Case Detail

FOIA Project Annotation: Judge Emmet Sullivan has affirmed the recommendation of Magistrate Judge G. Michael Harvey in a case involving a FOIA request from Democracy Forward Foundation to the Executive Office for U.S. Attorneys for records concerning the agency's connection with the Trump transition team. On June 2, 2017, DFF submitted a FOIA request to EOUSA for communications sent to or from 67 named members of the Trump Transition Team between November 9, 2016 and January 21, 2017. The agency located a document called the Briefing Book Transition team which it deemed responsive. The agency disclosed 129 pages in full and 20 pages in part to DFF. The agency indicated that a December 2, 2016 meeting was the only time agency staff met with the transition team. The case was referred to Harvey, who recommended that the court deny DOJ's motion for summary judgment. Both parties objected to portions of Harvey's report. DFF challenged the adequacy of the agency's search. EOUSA contended that the agency only met one time with the transition team in December 2016 and that the only responsive document was the briefing book. Sullivan indicated that "the agency considered the scope of Democracy Forward's request â€" all communications between the named Transition Team members and EOUSA â€" and reasonably determined that the only records likely to exist are authorized communications. Indeed, DOJ admits in its briefing that EOUSA understood that is was to search for all communications. The briefing, bolstered by [the agency's] affidavits adequately explains the agency found it likely that only authorized communications exist and confined its search accordingly." Sullivan observed that "here, the affidavits state that only authorized communications and no other communications are likely to exist." DFF insisted non-authorized communications must exist because former President Donald Trump had fired 46 U.S. Attorneys and was trying to block various investigations of him. But Sullivan noted that "whatever evidence there may be of other illegal activity, that evidence does not provide enough support for the charge that EOUSA possesses unauthorized communications â€" particularly in the face of EOUSA's declarations to the contrary." DFF also contended that EOUSA had improperly limited its search to a single records system. Sullivan, however, pointed out that "at base, Democracy Forward speculates â€" based on other actions of the Transition Team and other investigations â€" that there may be unauthorized communications between EOUSA and certain members of the Transition Team. But under FOIA, the Court assesses whether the agency's search 'can be reasonably expected to produce the information requested' and 'will prohibit the agency from limiting its search to only one record system if there are others that are likely to turn up the information requested.' Democracy Forward has not shown that EOUSA's search was unreasonably limited or that other EOUSA employees were likely to have responsive records." However, Harvey found that EOUSA had failed to search the emails of participants in the December 2016 meeting. As part of its search, the attorney responsible for searching the records had only spoken to individuals who participated and was told that they had no further records. Sullivan noted that the responsible attorney "at no point claims that he or any of the other meeting participants performed any search of their own records to support their representations. Although the Court presumes good faith here, FOIA still requires that the agency conduct some search and forbids it from relying on 'professed personal knowledge that no responsive records exist.'" Sullivan ordered EOUSA to supplement the record to better explain the adequacy of its search.
Issues: Adequacy - Search

Date Filed	Doc #	Docket Text
2017-09-13	1	COMPLAINT against UNITED STATES DEPARTMENT OF JUSTICE ( Filing fee $ 400 receipt number 0090-5114331) filed by DEMOCRACY FORWARD FOUNDATION. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons)(Perryman, Skye) (Entered: 09/13/2017)
2017-09-13	2	NOTICE of Exhibits by DEMOCRACY FORWARD FOUNDATION re 1 Complaint, (Perryman, Skye) (Entered: 09/13/2017)
2017-09-13	3	NOTICE of Substitution of Summonses by DEMOCRACY FORWARD FOUNDATION (Perryman, Skye) (Entered: 09/13/2017)
2017-09-13		Case Assigned to Judge Emmet G. Sullivan. (md) (Entered: 09/15/2017)
