UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GUN OWNERS OF AMERICA, INC., et al. Plaintiffs, v. Civil Action No. 21-1601 (JDB)

FEDERAL BUREAU OF INVESTIGATION, Defendant.

MEMORANDUM OPINION

Plaintiffs seek to compel the Federal Bureau of Investigation to comply with four requests

for records under the Freedom of Information Act (“FOIA”). The FBI denied three of the requests

on the ground that they failed to reasonably describe the documents sought, and it now moves to

dismiss plaintiffs’ complaint with respect to those three requests for the same reason. The Court

will grant in part and deny in part the FBI’s motion.

Background

Gun Owners of America, Inc. and Gun Owners Foundation are Virginia non-profit

organizations. Compl. [ECF No. 1] ¶¶ 3–4. Gun Owners of America “seeks to promote social

welfare through informing and educating the public on and conducting activities in defense of the

Second Amendment and the right to keep and bear arms,” id. ¶ 3, while Gun Owners Foundation

is “a nonprofit legal defense and educational foundation . . . . supported by gun owners across the

country,” id. ¶ 4. On March 15, 2021, the two organizations jointly filed four FOIA requests with

the FBI, seeking records related to Virginia’s procedures for conducting background checks prior

to purchasing a firearm. Id. ¶ 7; see also Compl. Ex. A [ECF No. 1-1]. Specifically, plaintiffs

requested:

1 • Request 1 – “records of all communications between the FBI and the Governor of Virginia, the Office of the Governor of Virginia, the Lieutenant Governor of Virginia, the Office of the Lieutenant Governor of Virginia, the Attorney General of Virginia, the Virginia Office of the Attorney General, and agents and employees of the same that occurred between January 11, 2014 until the date you begin to process this request”; • Request 2 – “records of all communications between the FBI and the Virginia Department of State Police involving the so-called ‘voluntary background check’ established by Va. Code Section 54.1-4201.2, or a so-called ‘special permit for voluntary background check’ or ‘firearms-related permit’ to be established by the executive branch of government in Virginia, that occurred between July 1, 2015 until the date you begin to process this request”; • Request 3 – “records related to whether Virginia’s voluntary background check system and its implementation complies with 28 C.F.R. Section 25.6”; • Request 4 – “copies of the last four National Instant Criminal Background Check System audits conducted by the FBI’s Criminal Justice Information Services Division with respect to the Commonwealth of Virginia.”

Compl. Ex. A at 1–2 (footnote omitted). 1

The FBI acknowledged Request 4 and queued it for processing, Compl. Ex. B [ECF No.

1-2] at 2–3, 2 but it denied Requests 1, 2, and 3 on March 24, 2021, Compl. ¶¶ 8–11; Compl. Ex.

B at 4–8. According to the FBI, Request 1 is “overly broad and . . . does not provide enough detail

to enable personnel to locate records ‘with a reasonable amount of effort,’” Compl. Ex. B at 4;

Request 2 “does not contain enough descriptive information to permit a search of [the FBI’s]

records,” id. at 6; and Request 3 “do[es] not comply with the FOIA” because “[t]he FOIA does not

require federal agencies to answer inquiries, create records, conduct research, or draw conclusions

concerning queried data,” id. at 8.

Plaintiffs administratively appealed this decision on April 9, 2021, Compl. ¶ 12; Compl.

Ex. C [ECF No. 1-3], but they did not receive a decision on their appeal within the twenty days

1 The Court will refer to these requests by the Arabic numerals given above, but these are not their official designations: the FBI assigned each request a processing number upon receipt. To avoid any confusion, Request 1 is No. NFP-128736; Request 2 is No. NFP-128737; Request 3 is No. NFP-128738; and Request 4 is No. 1492370-00. See, e.g., Compl. Ex. C [ECF No. 1-3]. 2 Unlike Exhibits A and C, Exhibit B does not contain internal pagination. Accordingly, the Court will use the page numbers automatically generated by the CM/ECF system and located in the top right corner of each page for Exhibit B, but it will use the documents’ own internal pagination for Exhibits A and C.

2 required by statute, Compl. ¶¶ 15, 17; see

(a)(6)(A)(ii). Nor has the FBI issued a

decision regarding compliance with Request 4, also in violation of a twenty-day deadline. Compl.

¶ 16; see

(a)(6)(A)(i). Accordingly, plaintiffs brought the instant suit pursuant to

(a)(4)(B) on June 11, 2021, alleging that the FBI is improperly withholding agency

records and asking the Court to order the agency to search for and produce “any and all non-exempt

records responsive to Plaintiffs’ FOIA request.” Compl. at 5.

The FBI then moved to dismiss plaintiffs’ complaint in part. See Mem. of P. & A. in Supp.

of Def.’s Partial Mot. to Dismiss [ECF No. 5] (“Def.’s Mot.”). The FBI contends that its initial

denials of Requests 1, 2, and 3 were proper: the requests “fail to reasonably describe the records

they seek or . . . impose unreasonable burdens on the FBI.”

