requires that federal agencies comply with requests to make their records

available to the public, unless such “information is exempted under [one of nine] clearly

offers or his wife’s democratic political campaign during the same time period; and (6) reports of FBI officials who were assigned to monitor political contributions to Dr. McCabe’s campaign accounts to ensure that subjects of FBI investigations over which former Deputy Director McCabe had control, were not contributing money.” (ECF No. 29-1.)

2 delineated statutory [exemptions].”

(internal quotation marks omitted); see also

(a)–(b).

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

Georgacarakos v. FBI,

(D.D.C. 2012) (quoting Defenders of Wildlife v.

U.S. Border Patrol,

(D.D.C. 2009)). Summary judgment in FOIA cases

may be based solely on information provided in an agency’s supporting affidavits or declarations

if they are “relatively detailed and nonconclusory.” SafeCard Servs., Inc. v. S.E.C.,

(D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA,

(D.C. Cir. 1981)). These declarations are “accorded a presumption of good faith which cannot

be rebutted by purely speculative claims about the existence and discoverability of other

documents.”

“To successfully challenge an agency’s showing that it complied with the FOIA, the

plaintiff must come forward with specific facts demonstrating that there is a genuine issue with

respect to whether the agency has improperly withheld . . . records.” Span v. U.S. Dep’t of

Justice,

(D.D.C. 2010) (citing U.S. Dep’t of Justice v. Tax Analysts,

(1989) (Tax Analysts II)) (quotation marks omitted). By corollary, “[a] non-

moving party’s complete failure to come forward with evidence to demonstrate the existence of a

genuine issue of material fact constitutes a reason for the grant of summary judgment under

[Rule 56(e)].” Smith v. U.S. Dep’t of Justice,

(D.D.C. 2013).

Summary judgment is proper where the record shows there is no genuine issue of

material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);

Celotex Corp. v. Catrett,

(1986); Waterhouse v. District of Columbia,

(D.C. Cir. 2002). Courts must view “the evidence in the light most favorable to

3 the non-movant,” “draw[ ] all reasonable inferences accordingly,” and determine whether a

“reasonable jury could reach a verdict” in the non-movant’s favor. Lopez v. Council on Am.–

Islamic Relations Action Network, Inc.,

(D.C. Cir. 2016).

III. ANALYSIS

A. Agency Records

The FBI contends that McCabe’s text messages, which were not uploaded to the FBI’s

official recordkeeping system, are not “agency records” under FOIA. (ECF No. 29-1, Def. Br.,

at 10–14.) Because FOIA does not define “agency records,” the Supreme Court has established

a two-part test to determine whether documents qualify as agency records: 1) “whether the

records were created or obtained by the agency,” and 2) “the extent to which the agency was in

control of the records at the time the FOIA request was made.” Physicians Comm. for

Responsible Med. v. U.S. Dep’t of Agric.,

(D.D.C. 2018) (citing Tax

Analysts II, 492 U.S. at 144–45). The court must examine four factors to determine whether an

agency exercises sufficient control over a document to satisfy the second element: “(1) the intent

of the document’s creator to retain or relinquish control over the records; (2) the ability of the

agency to use and dispose of the record as it sees fit; (3) the extent to which agency personnel

have read or relied upon the document; and (4) the degree to which the document was integrated

into the agency’s record system or files.” Burka v. U.S. Dep’t of Health and Human Servs.,

(D.C. Cir. 1996) (quoting Tax Analysts v. U.S. Dep’t of Justice,

(D.C. Cir. 1988) (Tax Analysts I), aff’d on other grounds,

(1989)). This is a

“totality of the circumstances test,” Consumer Fed. of Am. v. U.S. Dep’t of Agric.,

(D.C. Cir. 2006), however, the third factor—the degree to which an agency has used the

4 document—is “decisive.” Judicial Watch, Inc. v. Fed. Hous. Fin. Agency,

, 927–28

(D.C. Cir. 2011) (Judicial Watch I).

