UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DEMOCRACY FORWARD FOUNDATION,

Plaintiff,

v. Civil Action No. 17-1877 U.S. DEPARTMENT OF JUSTICE, (EGS/GMH) Defendant.

MEMORANDUM OPINION

I. Introduction

Plaintiff Democracy Forward Foundation (“Democracy

Forward”) has sued Defendant U.S. Department of Justice (“DOJ”)

under the Freedom of Information Act (“FOIA”),

,

to obtain communications between the Trump Administration

Transition Team (“the Transition Team”) and the Executive Office

for United States Attorneys (“EOUSA”). See Compl., ECF No. 1 ¶

26.

On January 19, 2018, DOJ moved for summary judgment on the

issue of the adequacy of its search for responsive records. See

Def.’s Mot. Summ. J., ECF No. 10; Mem. P. & A. in Supp. of

1 Def.’s Mot. Summ. J., ECF No. 10-2 at 4. 1 On June 7, 2018, the

matter was referred to Magistrate Judge Harvey for a Report and

Recommendation (“R. & R.”). Magistrate Judge Harvey has since

issued an R. & R. recommending that the Court deny DOJ’s Motion

for Summary Judgment without prejudice. See R. &. R., ECF No. 16

at 14.

Pending before the Court are Democracy Forward’s Objections

to Magistrate Judge Harvey’s R. & R., see Pl.’s Objs. Magistrate

Judge’s Proposed Findings & Recommendations (“Pl.’s Objs.”), ECF

No. 18; and DOJ’s Objections to Magistrate Judge Harvey’s R. &

R., see Def.’s Objs. Magistrate Judge’s R. & R. (“Def.’s

Objs.”), ECF No. 19. Upon careful consideration of the R. & R.,

the objections, oppositions, and reply thereto, the applicable

law, and the entire record herein, the Court hereby ADOPTS the

R. & R, see ECF No. 16; and DENIES DOJ’s Motion for Summary

Judgment, see ECF No. 10.

II. Background

A. Factual

On June 2, 2017, Democracy Forward submitted a FOIA request

to EOUSA seeking all communications sent to or from 67 named

members of the Transition Team between November 9, 2016 and

1 When citing electronic filings throughout this Opinion, the Court refers to the ECF page numbers, not the page numbers of the filed documents. 2 January 21, 2017. See Def.’s Statement of Material Facts as to

Which There is No Genuine Issue & Pl.’s Statement of Genuine

Issues in Opp’n to Def.’s Statement of Material Facts (“SOMF”),

ECF No. 14 ¶ 1. Although EOUSA acknowledged receipt of this

request on June 7, 2017, it did not at that time provide any

substantive response. See

. Democracy Forward thus filed

this lawsuit on September 13, 2017.

.

At some point after receiving the FOIA request, EOUSA began

to search for responsive records.

¶ 6 (citing Jolly Decl.,

ECF No. 10-3 ¶ 7). The agency’s search efforts are detailed by a

declaration submitted by Mr. Vinay Jolly (“Mr. Jolly”), an

attorney advisor in EOUSA’s FOIA unit. Mr. Jolly explains that

the agency located one responsive record based on searches it

conducted pursuant to other FOIA requests: the “Briefing Book

Transition Team.”

¶ 7 (citing Jolly Decl., ECF No. 10-3 ¶

7). On October 13, 2017, after this litigation began, EOUSA

released 129 pages of the Briefing Book in full and 20 pages in

part to Democracy Forward.

¶ 8 (citing Jolly Decl., ECF No.

10-3 ¶¶ 6, 7).

In the meantime, EOUSA continued to search for responsive

records.

. Mr. Jolly avers that the Office of the

Director (“Director’s Office”) was the only EOUSA component

likely to have responsive records because “the Director’s Office

would be the only component to have authority to communicate

3 with the Transition Team.” Jolly Decl., ECF No. 10-3 ¶¶ 7-8. Mr.

Jolly explains that he made this determination based on his nine

years of experience in the FOIA unit. SOMF, ECF No. 14 ¶¶ 10-12

(citing Jolly Decl., ECF No. 10-3 ¶ 8). EOUSA thereafter

forwarded Democracy Forward’s request to the Director’s Office.

.

