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Case TitleCITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON v. GENERAL SERVICES ADMINISTRATION
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2018cv00377
Date Filed2018-02-20
Date ClosedOpen
JudgeJudge Christopher R. Cooper
PlaintiffCITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON
Case DescriptionCitizens for Responsibility and Ethics in Washington submitted a FOIA request to the General Services Administration for records concerning the July 2017 decision to cancel construction of a new FBI headquarters building. CREW also requested a fee waiver. The agency acknowledged receipt of the request and told CREW that processing the request would not incur fees. In February 2018, GSA announced it would instead rebuild the FBI's current headquarters in Washington. After hearing nothing further from the agency, CREW filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantGENERAL SERVICES ADMINISTRATION
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Opinion/Order [23]
FOIA Project Annotation: Judge Christopher Cooper has ruled that the General Services Administration has failed to show that it conducted an adequate search for records concerning the agency's 2018 decision to rebuild or renovate the FBI's Washington, D.C. headquarters building instead of relocating it to Northern Virginia as previously planned. Because the fact that the Trump International Hotel is directly across the street from the current FBI headquarters building might have influenced the agency's about-face, CREW submitted a six-part request for records concerning the change in plans, including communications between GSA Regional Commissioner Mary Gibert, GSA Administrator Tim Horne, and the White House. GSA initially found a single record responsive to the sixth item. It then realized that it had searched under "Mary Gilbert" rather that "Gibert," and ran the search again, locating an additional 28 responsive records, GSA withheld records under Exemption 5 (privileges) and Exemption 6 (invasion of privacy). CREW argued that it was implausible that since GSA's Inspector General had located more than 50,000 pages about the FBI headquarters consolidation project that only 29 records concerning the change of plans existed. But Cooper pointed out that "CREW's FOIA request was not for all records, 'concerning the FBI headquarters consolidation project' �" what the IG Report surveyed �" but instead for records from January 20, 2017 onward concerning the decision to 'cancel the procurement for the new FBI headquarters consolidations project.' That means many records that the IG Report reviewed would reasonably be excluded from CREW's request �" because they either predated January 20, 2017, or concern the consolidation project, but not the decision to call it off." Indicating that CREW's claims that more records must exist was nothing more than speculation, Cooper noted that "and speculation alone does not provide an adequate basis to order a subsequent search." CREW also faulted GSA for limiting the time frame and conducting a search only for electronic records. Cooper found the agency's time frame sufficiently tracked CREW's request, but that it had failed to explain why it only searched for electronic records. GSA argued that an electronic records search would capture all records since its record retention policy required paper records to be stored electronically. Cooper, however, pointed out that "the trouble for GSA is that CREW happened to read the 'record retention policy' GSA alluded to, and it appears to stand for directly the opposite proposition: that records are kept in a variety of media." Having established that, Cooper ordered the agency to search its non-electronic records. CREW also challenged the agency's failure to use "JEH" and "Hoover Building" as search terms, as well as limiting its email search to emails sent or received by Horne or Gibert. Cooper agreed with CREW on both counts. He pointed out that "part of liberally construing a request is searching for 'synonyms' and 'logical variations' of the words used in the request; an agency may not fish myopically for a 'direct hit on the records' using only 'the precise phrasing' of the requester. Here, it strikes the Court as rather likely that 'JEH' and 'the Hoover Building' �" referring to the current headquarters �" would be used in communications and records regarding the headquarters consolidations project; a search reasonably calculated to uncover all documents responsive to CREW's request therefore, ought to include these rather obvious synonyms." GSA argued that inclusion of those terms would not have yielded more records, but Cooper observed that "the words 'JEH' and "Hoover' were not used in records that also used the words 'FBI headquarters,' but they may have been used in other records �" particularly informal records like emails �" as a replacement or shorthand for 'FBI headquarters.'" As to limiting the search for emails to communications involving Horne or Gibert, Cooper explained that "a search more faithful to CREW's broad request would have searched instead for communications between .gsa and .fbi/.omb addresses." Cooper found GSA's Vaughn index completely inadequate, noting that "the description of the withheld documents is so vague as to make impossible any meaningful evaluation of the appropriateness of the deliberative-process privilege." Rejecting the agency's current claim that talking points were protected by the deliberative process privilege, Cooper pointed out that "the agency has not explained why the withheld documents constitute deliberative talking points." He added that "the agency must either provide a more robust explanation or produce the documents in full."
