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Case TitleCITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON v. GENERAL SERVICES ADMINISTRATION
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2018cv02071
Date Filed2018-09-04
Date ClosedOpen
JudgeJudge Colleen Kollar-Kotelly
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 communications between GSA and the White House pertaining to the renovation of the FBI headquarters building. CREW also requested a fee waiver. The agency acknowledged receipt of the request and subsequently told CREW that its request for a fee waiver had been granted. However, after hearing nothing further from the agency, CREW filed suit.
Complaint issues: Litigation - Attorney's fees, Failure to respond within statutory time limit

DefendantGENERAL SERVICES ADMINISTRATION
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Opinion/Order [26]
FOIA Project Annotation: Judge Colleen Kollar-Kotelly has ruled that GSA failed to conduct an adequate search for emails exchanged between the White House and the agency pertaining to the decision to renovate FBI headquarters rather than relocate the agency to Springfield, Virginia. After CREW had filed suit based on the agency's failure to respond within the statutory time limits, the House Oversight Committee disclosed two emails responsive to CREW's request. On the same day the House Oversight Committee disclosed the emails, GSA told CREW that it had found no responsive records. The agency agreed to conduct a second search using terms and parameters suggested by CREW based on the language of the publicly disclosed emails. As a result of its second search, the agency located 52 pages of responsive records, but withheld them all under Exemption 5 (privileges). Three months later, the agency decided to release redacted versions of the 25 pages that had been withheld under the presidential communications privilege. CREW questioned the adequacy of the agency's second search. The agency argued that CREW had narrowed its request by suggesting the search terms based on the two disclosed emails. The agency argued that case law existed suggesting that when sophisticated requesters agreed to modifications during litigation, they had consciously narrowed their request. Kollar-Kotelly found the three cases the agency had cited were not relevant in the circumstances here. She pointed out that "here, the parties never agreed to narrow the issues in a written status report filed with the Court. Instead, following the failure of Defendant's initial search, Plaintiff merely sent an email suggesting search terms and parameters to Defendant based on the emails which has been released by the House Oversight Committee." She observed that "Plaintiff's mere proposal of search terms and parameters was insufficient to narrow the scope of Plaintiff's formally-made FOIA request. However, even if the Court were to conclude that Plaintiff's FOIA request was implicitly narrowed by its search proposal, Defendant has still failed to explain why its narrowed search did not discover at least two of the emails which the House Oversight Committee had released." GSA argued that one of the emails had not been found because it had an OMB domain address rather than a White House address. Kollar-Kotelly rejected that claim, noting that "Plaintiff's search parameters referenced any 'White House/EOP email address.' The use of a forward slash indicates that Plaintiffs intended to include any White House or EOP email address." The agency claimed that its failure to locate all responsive records did not necessarily mean that its search was insufficient. Kollar-Kotelly pointed out that "Plaintiff presented Defendant with documents responsive to its FOIA request prior to Defendant's supplemental search. Despite knowing of the existence of these responsive records, Defendant's search did not locate the responsive records. . .Such a failure leads the Court to conclude that Defendant's search was not reasonably calculated to discover all documents responsive to Plaintiff's request." She ordered the agency to conduct a supplemental search and indicated that she would rule on the Exemption 5 claims after such a search had taken place.