The FBI has not created an adequate record on either possession or control for the court

to determine whether McCabe’s text messages are agency records. The FBI establishes no facts

regarding whether it possesses McCabe’s texts messages. (See generally First Hardy Decl.; ECF

No. 34-1, Second Hardy Decl.) But, based on an Office of Inspector General (OIG) Report, the

FBI appears to “wirelessly collect text messages sent to or from FBI-issued mobile devices.”

(Pl. Br. at n.5 (citing U.S. Dep’t of Justice, Office of Inspector General, Procedural Reform

Recommendation for the Federal Bureau of Investigation (Feb. 2019)).) Using this collection

process, the FBI may have “the ability to produce text messages during the discovery process of

criminal and civil matters, as well as for internal investigations.” (Id.) But the FBI has provided

no facts about this system or whether it continues to possess McCabe’s texts. Without a proper

record, the court cannot determine whether the FBI has shown that it does not possess the

requested documents.

Further, the FBI has created a limited record on whether it controls the text messages, but

nonetheless asks the court to find that it does not, and therefore the messages are not agency

records. But the fact-intensive inquiry into whether a document is an “agency record” under

FOIA does not lend itself to the broad ruling the FBI seeks, and it has not shown that the court

could make such a finding on the record before it.

The FBI offers no facts or argument regarding the first control factor, whether the creator

has retained or relinquished control. It cites, in passing, Gallant v. NLRB,

, 171–72

(D.C. Cir. 1994), which addressed whether letters written on agency equipment, over which the

writer had not relinquished control, were agency records. (Def. Br. at 11.) But the FBI does not

5 indicate how that case would apply here and does not contend that McCabe has retained control

over the text messages.

The second control factor, whether the agency is able to use and dispose of the record,

examines whether the agency used the document in the “conduct of its official duties.” Judicial

Watch I,

(quoting Tax Analysts II,

). The FBI again establishes

no relevant facts regarding McCabe’s texts. Hardy declares that “text messages are typically

created to convey informal, non-substantive information,” and therefore assumes that McCabe’s

texts were not used to conduct official business. (First Hardy Decl. ¶¶ 35, 37.) This assumption

does not provide the court with a basis for concluding that McCabe did not conduct agency

business over text message. 2 The FBI has created no record about how McCabe used text

messages, and therefore the court cannot find that none of his texts were for agency business.

As to the third control factor, the extent to which agency personnel have read or relied on

the document, the FBI has again established no facts regarding whether all of McCabe’s texts

were read or relied on. (See generally First Hardy Decl.; Second Hardy Decl.) Danik points to

specific texts referenced in the OIG Report about McCabe to show that agency personnel read

and relied on McCabe’s texts. (Pl. Br. at 31 (citing U.S. Dep’t of Justice, Office of Inspector

General, A Report of Investigation of Certain Allegations Relating to Former FBI Deputy

Director Andrew McCabe (Feb. 2018)).) The FBI disputes that assertion but provides no factual

2 Indeed, this assumption appears to be belied by the OIG Report, which describes texts McCabe sent and received regarding the Clinton email server investigation. OIG Report at 349 (explaining text messages McCabe sent and received about whether the FBI should notify Congress of the ongoing investigation). The FBI concedes that the texts show McCabe “used text messages to advise colleagues about discrete topics of the agency’s investigation.” (Def. Reply at 2–3.) But it contends that such “quick, one-off conversations” do not reflect agency decisionmaking. (Id.) The FBI cites no authority for this proposition, and the court will not reach the question of whether the texts were used to conduct official business on the limited record before it.

6 support. (ECF No. 34, Def. Reply, at 2–3; see generally First Hardy Decl.; Second Hardy Decl.)

It further argues that because the texts were read by only a few people, they cannot be agency

records. (Def. Reply at 3.) For this proposition, the FBI relies on Consumer Federation of

America,

, in which the D.C. Circuit addressed whether agency employees’

calendars were personal or agency records. The Court held that some calendars—those

distributed to colleagues—were agency records, and one calendar, which was distributed only to

the employee’s secretary, was not.