Issues: Adequacy - Search
Opinion/Order [28]
FOIA Project Annotation: Judge Christopher Cooper has ruled that the General Services Administration has failed to show that records pertaining to the appraised value of the FBI's Headquarters Building in Washington are protected by Exemption 5 (privileges). In a case brought by CREW to find out more about the agency's decision not to relocate the FBI Headquarters, he began by noting that the Findings & Determination document prepared by GSA "is plainly not predecisional" because it had been prepared by senior agency officials. He explained that "totally missing from the document are the hallmarks of predecisional give-and-take. Such as a recommendation to take a particular course of action or a weighing of alternatives. The F&D instead contains exactly what its title suggests it contains: The agency's determination and the findings that support that support that determination. The document is announcing what the agency is doing (and why), not arguing for what it should be doing." He pointed out that "all signs indicate that its purpose was 'to support a decision already made.' One need not look beyond the document's title " 'Findings and Determination' " and its date " July 10, 2017, the same day GSA decided to cancel the swap-relocation project " to discern that the document explains a decision already made rather than discusses one still in the works." Cooper found GSA's attempts to characterize the F&D as part of a larger ongoing deliberation on renovating the FBI's headquarters unconvincing. He noted that "if the agency believed that canceling the swap-relocation project was distinct from renovating the current facility, that suggests that the agency does not lump together the various proposals to achieve the FBI's goal of a larger, more modern, and more secure headquarters " but instead treats each means to achieving that end as a discrete proposal to be approved or declined." He observed that "the fact that an alternative plan could be put forward later on does not render predecisional the decision to call off the swap-relocation plan." GSA also suggested that disclosure could cause harm to its bargaining position when pursuing plans for the FBI Headquarters Project. Cooper, however, noted that "that may be true, but it does not rebut CREW's argument that the F&D is post-decisional and therefore not properly protected under Exemption 5."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Predecisional
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2018-02-201COMPLAINT against GENERAL SERVICES ADMINISTRATION ( Filing fee $ 400 receipt number 0090-5338556) filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Civil Cover Sheet, # 2 Summons GSA, # 3 Summons Attorney General, # 4 Summons U.S. Attorney)(Weismann, Anne) (Entered: 02/20/2018)
2018-02-202LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Weismann, Anne) (Entered: 02/20/2018)
2018-02-20Case Assigned to Judge Christopher R. Cooper. (zmd) (Entered: 02/22/2018)
2018-02-223SUMMONS (3) Issued Electronically as to GENERAL SERVICES ADMINISTRATION, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice and Consent) (zmd) (Entered: 02/22/2018)
2018-02-274RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 02/27/2018. (Weismann, Anne) (Entered: 02/27/2018)
2018-02-275RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 2/27/2018. Answer due for ALL FEDERAL DEFENDANTS by 3/29/2018. (Weismann, Anne) (Entered: 02/27/2018)
2018-02-276RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON served on 2/26/2018 (Weismann, Anne) (Entered: 02/27/2018)
2018-03-267NOTICE of Appearance by Melanie Dyani Hendry on behalf of GENERAL SERVICES ADMINISTRATION (Hendry, Melanie) (Entered: 03/26/2018)