Issues: Adequacy - Search
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2018-09-041COMPLAINT against GENERAL SERVICES ADMINISTRATION ( Filing fee $ 400 receipt number 0090-5670096) 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: 09/04/2018)
2018-09-042LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Weismann, Anne) (Entered: 09/04/2018)
2018-09-04Case Assigned to Judge Colleen Kollar-Kotelly. (zsth) (Entered: 09/05/2018)
2018-09-053SUMMONS (3) Issued Electronically as to GENERAL SERVICES ADMINISTRATION, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice and Consent)(zsth) (Entered: 09/05/2018)
2018-09-074ORDER ESTABLISHING PROCEDURES FOR CASES ASSIGNED TO JUDGE COLLEEN KOLLAR-KOTELLY. Signed by Judge Colleen Kollar-Kotelly on 09/07/18. (DM) (Entered: 09/07/2018)
2018-09-175NOTICE of Appearance by Nikhel Sus on behalf of CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Sus, Nikhel) (Main Document 5 replaced on 9/20/2018) (ztd). (Entered: 09/17/2018)
2018-09-186RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 9/14/2018. Answer due for ALL FEDERAL DEFENDANTS by 10/14/2018. (Weismann, Anne) (Entered: 09/18/2018)
2018-09-187RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. GENERAL SERVICES ADMINISTRATION served on 9/13/2018 (Weismann, Anne) (Entered: 09/18/2018)
2018-09-188RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 9/14/18. (Weismann, Anne) (Entered: 09/18/2018)
2018-10-109NOTICE of Appearance by William Mark Nebeker on behalf of GENERAL SERVICES ADMINISTRATION (Nebeker, William) (Entered: 10/10/2018)
2018-10-16MINUTE ORDER: Plaintiff perfected service on Defendant on September 14, 2018. A government agency has thirty days from the date of service to answer a FOIA Complaint. 5 U.S.C.A. § 522(a)(4)(C). Defendant's Answer was due October 14, 2018. As of this date, the Court has not received Defendant's Answer. The Court ORDERS Defendant to file an Answer by OCTOBER 19, 2018. Signed by Judge Colleen Kollar-Kotelly on 10-16-2018. (lcckk3) (Entered: 10/16/2018)
2018-10-1710ANSWER to Complaint by GENERAL SERVICES ADMINISTRATION.(Nebeker, William) (Entered: 10/17/2018)
2018-10-1811ORDER. Signed by Judge Colleen Kollar-Kotelly on 10/18/2018. (lcckk3) (Entered: 10/18/2018)
2018-10-1812NOTICE Regarding Service by GENERAL SERVICES ADMINISTRATION (Nebeker, William) (Entered: 10/18/2018)
2018-10-18Set/Reset Deadlines: Joint Status Report due by 11/8/2018. (dot) (Entered: 10/22/2018)
2018-11-0813Joint STATUS REPORT by GENERAL SERVICES ADMINISTRATION. (Nebeker, William) (Entered: 11/08/2018)
2018-11-08MINUTE ORDER: The Court is in receipt of the parties' 13 Joint Status Report. The parties report that Defendant is presently reviewing the resulting records found during the search conducted pursuant to Plaintiff's FOIA request. Defendant's search recovered over 4,000 potentially responsive pages. Defendant anticipates producing responsive, non-exempt records by November 30, 2018. After releasing the records, Plaintiff will need time to review the records and to engage in discussions with Defendant, should any issues be unresolved. Accordingly, the court ORDERS the parties to file a Joint Status Report by DECEMBER 14, 2018, advising the Court whether further proceedings, including briefing, are warranted. If briefing is required, the parties are ordered to propose a briefing schedule in their Joint Status Report. Signed by Judge Colleen Kollar-Kotelly on 11/8/2018. (lcckk3) (Entered: 11/08/2018)
2018-11-08Set/Reset Deadlines: Joint Status Report due by 12/14/2018, advising the Court whether further proceedings, including briefing, are warranted. (dot) (Entered: 11/13/2018)
2018-11-1314NOTICE of Change of Address by Nikhel Sus (Sus, Nikhel) (Entered: 11/13/2018)
2018-12-1415Joint STATUS REPORT by GENERAL SERVICES ADMINISTRATION. (Nebeker, William) (Entered: 12/14/2018)
