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Case 1:15-cv-01979-RJL Document 13 Filed 07/01/16 Page 1 of 7

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA
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Plaintiffs,
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v.
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Civil Action No. 15-1979 (RJL)
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DEPARTMENT OF STATE
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Defendant.
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MEMORANDUM IN OPPOSITION TO DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
THE DAILY CALLER
NEWS FOUNDATION, et al.

Plaintiffs The Daily Caller News Foundation and Richard Pollock (hereinafter
referred to jointly as Daily Caller) brought this action under the Freedom of
Information Act (FOIA) in order to secure the release of documents improperly
withheld by federal defendant Department of State (Defendant). Presently before this
Court for consideration is the Defendants Motion for Summary Judgment (Defendants
Motion).
The present motion is strictly limited to whether the Defendant conducted a legally
adequate search for responsive records. The Defendant argued that it searched the three
offices reasonably likely to contain responsive records and produced, whether in whole or
in part, the eleven (11) responsive records located by those searches. Contrary to the
Defendants claim that it has therefore met its legal requirements under FOIA, Daily
Caller will demonstrate that there remains genuine issues of material fact in dispute that
precludes awarding summary judgment at this time.
Therefore, this Court should deny the Defendants Motion.

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FACTUAL BACKGROUND
The factual and procedural background at issue in this proceeding is largely set out in
detail in the Defendants Statement of Undisputed Material Facts in Support of its Motion
for Summary Judgment (Dkt. No. 12-3)(filed June 3, 2016)(Statement of Material
Facts), which is incorporated herein by reference. 1 Daily Caller will not further burden
this Court with a recitation of the factual background to the FOIA request it submitted.
ARGUMENT
I. STANDARD OF REVIEW
Summary judgment pursuant to FRCP 56 should be awarded to a movant if the
pleadings, the discovery and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c). In evaluating the appropriateness of
summary judgment, the Court must view the evidence in the light most favorable to the
non-moving party, Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006), accepting the
non-moving partys evidence as true and drawing all justifiable inferences in the
nonmoving partys favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
However, the Court need not rely on any conclusory allegations unsupported by factual
data, Pub. Citizen Health Research Group v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999)
(internal quotation marks and citations omitted), and should only find that there is a
genuine issue for trial where there is sufficient evidence favoring the nonmoving party
for a jury to return a verdict for that party. Anderson, 477 U.S. at 249 (citation omitted).

The factual statements made in the Defendants Statement of Material Facts are
incorporated only to the extent that they do not constitute legal characterizations and
conclusions.
1

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The mere existence of some alleged factual dispute between the parties will not defeat
summary judgment; the requirement is that there is no genuine issue of material fact.
See Holcomb, 433 F.3d at 895 (internal quotation marks and citations omitted). A fact is
material if a dispute over it might affect the outcome of a suit under governing law;
factual disputes that are irrelevant or unnecessary do not affect the summary judgment
determination. Anderson, 477 U.S. at 248. An issue is genuine if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party. Id. If there are no
genuine issues of material fact, the moving party is entitled to judgment as a matter of
law if the nonmoving party fails to make a showing sufficient to establish the existence
of an element essential to that partys case, and on which that party will bear the burden
of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
II. THIS COURT SHOULD DENY SUMMARY JUDGMENT TO THE
DEFENDANT OR, ALTERNATIVELY, AUTHORIZE LIMITED
DISCOVERY PRIOR TO MAKING A DECISION ON SUMMARY
JUDGMENT
[A]n agency responding to a FOIA request must conduct a search reasonably
calculated to uncover all relevant documents, and, if challenged, must demonstrate
beyond material doubt that the search was reasonable. Truitt v. Dept of State,
897 F.2d 540, 542 (D.C. Cir. 1990); see also Weisberg v. Dept of Justice,
745 F.2d 1476, 1485 (D.C. Cir. 1984)([T]he issue to be resolved is not whether there
might exist any other documents possibly responsive to the request, but rather whether
the search for those documents was adequate.)(emphasis in original). However, an
agency may not ignore what it cannot help but know when faced with a lead so
apparent that the [agency] cannot in good faith fail to pursue it. Kowalczyk v. Dept of
Justice, 73 F.3d 386, 389 (D.C. Cir. 1996).

