Heritage Found. v. DOJ, No. 23-1854, 2024 WL 3291783 (D.D.C. July 3, 2024) (Friedrich, J.)

Heritage Found. v. DOJ, No. 23-1854, 2024 WL 3291783 (D.D.C. July 3, 2024) (Friedrich, J.)

Re:  Request for records concerning investigation of Robert Hunter Biden, the son of President Joseph R. Biden

Disposition:  Granting defendant’s motion for partial summary judgment; denying plaintiff’s cross-motion for partial summary judgment

• Litigation Considerations, Adequacy of Search:  First, the court relates that “[t]he parties disagree over how allegations of bad faith are analyzed . . . .”  “On one hand, [plaintiff] argues that when a custodian has ‘been credibly accused of wrongdoing or [is] clearly bound up in or tainted by credible allegations of misconduct,’ it is not reasonable for that custodian to perform ‘self-collection and self-review.’”  “In [defendant’s] view, the requester carries the burden of ‘offer[ing] clear evidence that the custodian(s) has acted in bad faith’ at step two, but custodians are afforded a ‘presumption of good faith,’ so it is reasonable at step one for a custodian, even a conflicted one, to self-search.”  “The Court declines [plaintiff’s] invitation to accept as true its ‘credible’ allegations of bad faith and consider evidence outside the agency’s declarations at step one.”  “To call such allegations ‘credible’ would assume that [plaintiff] has proved bad faith.”  “[T]here is nothing on the face of the Department’s declarations here to suggest the custodians were conflicted or biased.”  “[A]t step one, an agency may rely on ‘government employees who created or maintained the requested records to conduct the search for those records’ as part of its proof of reasonableness.”  “And at step two, the requester may present evidence of bad faith satisfying ‘the level of proof necessary.’”  “Accordingly, the Court will first analyze the reasonableness of the Department’s search, and then, [plaintiff’s] allegations of bad faith.”
  
  “The Department satisfies step one.”  The court finds that “the Department’s search was reasonable, and [plaintiff] has not presented any evidence to create a genuine dispute of material fact on this issue.”  “The Department provided the declaration of . . . an Attorney-Advisor with the FOIA staff of the Executive Office for United States Attorneys.”  “After [plaintiff] filed its opposition and cross-motion, [defendant] submitted a short supplemental declaration.”  “Both ‘reasonably detailed’ declarations demonstrate that the Department conducted a reasonable search for responsive records.”  “[Defendant] represents that the Executive Office for United States Attorneys determined that the U.S. Attorney’s Office for the District of Delaware was best situated ‘to conduct a search for responsive records’ given its central role in [plaintiff’s] request.”  “[Defendant] goes on to identify – four by name and four by position – the record custodians, who reasonably ‘were selected . . . because they were the personnel’ who oversaw and/or worked on the Hunter Biden investigation.”  “From there, [defendant] details the U.S. Attorney’s Office’s email-archive system and the Proofpoint system for searching those records.”  [Defendant] then explains that all eight custodians were given [plaintiff’s] FOIA request . . . and worked to establish reasonable search terms.”  “[Plaintiff’s] request was overbroad in certain respects, including its failure to include temporal limits or any subject-matter limits . . . .”  “[Defendant] captures, however, the Department’s reasonable efforts to narrow the request to yield potentially responsive records . . . .”
  
  Finally, the court relates that plaintiff “challenges the searches conducted by David Weiss and an Assistant United States Attorney assigned to the Hunter Biden case.”  “These allegations fall well short of establishing any bad faith on the part of the Department.”  “[Plaintiff] devotes the bulk of its cross-motion to allegations of Weiss’s bad faith.”  “But as the Department points out, Weiss did not conduct a self-search.”  “The IT team did instead.”  “Even so, [plaintiff] argues, without evidence or authority, that Weiss tainted the other search custodians such that bad faith can be imputed to all.”  “The Court disagrees.”  “[Plaintiff] also advances a litany of allegations against a line Assistant United States Attorney in the District of Delaware . . . .”  “The Court cannot stand in judgment of such prosecutorial decisions, the power over which the Constitution expressly vests in the Executive.”  “But even if the Court were willing to peer behind the prosecutorial curtain and credit the allegations relating to the Assistant United States Attorney, the Court cannot conclude that she acted unreasonably in light of the sensitivities surrounding an investigation of a sitting President and his family members.”  “[Plaintiff] has not shown bad faith.”  “Given the Department has proved the reasonableness of its search, it is entitled to partial summary judgment.”