UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DAVID COLE,

Plaintiff, v. Civ. Action No. 15-1991 (EGS/GMH)

LAURIE E. LOCASCIO, 1 et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff David Cole (“Mr. Cole” or “Plaintiff”) initiated

this action against the National Institute of Standards and

Technology (“NIST”) and the Federal Emergency Management Agency

(“FEMA,” together “Defendants”) under the Freedom of Information

Act (“FOIA”),

. See Compl. for Injunctive Relief,

ECF No. 1. Mr. Cole claims that Defendants have made an

inadequate search for and disclosure of records responsive to

his 2011 FOIA request related to the collapse of the World Trade

Center (“WTC”) on September 11, 2001. See

. After

this Court granted Mr. Cole limited discovery, see Mem. Op.

1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the current Director of the National Institute of Standards and Technology, Laurie E. Locascio, is substituted as Defendant for former Director of the National Institute of Standards and Technology, Walter G. Copan. See Fed. R. Civ. P. 25(d).

1 (“Discovery Op.”), ECF No. 48 at 41; 2 Magistrate Judge Harvey

oversaw the production of discovery and issued a Report and

Recommendation on the parties’ new motions for summary judgment.

See Magistrate Judge’s R. & R. (“R. & R.”), ECF No. 67.

Pending before the Court are Defendants’ Renewed Motion for

Summary Judgment, see Renewed Mot. for Summ. J. (“Defs.’ Mot.”),

ECF No. 56; and Mr. Cole’s Cross Motion for Summary Judgment,

see Pl. David Cole’s Am. Cross Mot. for Summ. J. (“Pl.’s Mot.”),

ECF No. 61-2. 3 Magistrate Judge Harvey recommends that this Court

grant FEMA’s motion for summary judgment, dismiss Mr. Cole’s

claim against NIST as moot, and deny Mr. Cole’s motion for

summary judgment. See R. & R., ECF No. 67 at 2. Mr. Cole raises

five main objections to Magistrate Judge Harvey’s Report and

Recommendation, see Pl. David Cole’s Objs. to Magistrate Judge’s

R. & R. (“Pl.’s Objs.”), ECF No. 68; while Defendants argue that

the Report and Recommendation “should be adopted in full without

hesitation,” Defs.’ Resp. to Pl.’s Objs. to Magistrate Judge’s

R. & R. (“Defs.’ Resp.”), ECF No. 69.

2 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. 3 Although Mr. Cole’s original cross motion for summary judgment

was filed and docketed under ECF No. 59, Mr. Cole filed an unopposed motion to amend/correct his cross motion, which was docketed under ECF No. 61. Magistrate Judge Harvey only considered Mr. Cole’s amended submission in his Report and Recommendation, see R. & R., ECF No. 67 at 1 n.1; and this Court does so as well. 2 Upon careful consideration of the Report and

Recommendation, the objections and opposition thereto, the

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

ADOPTS the Report and Recommendation, see ECF No. 67; GRANTS

Defendant FEMA’s Motion for Summary Judgment, see ECF No. 56;

DISMISSES Plaintiff’s claim against NIST as moot; and DENIES

Plaintiff’s Motion for Summary Judgment, see ECF No. 61.

I. Background 4

A. Factual Background

FEMA contracted with engineering consultancy company

Greenhorne & O’Mara, Inc. (“G&O”) to produce a Building

Performance Study (“BPS”) related to the 2001 collapse of the

WTC. See Defs.’ Reply to Pl.’s Counter-Statement of Facts as to

Which There is a Genuine Issue (“Defs.’ SOMF”), ECF No. 64-1

¶¶ 1-2. The G&O team comprised a wide variety of subject matter

experts, including several FEMA workers. See

. The

FEMA project officer for the BPS was Paul Tertell (“Mr.

Tertell”) and the G&O Project Manager was Eric Letvin (“Mr.

Letvin”). See Ex. 4 in Supp. of Defs.’ Renewed Mot. for Summ. J.

(“BPS Report”), ECF No. 56-2 at 83. The team also included

Therese McAllister (“Ms. McAllister”), a G&O Senior Structural

4 This section largely reflects the Background provided in Magistrate Judge Harvey’s Report and Recommendation, see R. & R., ECF No. 67 at 2-11. The facts reflected within are undisputed unless otherwise noted. 3 Engineer, and Bruce Swiren (“Mr. Swiren”), a FEMA Region II

Senior EMP Specialist.

The BPS was published in May 2002.

.

Also in May 2002, G&O transferred to NIST the background

data that had been collected by G&O for the BPS since NIST was

conducting its own investigation of the WTC’s collapse. See

Defs.’ SOMF, ECF No. 64-1 ¶ 5; 5 R. & R., ECF No. 67 at 3 n.3. G&O

conducted this transfer of materials on behalf of FEMA and the

boxes of materials were catalogued in an inventory known as the

“McAllister Inventory.” See Defs.’ SOMF, ECF No. 64-1 ¶¶ 5-7.

Additional BPS materials were provided to NIST by G&O in

November 2002.

. And in January 2003, a separate FEMA

contractor, Gilzanz Murray Steficek (“GMS”), transferred BPS

records to NIST. See Defs.’ Counter Statement to Pl.’s Statement

of Material Undisputed Facts in Supp. of Renewed Cross Mot. for

Summ. J. (“Pl.’s SOMF”), ECF No. 65-1 ¶¶ 14-15.

In May 2011, Mr. Cole submitted the FOIA request at issue

in this case. Defs.’ SOMF, ECF No. 64-1 ¶ 1. The request sought

“background or raw data used for the FEMA 403 Building

Performance Study, concerning the World Trade Center” including

5 Plaintiff disputes whether “all” of the G&O data for the BPS was transferred to NIST, specifically disputing whether “G&O kept no copies of any of the transferred records” and whether “G&O may or may not have possessed” records from a separate contractor. See Defs.’ SOMF, ECF No. 64-1 ¶ 5.

4 “photos, videos, audio, field notes, memorandums, and laboratory

samples, etc.”

Upon receiving Mr. Cole’s request, the FEMA

Disclosure Branch tasked searches to three FEMA Departments—

FEMA’s Region II, Office of External Affairs, and Federal

Insurance and Mitigation Administration (“FIMA”).

.

The Disclosure Branch also engaged FEMA’s BPS Project Officer

Mr. Terrell as part of its search for responsive documents and

review of records collected by NIST before release to Mr. Cole.

.

FEMA’s Region II Point of Contact stated that Region II did

not possess the records and recommended that FEMA HQ be

contacted for a search.

. 6 The Office of External Affairs

responded that it did not possess the requested records beyond

any photos that might be on FEMA’s public website.

.

FIMA responded that “all” information responsive to Mr. Cole’s

request “was sent to NIST about 8 years ago.”

. 7 Based on

6 Plaintiff “[d]enie[s]” this fact “in part” because he claims the assertion was made “without a search having been conducted of FEMA’s computer and emails at Region II” and because he believes that “Region II official Bruce Swiren would likely have possessed responsive BPS records in his emails and on his computer.” Defs.’ SOMF, ECF No. 64-1 ¶ 18. His objections, however, do not challenge the factual assertion that FEMA’s Region II Point of Contact made this response. 7 Plaintiff denies this fact to the extent that “‘all’ . . . is

intended to mean ‘sole copies,’” and adds that “no FEMA computer hard drives, FEMA emails, FEMA electronic backups, or FEMA paper records” were transferred to NIST “from FEMA’s own personnel, but rather FEMA only directed the transfer of contractor records to NIST.” Defs.’ SOMF, ECF No. 64-1 ¶ 22. His objections, 5 the responses from the three FEMA departments, FEMA forwarded

Mr. Cole’s FOIA request to NIST.

