Citizens for Responsibility & Ethics in Wash. v. DOJ, No. 18-007, 2020 WL 2735570 (D.D.C. May 26, 2020) (Chutkan, J.)

Citizens for Responsibility & Ethics in Wash. v. DOJ, No. 18-007, 2020 WL 2735570 (D.D.C. May 26, 2020) (Chutkan, J.)

Re:  Request for records concerning decision to invite reporters to DOJ on December 12, 2017, for the purpose of sharing with them private text messages sent during the 2016 presidential campaign by two former FBI investigators on Special Counsel Robert Mueller's team

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that "OIP has thus met its burden to 'show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.'"  The court holds that "[plaintiff's] argument is unavailing."  The court relates that "[a]fter OIP conducted its initial search, it became 'aware of a problem with the data on which some of its searches were run . . . stemming from the migration of DOJ email onto new servers.'"  The court finds that "OIP has made clear that after it learned of the data issue, it took 'remedial efforts to ensure that e-mail collections for records custodians [we]re complete,' and then 're-r[a]n searches against the full collections of e-mail custodians.'"  "Though OIP does not go into detail about the nature of the data problem, this description reasonably assures the court that the original search (with which CREW takes no issue) was run against a complete data set."
   
• Procedural Requirements:  The court relates that "OIP and OIG defined each single email and each single text as 'a record,' in accordance with OIP guidance permitting such a definition."  "By defining 'a record' in this way, OIP and OIG avoided having to turn over the whole thread; instead they were required only to produce select emails and texts within the thread."  The court holds that "DOJ's definition of a record, given the language of the request and the documents in question, does not stretch past the bounds of reasonableness."  "As OIP and OIG explained in their Declarations, the decision to narrow the scope of the records was in part because CREW sought communications 'concerning the decision to invite reporters to DOJ on a specific date and for a specific purpose' . . . and many of the email communications that OIP and OIG reviewed were email conversations that veered into unrelated topics.'" 
   
  The court rejects plaintiff's interpretation that "a record must constitute only 'the full native form in which it is maintained by the agency at the time of the request.'"  The court explains that "even if [plaintiff] is correct that the statute gives specific meaning to the word 'record' (and the D.C. Circuit is mistaken in noting that it provides 'little help'), then that specific meaning describes what is to be included in the definition of a record."  "The statute does not say that all other types of records are excluded."  "[Plaintiff] also argues that its test for what constitutes a record would help 'to ensure that records are defined by objective criteria, not the vagaries of the requester's intent or the agency's interpretation of that intent.'"  "The court agrees."  "But unless that test is found within the statute, the court cannot enforce it."  "If [plaintiff] seeks to have a 'record' defined by the manner in which it is maintained by the agency, 'its concerns are properly directed to Congress, not this [c]ourt.'"