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A search must be conducted in good faith using methods that are likely to produce the
information requested. See Campbell v. Dept of Justice, 164 F.3d 20, 27 (D.C. Cir.
1998). While there is no requirement that an agency search every record system, the
agency cannot limit its search to only one record system if there are others that are likely
to turn up the information requested. Jefferson v. Dept of Justice, 168 F. Appx 448,
450 (D.C. Cir. 2005)(internal quotation and alteration omitted), quoting Oglesby v. Dept
of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990); see also Hemenway v. Hughes, 601 F.
Supp. 1002, 1005 (D.D.C. 1985)(finding that an agency may not read [a] request so
strictly that the requester is denied information the agency well knows exists in its files,
albeit in a different form from that anticipated by the requester.). Agency affidavits, for
their part, must set forth search terms and the type of searches performed. Oglesby,
920 F.2d at 68.
The Defendant provided a declaration from Eric F. Stein (Stein Declaration),
outlining how searches were conducted of the Foreign Service Institute (FSI) and the
Bureau of Diplomatic Security (DS). See Declaration of Eric F. Stein at 10
(Dkt. No. 12-2)(dated June 3, 2016)(Stein Decl.). The Stein Declaration stated that
State concluded only certain databases contained within FSI and DS were reasonably
likely to contain responsive records, and explained that searches of those particular
databases using officials names and unique numeric identifiers were conducted.
Stein Decl. at 10, 12, 17. 2

The Stein Declaration notes that the Bureau of Information Resource Management
indicated that it was not responsible for maintaining the types of records responsive to
Daily Callers request. Stein Decl. at 14.
2

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The Stein Declaration, by its own language, demonstrates how State failed to meet its
legal obligations to conduct an adequate search. The Stein Declaration indicates that State
did not even contemplate the possibility that responsive records could be located on
individual-specific hard drives and/or shared drives utilized by any of the specific senior
State officials during their respective tenures at State. Is State saying that the only
locations in which this paperwork could ever have been stored were the office-specific
(and apparently by no means central) databases specifically referenced in the Stein
Declaration? How did it determine that? Would those office-specific databases routinely
retain and encompass information also separately stored on individual officials hard
drives or shared drives? Are agency officials not provided with a courtesy copy of the
certifications confirming their respective completion of mandatory training courses? See
Declaration of Bradley P. Moss at 3 (dated July 1, 2016)(Moss Decl.), attached as
Exhibit 1.
These are all reasonable questions seeking material information that was not
addressed by the Stein Declaration and which justifies denying summary judgment at this
time. See Wadelton v. Dept of State, 106 F. Supp. 3d 139, 146-47 (D.D.C. 2015)
(denying summary judgment due to unresolved questions regarding why State only
searched files of certain officials and not others); see also Campbell, 164 F.3d at 28
(rejecting agency argument that the weight of authority justified refusing to supplement
a central database search when evidence indicated responsive records might be located in
other systems); ACLU v. FBI, 2013 U.S. Dist. LEXIS 93079, *9-*14 (N.D. Cal. July 1,
2013)(finding that the agencys affidavit made only conclusory assertions that the
systems searched were most likely to contain responsive records and ordering the agency

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to submit supplemental affidavits providing the court with a basis to evaluate whether its
decision to not search additional databases was reasonable). Compare with Truthout v.
Dept of Justice, 968 F. Supp. 2d 32, 37 (D.D.C. 2013)(denying reconsideration because
agency affidavits had clarified that the central database searched would have identified
responsive records contained on shared drives if they existed).
Seeking answers to Daily Callers questions is also reasonably likely to result in the
location of additional responsive records. Noticeably absent from the documentation
produced by State was any record memorializing completion of a single mandatory
security and/or Information Technology training course by either former Secretary of
State Hillary Clinton (Secretary Clinton) or former Deputy Chief of Staff Huma
Abedin (Ms. Abedin). Although some documentation was produced memorializing
completion of those mandatory courses by former Chief of Staff Cheryl Mills and former
Deputy Chief of Staff Jacob Jake Sullivan for certain years, that documentation did not
encompass the entirety of their respective tenures at State. Given that it was mandatory
for all State employees to complete those training courses on an annual basis, where are
the other records? Why are there no records for either Secretary Clinton or Ms. Abedin at
all? See Moss Decl. at 4.
If may ultimately come to pass that summary judgment will be justified but that time
is not now. Indeed, Daily Caller is contemporaneously filing a Cross-Motion for
Discovery seeking information that would resolve the very questions outlined above. It
would be well within this Courts discretion, as outlined in detail in that separate motion,
to authorize that limited discovery prior to adjudicating the Defendants Motion.

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CONCLUSION
For the foregoing reasons, the Defendants Motion for Summary Judgment should be
denied.
Date: July 1, 2016

Respectfully submitted,
/s/
________________________
Bradley P. Moss, Esq.
D.C. Bar #975905
Mark S. Zaid, Esq.
D.C. Bar #440532
Mark S. Zaid, P.C.
1250 Connecticut Avenue, N.W.
Suite 200
Washington, D.C. 20036
(202) 454-2809
(202) 330-5610 fax
Brad@MarkZaid.com
Mark@MarkZaid.com