EOUSA describes its search efforts in the Director’s Office

with a declaration from Mr. Norman Wong (“Mr. Wong”), the Deputy

Director and Counsel to the Director at EOUSA. Mr. Wong explains

that DOJ’s Justice Management Division (“JMD”) facilitated a

meeting between EOUSA employees Mr. Wong, Director Monty

Wilkinson (“Mr. Wilkinson”), Deputy Director Suzanne L. Bell

(“Ms. Bell”), and Chief Financial Officer Jonathan Pelletier

(“Mr. Pelletier”) and members of the Transition Team on December

2, 2016.

¶ 14 (citing Wong Decl., ECF No. 10-4 ¶ 4). Mr.

Wong explains that JMD “closely coordinated” communications

between EOUSA and the Transition Team, including setting up the

December 2016 meeting.

¶¶ 14-17 (citing Wong Decl., ECF No.

10-4 ¶ 4). He claims that he is “unaware of any other contact

between EOUSA leadership and any Transition Team Members,” and

that, apart from the December 2016 meeting, “EOUSA did not

communicate directly with the Transition Team.” Wong Decl., ECF

No. 10-4 ¶ 4.

4 Upon receiving Democracy Forward’s FOIA request, Mr. Wong

determined that he, Mr. Wilkinson, Ms. Bell, and Mr. Pelletier

were “the only custodians likely to have responsive records.”

SOMF, ECF No. 14 ¶ 19 (citing Wong Decl., ECF No. 10-4 ¶ 4). He

then spoke with and exchanged emails with those individuals to

inquire about “the extent of all written and oral communications

that [they] had with the Transition Team at any point from its

formation until [they] became aware of the instant FOIA

request.”

¶ 20 (citing Wong Decl., ECF No. 10-4 ¶ 5). Each

custodian confirmed that “(1) they had no contact with the

Transition Team during the requested timeframe (except . . . at

the December 2 meeting), (2) they neither sent nor received any

email or other written correspondence to or from any Transition

Team member during the requested timeframe . . . , and (3) the

only responsive record in [EOUSA’s] office is the Briefing

Book.”

¶ 21 (citing Wong Decl., ECF No. 10-4 ¶ 5). Mr. Wong

also avers that “there is no other location in the Director’s

Office where any other records that might be responsive to this

request are likely to be located.”

¶ 23 (citing Wong Decl.,

ECF No. 10-4 ¶ 6).

B. Procedural

On January 19, 2018, DOJ moved for summary judgment on the

issue of the adequacy of its search. See Def.’s Mot. Summ. J.,

ECF No. 10; Mem. P. & A. in Supp. of Def.’s Mot. Summ. J., ECF

5 No. 10-2 at 4. Democracy Forward filed its brief in opposition

on February 27, 2018, see Pl.’s Opp’n Def.’s Mot. Summ. J., ECF

No. 12; and DOJ filed a reply on March 22, 2018, see Reply in

Supp. of Def.’s Mot. Summ. J., ECF No. 13.

The Court referred DOJ’s Motion for Summary Judgment to

Magistrate Judge Harvey for an R. & R. See Minute Order (July 5,

2018). On August 29, 2019, Magistrate Judge Harvey issued his R.

& R. recommending that the Court deny DOJ’s Motion for Summary

Judgment. See R. & R., ECF No. 16 at 14.

On September 19, 2019, both Democracy Forward and DOJ filed

objections to the R. & R. See Pl.’s Objs., ECF No. 18; Def.’s

Objs., ECF No. 19. Democracy Forward submitted its response in

opposition to DOJ’s objections on October 3, 2019, see Pl.’s

Opp’n Def.’s Objs. (“Pl.’s Opp’n”), ECF No. 20; and DOJ filed

its response in opposition to Democracy Forward’s objections the

same day, see Def.’s Resp. Pl.’s Objs. Magistrate Judge’s R. &

R. (“Def.’s Opp’n”), ECF No. 21. Democracy Forward filed its

reply in support of its objections on October 10, 2019. See

Pl.’s Reply in Supp. of Objs. (“Pl.’s Reply”), ECF No. 22. The

objections and the motion are ripe and ready for adjudication.

III. Legal Standard

A. Objections to a Magistrate Judge’s R. & R.

Pursuant to Federal Rule of Civil Procedure 72(b), a party

may file specific written objections once a magistrate judge has

6 entered a recommended disposition. Fed. R. Civ. P. 72(b)(2). A

district court “may accept, reject, or modify the recommended

disposition.”

