Judge Tells DOJ Lawyers That A Search For FOIA Docs Requires More Than Chatting With A Couple Of Employees

from the SEARCH-HARDER dept

Jason Leopold is back in court (is he ever NOT there?) battling the NSA and the DOJ's Office of Legal Counsel (OLC) over the release of documents related to the NSA and FBI's surveillance of federal and state judges. The two parties had already been told to do more looking around for responsive records by Judge Tanya Chutkan, who rejected their original request for summary judgment last July.

The two agencies went back and performed another search. And still came up empty-handed.

Let me rephrase that: the two agencies went back and performed another "search." Here's what that "search" actually entailed, as described in the opinion [PDF].

The search that OLC ultimately conducted pursuant to the court’s July 2015 Memorandum Opinion and Order proceeded as follows: [A]n OLC attorney asked an OLC Deputy Assistant Attorney General and an OLC Senior Counsel, both of whom are senior attorneys with long tenures in OLC (the Deputy Assistant Attorney General joined the Office in 1989; the Special Counsel joined the Office in 1998, departed for nine years in 2001, and rejoined the Office in 2010) and have close familiarity with OLC’s work on national security and surveillance matters, . . . whether they were aware of any classified or unclassified OLC projects concerning the “propriety of surveilling federal or state judges,” regardless of whether the project resulted in final legal advice. (Id. ¶¶ 6, 9). “This inquiry yielded no responsive records.” (Id. ¶ 9).

According to the OLC, asking a couple of people if they've heard anything about a surveillance program is the same thing as actually searching its own files using keywords and phrases relevant to the subject matter.

In addition, the OLC claimed that actually searching for these documents would bring its slowly-moving FOIA machinery to a near halt.

Colborn avers that searching OLC’s paper files, the email files of departed OLC attorneys and the hard drives of departed users “likely would take several years and the diversion of resources from other FOIA requests,” which “would result in a dramatic increase in [OLC’s] FOIA processing backlog.”

Judge Chutkan didn't find either of these excuses persuasive. As for the OLC's claim that asking a few in-house lawyers about a surveillance program qualifies as a search for responsive documents, the judge had this to say:

The court agrees with Plaintiff, and finds that the senior attorneys’ responses to this inquiry do not provide sufficient basis to reasonably conclude either that OLC is unlikely to possess responsive records or that responsive records are unlikely to be found by a more in-depth search. Moreover, the court finds that asking all current OLC attorneys if they had, or were aware of, any draft legal memoranda or opinions relating to the propriety of surveilling federal or state judges – as was done here after Plaintiff filed his opposition brief – was also insufficient.

Judge Chutkan points out that there's way too much turnover in staff at the OLC to consider asking all current counsel whether or not they've heard of a program to be an adequate substitute for an actual records search. The latter method wouldn't be nearly so dependent on individuals' memory, or whether those who might be familiar with the surveillance program were still working for the agency.

As for its complaint about "diverted resources" and its FOIA processing backlog, the judge similarly has no sympathy.

The court finds that Defendants have not established that searching the email files of departed OLC attorneys would be unduly burdensome. While Colborn avers that it “likely would take several years and the diversion of resources from other FOIA requests” to search for responsive documents among OLC’s paper files, hard drives and emails, he does not break out the time and resources that would be required to search only the emails of departed OLC attorneys. (Id.). Given that these emails and their attachments can be searched using an eDiscovery tool without needing to open each email and its attachments individually, and in the absence of any representations from Colborn or any other declarant regarding the burden associated with running such searches separate and apart from searching OLC’s paper files and hard drives, Defendants have not demonstrated that doing so would constitute an undue burden.

So, for a second time, Judge Chutkan is forced to tell the OLC how to do its job.

Accordingly, the court hereby ORDERS OLC to use the Clearwell eDiscovery tool referenced in the Fourth Colborn Declaration to search the email files of departed OLC attorneys, as well as any attachments to those emails, for any draft legal memoranda or opinions relating to the propriety of surveilling federal or state judges.

Everyone seems to know what tools are available and how to use them… except the agency "responding" to the FOIA request. A search will finally be performed -- after two motions to dismiss, several misspent tax dollars, and an FOIA requester forced to use the court system to get an agency to do its job correctly.

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Filed Under: doj, foia, jason leopold, searches