.

In December 2011, NIST FOIA Officer Catherine Fletcher

(“Ms. Fletcher”) received the forwarded request.

. Based

on NIST’s experience with other FOIA requests relating to the

collapse of the WTC and its consultation with subject matter

experts, the NIST FOIA office identified its Engineering

Laboratory as the office most likely to possess the records. See

. The NIST’s Engineering Laboratory maintains a database

of all materials received as part of its investigation into the

failure of the World Trade Center buildings, including the BPS

records transferred on FEMA’s behalf by G&O in 2002.

.

The Engineering Laboratory engaged subject matter experts John

Gross, Mr. Letvin, and Ms. McAllister (both now NIST employees)

regarding Mr. Cole’s FOIA request.

.

NIST Information Specialist Kellie Beall (“Ms. Beall”)

conducted the search, which consisted of locating items from the

McAllister Inventory in the NIST database and then retrieving

and reviewing the items “to further confirm” whether or not it

matched the item on the list.

. 8 Ms. Beall then

however, do not challenge the factual assertion that FIMA’s Point of Contact provided this response. 8 Plaintiff “[d]enie[s]” these facts, arguing inter alia, that

confining the search to the McAllister Inventory was arbitrary and Ms. Beall “was not allowed to conduct a search of the NIST Engineering Lab.”

. However, his objections do not 6 checked off every item that she located and noted the NIST file

name associated with that item.

. She found all but two

items on the McAllister Inventory and transferred all the

records she found to the FOIA office.

. NIST then

referred the request back to FEMA, providing copies of all BPS

records it had located.

. 9 NIST also directly produced to

Mr. Cole BPS records that it determined were already in the

public domain, including 2,435 images, 83 video files, and 269

pages of FEMA records.

.

In June 2012, FEMA determined that 3,789 pages of

responsive records had been located and identified by NIST as

releasable to Mr. Cole. Pl.’s SOMF, ECF No. 65-1 ¶ 4. In August

2012, FEMA notified Mr. Cole of an additional 490,000 pages of

WTC records located at the National Archives and Records

Administration (“NARA”) but noted that the inventory description

of the NARA records did “not readily indicate any additional

responsive material” for Mr. Cole’s specific WTC requests,

inviting Mr. Cole to “submit a new FOIA request” if he wanted

searches to be “conducted on [those] records.”

; Pl.

address the underlying factual assertions that NIST’s search was conducted in the manner described. 9 Plaintiff “[d]enie[s]” this fact on the basis that some records

“have never been provided to Mr. Cole.” Defs.’ SOMF, ECF No. 64- 1 ¶ 43. However, that assertion, which itself is unsupported by any reference to the record, does not contradict the factual assertion that NIST provided FEMA all the records NIST found in its search. 7 David Cole’s Combined Mot. Pursuant to Rule 56 for Leave to

Conduct Limited Disc. Before a Resp. to Defs.’ Summ. J. Mot. is

Required, and for Summ. J.—Ex. 8, ECF No. 28-12 at 2. As

described in this Court’s prior opinion, FEMA and NIST each

believed that the other agency would provide a final response

and production of responsive documents to Mr. Cole but neither

did so. See Discovery Op., ECF No. 48 at 5-8; see also R. & R.,

ECF No. 67 at 7-8.

In the meantime, before the initiation of this litigation,

Mr. Cole sought several other records related to the issues in

this case. In July 2012, he sought from NIST, record number

WTCI-93-I, which corresponded to the materials NIST received

from the GMS transfer in January 2003. Second Decl. of Catherine

S. Fletcher (“Second Fletcher Decl.”), ECF No. 64-2 ¶¶ 10, 12.

The request was assigned number 12-168; was closed on March 4,

2013; and the only withholdings from the record were “personal

information withheld pursuant to FOIA Exemption 6.”

¶¶ 12-

13. 10 Mr. Cole also sought from NIST, record number WTCI-134-I,

which was an updated version of record WTCI-93-I. See

;

10Plaintiff disputes the release of all records from this FOIA request, see Pl.’s Objs., ECF No. 68 at 5 (“The record does not support this fact finding to the extent the Magistrate Judge intended to represent in this finding that Cole was provided all of the BPS records that GMS transferred to NIST on January 28, 2003 rather than just the 34-page transmittal memo.”). A full discussion of Plaintiff’s contention can be found in Section III.B of this opinion. 8 Second Decl. of Catherine S. Fletcher—Ex. D (“NIST FOIA Request

12-188”), ECF No. 64-2 at 19. Mr. Cole’s request was assigned

number 12-188; was closed on September 25, 2015; and resulted in

the release of 1,312 files in full, some files released with

redactions, some files withheld under FOIA Exemption 4, and 1

file referred to FEMA for review and direct response. Second

Fletcher Decl., ECF No. 64-2 ¶¶ 14-15.

B. Procedural Background

After receiving no responsive records from FEMA or NIST for

two-and-a-half years, Mr. Cole filed this lawsuit in November

2015. See Compl., ECF No. 1. Mr. Cole alleged that FEMA violated

FOIA by failing to search the NARA records and that FEMA and

NIST violated FOIA’s disclosure requirements by failing to

produce the 3,789 pages of responsive records that the agencies

identified in June 2012. See

.

FEMA released the previously identified responsive

documents with redactions in April and September 2016. See Apr.

& Sept. 2016 Correspondence to Pl., ECF No. 23-4 at 1-2. In June

2016, Mr. Cole sent FEMA a list of records he identified as

missing from production. See Pl. David Cole’s Combined Mot.

Pursuant to Rule 56 for Leave to Conduct Limited Disc. Before a

Resp. to Defs.’ Summ. J. Mot. is Required, and for Summ. J.—Ex.

2, ECF No. 30-6 at 1-2. FEMA replied that it could not locate

some of the identified records, that “FEMA’s Region 2 has

9 indicated that these documents may be available in the Regional

off site archives,” and that “the agency [was] willing to send

two of its personnel to the warehouse to perform a reasonable

search.”

. Mr. Cole requested a search of the Region 2

off site archives for some of the missing documents. See Pl.

David Cole’s Combined Mot. Pursuant to Rule 56 for Leave to

Conduct Limited Disc. Before a Resp. to Defs.’ Summ. J. Mot. is

Required, and for Summ. J.—Ex. 3, ECF No. 30-7 at 3-5. In

November 2016, FEMA provided its final response to Mr. Cole. See

Pl. David Cole’s Combined Mot. Pursuant to Rule 56 for Leave to

Conduct Limited Disc. Before a Resp. to Defs.’ Summ. J. Mot. is

Required, and for Summ. J.—Ex. 4, ECF No. 30-8. It stated that

FEMA had sent all responsive records in its possession to Mr.

Cole, it could not locate the missing records that Mr. Cole’s

counsel identified, and that based on its consultation with a

subject matter expert, “there is no FEMA Region 2 archive and

the responsive records were not sent to the NARA archives.”

.

In March 2017, Mr. Cole moved for limited discovery,

arguing that Defendants’ search and disclosures were inadequate

and that the evidence suggested bad faith on Defendants’ part.

See Pl. David Cole’s Mem. of P. & A. in Supp. of Mot. for Leave

to Conduct Limited Disc., ECF No. 15-1. In January 2018, this

Court denied the motion, holding that discovery was premature

10 but noting that Mr. Cole had raised “significant questions”

about Defendants’ good faith and that it was “troubled by

multiple aspects of the government’s actions.” Mem. Op. & Order,

ECF No. 19 at 8-9.

In April 2018, Defendants moved for summary judgment. See

Defs.’ Mot. for Summ. J., ECF No. 23. That June, Mr. Cole filed

a combined motion for limited discovery and summary judgment.