The fact of distribution was crucial in determining

whether the calendar was used to “facilitate the day-to-day operations of the agency” rather than

“for the convenience of the individual official.” Consumer Fed’n of Am.,

(quoting Bureau of Nat’l Affairs, Inc. v. U.S. Dep’t of Justice,

, 1495–96 (D.C. Cir.

1984)). Here, the FBI has not shown that distribution of McCabe’s texts is relevant to

determining whether they were used to “facilitate the day-to-day operations of the agency.” Cf.

Edelman v. SEC,

(D.D.C. 2016) (explaining that distribution is

determinative in cases where it “serve[s] as evidence that” the records “‘were created for the

purpose of conducting agency business’” (quoting Bureau of Nat’l Affairs,

(emphasis omitted)). A document with limited distribution, like an email between two people

reflecting an agency decision, can be an agency record. Cf. Hyatt v. U.S. Patent & Trademark

Office,

(D.D.C. 2018) (finding email between two agency employees to

be an agency record).

Finally, the FBI has not provided enough information for the court to decide the fourth

control factor, whether the documents have been integrated into agency records. The FBI

contends that McCabe’s text messages are not part of the FBI’s records because McCabe did not

upload them to the FBI’s official recordkeeping system under FBI procedures. (Def. Br. at 12;

7 First Hardy Decl. ¶¶ 39–42.) But the D.C. Circuit has “expressly reject[ed]” this argument,

explaining that “treatment of documents for disposal and retention purposes under the various

federal records management statutes” does not necessarily “determine[] their status under

FOIA.” Consumer Fed’n of Am.,

(quoting Bureau of Nat’l Affairs,

); see also Edelman,

(noting “documents can be ‘agency records’

under FOIA even if they need not have been preserved (or created) under federal law or agency

practice”). And the FBI has not shown whether it retained McCabe’s text messages in its files.

See Edelman,

(explaining attorney notes were in the agency’s files

because they were on the agency’s computer system and therefore “necessarily subject[ed] . . . to

the control of that system’s administrators (quoting Consumer Fed’n of Am.,

).

Based on the record before it, the court declines to determine whether McCabe’s text

messages are agency records, and will therefore deny summary judgment to DOJ. The court

will, however, permit the FBI to supplement the record, and therefore will also deny summary

judgment for Danik.

B. FBI’s Searches

An agency responding to a FOIA request must make “a good faith effort to conduct a

search for the requested records, using methods which can be reasonably expected to produce the

information requested.” Baker & Hostetler LLP v. U.S. Dep’t of Commerce,

(D.C. Cir. 2006). An agency will be granted summary judgment on the adequacy of its search if

it “show[s] beyond material doubt [ ] that it has conducted a search reasonably calculated to

uncover all relevant documents.” Morley v. CIA,

(D.C. Cir. 2007) (quoting

Weisberg v. U.S. Dep’t of Justice,

(D.C. Cir. 1983) (Weisberg II)). But an

agency is not required to undertake a search that is so broad as to be unduly burdensome. Nation

8 Magazine v. U.S. Customs Serv.,

(D.C. Cir. 1995). To show that a search is

unduly burdensome, the agency must “provide sufficient explanation as to why such a search

would be unreasonably burdensome.”

To meet that burden, an agency generally provides a

“detailed explanation” of the “time and expense of a proposed search.” Wolf v. CIA,

(D.D.C. 2008); see also Ayuda, Inc. v. Fed. Trade Comm’n,

(D.D.C. 2014) (holding an agency’s affidavits must show with “reasonable specificity” why

further segregation of documents, properly withheld under FOIA exemptions, would be

unreasonably burdensome).

The FBI claims that searching McCabe’s texts and running Danik’s remaining proposed

search terms for McCabe’s emails would be “unduly burdensome,” (Def. Br. at 9–10), but it fails

to establish that burden. The FBI ran three of the search terms it initially rejected (including

“run” and “email”), which generated over 20,000 hits, and the FBI estimates it would take over

200 hours to review the results. (Second Hardy Decl. ¶ 6.) The FBI assumes, without running

the searches, that the remaining terms would generate a similar number of hits and require

similar hours to review. But it has no factual basis to assume that all the other terms, which

include “until I return” and “New York Times” would generate a similar number of hits. Thus,

while the initial estimate from the search terms the FBI ran may indicate some terms are unduly

burdensome, the FBI has not shown this for all the proposed terms. See Mattachine Soc’y of

Washington, D.C. v. U.S. Dep’t of Justice,

(D.D.C. 2017) (rejecting

FBI’s argument that a search was burdensome where it ran only one of several terms and

provided insufficient details on the burden imposed).