2018-12-17MINUTE ORDER: The Court is in receipt of the parties' 15 Joint Status Report. The parties report that Defendant has reviewed the records relating to Plaintiff's FOIA request but has withheld the responsive records in full pursuant to multiple FOIA exemptions. The parties are continuing to discuss ways to narrow the issues to be litigated or to eliminate the need for briefing altogether. Accordingly, the Court sets the following schedule. The parties are ORDERED to file another Joint Status Report on JANUARY 25, 2019, informing the Court of the parties' status on narrowing the issues for litigation. If required, the Court further ORDERS Defendant to file its motion for summary judgment by FEBRUARY 11, 2019 and Plaintiff to file its opposition to Defendant's motion and cross-motion for summary judgment by MARCH 4, 2019. The Court further ORDERS that Defendant file its combined reply and opposition by MARCH 25, 2019, and that Plaintiff file its reply by APRIL 8, 2019. Should the parties succeed in resolving this matter prior to the above-proposed deadlines, they are ORDERED to promptly advise the Court. Signed by Judge Colleen Kollar-Kotelly on 12/17/2018. (lcckk3) (Entered: 12/17/2018)
2018-12-17Set/Reset Deadlines: Plaintiff's Cross Motion due by 3/4/2019. Response to Cross Motion due by 3/25/2019. Reply to Cross Motion due by 4/8/2019. Defendant's Summary Judgment Motion due by 2/11/2019. Response to Motion for Summary Judgment due by 3/4/2019. Reply to Motion for Summary Judgment due by 3/25/2019. (dot) (Entered: 12/18/2018)
2019-01-2516Unopposed MOTION to Stay (Defendant's Motion to Stay Proceedings in Light of Lapse in Appropriations) by GENERAL SERVICES ADMINISTRATION (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 01/25/2019)
2019-01-28MINUTE ORDER: The court is in receipt of Defendant's 16 Unopposed Motion to Stay Proceedings in Light of Lapse in Appropriations. Defendant requests a Stay based on the lapse of appropriations to the Department of Justice. But, as appropriations to the Department have now been restored for at least three weeks, Defendant's motion to Stay is DENIED. Defendant also requests an extension on its deadline for filing its Joint Status Report, which was due on January 25, 2019. Defendant's motion for an extension is GRANTED. The parties are ORDERED to file a Joint Status Report by FEBRUARY 8, 2019, indicating how the parties intend to proceed and proposing a briefing schedule if necessary. Signed by Judge Colleen Kollar-Kotelly on 1/28/2019. (lcckk3) (Entered: 01/28/2019)
2019-01-28Set/Reset Deadlines: Joint Status Report due by 2/8/2019, indicating how the parties intend to proceed and proposing a briefing schedule if necessary. (dot) (Entered: 01/29/2019)
2019-02-0817Joint STATUS REPORT by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Sus, Nikhel) (Entered: 02/08/2019)
2019-02-08MINUTE ORDER: The court is in receipt of the parties' 17 Joint Status Report. The parties have conferred and propose a briefing schedule to resolve Defendant's determination that any material responsive to Plaintiff's request is exempt from FOIA. The Court ORDERS Defendant to file its Motion for Summary Judgment by MARCH 28, 2019, Plaintiff to file its Opposition and any Cross-Motion for Summary Judgment by APRIL 29, 2019, Defendant to file its Reply and Response to Plaintiff's Cross-Motion by MAY 23, 2019, and Plaintiff to file any Reply by JUNE 17, 2019. Signed by Judge Colleen Kollar-Kotelly on 2/8/2019. (lcckk3) (Entered: 02/08/2019)
2019-02-08Set/Reset Deadlines: Defendant's Summary Judgment Motion due by 3/28/2019. Response to Motion for Summary Judgment due by 4/29/2019. Reply to Motion for Summary Judgment due by 5/23/2019. Plaintiff's Cross Motion for Summary Judgment due by 4/29/2019. Response to Cross Motion for Summary Judgment due by 5/23/2019. Reply to Cross Motion for Summary Judgment due by 6/17/2019. (dot) (Entered: 02/11/2019)
2019-03-2818MOTION for Judgment on the Pleadings , MOTION to Dismiss , MOTION for Summary Judgment by GENERAL SERVICES ADMINISTRATION (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Declaration Lewis, # 4 Exhibit Vaughn Index, # 5 Text of Proposed Order)(Nebeker, William) (Entered: 03/28/2019)