. And since plaintiffs did not

“[p]resent[] a legally proper FOIA request,” the FBI argues, they have failed to state a claim under

FOIA.

Plaintiffs, naturally, oppose this motion, maintaining that their requests are sufficiently

specific and satisfy FOIA’s reasonable-description requirement. See generally Pls.’ Resp. to

Def.’s Mot. [ECF No. 6] (“Pls.’ Opp’n”). The motion is now fully briefed and ripe for decision.

Legal Standard

To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “‘a short and plain

statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant

fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v.

Twombly,

(2007) (alteration in original) (quoting Conley v. Gibson,

(1957)). The “complaint must contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009) (quoting

Twombly,

); accord Atherton v. D.C. Off. of Mayor,

(D.C. Cir.

2009). In deciding a Rule 12(b)(6) motion, the court must “take as true all well-pled factual

3 allegations within [the plaintiff’s] complaint” while also “disregard[ing] any legal conclusions,

legal contentions couched as factual allegations, and unsupported factual allegations within the

complaint.” Gulf Coast Mar. Supply, Inc. v. United States,

(D.C. Cir. 2017).

A Rule 12(b)(6) motion “must be decided only on the basis of the facts alleged in the complaint,

any documents either attached to or incorporated in the complaint, and matters of which the court

may take judicial notice.” Galvin v. Del Toro, Civ. A. No. 21-1813 (JDB),

, at

*4 (D.D.C. Feb. 18, 2022) (internal quotation marks and citation omitted).

The Freedom of Information Act mandates that, upon request, federal agencies “shall

make . . . records promptly available to any person” so long as the request “(i) reasonably describes

such records and (ii) is made in accordance with published rules stating the time, place, fees (if

any), and procedures to be followed.”

(a)(3)(A). Courts in this District “ha[ve]

jurisdiction to enjoin the agency from withholding agency records and to order the production of

any agency records improperly withheld from the complainant.”

§ 552(a)(4)(B). Thus,

“[j]urisdiction under FOIA requires ‘a showing that an agency has (1) improperly; (2) withheld;

(3) agency records.’” Competitive Enter. Inst. v. Off. of Sci. & Tech. Pol’y,

(D.C. Cir. 2016) (some internal quotation marks omitted) (quoting Kissinger v. Reps. Comm. for

Freedom of Press,

(1980)).

An agency’s decision to withhold agency records is not improper if it has not “receive[d]

a request that ‘reasonably describes such records.’” Evans v. Fed. Bureau of Prisons,

, 583 (D.C. Cir. 2020) (quoting

(a)(3)(A)). “[A FOIA] request ‘reasonably

describes’ agency records when it ‘would be sufficient to enable a professional employee of the

agency who was familiar with the subject area of the request to locate the record with a reasonable

amount of effort.’” Am. Ctr. for L. & Just. v. U.S. Dep’t of Homeland Sec., Case No. 1:21-cv-

4 01364 (TNM),

, at *3 (D.D.C. Nov. 10, 2021) (alteration omitted) (quoting

Truitt v. Dep’t of State,

, 545 n.36 (D.C. Cir. 1990)). “The linchpin inquiry is whether

‘the agency is able to determine precisely what records are being requested,’” Dale v. IRS,

(D.D.C. 2002) (quoting Tax Analysts v. IRS,

(D.C. Cir.

1997))—“[b]road, sweeping requests lacking specificity are not sufficient,”

And although

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

for Resp. & Ethics in Wash. (“CREW”) v. U.S. Postal Serv., Civ. A. No. 20-2927 (JDB),

, at *3 (D.D.C. Aug. 17, 2021) (citation omitted), a motion under Rule 12(b)(6) is the

appropriate vehicle for determining whether a plaintiff’s request reasonably describes the records

sought, see CREW v. U.S. Dep’t of Just.,

, 487–88 (D.C. Cir. 2019) (“[T]o plead a

plausible claim that an agency has ‘improperly’ withheld its records, we require a plaintiff . . . to

allege that it made a procedurally compliant request.”). 3

Analysis

The FBI moves to dismiss plaintiffs’ complaint as to Requests 1, 2, and 3. The FBI

contends, as it did in its initial denials, that these requests “fail to reasonably describe the records

they seek or seek to impose unreasonable burdens on the FBI,” and thus that the FBI has no

obligation to comply under FOIA. Def.’s Mot. at 4. This overarching argument has a different

flavor for each request, so, following the parties’ lead, the Court will address each request in turn.

For the reasons explained below, the Court will grant the government’s motion to dismiss as to

Requests 1 and 3 but deny it as to Request 2.

3 Although the statute and caselaw frequently use the language of “jurisdiction,” this refers not to subject- matter jurisdiction but to limits on a court’s remedial power. See, e.g., Cause of Action Inst. v. IRS,

, 93–100 (D.D.C. 2019); accord Main St. Legal Servs., Inc. v. Nat’l Sec. Council,

(2d Cir. 2016). Thus, whether a defendant has improperly withheld agency records is properly decided on a Rule 12(b)(6) motion.