(b)(3); see also

(b)(1)(C)

(“A judge of the court may accept, reject, or modify, in whole

or in part, the findings or recommendations made by the

magistrate judge.”). A district court “must determine de novo

any part of the magistrate judge’s disposition that has been

properly objected to.” Fed. R. Civ. P. 72(b)(3). “If, however,

the party makes only conclusory or general objections, or simply

reiterates his original arguments, the Court reviews the [R. &

R.] only for clear error.” Houlahan v. Brown,

(D.D.C. 2013) (citation omitted). “Under the clearly

erroneous standard, the magistrate judge’s decision is entitled

to great deference and is clearly erroneous only if on the

entire evidence the court is left with the definite and firm

conviction that a mistake has been committed.” Buie v. Dist. of

Columbia, No. CV 16-1920 (CKK),

, at *3 (D.D.C.

Sept. 12, 2019) (citation and internal quotation marks omitted).

Objections must “specifically identify the portions of the

proposed findings and recommendations to which objection is made

and the basis for the objection.” LCvR 72.3(b). “[O]bjections

which merely rehash an argument presented and considered by the

magistrate judge are not properly objected to and are therefore

not entitled to de novo review.” Shurtleff v. EPA,

7 2d 1, 8 (D.D.C. 2013) (citation and internal quotation marks

omitted). The Court reviews Plaintiff’s and Defendant’s

objections de novo.

B. Summary Judgment

FOIA is based on the recognition that an informed citizenry

is “vital to the functioning of a democratic society, needed to

check against corruption and to hold the governors accountable

to the governed.” NLRB v. Robbins Tire & Rubber Co.,

(1978). It was enacted to “pierce the veil of

administrative secrecy and to open agency action to the light of

public scrutiny,” and it favors “full agency disclosure.” Dep’t

of the Air Force v. Rose,

, 360–61 (1976) (quoting

Rose v. Dep’t of the Air Force,

(2d Cir.

1974)). FOIA cases are usually resolved on motions for summary

judgment. Brayton v. Off. of the U.S. Trade Rep.,

(D.C. Cir. 2011). The agency has the burden of justifying

its response to the FOIA request it received, and the court

reviews its response de novo.

(a)(4)(B).

Generally, summary judgment is warranted “if the movant

shows [by affidavit or other admissible evidence] that there is

no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

A party opposing a summary judgment motion must show that a

genuine factual issue exists by “(A) citing to particular parts

8 of materials in the record . . . or (B) showing that the

materials cited do not establish the absence . . . of a genuine

dispute.” Fed. R. Civ. P. 56(c). Any factual assertions in the

moving party’s affidavits will be accepted as true unless the

opposing party submits his own affidavits or other documentary

evidence contradicting the assertion. See Neal v. Kelly,

(D.C. Cir. 1992). However, “the inferences to be

drawn from the underlying facts . . . must be viewed in the

light most favorable to the party opposing the motion.”

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

(1986) (citation and internal quotation marks

omitted).

C. Adequate Search

To prevail on summary judgment in a FOIA case, the agency

must show that it conducted an adequate search for records

responsive to the plaintiff’s FOIA request. See Morley v. CIA,

(D.C. Cir. 2007). To make a prima facie

showing of adequacy, the agency must demonstrate that it made a

good-faith effort to search for responsive records “using

methods which can be reasonably expected to produce the

information requested.” Reps. Comm. for Freedom of Press v. FBI,

(D.C. Cir. 2017) (quoting Oglesby v. U.S.

Dep’t of Army,

(D.C. Cir. 1990)); see Iturralde

v. Comptroller of Currency,

(D.C. Cir. 2003)

9 (adequacy depends on the “appropriateness of the methods used”

rather than the “fruits of the search”).

The agency may meet its burden by submitting “[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 (if such records exist)

were searched.” Reps. Comm.,

(quoting Oglesby,

). Such affidavits “are accorded a presumption of

good faith, which cannot be rebutted by ‘purely speculative

claims about the existence and discoverability of other

documents.’” SafeCard Servs., Inc. v. SEC,

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

(D.C. Cir. 1981)). However, “[a]t a bare minimum,

the agency’s affidavits need to specify ‘what records were

searched, by whom, and through what process.’” Rodriguez v. DOD,

(D.D.C. 2017) (quoting Steinberg v. DOJ,

(D.C. Cir. 1994)).

“The agency fails to meet this burden such that summary

judgment is inappropriate when the agency fails to set forth the

search terms and the type of search performed with specificity

or otherwise provides ‘no information about the search

strategies of the [agency] components charged with responding to

[a] FOIA request’ and ‘no indication of what each [component’s]

10 search specifically yielded.’” Otero v. DOJ,

(D.D.C. 2018) (quoting Reps. Comm.,

).