See Pl. David Cole’s Combined Mot. Pursuant to Rule 56 for Leave

to Conduct Limited Disc. Before a Resp. to Defs.’ Summ. J. Mot.

is Required, and for Summ. J., ECF No. 30. The case was referred

to Magistrate Judge Harvey, see Minute Order (Jan. 7, 2019); who

issued his Report and Recommendation in March 2019, see

Magistrate Judge’s R. & R., ECF No. 37.

This Court adopted Magistrate Judge Harvey’s Report and

Recommendation in large part, disagreeing only with the

conclusion that Defendants did not explain their delay in

releasing the responsive documents. See Discovery Op., ECF No.

48 at 40-41. This Court granted Mr. Cole’s request for limited

discovery regarding “the adequacy of the Defendants’ searches,

excluding the question of whether responsive records were stored

in the Region II warehouses.”

. Accordingly, this Court

also denied Defendants’ Motion for Summary Judgment and denied

Mr. Cole’s Cross-Motion for Summary Judgment “as premature.”

11 The parties conducted discovery until July 2022. See Scheduling

Order, ECF No. 55.

Defendants renewed their motion for summary judgment on

July 29, 2022. See Defs.’ Mot., ECF No. 56. Mr. Cole filed his

Amended Joint Cross Motion for Summary Judgment and brief in

Opposition to Defendants’ Motion for Summary Judgment in

September 2022. See Pl.’s Mot., ECF No. 61-2. Both parties filed

their replies. See Combined Reply in Supp. of Defs.’ Renewed

Mot. for Summ. J. & Opp’n to Pl.’s Cross-Mot. for Summ. J., ECF

No. 64; Pl. David Cole’s Reply Mem. in Supp. of Pl.’s Cross Mot.

for Summ. J., ECF No. 66.

On February 14, 2023, Magistrate Judge Harvey issued his

Report and Recommendation on the motions, recommending that

FEMA’s Motion for Summary Judgment be granted; Mr. Cole’s claim

against NIST be dismissed as moot; and Mr. Cole’s Cross Motion

for Summary Judgment be denied. See R. & R., ECF No. 67 at 27.

Mr. Cole timely filed his objections to the Report and

Recommendation. See Pl.’s Objs., ECF No. 68. Defendants filed

their response, see Defs.’ Resp., ECF No. 69; and Mr. Cole filed

his reply, see Pl. David Cole’s Reply on Objs. to Magistrate

Judge’s R. & R. (“Pl.’s Reply”), ECF No. 70. The cross motions

for summary judgment and Plaintiff’s objections to Magistrate

12 Harvey’s Report and Recommendation on the motions are now ripe

and ready for adjudication.

II. Legal Standard

A. Objections to a Magistrate Judge's Report and Recommendation

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

may file specific written objections once a magistrate judge has

entered a recommended disposition. Fed. R. Civ. P. 72(b)(1)-(2).

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

disposition.” Fed. R. Civ. P. 72(b)(3); see also

(b)(1). 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). 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).

B. Summary Judgment

Federal Rule of Civil Procedure 56 provides that summary

judgment motions must be granted if “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); see also Anderson v.

Liberty Lobby, Inc.,

(1986). The moving party

bears the initial burden “of informing the district court of the

basis for its motion, and identifying those portions of ‘the

13 pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,’ which

it believes demonstrate the absence of a genuine issue of

material fact.” Celotex Corp. v. Catrett,

(1986); see also Fed. R. Civ. P. 56(c)(1). This burden “may be

discharged by ‘showing’ . . . that there is an absence of

evidence to support the nonmoving party’s case.” Celotex,

.

In evaluating a summary judgment motion, “[t]he evidence of

the non-movant is to be believed, and all justifiable inferences

are to be drawn in his favor.” Liberty Lobby,

.

Summary judgment turns on “whether the evidence presents a

sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a

matter of law.”

. “[I]f the evidence is such that a

reasonable jury could return a verdict for the nonmoving party”

then the district court cannot grant summary judgment.

.

For purposes of summary judgment, “[o]nly disputes over

facts that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary

judgment.”

The Court’s role at the summary judgment stage

“is not . . . to weigh the evidence and determine the truth of

14 the matter but to determine whether there is a genuine issue for

trial.”

.

C. FOIA

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) (internal

quotation marks omitted). FOIA cases are usually resolved on

motions for summary judgment. See Brayton v. Off. of the U.S.

Trade Representative,

(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.

See

(a)(4)(B).

D. 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 prevail on summary

judgment, the agency must demonstrate that it made a good-faith

effort to search for responsive records “using methods which can

15 be reasonably expected to produce the information requested.”

Reps. Comm. for Freedom of the Press v. FBI,

(D.C. Cir. 2017) (quoting Oglesby v. U.S. Dep’t of the Army,

(D.C. Cir. 1990)); see Iturralde v. Comptroller of

Currency,

(D.C. Cir. 2003) (adequacy depends

on the “appropriateness of the methods used to carry out the

search” rather than the “fruits of the search”).

It may do so 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. for Freedom of the Press,

(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.

Dep’t of Def.,

(D.D.C. 2017) (quoting

Steinberg v. Dep’t of Justice,

(D.C. Cir.

1994)).

16 “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]

search specifically yielded.’” Otero v. Dep’t of Justice,

(D.D.C. 2018) (quoting Reps. Comm. for Freedom

of the Press,

).

III. Analysis

Mr. Cole makes five main objections to Magistrate Judge

Harvey’s Report and Recommendation. First, he objects to the

recommendation to grant Defendants summary judgment because he

claims the Report and Recommendation “failed to decide [Mr.

Cole’s] second summary judgment argument regarding Defendants’

failure to disclose responsive records that were actually

located in Defendant NIST’s search.” Pl.’s Objs., ECF No. 68 at

1. Second, he objects to the recommendation that his claim

against NIST be dismissed as moot because “Defendants have not

met their heavy burden to demonstrate mootness and the record

evidence shows that there remains a live controversy.” Id. at 4.

Third, he objects to Magistrate Judge Harvey’s conclusion that

FEMA’s search was adequate because “FEMA failed to search any of

its own agency records even after being placed on notice that

17 known responsive documents had not been located via NIST’s

search.” Id. at 9. Fourth, he objects to Magistrate Judge

Harvey’s conclusion that “FEMA had no obligation under FOIA to

search the 490,000 pages of FEMA World Trade Center records sent

to the National Archives (NARA).” Id. at 19. And fifth, largely

relying on his previous arguments, Mr. Cole objects to

Magistrate Judge Harvey’s recommendation that his summary

judgment motion be denied. Id. at 22. Defendant does not object

to the Report and Recommendation and argues that the “thorough

and legally sound recommendation . . . should be adopted in full

without hesitation.” Defs.’ Resp., ECF No. 69 at 1.

Unless otherwise noted, the Court reviews the parts of the

Report and Recommendation which have been objected to de novo

because Mr. Cole has made specific objections in which he has

identified both “the portions of the proposed findings and

recommendations to which [he objects] and the basis for [his]

objection[s].” LCvR 72.3(b); see also Fed. R. Civ. P. 72(b)(3).

A. Failure to Disclose Responsive Records

Mr. Cole argues that the Report and Recommendation “fails

to address” his argument that “certain responsive records

located during NIST’s search . . . were never disclosed” to him

and that therefore Defendants “are in violation of FOIA’s

requirement to make a full disclosure of responsive documents in

their possession.” Pl.’s Objs., ECF No. 68 at 1. Defendants

18 respond that the “Report does address [Mr. Cole’s] argument” by

explaining that “the fact that [Mr. Cole] believes he did not

receive something during production does not undermine the

reasonableness of the search.” Defs.’ Resp., ECF No. 69 at 4

(citing R. & R., ECF No. 67 at 19-20).