5 I. Request 1

Plaintiffs’ first request seeks “records of all communications between the FBI and” the

Governor, Lieutenant Governor, and Attorney General of Virginia, their respective “Office[s],”

and “agents and employees of the same.” Compl. Ex. A at 1–2. The request applies to all

communications “that occurred between January 11, 2014 until the date [the FBI] begin[s] to

process this request.” Id. at 2. The FBI denied this request on the ground that it is “overly broad

and . . . does not provide enough detail to enable personnel to locate records ‘with a reasonable

amount of effort.’” Compl. Ex. B at 4. This remains, in broad strokes, the agency’s position. In

particular, the FBI contends that Request 1 fails sufficiently to identify the Virginia officials whose

correspondence it requests, Def.’s Mot. at 10; that the request constitutes an improper “fishing

expedition,” id. at 11–12; and that, even if the request does “reasonably describe” the documents

sought, its “shocking breadth would impose undue and unreasonable burdens on the FBI,” id. at

12–13.

The Court need not reach the FBI’s latter two arguments because it agrees with the first:

Request 1’s identification of whose communications are sought is insufficiently precise. 4 The FBI

4 Nonetheless, the Court notes that it is up to the agency to “provide a sufficient explanation as to why . . . a search would be unreasonably burdensome,’” Ayuda, Inc. v. FTC,

(D.D.C. 2014) (cleaned up; citation omitted), and it usually may not rely on conclusory statements in a brief to carry that burden, see, e.g., Prop. of the People, Inc. v. U.S. Dep’t of Just.,

, 63 (D.D.C. 2021) (“Courts have consistently found that ‘merely claiming that a search would be “costly and take many hours to complete” is insufficient.’” (quoting Anderson v. U.S. Dep’t of State,

, 12 n.3 (D.D.C. 2009))); Hall v. CIA,

(D.D.C. 2012) (refusing to “find a search unduly burdensome on conclusory statements alone” and noting that agency “g[a]ve[] no estimate of how long it would take to review” potentially responsive documents). Rather, “[c]ourts typically demand ‘a detailed explanation by the agency regarding the time and expense of a proposed search in order to assess its reasonableness.’” Shapiro v. CIA,

(D.D.C. 2016) (quoting Wolf v. CIA,

(D.D.C. 2008), and collecting similar cases). But see Am. Ctr. for L.& Just.,

, at *6– 7 (concluding that a request was unduly burdensome on its face and without requiring the agency to submit an affidavit). In this case, the FBI did not submit any explanation of how complying with defendant’s request would be unduly burdensome, nor did it provide any evidentiary basis for that assertion in its motion. See Def.’s Mot. at 12– 13. And even if it had, the Court might not have been able to consider that evidence without converting the present motion into one for summary judgment. See, e.g., Breeze v. Kabila Inc., Civ. A. No. 21-753 (JDB),

, at *15 (D.D.C. Dec. 15, 2021) (“The court may not . . . consider declarations not attached to the complaint itself without converting the motion into one for summary judgment.”).

6 makes two arguments in this vein, but only one succeeds. It first argues that, since eight people

have served as Governor, Lieutenant Governor, or Attorney General over the requested time

period, the request is “vague and ambiguous as to whether Plaintiffs seek all communications

between each of them and the FBI . . . , only communications between these individuals and the

FBI during their terms in office, or communications between a particular governor, lieutenant

governor, or attorney general and the FBI.” Def.’s Mot. at 10–11. Defendant’s attempt to

manufacture ambiguity in this way is unavailing. There is only one reasonable interpretation of

this request: plaintiffs seek communications between the FBI and then-incumbent officeholders

and their staffs. An agency’s claim that it is hopelessly torn between a reasonable and an

unreasonable reading of a FOIA request will not support a conclusion that the request is deficient.

The Court easily concludes that this aspect of Request 1 “reasonably describes” the documents

sought.

The Court agrees with the FBI’s other contention, however: plaintiffs’ request for

correspondence between the FBI and “agents and employees” of the six listed officials and offices

is so vague as to prevent an agency professional from “determin[ing] precisely what records are

being requested,” Tax Analysts,

(citation omitted). See Def.’s Mot. at 10. Request

1’s “agents and employees” term has a wide range of plausible meanings. On the one hand, the

set of relevant “agents and employees” could be coterminous with the “Office[s]” of the Governor,

Lieutenant Governor, and Attorney General, rendering the catch-all term superfluous. On the other

hand, the phrase could apply to every individual working for Virginia’s executive branch, each of

whom could plausibly be considered an “agent[] of” the Governor. See Am. Ctr. for L.& Just.,

, at *6 (noting that the phrase “representative or agents” of the Secretary of

7 Homeland Security “encompasses each of the Department’s 240,000 employees” because “[t]hey

all carry out policy directives as pronounced by [the Secretary]”).