2017-09-15	4	STANDING ORDER: The parties are directed to read the attached Standing Order Governing Civil Cases Before Judge Emmet G. Sullivan in its entirety upon receipt. The parties are hereby ORDERED to comply with the directives in the attached Standing Order. Signed by Judge Emmet G. Sullivan on 09/15/17. (Attachment: # 1 Exhibit 1) (mac) (Entered: 09/15/2017)
2017-09-18	5	SUMMONS (3) Issued Electronically as to UNITED STATES DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice of Consent) (md) (Entered: 09/18/2017)
2017-10-06	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 9/25/2017. (Attachments: # 1 Declaration of Benjamin J. Link)(Perryman, Skye) Modified on 10/10/2017 (znmw). (Entered: 10/06/2017)
2017-10-06	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 9/22/2017. ( Answer due for ALL FEDERAL DEFENDANTS by 10/22/2017.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF JUSTICE served on 9/25/2017. (See Docket Entry 6 to view document). (znmw) (Entered: 10/10/2017)
2017-10-23	8	ANSWER to Complaint by UNITED STATES DEPARTMENT OF JUSTICE.(Westmoreland, Rachael) (Entered: 10/23/2017)
2017-10-24		MINUTE ORDER. Plaintiff brings this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. The parties are directed to meet and confer and propose a joint scheduling order for further proceedings in this case by no later than November 20, 2017. The parties' joint proposed scheduling order shall address the following: (1) The status of plaintiff's FOIA request; (2) The anticipated number of documents responsive to plaintiff's FOIA request; (3) The anticipated date(s) for release of documents responsive to plaintiff's FOIA request; (4) Whether a motion for an Open America stay is likely in this case; (5) Whether a Vaughn index will be required in this case; (6) Whether this case would benefit from referral to a magistrate judge or the District Court Mediation Program for purposes of settlement; and (7) A proposed briefing schedule for dispositive motions, if applicable. If the parties are unable to agree on a joint recommendation, the joint proposed scheduling order shall include each party's individual recommendations. Signed by Judge Emmet G. Sullivan on October 24, 2017. (lcegs2) (Entered: 10/24/2017)
2017-10-25		Set/Reset Deadlines: Joint Scheduling Order Or Each Party's Individual Recommendations due by 11/20/2017. (mac) (Entered: 10/25/2017)
2017-11-20	9	PROPOSED BRIEFING SCHEDULE Proposed Scheduling Order by UNITED STATES DEPARTMENT OF JUSTICE. (Westmoreland, Rachael) Modified event title on 11/21/2017 (znmw). (Entered: 11/20/2017)
2017-11-22		MINUTE ORDER. In view of 9 the parties' joint status report, the parties are directed to comply with the following briefing schedule: defendant's motion for summary judgment shall be filed by no later than January 19, 2018; plaintiff's combined opposition and cross-motion for summary judgment shall be filed by no later than February 16, 2018; defendant's reply and opposition to plaintiff's cross-motion shall be filed by no later than March 16, 2018; and plaintiff's reply in support of its motion shall be filed by no later than April 6, 2018. Signed by Judge Emmet G. Sullivan on November 22, 2017. (lcegs2) (Entered: 11/22/2017)
2017-11-22		Set/Reset Deadlines: Summary Judgment motions due by 1/19/2018. Response to Motion for Summary Judgment due by 2/16/2018. Reply to Motion for Summary Judgment due by 3/16/2018. Replies due by 4/6/2018. (znbn) (Entered: 11/22/2017)
2018-01-19	10	MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Statement of Facts, # 2 Memorandum in Support, # 3 Exhibit Jolly Declaration, # 4 Exhibit Wong Declaration, # 5 Text of Proposed Order)(Westmoreland, Rachael) (Entered: 01/19/2018)
2018-02-14	11	Unopposed MOTION for Extension of Time to File Response/Reply as to 10 MOTION for Summary Judgment by DEMOCRACY FORWARD FOUNDATION (Attachments: # 1 Text of Proposed Order)(Perryman, Skye) (Entered: 02/14/2018)
2018-02-15		MINUTE ORDER granting 11 plaintiff's consent motion for an extension of time. Plaintiff's opposition to defendant's motion for summary judgment, combined with its cross-motion for summary judgment, shall be filed by no later than February 27, 2018. Defendant's combined reply and opposition to plaintiff's cross-motion shall be filed by no later than March 22, 2018. Plaintiff's reply in support of its cross-motion shall be filed by no later than April 5, 2018. Signed by Judge Emmet G. Sullivan on February 15, 2018. (lcegs2) (Entered: 02/15/2018)