Looking to the Report and Recommendation and the history of

Mr. Cole’s claims, the Court concludes that Mr. Cole is correct

in asserting that the Report and Recommendation did not address

his argument about missing documents as a violation of

Defendants’ disclosure obligations. In the factual background of

the Report and Recommendation, Magistrate Judge Harvey notes

that Mr. Cole disputes NIST’s claim that it “provided copies of

all [the relevant] record[s] to FEMA” “based, apparently, on the

fact that [Mr. Cole] cannot locate in the materials he was

provided by FEMA certain documents on the McAllister Inventory

that Beall noted she had found.” R. & R. ECF No. 67 at 6 & n.12.

As Defendants point out, in the Report and Recommendation’s

analysis, Magistrate Judge Harvey then rejects Mr. Cole’s

“assertion that FEMA’s search should be deemed inadequate

because [certain documents] were missing from FEMA’s

production.” Id. at 19. Thus, it appears that Magistrate Judge

Harvey interpreted Mr. Cole’s arguments about the missing

documents as arguments related only to the adequacy of

Defendants’ search, which Magistrate Judge Harvey understood as

19 the only issue left for summary judgment. See R. & R., ECF No.

67 at 1 (describing the parties’ “dueling motions for summary

judgment” as “the government again defend[ing] the agencies’

searches and Plaintiff again claim[ing] that they were

inadequate”).

However, looking to the record on Mr. Cole’s claims, the

Court concludes that this interpretation is erroneous. Although

Magistrate Judge Harvey was correct that the “first round of

summary judgment and related motions resulted in a decision

allowing Plaintiff to engage in limited discovery as to the

adequacy of FEMA’s and NIST’s search for the requested

documents,” R. & R., ECF No. 67 at 1; he erred in concluding

that the issues for consideration on the current motions for

summary judgment were narrowed accordingly. In Mr. Cole’s most

recent Motion for Summary Judgment, he argued that the failure

to produce certain documents was proof of an inadequate search

by Defendants. See Pl.’s Mot., ECF No. 61-3 at 10-13. This is

the argument that Magistrate Judge Harvey considered and

rejected in his Report and Recommendation. See R. & R., ECF No.

67 at 19-20.

However, in a separate section of his Motion for Summary

Judgment, Mr. Cole also argued that the failure to produce

certain records located in Defendants’ search “reflects . . . a

violation of Defendants’ disclosure obligations under the FOIA.”

20 Pl.’s Mot., ECF No. 61-3 at 18; see also id. (“Here, Ms. Beall’s

testimony that she located specific records that she physically

checked off on her copy of the McAllister Inventory, combined

with Defendants’ failure to date to produce those records to

Plaintiff Cole, also reflects a bad faith violation of FOIA’s

disclosure requirements.”). This is the same argument Mr. Cole

advanced in his first Motion for Summary Judgment in 2018. See

Pl. David Cole’s Mem. of P. & A. in Supp. of Mot. for Summ. J.,

ECF No. 26-1 at 5 (arguing that Mr. Cole is “entitled to summary

judgment on his claim that Defendant NIST failed to make a

complete disclosure of responsive records” based on Defendants’

failure to disclose “records for which Plaintiff Cole has

evidence to show their existence but which Defendants have not

produced to Plaintiff”). This Court’s previous opinion

addressing the initial motions for summary judgment and granting

Mr. Cole limited discovery did not address this argument. See

Discovery Op., ECF No. 48 at 20 (clarifying that “[t]he Court

does not discuss the parts of Magistrate Harvey’s R. & R. to

which no objection is raised”). It only denied Mr. Cole’s motion

for summary judgment as premature and granted him limited

discovery on the search issue. See id. at 41. Nowhere in the

opinion did this Court narrow the remaining issues in the case

to the adequacy of Defendants’ search. Therefore, since Mr.

Cole’s argument about missing documents indicating a disclosure

21 violation under FOIA was not addressed in this Court’s previous

opinion and because he renewed this argument in the current

round of motions for summary judgment, the Report and

Recommendation erred by not addressing the argument.

However, reviewing the issue de novo, the Court concludes

that Mr. Cole is not entitled to summary judgment on this claim

and that the claim does not preclude this Court from granting

summary judgment to Defendants.

Throughout this litigation, Mr. Cole has referenced various

documents he claims he never received from Defendants. See Pl.’s

SOMF, ECF No. 65-1 ¶ 30 (stating that “key responsive BPS

records were located by NIST before the litigation but were not

provided to Plaintiff Cole when Defendants produced, after this

litigation was filed, the above-referenced approximately 3,700

pages of non-exempt responsive records”); Pl.’s Mot., ECF No.

61-3 at 17 (listing “key responsive records including certain

WTC drawings, certain BPS data CDs, and FEMA’s FTP (web) site

backup files” as “among those noted by Plaintiff as missing in

Defendants’ original post-Complaint FOIA response document

productions to Plaintiff”); Pl.’s Objs., ECF No. 68 at 2 n.1

(stating that “FEMA’s FTP website backup files . . . also have

yet to be produced to Cole”). However, Mr. Cole only has

evidence substantiating his argument for three documents. In his

second declaration, Mr. Cole states that he has been “unable to

22 locate the Steficek Video,” he has “yet to be provided by

Defendants WTC Drawings numbered 8-11 through 8-18,” and he has

not been provided “a number of photographs taken by Jonathan

Barnett for the BPS.” Pl. David Cole’s Reply Mem. in Supp. of

Pl.’s Cross Mot. for Summ. J.—Ex. 3 (“Second Cole Decl.”), ECF

No. 66-1 ¶¶ 1-3. In his objections, Mr. Cole faults the Report

and Recommendation for narrowing his argument to certain

documents “based on an unintended restrictive reading of Cole’s

Second Declaration.” Pl.’s Objs., ECF No. 68 at 2. But summary

judgment requires parties to substantiate their factual claims

with evidence. See Fed. R. Civ. P. 56(c)(1)(A). Thus, the Report

and Recommendation was correct to narrow Mr. Cole’s arguments

and similarly this Court may only consider Mr. Cole’s arguments

related to the documents he properly claims Defendants have

failed to produce. 11

Furthermore, since Mr. Cole’s argument rests on the claim

that Defendants actually found, but failed to produce, certain

11In Mr. Cole’s first declaration, he claimed several other documents had not been produced by Defendants. See Pl. David Cole’s Combined Mot. Pursuant to Rule 56 for Leave to Conduct Limited Disc. Before a Resp. to Defs.’ Summ. J. Mot. is Required, and for Summ. J.—Ex. 5 (“First Cole Decl.”), ECF No. 30-9. However, since that declaration was signed over seven years ago and Mr. Cole has not directed the Court to it in his current briefing, the Court will not consider it. See Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it may consider other materials in the record.”). Accordingly, the Court concludes that only the documents 23 documents, the Court may only consider his claim related to

documents the evidence has shown were found by Defendants. As

Mr. Cole notes, this universe of documents is the list of items

Ms. Beall checked off on her copy of the McAllister Inventory.

See Pl.’s Objs., ECF No. 68 at 2 (claiming that Mr. Cole “was

never provided certain responsive records that Ms. Beall located

during NIST’s search for the McAl[l]ister inventory documents”).

As Magistrate Judge Harvey noted in his Report and

Recommendation, the only document that Mr. Cole’s declaration

identified as missing that corresponds to the McAllister

Inventory is the WTC Drawings numbered 8-11 through 8-18.” R. &

R., ECF No. 67 at 6 n.12; see also Second Cole Decl., ECF No.