Even more than the potential breadth of the request, however, the fatal flaw in Request 1

is that it provides no way to determine which of these plausible meanings to apply. The problem

is not that there might be gray area or close cases when applying the request’s terms—it is instead

that the criteria for resolving those close calls are obscure or nonexistent. Cf. United States v.

McHugh, Crim. A. No. 21-453 (JDB),

, at *16 (D.D.C. Feb. 1, 2022) (drawing a

similar distinction in the context of constitutional vagueness doctrine). By using a vague catch-all

instead of identifying a discrete agency or set of employees, Request 1 embeds an intractable

uncertainty preventing even the most conscientious and diligent processor from “determin[ing]

precisely what records are being requested.” Tax Analysts,

(citation omitted). Put

another way, a researcher presented with an email from someone at the FBI to a Virginia state

employee would have very little guidance for determining whether the email is to an “agent or

employee” of the Governor—the request “leave[s] the unfortunate FOIA processor . . . in a

hopeless muddle without clear guidance about what documents are being sought.” Am. Ctr. for

L. & Just.,

, at *6.

Plaintiffs seem to realize that their request is problematically vague, but rather than simply

amending their request, they seek to obscure its terms. In their administrative appeal and then in

their opposition brief, they offer several suggestions for how the FBI could go about processing

Request 1, recommending “search[ing] for emails sent to and received from addresses with the

domain ending ‘virginia.gov’ and, within those, perhaps narrow[ing] the results to those containing

signature blocks with the words ‘governor’ or ‘attorney general.’” Compl. Ex. C at 2–3; accord

Pl.’s Opp’n at 4–5 (identifying specific email sub-domains the FBI could search). Plaintiffs argue

8 that this additional specificity demonstrates that their request “seeks communications between a

limited number of FBI personnel and a limited number of clearly identified Virginia officials.”

Compl. Ex. C at 2 (emphasis removed); see also Pls.’ Opp’n at 7 (“[W]ere there any doubt about

the limited scope of Plaintiffs’ first request, their appeal letter provided clarification.”).

For one, plaintiffs’ recommendation of email domains to search does not grapple with the

inherent vagueness of the phrase “agents and employees of the same.” Even if Request 1 were

limited to the email domains plaintiffs suggest, their catch-all request for communications with all

“agents and employees” would still be impermissibly imprecise. Contra Pls.’ Opp’n at 5 (“[T]hese

sub-domains provide an exceedingly simple, straightforward, and reliable way ‘to identify all

agents and employees’ of each office of Virginia government in question.”).

More generally, however, plaintiffs cannot point to suggested research strategies as

evidence that their request is narrower than its terms. A brief cannot amend a FOIA request, e.g.,

Am. Oversight v. U.S. Dep’t of Just.,

, 35 (D.D.C. 2019), and subsequent

communication with an agency “must be reasonably clear that its sender intends it to be a new

request” in order to limit the scope of a previous request, Corley v. Dep’t of Just.,

(D.C. Cir. 2021) (upholding agency’s decision to “treat[] [plaintiff ’s] submission as what it

purported to be: an administrative appeal with relevant supporting documents attached”); see also

Nat’l Sec. Couns. v. CIA,

(D.C. Cir. 2020) (“NSC II”) (refusing to narrow scope

of request on the basis of its purpose as stated in requester’s application for fee waiver); cf. Dillon

v. U.S. Dep’t of Just.,

, 85 (D.D.C. 2020) (holding that letter “submitted in the

context of an administrative appeal” which “outright state[d] that Plaintiff sought ‘two specific

kinds of evidence’” such that agency personnel “would naturally construe the request as . . .

seeking only those two items” served to narrow scope of request).

9 In this case, far from submitting a new request or specifically seeking a narrower set of

documents, plaintiffs’ administrative appeal plainly asserts that their original requests are valid

and must be processed as submitted. E.g., Compl. Ex. C at 2 (“Our clients’ request is not overly

broad, but instead provides more than sufficient detail to enable FBI to search for records.”). Their

search suggestions are framed as just that: suggestions for how to process their original request.

See, e.g.,

(“While we cannot guide FBI as to how to best search its indices for responsive

information, . . . it would be reasonable for the FBI to assume that [responsive] communications

either would have been with one of the FBI’s three Virginia field offices . . . .”). So although

plaintiffs’ suggestions are good ones, neither their appeal nor their brief actually limits the scope

of their request, which the agency is “unquestionably ‘bound to read . . . as drafted, not as either

agency officials or the requester might wish it was drafted.’” Keeping Gov’t Beholden, Inc. v.

Dep’t of Just., Civ. A. No. 17-1569 (FYP),

, at *7 (D.D.C. Dec. 13, 2021)

(cleaned up) (quoting Miller v. Casey,

(D.C. Cir. 1984)). The FBI thus acted

properly in “treat[ing] [plaintiffs’] submission as what it purported to be: an administrative

appeal.” Corley,

.