2019-04-2919Cross MOTION for Summary Judgment by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Statement of Facts, # 10 Text of Proposed Order)(Sus, Nikhel) (Entered: 04/29/2019)
2019-04-2920Memorandum in opposition to re 18 MOTION for Judgment on the Pleadings MOTION to Dismiss MOTION for Summary Judgment filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Statement of Facts)(Sus, Nikhel) (Entered: 04/29/2019)
2019-05-1721Unopposed MOTION for Extension of Time to File Response/Reply as to 18 MOTION for Judgment on the Pleadings MOTION to Dismiss MOTION for Summary Judgment , 19 Cross MOTION for Summary Judgment by GENERAL SERVICES ADMINISTRATION (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 05/17/2019)
2019-05-20MINUTE ORDER: The court is in receipt of Defendant's 21 Unopposed Motion for an Enlargement of Time, and Memorandum in Support Thereof. This is Defendant's first Motion for an extension of time. Defendant's Opposition to Plaintiff's Cross-Motion for Summary Judgment and Reply to Plaintiff's Opposition to Defendant's Motion is currently due May 23, 2019. Defendant requests an extension of time due to the responsibilities in several other litigation matters. Defendant's Motion is GRANTED. Defendant's Opposition to Plaintiff's Cross-Motion for Summary Judgment and Reply to Plaintiff's Opposition to Defendant's Motion is due JUNE 12, 2019. The Court further ORDERS that Plaintiff's Reply is now due JULY 8, 2019. The Court expects no further requests for extensions due to other litigation commitments. Signed by Judge Colleen Kollar-Kotelly on 5/20/2019. (lcckk3) (Entered: 05/20/2019)
2019-05-20Set/Reset Deadlines: Defendant's Opposition to Plaintiff's Cross-Motion for Summary Judgment and Reply to Plaintiff's Opposition to Defendant's Motion is due 6/12/2019. Plaintiff's Reply due 7/8/2019. (dot) (Entered: 05/21/2019)
2019-06-1222Memorandum in opposition to re 19 Cross MOTION for Summary Judgment filed by GENERAL SERVICES ADMINISTRATION. (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 06/12/2019)
2019-06-1223REPLY to opposition to motion re 18 MOTION for Judgment on the Pleadings MOTION to Dismiss MOTION for Summary Judgment (same as ECF N0. 22) filed by GENERAL SERVICES ADMINISTRATION. (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 06/12/2019)
2019-07-0824REPLY to opposition to motion re , 19 Cross MOTION for Summary Judgment filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Exhibit 1)(Sus, Nikhel) Modified on 7/9/2019 (ztd). (Entered: 07/08/2019)
2019-07-2925ORDER denying without prejudice 18 Motion for Judgment on the Pleadings, Motion to Dismiss, and Motion for Summary Judgment; and granting in part and denying without prejudice in part 19 Motion for Summary Judgment. Signed by Judge Colleen Kollar-Kotelly on 7-29-2019. (lcckk3) (Entered: 07/29/2019)
2019-07-2926MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on 7-29-2019. (lcckk3) (Entered: 07/29/2019)
2019-07-29Set/Reset Deadlines: Defendant to file a Status Report prior to 9/5/2019, informing theCourt as to why the deadline cannot be met and proposing a new deadline. (dot) (Entered: 07/30/2019)
2019-09-0927Joint STATUS REPORT by GENERAL SERVICES ADMINISTRATION. (Nebeker, William) (Entered: 09/09/2019)
2019-09-09MINUTE ORDER: The court is in receipt of the parties' 27 Joint Status Report. Defendant indicates that it has completed a new search for responsive records which returned about 30,000 pages of potentially responsive documents. Defendant intends to search this set of materials by subject to ensure that it is relevant to Plaintiff's FOIA request. The parties agree that the search terms to be used to locate responsive materials are any of the following terms: "FBI," "Federal Bureau of Investigation," "Hoover," "Wray," "Rosenstein," or "Deputy AG." By September 27, 2019, Defendant will process at least 1,000 of the responsive pages and provide an initial release of documents. Defendant will also provide Plaintiff with details of its processing efforts. The parties are ORDERED to file a further Joint Status Report by OCTOBER 3, 2019, proposing further deadlines in this case, including deadlines for production, and, if necessary, further summary judgment briefing. Signed by Judge Colleen Kollar-Kotelly on 9-9-2019. (lcckk3) (Entered: 09/09/2019)