66-1 ¶ 2; Renewed Mot. for Summ. J.—Ex. 23 (“Beall’s McAllister

Inventory”), ECF No. 56-3 at 120-21.

Turning to this sole document left in dispute, the evidence

establishes that the document was produced to Mr. Cole. In

Defendants’ response to Mr. Cole’s objections, they state that

the drawings were located in an electronic file titled “LRG_FMT-

UNKNOWN-001_005.pdf,” citing Ms. Beall’s checked off McAlister

Inventory as corroborating evidence. See Defs.’ Resp., ECF No.

69 at 4; Beall’s McAllister Inventory, ECF No. 56-3 at 120. In

Ms. Fletcher’s third declaration, she also corroborates this

referenced in Mr. Cole’s most recent declaration are currently in dispute as missing. 24 statement and further offers that “FEMA has confirmed that it

produced this file in full to Mr. Cole,” citing two letters

showing transmission of documents from Defendants to Mr. Cole in

April and September 2016. See Third Decl. of Catherine S.

Fletcher (“Third Fletcher Decl.”), ECF No. 69-1 ¶¶ 14-15. As

further evidence that Mr. Cole received the drawings, Defendants

stated that the missing drawings were produced in the same

electronic file with drawings that Mr. Cole admits he received.

See Defs.’ Resp., ECF No. 69 at 5; First Cole Decl., ECF No. 30-

9 ¶ 3. Defendants conclude that “Plaintiff has received complete

copies” of the missing document and that therefore “there is no

legal or factual basis for [Mr. Cole’s objection].” Defs.’

Resp., ECF No. 69 at 5.

In his reply brief, Mr. Cole does not address any of

Defendants’ facts or arguments about the missing drawings.

Rather, he reiterates that “[o]ne aspect of [his] cross motion

for summary judgment was his claim that NIST via Ms. Beall had

located certain responsive records such as certain drawings

. . . but that neither NIST nor FEMA ever provided him those

specific records.” Pl.’s Reply, ECF No. 70 at 13-14. Mr. Cole

then states that his “argument in his Objections on this point

is incorporated here.” Id. But his original objections do not

refute or engage with any of Defendants’ evidence showing that

the drawings in question were in fact produced to Mr. Cole.

25 Therefore, Mr. Cole has conceded the argument. See Am. Waterways

Operators v. Regan,

, 138 (D.D.C. 2022) (“‘If

a party fails to counter an argument that the opposing party

makes in a motion, the court may treat that argument as

conceded.’” (quoting Day v. D.C. Dep’t of Consumer & Regul.

Affs.,

(D.D.C. 2002))).

Therefore, although Mr. Cole is correct that the Report and

Recommendation neglected to consider his argument about missing

documents as a violation of Defendants’ disclosure requirements

under FOIA, a de novo review of Mr. Cole’s claim reveals that

the only properly identified missing document—WTC drawings 8-11

through 8-18—were produced to Mr. Cole. Therefore, this claim

does not entitle Mr. Cole to summary judgment, nor does it

preclude the Court from granting summary judgment to Defendants.

B. Mootness

Magistrate Judge Harvey concluded that Mr. Cole’s claims

against NIST are moot because “Plaintiff already has the

documents he asserts would necessarily have been included and

disclosed in any adequate search.” R. & R., ECF No. 67 at 26.

Mr. Cole objects to this conclusion as well as “specific fact

finding on which the Magistrate Judge appears to base his

conclusion of mootness.” Pl.’s Objs., ECF No. 68 at 4.

Primarily, Mr. Cole objects to the Report and

Recommendation’s finding “that Cole was provided all of the BPS

26 records that GMS transferred to NIST on January 28, 2003 rather

than just the 34-page transmittal memo.” Id. at 5. He claims

that Ms. Fletcher’s second declaration was “misread” by

Magistrate Judge Harvey and that her declaration “states that

Cole was given the 34-page transmittal letter from GMS to NIST

but does not state that Cole was provided . . . the numerous and

voluminous records referenced in that GMS transmittal letter.”

Id. In his reply brief, Mr. Cole reemphasizes his claim and

states that Ms. Fletcher’s third declaration “omits to state

explicitly whether Mr. Cole was given the numerous videos,

photos, and other BPS data records that are listed, identified,

and referenced in the 34 pages that constitute NIST record WTCI-

93-I (PEX 1).” Pl.’s Reply, ECF No. 70 at 7. Relatedly, Mr. Cole

also accuses Defendants of purposefully misleading Magistrate

Judge Harvey and failing to make “clear duty of candor

disclosures on the material facts regarding the mootness issue.”

Id. at 10.

Reviewing Mr. Cole’s arguments de novo, the Court concludes

that his claims are clearly, directly, and repeatedly disputed

by the evidence in the record. Mr. Cole’s main assertion is that

he was “provided only the 34-page transmittal letter from GMS”

in reference to FOIA request 12-168, but he was not provided

“the actual BPS records referenced therein which would have been

responsive to Cole’s FOIA request in the instant case.” Pl.’s

27 Objs., ECF No. 68 at 6; see also Pl.’s Reply, ECF No. 70 at 7

(“Cole makes no FOIA claim in this case regarding a failure by

Defendants to disclose or search for either the 34-page

transmittal documents identified as NIST record WTCI-93-I or the

larger set of supplemental records identified as NIST record

WTCI-134-I.”). However, as Magistrate Judge Harvey noted,

“Fletcher’s declaration is clear” that Mr. Cole was provided all

the records he sought. R. & R., ECF No. 67 at 24. Ms. Fletcher’s

second declaration is explicit that the files at issue—record

number WTCI-93-I from FOIA request 12-168—“was closed on March

4, 2013” and “[a]ccording to [their] logs, the only withholdings

from this record were personal information withheld pursuant to

FOIA Exemption 6.” Second Fletcher Decl., ECF No. 64-2 ¶¶ 12-13.

In her third declaration, Ms. Fletcher confirms this statement

and reiterates that “[a]ll the records requested relating to

WTCI-93-I were released, with only minor redactions of personal

information pursuant to FOIA Exemption 6.” Third Fletcher Decl.,

ECF No. 69-1 ¶ 5. She then states that the 34 pages “produced to

Mr. Cole is the entirety of record WTCI-93-I” and that it

included “release forms and a catalog of GMS videos and

photographs containing World Trade Center images.” Id. ¶¶ 6-7.

Ms. Fletcher also states that an “updated version” of the record

which included “additional and replacement materials” was

provided to Mr. Cole as record number WTCI-134-I, which included

28 over 1,300 released files. Id. ¶¶ 8-9 (emphasis added). She

unambiguously concluded that “Mr. Cole has received all non-

exempt documents which are part of records WTCI-93-I and WTCI-

134-I.” Id. ¶ 10. Therefore, Ms. Fletcher’s declarations

together establish that Mr. Cole was given all the documents

related to the record at issue—WTCI-93-I—either in that document

or in the supplemental WTCI-134-I document, which includes both

additional and replacement materials.

Mr. Cole quibbles with the WTCI-143-I records, claiming

that they relate to a “later supplemental records transfer, not

the BPS records transferred on January 28, 2003 that are at

issue.” Pl.’s Reply, ECF No. 70 at 9. But Mr. Cole’s unsupported

assertion directly contradictions Ms. Fletcher’s declaration and

the text of WTCI-93-I itself. See Pl. David Cole’s Am. Cross

Mot. for Summ. J.—Ex. 1 (“WTCI-93-I Record”), ECF No. 61-4 at 1-

2 (noting that WTCI-134-I is an “updated version” of record

WTCI-93-I and stating that “additional materials and some

replacement CDs and disk[s]” can be found in record WTCI-134-I).

