Citizens for Responsibility & Ethics in Wash. v. Gen. Servs. Admin.

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff v. GENERAL SERVICES ADMINISTRATION, Defendant

Civil Action No. 18-2071 (CKK)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

March 29, 2021

MEMORANDUM OPINION

This lawsuit arises from a Freedom of Information Act ("FOIA") request made by Plaintiff Citizens for Responsibility and Ethics in Washington ("CREW") to Defendant General Services Administration ("GSA"). CREW requested communications from January 20, 2017 to July 30, 2018 between GSA and the White House concerning the renovation of the Federal Bureau of Investigation ("FBI") headquarters in Washington, D.C.

Currently before the Court are Defendant GSA's [45] Motion for Summary Judgment and Plaintiff CREW's [46] Cross-Motion for Summary Judgment. Upon consideration of the pleadings,¹ the relevant legal authorities, and the record as whole, for the reasons stated below, the Court finds that GSA has satisfied its burden to demonstrate that it properly withheld records inCategories 2, 3, and 4 pursuant to FOIA Exemption 5, and so shall GRANT-IN-PART GSA's Motion for Summary Judgment as to the those three categories. The Court further finds that GSA has not demonstrated that the document in Category 1 properly falls within FOIA Exemption 5, and so shall GRANT-IN-PART CREW's Cross-Motion for Summary Judgment as to that category. Finally, the Court concludes that GSA has failed to meet its burden to demonstrate that all reasonably segregable information in Category 6 has been disclosed to CREW, and so shall HOLD IN ABEYANCE the parties' cross-motions with respect to that category before ordering the release of certain documents, to allow GSA to re-examine those documents to determine whether they should be released.

I. BACKGROUND

In 2012, GSA announced its plan to find a new facility to serve as the FBI's headquarters. CREW's Mot. & Opp'n Ex. 1 at 3, ECF No. 46-3. GSA began reviewing potential locations and developers, and identified potential sites for a new building in Maryland and Virginia. Id. GSA continued reviewing developer proposals through early 2017. Id. at 3-4. In July 2017, GSA cancelled its efforts to secure a new headquarters facility, and instead directed its efforts to renovating the FBI's existing facility, the J. Edgar Hoover Building, located on Pennsylvania Avenue in Washington, D.C. Id. at 4-5. Citing public news reports, CREW suggests in its Complaint that this sudden change in course was attributable to President Donald J. Trump's interest in the FBI Headquarters Project. Compl. ¶ 11, ECF No. 1.

On July 30, 2018, CREW submitted a FOIA request to GSA, seeking to acquire "copies of all communications from January 20, 2017 to [July 30, 2018] between GSA and the White House concerning the renovation of the FBI headquarters." Def.'s Stmt. of Material Facts ("GSA'sStmt.") ¶ 1, ECF No. 45-2; Pl.'s Resp. to Def.'s Stmt. of Material Facts ("CREW's Resp. Stmt.") ¶ 1, ECF No. 46-2²; GSA's Mot. Ex. 1 (July 30, 2018 FOIA Request), ECF No. 45-3.

On August 27, 2018, GSA's Office of the Inspector General released a "Review of GSA's Revised Plan for the Federal Bureau of Investigation Headquarters Consolidation Project" ("GSA OIG Report"), which described meetings between GSA and the White House about the FBI headquarters project, as well as specific emails concerning those meetings. CREW's Stmt. of Undisputed Material Facts ("CREW's Stmt.") ¶¶ 3-5, ECF No. 46-2; Def.'s Resp. to CREW's Stmt. of Undisputed Material Facts ("GSA's Resp. Stmt.") ¶¶ 3-5, ECF No. 49-1.

CREW filed this lawsuit on September 4, 2018, after GSA failed to respond to CREW's FOIA request within the statutory deadline. CREW's Stmt. ¶ 6. Then, on October 18, 2018, the United States House Committee on Oversight and Reform ("House Oversight Committee") publicly released at least three emails concerning the renovation of the FBI headquarters. Id. ¶ 7. First, a January 25, 2018 email exchange between a White House Official and a GSA official concerned the "path forward for the new FBI Headquarters announcement" which the "President" had "signed off on." Id. ¶ 8a. Second, a January 28, 2018 email between GSA officials requested that the "DOJ/FBI" "memoraliz[e] what was decided in the meeting with POTUS" regarding the FBI headquarters. GSA requested that the memorialized document "recap the oval meeting with what POTUS directed everyone to do" and "then ask Emily [Murphy with GSA] to execute POTUS's orders." Id. ¶ 8b. And third, the House Oversight Committee released a January 28, 2018 email exchange in which GSA officials forwarded an email from the Office of Managementand Budget ("OMB") explaining that the FBI headquarters project is "a demolition/new construction [project] per the President's instructions." Id. ¶ 8c.

On the same day that the House Oversight Committee released these emails, the parties conducted a teleconference during which GSA explained that its search had uncovered no records responsive to CREW's FOIA request. Id. ¶ 9; GSA's Resp. Stmt. ¶ 9. CREW responded by alleging that the emails released by the House Oversight Committee appeared to be responsive to its FOIA request, casting doubt on the adequacy of GSA's search. CREW's Stmt. ¶ 10; GSA's Resp. Stmt. ¶ 10.