IV. Analysis

A. EOUSA Properly Confined Its Search for Responsive Records

To determine whether an agency conducted an adequate search

for responsive records, the Court “must first ascertain the

scope of the request itself.” Nation Mag., Wash. Bureau v. U.S.

Customs Serv.,

(D.C. Cir. 1995). The agency

must “read [the request] as drafted,” Urb. Air Initiative, Inc.

v. Env’t Prot. Agency,

, 255–56 (D.D.C. 2017)

(quoting Miller v. Casey,

(D.C. Cir. 1984));

and “may not narrow the scope of a FOIA request to exclude

materials reasonably within the description provided by the

requester,”

(citing Nation Mag., 71 F.3d at 889–90, 892).

Democracy Forward first objects that DOJ “improperly

construed Plaintiff’s search as limited to ‘authorized’

communications between the Transition Team and EOUSA.” Pl.’s

Objs., ECF No. 18 at 4-5. The organization clarifies that it

requested “all incoming and outgoing communications between the

named members of the Transition Team and all of EOUSA.” Pl.’s

Objs., ECF No. 18 at 5. This request included unauthorized

communications, which “could well be the most informative and

11 revealing records concerning the relationship between the

Transition Team and EOUSA.”

Democracy Forward raises this objection in the context of

its challenge to the adequacy of EOUSA’s search, and so “the

factual question it raises is whether the search was reasonably

calculated to discover the requested documents.” SafeCard

Servs.,

. EOUSA’s search meets this standard.

The agency considered the scope of Democracy Forward’s request—

all communications between the named Transition Team members and

EOUSA—and reasonably determined that the only records likely to

exist are authorized communications. See Def.’s Opp’n, ECF No.

21 at 3. Indeed, DOJ admits in its briefing that EOUSA

understood that it was to search for all communications. See

Def.’s Opp’n, ECF No. 21 at 3. The briefing, bolstered by Mr.

Jolly and Mr. Wong’s affidavits, adequately explains that the

agency found it likely that only authorized communications exist

and confined its search accordingly. See R. & R., ECF No. 16 at

6-9; Jolly Decl., ECF No. 10-3 ¶¶ 7-9 (basing this determination

on his nine years of experience); Wong Decl., ECF No. 10-4 ¶¶ 4-

6 (reasoning based on his knowledge that only participants in

the December 2016 meeting had any contact with the Transition

Team).

The cases Democracy Forward cites in its briefing are

distinguishable. In Urban Air Initiative, the affidavits did not

12 support a conclusion that the agency conducted an adequate

search because they did “not aver that no other custodians were

likely to possess responsive documents.” Urb. Air Initiative,

Inc.,

(citing Oglesby,

).

By contrast, here, the affidavits state that only authorized

communications and no other communications are likely to exist.

Mr. Wong makes clear that he, Mr. Wilkinson, Ms. Bell, and Mr.

Pelletier “would have been the only EOUSA individuals to

communicate with any Transition Team members” and that “[o]ther

than at [the December 2016] meeting, EOUSA did not communicate

directly with the Transition Team.” Wong Decl., ECF No. 10-4 ¶ 4

(emphasis added). Mr. Jolly explains the same, averring that “no

. . . EOUSA component” other than the Director’s Office “would

be likely to have responsive records.” Jolly Decl., ECF No. 10-3

¶ 8.

Utahamerican Energy, Inc. v. Mine Safety & Health Admin.,

(D.D.C. 2010) provides even less support.

There, the court held that the agency’s search was inadequate

because the agency “centered the search around [other] requests

for documents, and not around [the plaintiff]’s FOIA request.”

. Since Democracy Forward does not allege

that EOUSA conducted a search responsive to FOIA requests other

than its own, see generally Pl.’s Objs., ECF No. 18; this case

is not instructive.

13 Moreover, FOIA does not require an agency to “make hopeless

and wasteful efforts to locate” documents that would not “have

been created in the normal course.” SafeCard Servs.,

. Unauthorized communications would not have been created in

the normal course. See Wong Decl., ECF No. 10-4 ¶¶ 4-6.