2018-03-268ANSWER to 1 Complaint by GENERAL SERVICES ADMINISTRATION.(Hendry, Melanie) Modified to add link on 3/27/2018 (znmw). (Entered: 03/26/2018)
2018-03-27MINUTE ORDER: Before the Court in this FOIA case are a complaint and an answer. Since the requirements of LCvR 16.3 and Rule 26(f) of the Federal Rules of Civil Procedure do not apply, it is hereby ORDERED that the parties shall confer and file a joint proposed schedule for briefing or disclosure by April 10, 2018. Signed by Judge Christopher R. Cooper on 3/27/2018. (lccrc2) (Entered: 03/27/2018)
2018-03-27Set/Reset Deadlines: Joint Proposed Briefing Schedule due by 4/10/2018 (lsj) (Entered: 03/27/2018)
2018-04-029Unopposed MOTION for Extension of Time to File Joint Briefing Schedule by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Attachments: # 1 Text of Proposed Order)(Weismann, Anne) (Entered: 04/02/2018)
2018-04-03MINUTE ORDER granting 9 Plaintiff's Motion for Extension of Time. The parties shall now file their joint proposed schedule for production and, if necessary, briefing by April 20, 2018. Signed by Judge Christopher R. Cooper on 4/3/2018. (lccrc2) (Entered: 04/03/2018)
2018-04-03Set/Reset Deadlines: Joint Proposed Briefing Schedule due by 4/20/2018 (lsj) (Entered: 04/03/2018)
2018-04-2010Joint STATUS REPORT and Proposed Briefing Schedule by GENERAL SERVICES ADMINISTRATION. (Hendry, Melanie) (Entered: 04/20/2018)
2018-04-24MINUTE ORDER: In light of 10 the parties' joint status report, the briefing schedule shall be as follows: Defendant's motion for summary judgment shall be due by June 15, 2018; Plaintiff's combined opposition and cross-motion for summary judgment shall be due by July 13, 2018; Defendant's combined reply and opposition shall be due by August 10, 2018; and Plaintiff's reply shall be due by August 31, 2018. Signed by Judge Christopher R. Cooper on 4/24/2018. (lccrc2) (Entered: 04/24/2018)
2018-04-24Set/Reset Deadlines: Summary Judgment motions due by 6/15/2018. Response to Motion for Summary Judgment due by 7/13/2018. Reply to Motion for Summary Judgment due by 8/10/2018. Replies due by 8/31/2018. (lsj) (Entered: 04/24/2018)
2018-06-1411Consent MOTION to Amend Briefing Schedule by GENERAL SERVICES ADMINISTRATION (Hendry, Melanie) Modified text and event on 6/15/2018 (ztd). (Entered: 06/14/2018)
2018-06-15MINUTE ORDER granting 11 Defendant's Motion to Amend Briefing Schedule. The following summary judgment briefing schedule shall now apply: Defendant's motion for summary judgment shall be due by June 29, 2018; Plaintiff's combined opposition and cross-motion for summary judgment shall be due by July 27, 2018; Defendant's combined opposition and reply shall be due by August 24, 2018; and Plaintiff's reply shall be due by September 7, 2018. Signed by Judge Christopher R. Cooper on 6/15/2018. (lccrc2) (Entered: 06/15/2018)
2018-06-18Set/Reset Deadlines: Summary Judgment motions due by 6/29/2018. Response to Motion for Summary Judgment due by 7/27/2018. Reply to Motion for Summary Judgment due by 8/24/2018. Plaintiff's Reply due by 9/7/2018. (lsj) (Entered: 06/18/2018)
2018-06-2712MOTION to Vacate Summary Judgment Briefing Schedule by GENERAL SERVICES ADMINISTRATION (Hendry, Melanie) (Entered: 06/27/2018)
2018-06-2813RESPONSE re 12 MOTION to Vacate Summary Judgment Briefing Schedule filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order)(Weismann, Anne) (Entered: 06/28/2018)
2018-06-28MINUTE ORDER granting 12 Defendant's Motion to Vacate. The Court will vacate the current briefing schedule entered by Minute Order on June 15, 2018. Defendant shall process and produce the newly-located records by July 6, 2018. The parties shall then meet and confer and file a new proposed briefing schedule designed to resolve the case expeditiously by July 13, 2018. Signed by Judge Christopher R. Cooper on 6/28/2018. (lccrc2) Modified on 7/2/2018 (zlsj). (Entered: 06/28/2018)