In October 2018, GSA agreed to conduct another search using terms and parameters suggested by CREW based on the language from the publicly released emails. CREW's Stmt. ¶ 11; GSA's Resp. Stmt. ¶ 11. CREW provided GSA with proposed search terms, which GSA implemented and stated that 52 pages of responsive records had been identified. GSA's Stmt. ¶¶ 12-14; CREW's Resp Stmt. ¶¶ 12-14. Of the 52 pages, GSA "initially withheld all of the responsive documents but later produced 25 pages," all except two pages of which contained redactions. GSA's Stmt. ¶ 10; CREW's Resp. Stmt. ¶ 10; see Declaration of Travis Lewis ("Lewis Decl.") ¶¶ 7-9, ECF No. 45-6. The remaining 27 pages of documents were withheld in full. Lewis Decl. ¶ 10. This search still did not uncover any of the emails released by the House Oversight Committee or related records. CREW's Stmt. ¶ 11; GSA's Resp. Stmt. ¶ 11.

After GSA's supplemental search and production, the parties cross-moved for summary judgment. CREW's Stmt. ¶ 12; GSA's Resp. Stmt. ¶ 12. On July 29, 2019, the Court granted partial summary judgment to CREW, concluding that GSA's second search was inadequate because GSA had failed to locate the emails which had been publicly released by the House Oversight Committee, despite the fact that CREW had "flagged those emails for [GSA] prior to[GSA's] search." Mem. Op. at 2, 7, ECF No. 26. The Court ordered GSA to conduct an additional search by September 5, 2019 and deferred consideration of GSA's claimed exemptions pending GSA's completion of an additional search. Id. at 2.

GSA conducted an additional search, which yielded approximately 30,000 pages of potentially responsive documents. See GSA's Stmt. ¶ 11; Sept. 9, 2019 Joint Status Report, ECF No. 27. Thirteen pages were found to be responsive. GSA's Stmt. ¶ 12; CREW's Resp. Stmt. ¶ 12; Lewis Decl. ¶ 15. GSA partially redacted 12 of those pages, and released in full one page. GSA's Stmt. ¶ 12; CREW's Resp. Stmt. ¶ 12; Lewis Decl. ¶ 15.

The parties again cross-moved for summary judgment. CREW's Stmt. ¶ 14; GSA's Resp. Stmt. ¶ 14. Among other issues, CREW challenged the adequacy of GSA's additional search, contending that GSA failed to implement search terms agreed upon by the parties, and that GSA's supporting declaration contained "factual inaccuracies."³ CREW's Stmt. ¶¶ 14; see also CREW's Renewed Cross-Mot. for S.J. at 7-13, ECF No. 38.

GSA then sought a stay of summary judgment briefing to "reexamine at the agency level the issues raised" in CREW's second cross-motion for summary judgment, by conducting a supplemental search to "resolve the parties' dispute" regarding the "disagreement between the parties over search terms and their application." See Def.'s Mot. to Stay S.J. Briefing at 1, ECF No. 41. The Court granted GSA's motion to stay and ordered GSA to conduct another supplemental search, process any additional records, identify any additional withholdings, and reexamine its current withholdings.⁴ See Order at 1, ECF No. 43.

In April 2020, GSA completed another search "to alleviate concerns by [CREW]" using "terms and parameters vetted, approved, and confirmed by Plaintiff's counsel." GSA's Stmt. ¶ 13; Lewis Decl. ¶ 16. This search yielded 97 pages of responsive material; GSA released 6 pages and withheld 91 pages pursuant to FOIA's Exemption 5. GSA's Stmt. ¶ 13; Lewis Decl. ¶ 17.

Presently before the Court are the parties' third cross-motions for summary judgment. CREW does not challenge the adequacy of GSA's search in the present motion; rather CREW challenges GSA's withholding of 118 pages in full pursuant to FOIA Exemption 5 and one page in part pursuant to FOIA Exemption 7(E). CREW's Stmt. ¶ 19. GSA prepared a Vaughn Index and filed in support of its motion a declaration by Travis Lewis. See Vaughn Index, ECF No. 45-7 ("Vaughn Index"); Lewis Decl., ECF No. 45-6.

Upon review of the parties' cross-motions for summary judgment, the Court exercised its discretion to grant-in-part CREW's request for in camera review of certain contested withholdings; specifically, the Court ordered GSA to submit for in camera review certain documents withheld pursuant to Exemption 5 and one document withheld pursuant to Exemption 7(E). See Mem. Op. at 4-7, ECF No. 53. GSA did so on March 5, 2021. See Notice, ECF No. 54. The Court also noted several inadequacies in GSA's Vaughn Index with respect to three categories of documents withheld pursuant to the deliberative process privilege under FOIA Exemption 5 (all of which the Court also ordered GSA to submit for in camera review). Mem. Op. at 7-9, ECF No. 53. The Court ordered GSA to provide a supplemental Vaughn Index for these categories to allow the Court to ascertain the "(1) the...