2019-09-09Set/Reset Deadlines: Joint Status Report due by 10/3/2019, proposing further deadlines in this case, including deadlines for production, and, if necessary, further summary judgment briefing. (dot) (Entered: 09/10/2019)
2019-10-0128MOTION for Extension of Time to Complete Processing of Certain Records by GENERAL SERVICES ADMINISTRATION (Attachments: # 1 Text of Proposed Order)(Nebeker, William) (Entered: 10/01/2019)
2019-10-01MINUTE ORDER: The court is in receipt of Defendant's 28 Motion for an Enlargement of Time, and Memorandum in Support Thereof. Defendant indicates that it requires an extension of ten days in order to complete the processing of 8 of the 1000 pages of materials that it had indicated a willingness to process by September 29, 2019. This extension is required so that the relevant documents can be reviewed by the Office of the White House. Defendant indicates that Plaintiff opposes an extension. The Court ORDERS Plaintiff to file a Response by noon on OCTOBER 2, 2019 indicating why an extension should not be granted so that the Office of the White House can complete its review of the documents. If no Response is filed, the Court will grant the extension. Signed by Judge Colleen Kollar-Kotelly on 10-1-2019. (lcckk3) (Entered: 10/01/2019)
2019-10-0129Memorandum in opposition to re 28 MOTION for Extension of Time to Complete Processing of Certain Records filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Sus, Nikhel) (Entered: 10/01/2019)
2019-10-02MINUTE ORDER: The court is in receipt of Defendant's 28 Motion for an Enlargement of Time, and Memorandum in Support Thereof. The Court has also considered Plaintiff's 29 Opposition to Defendant's Motion for Enlargement of Time. On September 9, 2019, based on the parties' agreed upon schedule, the Court ordered Defendant to process at least 1,000 responsive pages and provide an initial release of documents by September 27, 2019. When it became clear that Defendant would be unable to meet this deadline due to the Office of the White House's review of eight pages of documents, Defendant should have moved for an extension rather than waiting for prompting from Plaintiff's counsel. Despite Defendant's failure to properly move for an extension, the Court GRANTS Defendant's Motion. The Court ORDERS that Defendant shall complete the processing of the remaining pages and provide an initial release of documents by OCTOBER 11, 2019. If the Office of the White House has not completed its review of the eight pages of documents by October 11, 2019, Defendant SHALL release the eight pages to Plaintiff. By October 11, 2019, the Office of the White House will have had the eight pages of documents since September 19, 2019, for a total of 22 days. The Court finds that 22 days provides more than sufficient time to review eight pages of documents. Signed by Judge Colleen Kollar-Kotelly on 10-2-2019. (lcckk3) (Entered: 10/02/2019)
2019-10-0330Joint STATUS REPORT by GENERAL SERVICES ADMINISTRATION. (Nebeker, William) (Entered: 10/03/2019)
2019-10-0331Joint STATUS REPORT by GENERAL SERVICES ADMINISTRATION. (Nebeker, William) (Entered: 10/03/2019)
2019-10-03MINUTE ORDER: The court is in receipt of the parties' [30, 31] Joint Status Report. The parties report that Defendant has completed its search of records and will be able to review the remaining 29,000 pages within the next 60 calendar days and make productions to Plaintiff accordingly. The Court ORDERS the parties to file another Joint Status Report by DECEMBER 13, 2019 indicating how the parties would like to proceed. Signed by Judge Colleen Kollar-Kotelly on 10-3-2019. (lcckk3) (Entered: 10/03/2019)
2019-10-03Set/Reset Deadlines: Joint Status Report due by 12/13/2019, indicating how the parties would like to proceed. (dot) (Entered: 10/04/2019)
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