2018-06-29***Deadlines terminated. Set/Reset Deadlines: Proposed Briefing Schedule due by 7/13/2018 (lsj) (Entered: 06/29/2018)
2018-07-1314PROPOSED BRIEFING SCHEDULE by GENERAL SERVICES ADMINISTRATION. (Hendry, Melanie) (Entered: 07/13/2018)
2018-07-1315STATUS REPORT by GENERAL SERVICES ADMINISTRATION; (See docket entry no. 14 to view.) (ztd) (Entered: 07/17/2018)
2018-07-17MINUTE ORDER: In light of 14 the parties' joint status report, the following briefing schedule shall apply: Defendant's motion for summary judgment shall be due by August 7, 2018. Plaintiff's combined opposition and cross-motion for summary judgment shall be due by September 7, 2018. Defendant's combined opposition and reply shall be due by October 5, 2018. Plaintiff's reply shall be due by October 26, 2018. Signed by Judge Christopher R. Cooper on 7/17/2018. (lccrc2) (Entered: 07/17/2018)
2018-07-17Set/Reset Deadlines: Summary Judgment motions due by 8/7/2018. Response to Motion for Summary Judgment due by 9/7/2018. Reply to Motion for Summary Judgment due by 10/5/2018. Plaintiff's Replies due by 10/26/2018. (lsj) (Entered: 07/17/2018)
2018-08-0616MOTION for Summary Judgment by GENERAL SERVICES ADMINISTRATION (Attachments: # 1 Statement of Facts, # 2 Declaration of Travis Lewis)(Hendry, Melanie) (Entered: 08/06/2018)
2018-09-0717Memorandum in opposition to re 16 MOTION for Summary Judgment filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Exhibit A-E, # 2 Statement of Facts Response, # 3 Text of Proposed Order)(Weismann, Anne) (Entered: 09/07/2018)
2018-10-0218Consent MOTION for Extension of Time to File Response/Reply by GENERAL SERVICES ADMINISTRATION (Hendry, Melanie) (Entered: 10/02/2018)
2018-10-09MINUTE ORDER granting Defendant's 18 Consent Motion for Extension of Time to File Response/Reply. Defendant's Response shall now be due on or before October 26, 2018. Signed by Judge Christopher R. Cooper on 10/9/2018. (lccrc2) (Entered: 10/09/2018)
2018-10-09Set/Reset Deadlines: Responses due by 10/26/2018 (lsj) (Entered: 10/09/2018)
2018-10-1719ENTERED IN ERROR.....ANSWER to Complaint by GENERAL SERVICES ADMINISTRATION.(Nebeker, William) Modified on 10/17/2018 (zjf). (Entered: 10/17/2018)
2018-10-17NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 19 Answer to Complaint was entered in error and refiled by counsel in the correct case(jf) (Entered: 10/17/2018)
2018-10-2420MOTION for Extension of Time to File Response/Reply by GENERAL SERVICES ADMINISTRATION (Hendry, Melanie) (Entered: 10/24/2018)
2018-10-26MINUTE ORDER granting 20 Defendant's Motion for Extension of Time to File Response/Reply. Defendant's response is now due on or before November 9, 2018. Signed by Judge Christopher R. Cooper on 10/26/2018. (lccrc2) (Entered: 10/26/2018)
2018-10-26Set/Reset Deadlines: Responses due by 11/9/2018. (znbn) (Entered: 10/26/2018)
2018-11-0821REPLY to opposition to motion re 16 MOTION for Summary Judgment filed by GENERAL SERVICES ADMINISTRATION. (Attachments: # 1 Second Declaration of Travis Lewis)(Hendry, Melanie) (Entered: 11/08/2018)
2018-11-1322NOTICE of Change of Address by Anne L. Weismann (Weismann, Anne) (Entered: 11/13/2018)
2018-12-03MINUTE ORDER: The parties shall appear for a hearing on Defendant's 16 motion for summary judgment on Wednesday, December 12, 2018 at 2:00 p.m. in Courtroom 27A. The parties should be particularly prepared to discuss the redactions made to the Findings and Determination document--referenced by Plaintiff in its opposition at pages 29-31 and labeled as Exhibit E in the attachments thereto--including the question of whether that document is properly considered predecisional. Signed by Judge Christopher R. Cooper on 12/3/2018. (lccrc2) (Entered: 12/03/2018)
2018-12-03Set/Reset Hearings: Motion Hearing set for 12/12/2018 at 2:00 PM in Courtroom 27A before Judge Christopher R. Cooper. (lsj) (Entered: 12/03/2018)