Because Request 1 uses such inherently imprecise terminology that the agency would not

be able to determine precisely which documents are being requested, it does not reasonably

describe the documents sought. Plaintiffs have thus failed to state a claim as to that request, and

the Court will grant the FBI’s motion to dismiss with respect to Request 1.

II. Request 2

Plaintiffs’ second FOIA request seeks records of “all communications between the FBI and

the Virginia Department of State Police involving” two Virginia background check programs: “the

so-called ‘voluntary background check’ established by Va. Code Section 54.1-4201.2” and “a so-

called ‘special permit for voluntary background check’ or ‘firearms-related permit’ to be 10 established by the executive branch of government in Virginia.” Compl. Ex. A at 2. Plaintiffs

limited the request to communications “occur[ing] between July 1, 2015 until the date [the FBI]

begin[s] to process this request,”

and they also included a footnote stating that “[a]t least some

of these records will be housed by the FBI’s Criminal Justice Information Law Unit,”

at 2 n.1

The FBI denied this request on the ground that it “d[id] not contain enough descriptive information

to permit a search of our records” and so did not “reasonably describe” the documents sought.

Compl. Ex. B at 6.

The FBI defends this conclusion with two arguments. First, it contends that Request 2 is

deficient because it “do[es] not identify by name the relevant Virginia government officials” and

instead lists only “the Virginia Department of State Police.” Def.’s Mot. at 13. The Court is not

persuaded. In stark contrast to Request 1’s impermissibly vague demand for correspondence with

all “agents and employees” of the listed officials, Request 2 names a particular state agency.

Whereas an FBI processor confronted with a particular email would be at sea in determining

whether it was to an “agent” of the Governor, determining whether the communication was with

the Virginia State Police is a straightforward inquiry with clear and obvious criteria. A FOIA

request is not deficient just because it does not provide the name or email address of every

individual whose communications are sought—the request’s description need only be

“reasonable” to implicate the agency’s obligations under the statute.

The FBI’s second objection to Request 2 centers on plaintiffs’ use of the word “involving.”

“[S]ince life, like law, is ‘a seamless web,’ and all documents ‘relate’ to all others in some remote

fashion,” Def.’s Mot. at 14 (quoting Freedom Watch, Inc. v. Dep’t of State,

(D.D.C. 2013)), the FBI contends that there is a categorical rule barring all requests that use the

phrase “relating to” (or similar phrases like “pertaining to” or, as here, “involving”), Def.’s Mot.

11 at 13–14 (“[R]equests seeking all records ‘pertaining to,’ ‘relating to,’ or ‘regarding’ a subject

matter are insufficient under FOIA.”).

That is not the law. “[W]hether a particular FOIA request ‘reasonably describes’ the

records sought is a highly context-specific inquiry.” Nat’l Sec. Couns. v. CIA,

(D.D.C. 2012) (“NSC I”), aff’d,

(D.C. Cir. 2020). That the reasonable

description requirement should not be reduced to a categorical test is evident from its terms: courts

should rarely deploy a bright-line rule—and particularly not one this expansive—when

determining whether something is “reasonable.” Moreover, the FBI’s proposed linguistic litmus

test would problematically narrow the permissible forms of a FOIA request. The FBI’s rule would

require the requester to either guess at a document’s title or provide a list of terms “mentioned” or

“referenced” in responsive documents in order to make even a facially valid request. See Def.’s

Mot. at 14 (arguing that Request 2 is invalid because it is not “limit[ed] . . . to records ‘mentioning’

or ‘referencing’ the Virginia statutory regime.”). But FOIA requesters are frequently in no position

to know how an agency classifies its documents or what terminology the agency might have

used—that is often why they are making a request in the first place.

The FBI’s inhospitable approach is especially inappropriate in light of FOIA’s “general

philosophy of full agency disclosure,” which is “premised on the notion that ‘an informed citizenry

is vital to the functioning of a democratic society.’” Gov’t Accountability Project v. CIA,

, 147 (D.D.C. 2021) (citations omitted). As the Senate Report accompanying the bill

enacting the reasonable description requirement admonished, “[a]gencies should . . . keep in

mind . . . that their superior knowledge of the contents of their files should be used to further the

philosophy of the act by facilitating, rather than hindering, the handling of requests for records.”

S. Rep. No. 93-854, at 10 (cleaned up); see also NSC I,

(expressing concern

12 that an agency might “abuse . . . FOIA’s statutory language” by “systematically attempting to

overuse the ‘reasonably describes’ requirement”). Although a requester must reasonably describe

the documents sought, the recipient agency has a correlating duty to work in good faith to fulfill

that request if reasonably possible. See Dillon, 444 F. Supp. 3d at 84.