Democracy Forward offers only “[m]ere speculation that as yet

uncovered documents may exist.” SafeCard Servs.,

. It reasons that unauthorized communications between EOUSA

and the Transition Team must exist because: “multiple federal

law enforcement agencies were investigating President Trump and

his associates before, during, and after the transition”;

President “Trump attempted to influence those investigations”;

“President Trump had recently fired 46 U.S. Attorneys, including

one investigating a cabinet official”; and “congressional

investigators were simultaneously attempting to obtain

information about illicit contacts.” Pl.’s Reply, ECF No. 22 at

2 (citations omitted). Whatever evidence there may be of other

illegal activity, that evidence does not provide enough support

for the charge that EOUSA possesses unauthorized communications—

particularly in the face of EOUSA’s declarations to the

contrary. See Light v. Dep’t of Just.,

(D.D.C. 2013) (“An agency’s declarations are accorded ‘a

presumption of good faith, which cannot be rebutted by purely

14 speculative claims about the existence and discoverability of

other documents.’” (quoting SafeCard Servs.,

)).

Democracy Forward also objects to Magistrate Judge Harvey’s

conclusion that EOUSA properly cabined its search to the

individuals who participated in the December 2016 meeting. See

Pl.’s Objs., ECF No. 18 at 6-8. It contends that EOUSA “‘cannot

limit its search to only one record system if there are others

that are likely to turn up the information requested.’”

at

7-8 (quoting Nation Mag.,

). And other systems are

likely to have responsive records, it continues, because

“[g]overnment officials do not always stay within the bounds of

their lawful authority, particularly with respect to the rules

governing authorized and unauthorized communications.” Pl.’s

Objs., ECF No. 18 at 6-7.

The Court disagrees. First, there is significant caselaw

suggesting that “in the absence of clear evidence to the

contrary, courts presume that [government officials] have

properly discharged their official duties.” United States v.

Chem. Found.,

, 14–15 (1926). Second, FOIA

declarations “are accorded a presumption of good faith”

regardless of the underlying government conduct. SafeCard

Servs.,

. Because Democracy Forward does not

cite any caselaw to support its position and does not allege

that EOUSA acted in bad faith, the Court rejects this argument.

15 At base, Democracy Forward speculates—based on other

actions of the Transition Team and other investigations—that

there may be unauthorized communications between EOUSA and

certain members of the Transition Team. But under FOIA, the

Court assesses whether the agency’s search “can be reasonably

expected to produce the information requested” and will prohibit

the agency from “limit[ing] its search to only one record system

if there are others that are likely to turn up the information

requested.” Nation Mag.,

(citations omitted).

Democracy Forward has not shown that EOUSA’s search was

unreasonably limited or that other EOUSA employees were likely

to have responsive records. For these reasons, the Court agrees

with Magistrate Judge Harvey that EOUSA properly confined its

search to authorized communications between the named members of

the Transition Team and the individuals in the Director’s Office

who participated in the December 2016 meeting.

B. EOUSA’s Failure to Search the December 2016 Meeting Participants’ Records Was Unreasonable

“[R]easonableness is the hallmark of an adequate FOIA

search, and must be decided on the facts of the case.” Landmark

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

(D.D.C. 2003)

(citing Weisberg v. U.S. Dep’t of Just.,

(D.C. Cir. 1984)). FOIA does not require that the agency’s

search “take any particular form.” Toensing v. U.S. Dep’t of

F. Supp. 2d 121, 144 (D.D.C. 2012). “However, the

agency cannot limit its search to only one record system if

there are others that are likely to turn up the information

requested.” Oglesby,

.

DOJ objects to Magistrate Judge Harvey’s conclusion that

EOUSA’s search was inadequate for its failure to search the

email records and other written correspondence of the December

2016 meeting participants. Def.’s Objs., ECF No. 19 at 5-10. The

agency refers to Mr. Wong’s declaration, which explains that he

“personally spoke with and exchanged emails with” the other

December 2016 meeting participants and, based on those

conversations, determined that “they neither sent nor received

any email or other written correspondence to or from any

Transition Team member during the requested timeframe.”

at 6

(citing Wong Decl., ECF No. 10-4 ¶ 5). In other words, DOJ

argues that Mr. Wong’s conversations with the other meeting

participants constitutes a search and that the search was

adequate because “it was not reasonable to believe that

responsive records existed in those email accounts.”

at 7

(citing Wong Decl., ECF No. 10-4 ¶ 6).

The Court agrees with Magistrate Judge Harvey that Mr.

Wong’s conversations with the other likely custodians of

responsive records “are no substitute for actually searching

those employees’ records.” R. & R., ECF No. 16 at 11. The facts

17 here are analogous to those in Toensing, where the court held

the “search” to be “clearly inadequate” when the declarant

acknowledged that “she spent ‘[n]o additional search time’

because she and her colleagues ‘kn[ew] there were no

tapes/transcripts responsive to the request.’” Toensing, 890 F.