2018-12-12Minute Entry for proceedings held before Judge Christopher R. Cooper: Motion Hearing held on 12/12/2018 re 16 Motion for Summary Judgment. Arguments on motion heard and taken under advisement. Opinion forthcoming. (Court Reporter: Lisa Moreira) (zjd) (Entered: 12/12/2018)
2018-12-1723MEMORANDUM OPINION AND ORDER denying Defendant's Motion 16 for Summary Judgment. Signed by Judge Christopher R. Cooper on 12/17/2018. (lccrc2) Modified on 12/17/2018 (lsj). (Entered: 12/17/2018)
2018-12-17Set/Reset Deadlines: Defendant's declaration due by 12/24/2018. Plaintiff's reply due by 1/9/2019. (lsj) (Entered: 12/17/2018)
2018-12-2624MOTION to Stay in Light of Lapse of Appropriations by GENERAL SERVICES ADMINISTRATION (Hendry, Melanie) (Entered: 12/26/2018)
2018-12-27MINUTE ORDER granting 24 Defendant's Motion to Stay. All deadlines in the case shall be stayed pending renewed funding. Signed by Judge Christopher R. Cooper on 12/27/2018. (lccrc2) (Entered: 12/27/2018)
2019-02-01MINUTE ORDER: In light of the restoration of appropriations, the stay in this case is lifted. The parties shall provide a joint status report on or before February 8, 2019, which shall include a proposed schedule for future proceedings. Signed by Judge Christopher R. Cooper on 2/1/2019. (lccrc2) (Entered: 02/01/2019)
2019-02-05Set/Reset Deadlines: Joint Status Report due by 2/8/2019 (lsj) (Entered: 02/05/2019)
2019-02-0725Joint STATUS REPORT by GENERAL SERVICES ADMINISTRATION. (Hendry, Melanie) (Entered: 02/07/2019)
2019-02-07MINUTE ORDER: In light of the parties' 25 joint status report, the following deadlines shall apply: Defendant's declaration regarding the "Findings and Determination" document is due on or before February 15, 2019; Plaintiff's deadline to file its response to the declaration is due on or before March 1, 2019; and the parties' next status report, which should update the Court on the status of production, is due on or before March 11, 2019. Signed by Judge Christopher R. Cooper on 2/7/2019. (lccrc2) (Entered: 02/07/2019)
2019-02-07Set/Reset Deadlines: Defendant's declaration regarding the "Findings and Determination" document is due on or before 2/15/2019. Responses due by 3/1/2019. Status Report due by 3/11/2019. (znbn) (Entered: 02/08/2019)
2019-02-1426NOTICE of Filing of Declaration by GENERAL SERVICES ADMINISTRATION (Attachments: # 1 Declaration of Joel T. Berelson)(Hendry, Melanie) (Entered: 02/14/2019)
2019-02-2527RESPONSE re 26 Notice (Other) Declaration of Joel T. Berelson filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Exhibit A)(Weismann, Anne) (Entered: 02/25/2019)
2019-03-0528MEMORANDUM OPINION AND ORDER denying Defendant's motion for summary judgment with respect to the Findings and Determination document. Signed by Judge Christopher R. Cooper on 3/5/2019. (lccrc2) (Entered: 03/05/2019)
2019-03-0829Joint STATUS REPORT by GENERAL SERVICES ADMINISTRATION. (Hudak, Brian) (Entered: 03/08/2019)
2019-03-08MINUTE ORDER: In light of 29 the parties' joint status report, the Defendant shall provide to Plaintiff and to the Court a supplemental declaration on or before March 22, 2019. Furthermore, the parties shall file an updated joint status report on or before April 8, 2019. Signed by Judge Christopher R. Cooper on 3/8/2019. (lccrc2) (Entered: 03/08/2019)
2019-03-11Set/Reset Deadlines: Supplemental Declaration due by 3/22/2019. Joint Status Report due by 4/8/2019. (lsj) (Entered: 03/11/2019)
2019-03-2230RESPONSE TO ORDER OF THE COURT re Order, filed by GENERAL SERVICES ADMINISTRATION. (Attachments: # 1 Declaration)(Hendry, Melanie) (Entered: 03/22/2019)
2019-04-0531Joint STATUS REPORT by GENERAL SERVICES ADMINISTRATION. (Hendry, Melanie) (Entered: 04/05/2019)
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