2018-02-16		Set/Reset Deadlines: Plaintiff's Opposition To Defendant's Motion For Summary Judgment, Combined With Its Cross-Motion For Summary Judgment due by 2/27/2018. Defendant's Combined Reply And Opposition To Plaintiff's Cross-Motion due by 3/22/2018. Plaintiff's Reply In Support Of Its Cross-Motion due by 4/5/2018. (mac) (Entered: 02/16/2018)
2018-02-27	12	RESPONSE re 10 MOTION for Summary Judgment filed by DEMOCRACY FORWARD FOUNDATION. (Attachments: # 1 Statement of Facts PLAINTIFF'S STATEMENT OF MATERIAL FACTS IN OPPOSITION TO DEFENDANTS STATEMENT OF MATERIAL FACTS, # 2 Exhibit A, # 3 Text of Proposed Order)(Perryman, Skye) (Entered: 02/27/2018)
2018-03-22	13	REPLY to opposition to motion re 10 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF JUSTICE. (Westmoreland, Rachael) (Entered: 03/22/2018)
2018-03-22	14	NOTICE of Filing Properly Formatted Statement of Material Facts as to Which There Is No Genuine Issue by UNITED STATES DEPARTMENT OF JUSTICE (Westmoreland, Rachael) (Entered: 03/22/2018)
2018-04-16	15	NOTICE OF SUBSTITUTION OF COUNSEL by John T. Lewis on behalf of DEMOCRACY FORWARD FOUNDATION Substituting for attorney Skye L. Perryman (Lewis, John) (Entered: 04/16/2018)
2018-07-05		MINUTE ORDER. Pursuant to Local Civil Rule 72.3(a)(3), the Court hereby refers 10 defendant's motion for summary judgment to a magistrate judge for a report and recommendation. All proceedings before the Honorable Emmet G. Sullivan are hereby STAYED pending receipt of a report and recommendation. Signed by Judge Emmet G. Sullivan on July 5, 2018. (lcegs2) (Entered: 07/05/2018)
2018-07-07		CASE RANDOMLY REFERRED to Magistrate Judge G. Michael Harvey for report and recommendation. (zmd) (Entered: 07/09/2018)
2018-07-11		MINUTE ORDER STAYING CASE. In view of the referral of this matter to a magistrate judge for a report and recommendation, proceedings before Judge Emmet G. Sullivan are HEREBY STAYED.Signed by Judge Emmet G. Sullivan on 7/11/2018. (lcegs1) (Entered: 07/11/2018)
2019-08-29	16	REPORT AND RECOMMENDATION. Signed by Magistrate Judge G. Michael Harvey on 8/29/19. (lcgmh2) (Entered: 08/29/2019)
2019-09-06	17	Joint MOTION for Extension of Time to Object to Report and Recommendation by DEMOCRACY FORWARD FOUNDATION (Attachments: # 1 Text of Proposed Order)(Lewis, John) (Entered: 09/06/2019)
2019-09-19	18	OBJECTION to 16 Report and Recommendations filed by DEMOCRACY FORWARD FOUNDATION. (Lewis, John) (Entered: 09/19/2019)
2019-09-19	19	OBJECTION to 16 Report and Recommendations filed by UNITED STATES DEPARTMENT OF JUSTICE. (Westmoreland, Rachael) (Entered: 09/19/2019)
2019-10-03	20	RESPONSE re 19 Objection to Report and Recommendations filed by DEMOCRACY FORWARD FOUNDATION. (Lewis, John) (Entered: 10/03/2019)
2019-10-03	21	RESPONSE re 18 Objection to Report and Recommendation filed by UNITED STATES DEPARTMENT OF JUSTICE. (Westmoreland, Rachael) (Entered: 10/03/2019)
2019-10-10	22	REPLY re 21 Response to Document filed by DEMOCRACY FORWARD FOUNDATION. (Lewis, John) (Entered: 10/10/2019)
2019-10-31		MINUTE ORDER granting 17 joint motion for extension of time. The parties' objections are deemed timely filed. Signed by Judge Emmet G. Sullivan on 10/31/2019. (lcegs2) (Entered: 10/31/2019)
2022-11-23	23	MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on 11/23/2022. (lcegs2) (Entered: 11/23/2022)
2022-11-23	24	ORDER denying 10 Motion for Summary Judgment. Signed by Judge Emmet G. Sullivan on 11/23/2022. (lcegs2) (Entered: 11/23/2022)
2023-01-20	25	NOTICE of Defendant's Supplement to the Record by UNITED STATES DEPARTMENT OF JUSTICE re 24 Order on Motion for Summary Judgment (Attachments: # 1 Exhibit A- Declaration of Michelle D. Mullinix)(Westmoreland, Rachael) (Entered: 01/20/2023)
2023-02-10		ENTERED IN ERROR.....JUDGMENT in favor of Defendant against Plaintiff. Signed by Judge Emmet G. Sullivan on 2/10/2023. (lcegs1) (Entered: 02/10/2023)
2023-02-10	26	FINAL JUDGMENT in favor of Defendant against Plaintiff. Signed by Judge Emmet G. Sullivan on 2/10/2023. (lcegs1) (Entered: 02/10/2023)
2023-02-13	27	CLERK'S JUDGMENT in favor of U.S. Department of Justice against Democracy Forward Foundation on 02/13/23. (mac) (Entered: 02/13/2023)
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