Supp. 2d at 143. Here, Mr. Wong attests that he did not conduct

any further searches after discussing the matter with the other

December 2016 meeting participants. See Wong Decl., ECF No. 10-4

¶ 6. Mr. Wong at no point claims that he or any of the other

meeting participants performed any search of their own records

to support their representations. See generally id. ¶¶ 4-6.

Although the Court presumes good faith here, FOIA still requires

that the agency conduct some search and forbids it from relying

on “professed personal knowledge that no responsive records

exist.” Toensing, 890 F. Supp. 2d at 143.

The cases DOJ cites do not counsel differently because in

each case, the agency actually reviewed its records. In James

Madison Project v. Dep’t of Justice,

(D.D.C.

2017), the court held the search to be adequate because the

agency “identif[ied] the individuals likely to have responsive

records,” “interview[ed] them to determine where all records

relevant . . . would be located,” and “review[ed] each of those

records individually.”

. In Schrecker v.

U.S. Dep’t of Justice,

(D.D.C. 2002), aff’d,

18

(D.C. Cir. 2003), the court accepted the search as

adequate where the agency searched the three records systems

with “the greatest possibility of containing responsive

documents.”

. And in American Chemistry

Council, Inc. v. U.S. Dep’t of Health & Human Services,

(D.D.C. 2013) as well as Walston v. U.S. Dep’t of

Defense,

(D.D.C. 2018), the courts concluded

that the agencies performed adequate searches because the

“search of an alternate source” suggested by the plaintiffs

“would be duplicative of a search that ha[d] already been

conducted.” Am. Chemistry Council, Inc.,

;

see Walston,

.

“Although agencies have discretion in crafting their

searches,” Walston,

; they cannot decline

to actually search for responsive records, see Morley,

. Agencies, of course, may use interviews with likely

custodians to determine what search methods are “reasonably

calculated to discover the requested documents.” SafeCard

Servs.,

. However, they may not use those

interviews to avoid searching their records altogether.

Toensing, 890 F. Supp. 2d at 143. The Court therefore concludes

that EOUSA did not perform an adequate search because it failed

to search the email and other records of the December 2016

meeting participants.

19 C. The Court Orders DOJ to Supplement the Record

In a footnote, Democracy Forward objects to Magistrate

Judge Harvey’s recommendation that the Court permit DOJ to

supplement the record by explaining why any further search would

be burdensome. See Pl.’s Objs., ECF No. 18 at 3-4 n.1. The Court

possesses the authority to order that a record be supplemented.

See Discepolo v. U.S. Dep’t of Just., No. 16-CV-2351 (DLF/GMH),

, at *12 (D.D.C. Jan. 19, 2018) (requiring an

agency that failed to search an email account to “supplement its

declaration to fill this gap in its demonstration of the

adequacy of its search, either by searching [the email account]

or by explaining why such a search is unnecessary”), report and

recommendation adopted, No. CV 16-2351 (DLF/GMH),

(D.D.C. May 8, 2018), reconsideration denied, No. 16-CV-

2351 (DLF),

(D.D.C. Nov. 2, 2018); see also

Ancient Coin Collectors Guild v. U.S. Dep’t of State,

(D.C. Cir. 2011) (remanding case and requiring

defendant to provide “further clarification . . . about the

seeming gaps” in its search). This supplementation is

particularly appropriate here as DOJ explained in its briefing

that a search through the four meeting participants’ email

records may be burdensome. See Def.’s Objs., ECF No. 19 at 9-10

(explaining that the agency will have “to expend resources to

comb through for responsiveness”); see id. at 10 (describing

20 that a search for communications with former Attorney General

Jeff Sessions is likely to result in a large number of

nonresponsive “hits” because he was “the ultimate boss of EOUSA

during the relevant timeframe”).

V. Conclusion

For the foregoing reasons, the Court ADOPTS Magistrate

Judge Harvey’s R. & R., ECF No. 16; and DENIES DOJ’s Motion for

Summary Judgment as to the adequacy of EOUSA’s search, ECF No.

10.

The Court orders DOJ to supplement the record by: (a)

searching the email and other records of the four individuals in

the Director’s Office who participated in the December 2016

meeting with the Transition Team, using the names from Democracy

Forward’s FOIA request; (b) submitting an affidavit explaining

that those individuals have already conducted those searches; or

(c) submitting an affidavit detailing with specificity why the

search would be overly burdensome.

An appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge November 23, 2022

21