In his reply brief, Mr. Cole argues that the WTCI-143-I records

were “intended to supplement not replace or duplicate the

voluminous video and photographic records transferred to NIST by

GMS [in the WTCI-93-I record].” Pl.’s Reply, ECF No. 70 at 4.

For support, he quotes the transmittal letter for the WTCI-143-I

records, which states that those records “are in addition to the

29 photographic and video materials previously sent [in record

WTCI-93-I].” Id. (quoting Third Fletcher Decl.—Ex. C (“WTCI-134-

I Record”), ECF No. 69-1 at 12). However, on the same page that

Mr. Cole quotes, the transmittal letter states that some of the

materials provided in WTCI-143-I “completely replaces” previous

materials from the WTCI-93-I record with “additional and updated

material.” WTCI-134-I Record, ECF No. 69 at 12-13. Although Mr.

Cole continues to claim that the WTCI-93-I records have not been

produced, he points to no records from WTCI-93-I which were

missing from the WTCI-143-I production. Rather, the evidence

repeatedly and consistently establishes that the WTCI-93-I

records were updated and subsequently replaced by the WTCI-143-I

records, which Mr. Cole received in full.

As a separate attack on the Report and Recommendation’s

mootness conclusion, Mr. Cole argues that Magistrate Judge

Harvey erred in concluding his claim against NIST is moot

because Magistrate Judge Harvey failed to “address the separate

allegation that NIST via Ms. Beall’s search located responsive

documents that were never produced to Cole” and that therefore

“it is premature at best to conclude NIST has no liability

regarding this particular failure to disclose.” Pl.’s Objs., ECF

No. 68 at 8. Since the Court determined in the previous section

that Mr. Cole’s claims of missing documents are not supported by

30 the evidence, this argument cannot be a basis for undermining

Magistrate Judge Harvey’s mootness conclusion.

For the reasons above, the Court agrees with the Report and

Recommendation’s conclusion that Mr. Cole’s claim against NIST

is moot since the he has already been provided the records he

seeks.

C. Adequacy of FEMA’s Search

Mr. Cole challenges the Report and Recommendation’s

conclusion that FEMA’s search was adequate on several grounds.

First, Mr. Cole challenges whether “FEMA’s search was even

conducted in good faith.” Pl.’s Objs., ECF No. 68 at 9. Second,

he challenges two factual findings: “first regarding the scope

of Cole’s FOIA request,” id.; and second, relating “to the

extent contractor G&O did or did not have all of the FEMA BPS

records, and the Magistrate Judge’s reliance on Letvin and

Bridges regarding that issue,” id. at 10. Third, Mr. Cole argues

that Defendants’ search was not adequate because “no search was

ever conducted of any FEMA computer, email system, electronic

files, paper files, or backup files of any kind,” id. at 11; and

because FEMA failed to produce certain responsive documents, see

id. at 12-14. Fourth, Mr. Cole objects to the Report and

Recommendation’s finding that certain “emails would not be

expected to” reveal the documents he alleges Defendants have

failed to produce. Id. at 15. Fifth, Mr. Cole objects to “the

31 Magistrate Judge’s reliance on FEMA’s consulting with BPS

Project Manager Tertell as a basis for concluding that FEMA’s

search was in good faith.” Id. at 17. And finally, he objects to

Magistrate Judge Harvey’s “assertion . . . that Cole is being

speculative in asserting that FEMA’s own records should have

been searched.” Id. at 18. None of Mr. Cole’s arguments have

merit.

First, on the issue of good faith, Mr. Cole argues that the

“history of FEMA’s actions in this FOIA case is more consistent

with a bad faith effort to conceal responsive records than it is

with a good faith reasonable search for responsive records.” Id.

at 16. He notes the delay in production, evidence of responsive

documents that were not released to him, and Defendant’s

previously inconsistent statements as suggestive of bad faith.

See id. at 15-17. However, “[c]ourts routinely find that delays

in responding to FOIA requests are not, in and of themselves,

indicative of agency bad faith.” Skurow v. U.S. Dep’t of

Homeland Sec.,

(D.D.C. 2012)

(collecting cases). Furthermore, as noted in the previous two

sections, Mr. Cole has failed to show that Defendants have

withheld any responsive documents and thus, Mr. Cole cannot use

this argument as evidence of bad faith.

Finally, although Mr. Cole tries to use “FEMA’s course of

actions over a period of time” to suggest bad faith, see Pl.’s

32 Objs., ECF No. 68 at 11; Magistrate Judge Harvey’s analysis

shows how FEMA has, on this motion for summary judgment,

clarified its actions and substantiated their reasonableness.

See R. & R., ECF No. 67 at 14-22. The Report and Recommendation

specifically noted the Defendants’ changes in position over the

course of litigation and Mr. Cole’s objections to them. See R. &

R., ECF No. 67 at 5-10. However, it ultimately concluded that

Mr. Cole failed to raise “substantial doubt” about the adequacy

of FEMA’s search. Id. at 22. This Court agrees with Magistrate

Judge Harvey’s conclusion because Mr. Cole has failed to produce

“tangible evidence of bad faith” required “to overcome agency

affidavits.” Schaerr v. U.S. Dep’t of Justice,

(D.C. Cir. 2023) (internal quotation marks omitted). Mr. Cole

has not provided any evidence to call into question Defendants’

clarifications and thus his assertions of bad faith are

unsubstantiated.

Second, turning to the factual issues, Mr. Cole argues that

Magistrate Judge Harvey erred in characterizing his FOIA request

because Mr. Cole “asked for all background and raw data

collected for the BPS (used for the study) whether or not such

material was used in the BPS study report.” Pl.’s Objs., ECF No.

68 at 10. In the Report and Recommendation, Magistrate Judge

Harvey observed that Mr. Cole’s FOIA request was for

“‘background or raw data used for’ the BPS produced by G&O,”

33 citing that undisputed fact from Defendants’ Statement of

Material Facts. See R. & R., ECF No. 67 at 15. Mr. Cole quotes

this language in his brief, and then claims that he “did not

limit his request to G&O record or to the McAlister Inventory

records, neither of which were mentioned in his FOIA request.”

Pl.’s Objs., ECF No. 68 at 9. However, the Report and

Recommendation never claimed that Mr. Cole limited his request

in this way. It only quoted the language of the original FOIA

request—a fact which Mr. Cole himself admitted. Therefore, Mr.

Cole appears to be misinterpreting the factual finding of the

Report and Recommendation. Accordingly, his objection is without

merit.

Mr. Cole’s second factual concern relates to “the extent

contractor G&O did or did not have all of the FEMA BPS records.”

Pl.’s Objs., ECF No. 68 at 10. Mr. Cole claims that Magistrate

Judge Harvey erroneously found that all records were transferred

to NIST but Mr. Letvin’s deposition testimony “clarified that he

had not collected all, or any, of FEMA’s staff’s BPS materials,

records to which he admitted he had no access, but only G&O

materials and did not transfer all of even G&O’s materials to

NIST, only most of them.”

However, Mr. Cole’s allegations

34 distort the relevant facts and Magistrate Judge Harvey’s

analysis.

