Government Contracts FOIA Search on Cancelled FBI HQ Procurement Inadequate
Monday, January 28, 2019

FOIA Search on Cancelled FBI HQ Procurement Inadequate

By Government Contracts Editorial Staff

Summary judgment on a suit seeking the release of records under the Freedom of Information Act was denied by the District Court for the District of Columbia because the government conducted an inadequate search and failed to provide a reasonable explanation for withholding documents. The plaintiff sought six categories of documents relating to the cancellation of a plan to exchange the Federal Bureau of Investigation’s headquarters at the J. Edgar Hoover building on Pennsylvania Avenue for a new building in Maryland or Virginia. The agency provided one document for one category and stated it found no responsive records for the remaining categories. After a follow-up search, the agency produced another 28 pages of records. The agency then sought summary judgment, asserting it fulfilled its obligations under FOIA.

Limited and Under-Inclusive. However, the plaintiff established the agency improperly limited its search to its office of the chief information officer. The agency stated its record retention policy required paper records to be stored electronically and it sent the requests to OCIO because OCIO “ha[d] access to all of the agency’s electronic records,” but the plaintiff’s request also sought non-electronic records, and the records retention policy did not require electronic storage of paper records. Further, the plaintiff established the agency’s search terms were under-inclusive. The search omitted “rather obvious synonyms” for the FBI building and failed to search all six categories of records for email addresses for two agency officials named in the request, and the fact that the government found additional documents in its second search provided further reason to question the agency’s search. Finally, the agency compiled a Vaughn index to explain documents it withheld under the FOIA Exemption 5 deliberative process privilege, but the index was “patently inadequate.” (Citizens for Responsibility and Ethics in Washington v. GSA, DC DofC, 63 CCF ¶81,548).

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