This attitude is even more important at the threshold stage: the FBI’s argument means that

an agency may refuse even to attempt to fulfill a request simply because it uses a phrase like

“relating to” or “involving.” Adopting this interpretation “would result in a large swath of FOIA

requests never even getting processed, even though they should be.” NSC I,

. Indeed, plaintiffs point to at least one instance in which the FBI accepted and then fulfilled

a FOIA request using the precise phrases it now claims are categorically invalid. See Pls.’ Opp’n

at 13 (citing Compl. Ex. A [ECF No. 1-2], Gun Owners of Am., Inc. v. FBI, 20-cv-206-JMC

(D.D.C. Jan. 27, 2020)); see also Dillon, 444 F. Supp. 3d at 78 (noting that FBI accepted a request

for “[a]ll relevant records related to meetings [the subject] attended during September and October,

2001”). While the FBI’s alleged inconsistency is not a reason to rule for plaintiffs if their request

in this case is insufficient, it does at least suggest that not every request using the phrases the FBI

now targets is categorically unfulfillable.

To be sure, many cases in this District have disapproved of requests using phrases like

“related to” (though the FBI has pointed to no cases taking aim at the word “involving”), 5 and the

Court recognizes that a request for documents “involving” a topic does indeed embed an inherent

vagueness that complicates the task of compliance. But the reasonable description requirement is

neither so blunt nor so strict as the FBI suggests. Although many—perhaps even most—requests

framed in this way will fail to reasonably describe the records sought, the FBI’s proposed rule

5 See, e.g., Am. Ctr. for L. & Just.,

, at *5–7; Sack, 53 F. Supp. 3d at 163–65; Dale,

; see also Shapiro, 170 F. Supp. 3d at 154–55 (noting this trend in dicta and collecting cases).

13 declaring any request using the phrase “related to” or a similar term facially invalid is not supported

by the caselaw, understates the agency’s obligations in processing requests, and contravenes the

spirit of FOIA.

The Court thus moves to the context-specific inquiry of whether Request 2 reasonably

describes the documents sought. The Court concludes that it does. Although Request 2 does use

the inherently vague term “involving,” it also provides several specific limitations that would

enable a processor to zero in on the set of documents at issue. The request appears to seek

communications with a well-identified state agency—the Virginia State Police—involving two

different programs: “the so-called ‘voluntary background check’ established by Va. Code Section

54.1-4201.2,” and “a so-called ‘special permit for voluntary background check’ or ‘firearms-

related permit’ to be established by the executive branch of government in Virginia.” Compl. Ex.

A at 2. The request thus embeds four reasonably specific search terms, and it even limits the

responsive documents to “communications . . . that occurred between July 1, 2015 until the date

you begin to process this request.”

Far from failing to “contain enough descriptive information

to permit a search,” Compl. Ex. B at 6, Request 2 identifies a discrete state agency whose

communications are sought, provides a specific time period for the requested search, and includes

four ready-made search terms.

The cases relied on by the FBI are not to the contrary. This is not a case where the requester

seeks all records relating to an immensely broad topic. E.g., Freedom Watch,

(rejecting request for “‘all’ records that ‘refer or relate to any and all communications to or

from President Obama, his administration, or the White House in general regarding China’”

(cleaned up; citation omitted)); Freedom Watch, Inc. v. CIA,

(D.D.C.

2012) (rejecting as “extraordinarily broad” a request for “any and all information ‘leaked’ or

14 otherwise provided about a draft version of the 2010 National Intelligence Estimate”). And the

FBI is not asked “to undertake an investigation and then draw legal conclusions based on the

investigation’s findings” in order to determine which records are responsive. Freedom Watch,

(citation omitted) (rejecting requests referencing alleged “leaks” when requester

had not defined term and “apparently intend[ed] for [processors] to make complicated

determinations about whether crimes have been committed”).

The FBI also points to Latham v. U.S. Department of Justice,

(D.D.C.

2009), and Dale v. IRS,

(D.D.C. 2002), but although the requests at issue in

those cases did use broad relational language (“pertain in any form” in Latham,

, and “refer or relate in any way” in Dale,

), they are distinguishable

from Request 2. Equally, if not more, important to the outcome in those cases was the fact that

the challenged requests required the agency to conduct a comprehensive search of all of their files,

rather than just the ones likely to contain responsive documents. The request in Latham demanded

a “complete and thorough search of your filing system under your agency’s control” and “d[id]

not specify any particular DEA office to be searched, type of record, or author, recipient, or a

date,” with the result that “a vast majority of DEA offices [would] be tasked to conduct a search

of their respective offices for any responsive records.”

(cleaned up).

And this Court’s decision in Dale was based largely on the fact that the request at issue “d[id] not

specify what records [the requester] [sought], for what years, and located at which office of the

IRS.”

; accord

(“Absent some description of the actions the agency may

have taken against him . . . , the particular records sought, and any relevant dates and locations,

agency employees would not know where to begin searching.”).