Mr. Cole quotes and objects to pages 15-17 of the Report

and Recommendation, which detailed FEMA’s and NIST’s search for

documents. See R. & R., ECF No. 67 at 15-17. For support of his

allegations, Mr. Cole cites his own statement of material facts,

which claims that “FEMA transferred no FEMA computer hard

drives, FEMA emails, FEMA electronic backups, or FEMA paper

records to NIST from FEMA’s own personnel, but rather FEMA only

directed the transfer of contractor records to NIST.” Pl.’s

SOMF, ECF No. 65-1 ¶ 10. However, the Report and Recommendation,

in its discussion of the search, only discussed the search of

“documents responsive to [Mr. Cole’s] request.” See R. & R., ECF

No. 67 at 15. Regarding those documents, Mr. Letvin, an employee

who was intimately involved in the transfer, stated that he was

“very thorough” in fulfilling his role of collecting the

relevant materials for transfer and that the transferred records

were “comprehensive.” See R. & R., ECF No. 67 at 17. Mr. Cole’s

objection rests on the assumption that some of the non-

transferred materials were within the realm of materials

responsive to his FOIA request, but he provides no evidence to

substantiate his speculation.

Relatedly, Mr. Cole’s third objection—that FEMA’s search

was inadequate because it failed to search its own “computer,

35 email system, electronic files, paper files, or backup files,”

Pl.’s Objs., ECF No. 68 at 11—is also without merit. Although

Mr. Cole tries to use missing documents to establish the

inadequacy of the search, the Report and Recommendation was

correct when it stated that “the adequacy of a FOIA search is

generally determined not by the fruits of the search, but by the

appropriateness of the methods used to carry out the search.”

See R. & R., ECF No. 67 at 19 (quoting Iturralde,

). Thus, Mr. Cole’s assertion that the search was “knowingly

and blatantly defective in failing to search for and locate

[certain] BPS records,” Pl.’s Objs., ECF No. 68 at 14; is

contrary to the well-established caselaw on an agency’s search

obligations under FOIA.

Additionally, although Mr. Cole attacks Defendants’

decision to “limit[] [the] search to the task of locating

specific records listed on one specific inventory” as arbitrary,

Pl.’s Objs., ECF No. 68 at 13; the evidence undermines this

statement. As the Report and Recommendation explained, after the

BPS was complete, Mr. Letvin transferred all the “material used

for the BPS to NIST”—and the record of that transfer was the

McAllister Inventory. See R. & R., ECF No. 67 at 15. There is

nothing “arbitrary” about Defendants limiting their search to

these materials because those are the materials—“background or

raw data used for” the BPS—which Mr. Cole’s FOIA request sought.

36 See

Although Mr. Cole claims that “no FEMA staff records of

any kind” were transferred to NIST, Pl.’s Objs., ECF No. 68 at

11; he fails to establish that those materials would have

“likely” revealed new documents responsive to his FOIA request.

See Jud. Watch, Inc. v. U.S. Dep’t of Hous. & Urb. Dev.,

(D.D.C. 2014) (“[T]he government is not

required to search everywhere a document might be. Instead, it

is only required to search those places where a document is

likely to be.”); Mobley v. CIA,

(D.C. Cir.

2016) (accepting agency’s reasoning for not searching email

records because “the records in them are redundant of records

stored in [a system the agency already searched]”). Instead, his

assertions suggest that the materials at best would have

revealed duplicates of the documents already included in the

McAllister Inventory. See Pl.’s Objs., ECF No. 68 at 12

(faulting FEMA for not searching “the computer or emails of

FEMA’s WTC BPS project manager Paul Tertell” because he “was

copied by the BPS team members . . . via email and otherwise on

numerous BPS records during the period he managed the BPS

project” (emphasis added)).

Turning to Mr. Cole’s related fourth argument—his objection

to the Report and Recommendation’s suggestion that the

purportedly missing documents were unlikely to be in the FEMA

staff’s emails—the Court again sees no error in the Report and

37 Recommendation’s reasoning. Mr. Cole argues that although the

allegedly missing documents would have been large files, “the

BPS team used its FTP (web) site to upload and download . . .

such large files and . . . FEMA’s participants on the BPS team

. . . would have had access to this FTP site (and may have

downloaded any such files to their own computers or printed

them).” Pl.’s Objs., ECF No. 68 at 15. First, as noted above,

any failure to uncover documents is not indicative of the

adequacy of Defendants’ search. See Iturralde,

.

Second, Mr. Cole’s arguments about what FEMA team members “may

have downloaded” is purely speculative and unsupported by any

evidence. Thus, it is insufficient to establish that any

allegedly missing records would have “likely” been hidden in the

emails at issue. Finally, as Mr. Cole notes, the BPS team

included both FEMA and G&O members, and all G&O materials

related to the BPS were transferred to NIST and documented in

the McAllister Inventory. See R. & R., ECF No. 67 at 14-15.

Thus, at best, the emails may have uncovered the FEMA staff’s

duplicates of materials already within the G&O materials. Mr.

Cole never asserts and points to no evidence that the FEMA

emails—or other FEMA materials—would have produced new documents

38 that were not already among the set of documents in the

McAllister Inventory.

In his fifth argument, Mr. Cole objects to the Report and

Recommendation’s “reliance on FEMA’s consulting with BPS Project

Manager Tertell as a basis for concluding that FEMA’s search was

in good faith.” Pl.’s Objs., ECF No. 68 at 17. In substantiating

this argument, Mr. Cole claims that “agency documents produced

in discovery show that Tertell was likely consulted for a

different more limited purpose than determining where to search

and determining whether responsive records remained at FEMA.”

Id. at 18. However, Mr. Cole provides no support for his

assertion. Mr. Cole next argues that Mr. Tertell “could not have

advised FEMA in good faith that FEMA had retained no responsive

records” because none of FEMA’s staff records were transferred

to NIST. Id. at 18. As noted in the Report and Recommendation,

Mr. Tertell was one of “three subject matter experts” FEMA

consulted with in regards to the FOIA request. See R. & R., ECF

No. 67 at 16-17. Thus, even if Mr. Tertell was incorrect in

initially asserting that FEMA retained no responsive records

(even duplicates of records sent to NIST), the consultation with

Mr. Tertell and the two other subject matter experts is still

indicative of FEMA’s good faith efforts to uncover responsive

documents. See Jud. Watch, Inc.,

(“[I]t

is permissible for an agency to rely on subject matter experts

39 to conduct individualized searches for documents when responding

to FOIA requests.”). Finally, Mr. Cole also faults Mr. Tertell

for not directing FEMA’s search to the January 2003 records sent

from GMS to NIST. Id. at 18. But as Defendants note in their

response, “FEMA never acquired the GMS records, which were

obtained directly by NIST pursuant to a NIST purchase order for

NIST’s own World Trade Center analysis.” Defs.’ Resp., ECF No.

69 at 8; see also WTCI-93-I Record, ECF No. 61-4 at 2 (stating

only that the transfer of materials was from GMS to NIST “with

FEMA’s full permission”). Thus, Mr. Tertell’s failure to point

to the GMS documents does not undermine FEMA’s good faith since

no evidence establishes that the GMS documents were ever

possessed by FEMA, in contrast to the G&O documents which were

(at least jointly possessed by FEMA and G&O) and later

transferred to NIST.

Finally, Mr. Cole objects to the Report and

Recommendation’s assertion “that Cole is being speculative in

asserting that FEMA’s own records should have been searched.”

Pl.’s Objs., ECF No. 68 at 18. He argues that “[t]here is

nothing speculative in the expectation that a federal agency’s

project manager’s files for a million-dollar project might

contain some project records.” Id. (emphasis added). However, in

this statement, Mr. Cole again confuses the standard for an

adequate search. FEMA is not required to search any location

40 that “might” have responsive documents, but only where such

documents are “likely” to be found. See Jud. Watch,

. As the Report and Recommendation noted, not one of

the three subject matter experts suggested that FEMA’s documents

were where responsive documents were “likely” to be found. See

R. & R., ECF No. 67 at 19. And Mr. Cole points to no additional

evidence to substantiate his claims otherwise. Although he

claims that the allegedly missing documents required further

searches by FEMA, as discussed above, the evidence in the record

does not support Mr. Cole’s claims about missing documents.

