Cole v. Locascio, No. 15-1991, 2024 WL 3509489 (D.D.C. July 22, 2024) (Sullivan, J.)

Cole v. Locascio, No. 15-1991, 2024 WL 3509489 (D.D.C. July 22, 2024) (Sullivan, J.)

Re:  Request for records concerning collapse of World Trade Center (“WTC”) on September 11, 2001

Disposition:  Adopting magistrate judge’s report and recommendation; granting defendant’s motion for summary judgment; dismissing plaintiff’s claim as moot; denying plaintiff’s motion for summary judgment

• Litigation Considerations, Mootness and Other Grounds for Dismissal:  Regarding the National Institute of Standards and Technology (“NIST”) search, the court holds that “although [plaintiff] 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 [plaintiff’s] claim reveals that the only properly identified missing document . . . were produced to [plaintiff].”  “Therefore, this claim does not entitle [plaintiff] to summary judgment, nor does it preclude the Court from granting summary judgment to Defendants.”  “[T]he Court agrees with the Report and Recommendation’s conclusion that [plaintiff’s] claim against NIST is moot since the he has already been provided the records he seeks.”

• Litigation Considerations, Vaughn Index/Declaration:  Responding to plaintiff’s bad faith argument based on FEMA’s delay, the court finds that “‘[c]ourts routinely find that delays in responding to FOIA requests are not, in and of themselves, indicative of agency bad faith.’”

• Litigation Considerations, Adequacy of Search:  “[A]lthough [plaintiff] has launched many objections to the Report and Recommendation’s conclusion that FEMA’s search was adequate, the Court agrees with [the magistrate judge’s] analysis of the evidence and agrees that FEMA’s search was adequate under the circumstances.”  Responding to plaintiff’s argument based on alleged missing records, the court finds that “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.’”  The court also finds that “although [plaintiff] attacks Defendants’ decision to ‘limit[ ] [the] search to the task of locating specific records listed on one specific inventory’ as arbitrary,” “[t]here is nothing ‘arbitrary’ about Defendants limiting their search to these materials because those are the materials . . . which [plaintiff’s] FOIA request sought.”  Additionally, the court considers plaintiff’s “argu[ment] 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.’”  “However, in this statement, [plaintiff] again confuses the standard for an adequate search. FEMA is not required to search any location that ‘might’ have responsive documents, but only where such documents are ‘likely’ to be found.”  Finally, the court relates that “[plaintiff] objects to the ‘finding and conclusion’ of the Report and Recommendation that Defendant was not obligated to search the 490,000 pages of . . . records sent to NARA ‘because there was no reason to believe those records would contain responsive records.’”  “However, [plaintiff] fails to substantiate his argument with evidence, instead offering only conjecture.”  Plaintiff’s “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.”