15 This is not such a case. Although Request 2 does ask for communications between “the

FBI” and the Virginia State Police, it does not require the FBI to search all of its files, nor would

doing so make any sense—it would be irrational for the agency to canvass the files of the

Anchorage field office looking for communications with the Virginia State Police involving a

specific Virginia law. Indeed, Request 2 even directs the FBI to a specific location for responsive

records: “[a]t least some of these records will be housed by the FBI’s Criminal Justice Information

Law Unit.” Compl. Ex. A at 2 n.1.

Between Request 2’s citation of a specific statutory provision, its inclusion of multiple

search terms, its delimited time frame, and its clear identification of which state agency’s

communications are requested, the Court concludes that it reasonably describes the records sought,

despite its use of the word “involving.” While agency personnel are not required to deploy

clairvoyance, they are obligated to use “reasonable effort” in fulfilling requests. As such, an

agency may not refuse even to begin searching for documents just because the requester did not

spell out its requested search parameters. The Court concludes that an FBI professional familiar

with the subject matter of the request could, with the exercise of reasonable effort, craft a search

for responsive documents that would satisfy the agency’s obligations under FOIA. Accordingly,

the Court will deny the government’s motion to dismiss plaintiffs’ complaint with respect to

Request 2.

III. Request 3

The final FOIA request challenged here, Request 3, seeks “records related to whether

Virginia’s voluntary background check system and its implementation complies with 28 C.F.R.

Section 25.6.” Compl. Ex. A at 2. The FBI rejected this request, telling plaintiffs that “FOIA does

not require federal agencies to answer inquiries” and that “[t]he questions posed in the referenced

letter are not FOIA requests because they do not comply with the FOIA.” Compl. Ex. B at 8. 16 Along those lines, the agency now seeks to dismiss plaintiffs’ complaint with respect to Request

3 because it (a) “contains the improper formulation ‘all records relating to’ a subject matter,” Def.’s

Mot. at 15, and (b) “appears to ask for FBI’s determination as to whether Virginia’s voluntary

background check complies with a federal regulation” and thus “in essence propounds an

interrogatory,”

at 15–16.

Taking the FBI’s second argument first, an agency may not reject a FOIA request that on

its face seeks only pre-existing documents just because it implicitly asks a question. In Evans v.

Federal Bureau of Prisons,

(D.C. Cir. 2020), the D.C. Circuit held that “an agency

may not refuse to comply with a FOIA request simply because the request is phrased in the form

of a question,” 951 F.3d at 583—“[i]nstead, the agency should determine whether, construing the

request liberally, ‘it in fact has created and retained’ responsive records,”

at 584 (quoting

Kissinger,

). In other words, what matters is not the form of the request but whether

compliance would require the creation of new documents. This understanding of an agency’s

obligations finds support in several earlier cases from this District. 6 If directly asking a question

is no basis to deny a request, then a fortiori a request seeking only pre-existing documents cannot

be summarily denied because it “in essence propounds an interrogatory.” Def.’s Mot. at 16

(emphasis added).

6 See, e.g., Hicks v. Exec. Off. for U.S. Att’ys,

(D.D.C. 2013) (rejecting claim that agency was required to compute and produce numbers not present in retained documents because “the Court cannot compel defendant to compile information to address what are essentially questions”); Hudgins v. IRS,

, 20–21 (D.D.C. 1985) (dismissing request for “‘documents’ describing . . . whether a social security number is required on a federal tax return to obtain a benefit under the Social Security Program” on ground that request was an “effort to secure legal research regarding the Internal Revenue Code from the I.R.S.” such that “plaintiffs’ request could [not] be construed to embrace existing documents”); cf. Hall & Assocs. v. U.S. Env’t Prot. Agency,

, 101–02 (D.D.C. 2015) (rejecting request for “all records or factual analyses that show [eight listed statements are] incorrect” as “[a]t best . . . questions or interrogatory-like requests” and “[a]t worst . . . a trap,” such that “[w]hile the requests nominally requested documents, EPA properly construed them as not adequately describing the records sought”).

17 The FBI relies heavily on Judicial Watch, Inc. v. Department of State,

(D.D.C. 2016), aff’d on other grounds,

(D.C. Cir. 2017), which rejected a request

for “[a]ny and all records that identify the number and names of [State Department employees]

from January 20, 2009 to the present who used email addresses other than their assigned ‘state.gov’

email addresses to conduct official State Department business.”

. But

Judicial Watch is perfectly consistent with Evans. While the court commented that the request at

issue was “really a question,”

, the crux of its analysis was that, since “FOIA is a

mechanism to obtain access to records” and “does not require agencies to create documents,” “the

State Department was not obligated to answer the Plaintiff’s question by compiling a list of State

department officials who used private email addresses to conduct Department business,”

(citations omitted; emphasis added). 7 Tellingly, the case on which Judicial Watch relied most

heavily had a similar (and similarly limited) holding: that an agency was not obligated to create a

new document in response to a FOIA request.