The FBI also claims that it would be unduly burdensome to search McCabe’s text

messages because such a search is “not compatible” with the FBI’s recordkeeping processes.

9 But again, the FBI establishes no factual basis for this contention, as Hardy does not even

address the burden of searching McCabe’s text messages. (See generally First Hardy. Decl.;

Second Hardy Decl.)

Because the FBI has not shown an undue burden, the court will deny summary judgment

for the FBI. The FBI may supplement the record regarding the burden of these searches,

although the court notes that the parties appear open to compromise on the search terms. (See Pl.

Br. at n.4 (suggesting the parties meet and confer regarding the terms).) Therefore, the court will

also deny summary judgment for Danik.

C. FBI’s Invocations of Exemptions

The FBI withheld three categories of documents under Exemption 5, claiming protection

under the deliberative process privilege. Exemption 5 shields documents that would “normally

[be] privileged from discovery in civil litigation against the agency,” such as documents

protected by the attorney-client, work-product, and deliberative process privileges. Tax Analysts

v. IRS,

(D.C. Cir. 1997). To withhold a document under Exemption 5, an

agency must show that “the disclosures of information withheld . . . would harm the agency’s

deliberative process.” Judicial Watch v. U.S. Dep’t of Commerce,

(D.D.C. 2019) (Judicial Watch II) (citing

(a)(8)(A)); see also Ctr. for

Investigative Reporting v. U.S. Customs & Border Prot., No. 18-cv-2901,

, at

*9 (D.D.C. Dec. 31, 2019). Danik does not contest that the deliberative process privilege

protects the documents; he argues that the FBI has not shown that releasing the documents would

harm the agency’s deliberative process. (Pl. Br. at 10–11.)

To establish harm, an agency must “identify specific harms to the relevant protected

interests that it can reasonably foresee would actually ensue from disclosure of the withheld

10 materials” and “connect[ ] the harms in [a] meaningful way to the information withheld.”

Judicial Watch, Inc. v. U.S. Dep’t of Justice, No. 17-cv-0832,

, at *5 (D.D.C.

Sept. 24, 2019) (Judicial Watch III). While an agency can take a categorical approach, it must

provide more than “boilerplate statements,” Ctr. for Investigative Reporting,

,

at *9, and “generic and nebulous articulations of harm.” Judicial Watch II,

,

at *4–5.

The FBI has not done so here. It withheld certain ethics forms, a draft version of a

document regarding McCabe’s possible recusal, and emails related to that draft. (First Hardy

Decl. ¶ 52.) For all three, the FBI declares that “[t]he release of the redacted/withheld

information is likely to chill full, frank, and open discussions between agency personnel, as well

as chill the thorough preparation of potential criminal matters in advance of litigation.” (Id.)

This boilerplate language does not link the harm (chilled discussion and preparation of materials)

to the specific information in the withheld materials. Therefore, the explanation fails to establish

foreseeable harm from disclosing the documents. Judicial Watch II,

;

Judicial Watch III,

, at *5 (noting the agency must provide “context or insight

into the specific decision-making processes or deliberations at issue, and how they in particular

would be harmed by disclosure”).

Accordingly, the court will deny summary judgment for the FBI regarding Exemption 5.

The court will, however, permit the FBI to supplement the record regarding foreseeable harm.

Therefore, the court will also deny summary judgment for Danik.

11 IV. CONCLUSION

For the stated reasons, the court will DENY DOJ’s motion for summary judgment and will

DENY Danik’s cross-motion for summary judgment. A corresponding Order will issue

separately.

Date: May 31, 2020

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

12