Thus, the Court finds no error in the Report and Recommendation

on this point.

Overall, although Mr. Cole has launched many objections to

the Report and Recommendation’s conclusion that FEMA’s search

was adequate, the Court agrees with Magistrate Judge Harvey’s

analysis of the evidence and agrees that FEMA’s search was

adequate under the circumstances.

D. FEMA’s Failure to Search NARA

Mr. Cole objects to the “finding and conclusion” of the

Report and Recommendation that Defendant was not obligated to

search the 490,000 pages of WTC records sent to NARA “because

there was no reason to believe those records would contain

responsive records.” Pl.’s Objs., ECF No. 68 at 19. However, Mr.

41 Cole fails to substantiate his argument with evidence, instead

offering only conjecture.

First, Mr. Cole claims that “[o]ne explanation” for the

Defendants’ assertion that “Swiren BPS team emails and their

attached documents and links to documents” were not in Region 2

is that they “ended up at NARA.” Id. at 20. However, Mr. Cole

fails to allege that any of these documents would have been both

responsive to his FOIA request and different from the documents

FEMA already found and produced. In fact, as with most of his

other claims, Mr. Cole only states that “FEMA official Bruce

Swiren worked at FEMA Region 2 and was copied on BPS team

emails,” id. (emphasis added); but never alleges—or supports

with evidence—the required link that any of Mr. Swiren’s

correspondence or documents would have been new, responsive

materials. Furthermore, Mr. Cole has no evidence for his

assertion that the materials he seeks are at NARA other than his

logic that the information “had to go somewhere.” See Pl.’s

Objs., ECF No. 68 at 20. This explanation is a far cry from

showing that NARA is a “likely” location for such materials such

that failing to search NARA renders Defendants’ FOIA search

inadequate. See Jud. Watch,

.

Mr. Cole alleges that “[i]f all justifiable inferences from

[the] facts are drawn in favor of Mr. Cole” then the Report and

Recommendation “erred in concluding as a matter of law that

42 FEMA’s decisions not to search the NARA files and also to not

search the Region 2 files were consistent with FEMA’s FOIA

obligations.” Pl.’s Objs., ECF No. 68 at 21. His line of logic

appears to be that since “Mr. Swiren worked closely with [Mr.

Letvin] and Mr. Tertell in supervising the BPS team’s work,” Mr.

Swiren must have responsive documents that are located at either

Region 2 or NARA. Id. at 21.

But Mr. Cole’s conjecture is undermined by the evidence. As

Magistrate Judge Harvey noted, “no subject matter expert

suggested that Region II documents held at NARA were a likely

location for responsive documents” and “Region II’s subject

matter expert determined that his division did not have

responsive materials.” R. & R., ECF No. 67 at 20. Furthermore,

in a letter response to Mr. Cole, FEMA specifically

distinguished the materials held at NARA, which were transferred

from FEMA’s Region II office as “non-responsive, ‘supplemental

WTC records,’” which could be the subject of a different FOIA

request if Mr. Cole sought one. See R. & R., ECF No. 67 at 21

(citing FEMA Letter, ECF No. 23-2 at 89). Thus, Mr. Cole’s

inference that any responsive documents are located at NARA is

not supported by the evidence presented. Therefore, the Court

agrees with Magistrate Judge Harvey’s conclusion that FEMA was

43 not obligated to search NARA to comply with its FOIA

obligations.

E. Denial of Mr. Cole’s Motion for Summary Judgment

Mr. Cole’s final objection is to the Report and

Recommendation’s conclusion that his Motion for Summary Judgment

be denied. See Pl.’s Objs., ECF No. 68 at 22. First, he argues

that such a conclusion is erroneous regarding the adequacy of

FEMA’s search. See id. The Court has previously addressed this

argument in Section III.C and has concluded that Mr. Cole’s

claims are without merit. Mr. Cole next argues that the

conclusion on mootness as to NIST is erroneous. See Pl.’s Objs.,

ECF No. 68 at 22. The Court addressed this argument in Section

III.B and concluded that it was also without merit.

Finally, Mr. Cole objects to Magistrate Judge Harvey’s

conclusion that Defendants’ failure to produce documents until

“forced by Plaintiff’s litigation to do so” renders his claims

on this issue moot because Defendants did ultimately produce the

documents. See Pl.’s Objs., ECF No. 68 at 22. He argues that

“finding of mootness is unwarranted” because: (1) “there remain

agency documents known to exist and known to still be accessible

to FEMA and NIST (the GMS BPS documents transmitted to NIST with

FEMA’s approval on January 28, 2003),” (2) “known-to-exist

responsive records such as the Steficek video remain

undisclosed,” and (3) Defendants have a “history in addressing

44 Cole’s FOIA request” with “numerous irregularities, delays, and

misrepresentations (which suggest that the FOIA violations in

the instant case were not merely inadvertent and could recur).”

Id. at 23. All three of these arguments have been previously

rejected in this opinion.

First, in Section III.C, the Court concluded that Mr. Cole

has failed to establish that the GMS BPS documents were ever

possessed by FEMA. Thus, FEMA cannot have violated FOIA by

failing to produce documents it never possessed, much less

retained. Furthermore, as discussed in Section III.B, the

evidence establishes that the GMS documents were ultimately

produced to Mr. Cole in a separate FOIA request. Thus, his claim

regarding these records is moot and he is not entitled to

summary judgment on this ground.

Second, as determined in Section III.A and III.B, Mr. Cole

has failed to establish that any responsive records remain

undisclosed. Mr. Cole’s most recent declaration only identified

three undisclosed documents and Ms. Beall’s copy of the

McAllister Inventory establishes that only one of those

documents was located by Defendants. See Second Cole Decl., ECF

No. 66-1 ¶ 2; Beall’s McAllister Inventory, ECF No. 56-3 at 120.

Furthermore, Defendants established, through specific evidence

in the record, that this document was produced, see Defs.’

Resp., ECF No. 69 at 4; Beall’s McAllister Inventory, ECF No.

45 56-3 at 120; and Mr. Cole failed to rebut this argument in his

reply brief, thus conceding it.

Third, although Mr. Cole has pointed to the

“irregularities, delays, and misrepresentations” in the history

of this case multiple times. He has failed to show that such

incidents have infected the instant motions for summary judgment

and he has also failed to supply this Court with any “tangible

evidence” establishing bad faith on the Defendants’ part. See

Schaerr,

. Furthermore, Mr. Cole fails to explain

how any FOIA violations could “recur.” He does not allege that

he has any additional FOIA requests pending with the identified

agencies, in fact, as discussed in Section III.B, the record

establishes that Mr. Cole’s other FOIA requests have been

fulfilled in full.

Therefore, the Court agrees with Magistrate Judge Harvey’s

conclusion that Mr. Cole’s Motion for Summary Judgment should be

denied.

IV. Conclusion

For the foregoing reasons, Magistrate Judge Harvey’s Report

and Recommendation, see ECF No. 67, is ADOPTED IN FULL. The

Court also supplements the Report and Recommendation with its

own conclusion regarding Mr. Cole’s argument about Defendants’

disclosure obligations related to the allegedly missing

documents and concludes that argument is without merit.

46 Therefore, Defendant FEMA’s Motion for Summary Judgment, see ECF

No. 56 is GRANTED; Mr. Cole’s claim against NIST is dismissed as

MOOT; and Mr. Cole’s Cross Motion for Summary Judgment, see ECF

No. 61, is DENIED.

An appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge July 22, 2024

47