(citing Amnesty Int’l v. CIA, No. 07 Civ. 5435

(LAP),

, at *12–13 (S.D.N.Y. June 19, 2008)). In short, the Court finds no

support in the caselaw for the proposition that an agency may refuse to process a request which,

on its face, seeks only pre-existing documents and does not require the creation of new documents.

But this conclusion alone does not save Request 3. The FBI also points to the request’s

vagueness—in particular its use of the phrase “related to”—as a reason why it fails to reasonably

describe the documents. Although, as discussed above, there is no categorical rule against requests

for documents “related to” a topic, it will be the unusual (and unusually specific) request of that

type that satisfies FOIA’s reasonable-description requirement. While Request 2 meets that bar,

Request 3 does not. Unlike Request 2, Request 3 is not limited to FBI communications with a

7 Of course, to the extent that Judicial Watch did hold that a request nominally seeking existing documents may be rejected because it implicitly asks a question, it is contrary to Evans.

18 specific state agency, and it contains no parameters pointing the agency to search certain locations

or time periods. Instead, Request 3 is a request for all documents “related to” the Virginia

scheme’s compliance with

, a category that plausibly includes any and all

documents interpreting § 25.6 as well as every document assessing the compliance of any

background check regime, whether real or hypothetical and whether from Virginia or elsewhere.

Plaintiffs counter that Request 3 contains several implicit limitations. Since the voluntary

background check program was created during the Virginia General Assembly’s 2016 legislative

session, plaintiffs argue that Request 3 only seeks documents from after that session (though even

plaintiffs fail to say exactly when that was). Pls.’ Opp’n at 15. And because they seek only records

relating to a Virginia program, plaintiffs assert that the agency could, for example, exclude the

Denver and Omaha field offices from its search. Id. at 15–16.

At the outset, these purported limitations are nowhere to be found in the request itself—as

discussed above, plaintiffs may not rely on either their administrative appeal or their opposition

brief to narrow the plain terms of their request. More fundamentally, however, plaintiffs seem to

think that Request 3 is already so inherently narrow that limitations to certain types of documents

or to certain time periods are unnecessary or would be superfluous. See Pl.’s Opp’n at 15 (calling

Request 3 “a narrow request involving a discrete category of records” and suggesting that plaintiffs

seek only periodic FBI audits of state agencies’ compliance with the requirements of the National

Instant Criminal Background Check System). Plaintiffs thus misunderstand the true scope of

Request 3. For instance, the analysis in a hypothetical memo written in 2013 by a Special Agent

in the Denver field office regarding the compliance of Colorado’s background check regime with

would, by most interpretations, be “related to” whether Virginia’s later program

also complies. Because Request 3 uses the broad phrase “related to” rather than a narrower

19 modifier like “discussing” or “containing an analysis of ,” and because it lacks any temporal or

custodial limitation, the FBI, which is “bound to read [the request] as drafted,” Miller,

, must construct a search that returns the hypothetical Denver memo as well as records closer

to the core of plaintiff’s request.

When a FOIA request is framed using the kind of intrinsically expansive terms used in

Request 3, these kinds of limitations are far from superfluous—they are essential to give the FBI

adequate guidance in locating responsive documents. Indeed, without qualifications of this type,

Request 3 resembles not the sufficiently narrow Request 2 but the request rejected in Dale: it seeks

all documents relating to a topic (there, the requester; here, whether Virginia’s background check

program complies with

) and provides no basis on which the agency could narrow

the places or time periods it would have to search. See Dale, 238 F. Supp. 2d at 104–05; see also

NSC I, 960 F. Supp. 2d at 162–63 (holding that request for “all . . . records pertaining to the IBM

supercomputer Watson” was “overly broad because it would require the CIA to search every office

for any documents containing the word ‘Watson’ because any component is equally likely to have

responsive records.” (internal quotation marks and citation omitted)). Between the inherent

vagueness of “related to” and the lack of any temporal or custodial limitation on the set of

responsive documents, Request 3 is distinguishable from Request 2 and fails to provide adequate

guidance for FBI personnel in locating the documents sought. Accordingly, the Court will grant

the FBI’s motion to dismiss with respect to Request 3.

Conclusion

For the reasons explained above, the Court concludes that Request 1 fails to reasonably

describe the records sought, as it embeds a fundamental uncertainty about whose communications

are requested. The Court also rejects Request 3 as insufficiently precise, as it seeks all documents

20 related to a certain question without providing further limitations or providing the FBI with a basis

to narrow its search. But despite using the word “involving,” Request 2 does reasonably describe

the records sought thanks to its inclusion of a discrete state agency whose communications are

requested, specific search terms, explicit temporal parameters, and sufficient basis for the agency

to narrow which custodians it must search to find responsive records. The Court will therefore

grant in part and deny in part the government’s motion to dismiss. An accompanying Order will

issue on this date.

/s/ JOHN D. BATES United States District Judge Dated: March 23, 2022

21