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Judicial Watch • JW v DOJ Ohr report 00491

JW v DOJ Ohr report 00491

JW v DOJ Ohr report 00491

Page 1: JW v DOJ Ohr report 00491


Number of Pages:9

Date Created:May 30, 2018

Date Uploaded to the Library:June 01, 2018

Tags:00491, Fusion, Ohr, DOJ, FOIA

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Case 1:18-cv-00491-RBW Document Filed 05/29/18 Page
Case No. 18-00491 (RBW)
Plaintiff Judicial Watch, Inc. Judicial Watch and Defendant U.S. Department
Justice DOJ through counsel, respectfully submit the parties joint status report pursuant
the Court minute order May 15, 2018. The parties conferred telephone and email May
15, May and May but were not able reach consensus how proceed this matter.
Therefore, the parties submit their individual proposals below and state the following:
Plaintiff Proposal
Plaintiff Freedom Information Act FOIA request narrowly tailored and
seeks communications between the Office the Attorney General and third party, Fusion GPS
and its employee, Nellie Ohr (spouse former U.S. Associate Deputy Attorney General,
Bruce Ohr) from January 2015 December 12, 2017. See Compl., 5-6. around December 2017, Bruce Ohr was removed from his position
U.S. Associate Deputy Attorney General after was revealed that conducted undisclosed
meetings with dossier author Christopher Steel and Glenn Simpson, principal Fusion GPS (the
opposition research firm that hired Christopher Steel behalf The Democratic National
Committee DNC prior and after the 2016 Presidential Elections). See http://www.foxnews.
Case 1:18-cv-00491-RBW Document Filed 05/29/18 Page
com/politics/2017/12/07/top-doj-official-demoted-amid-probe-contacts-with-trump-dossierfirm.html (last accessed May 29, 2018).
According Defendant initial status report (ECF No. 10),1 and Defendant
proposal below, the DOJ proposes exclude the dates January 20, 2017 December 12,
2017 from its search. See infra, Defendant Proposal, see also Def. Status Rpt.,
(ECF No. 10). Plaintiff objects the DOJ unjustified limited search and requests that the
Court order Defendant undertake adequate search good faith. support its position, the DOJ points the fact that U.S. Attorney General
Jeff Sessions recused himself from the Russian investigation. See infra Even the
Attorney General recused himself from the investigation, the recusal did not occur until March
2017. See (last
accessed May 29, 2018). Moreover, the recusal does mean that other current and/or former
employees the Office the Attorney General did not fact communicate with Fusion GPS
and/or Nellie Ohr, whose husband held senior position the Justice Department until
December 2017. further evidence that the DOJ proposed search unjustified and
insufficient under FOIA, former Attorney General Sally Yates served the U.S. Attorney
General after January 19, 2017, who testified before the U.S. Congress the Russian
investigation and recusal was place. See (last accessed May 29, 2018); see also
Plaintiff did not have opportunity respond previously Defendant initial proposal. Plaintiff noted its May 11, 2018 status report that was not provided with Defendant position until after its filing. (ECF No.
Case 1:18-cv-00491-RBW Document Filed 05/29/18 Page
of-justice/index.html (last accessed May 29, 2018). Defendant attempts delay undertaking
search for responsive records through December 12, 2016 until after summary judgment briefing obvious attempt delay meeting its obligations under FOIA. the extent the DOJ wants prioritize its search for records from 2016 and
2015, Plaintiff does not object. See infra p.6. However, the extent that DOJ proposal
prioritize the search masked request bifurcate the search two phases and delay
second part the search until after production unknown volume records, Plaintiff
objects and asks that the Court order Defendant complete the entirety its search. See infra p.6. Defendant seeks delay completing its search until after production initial
search, its proposal will cause extraordinary delay and unnecessarily complicate this case.
Moreover, Defendant proposal exclude searching records from 2015 merely because was
publicly reported that Nellie Ohr worked for Fusion GPS 2016 does not alleviate the DOJ
from searching records from 2015. Defendant has the burden proof under FOIA and does not
provide basis exclude those records from its initial search. Defendant does not claim that
Nellie Ohr did not work for Fusion GPS 2015. More than six months have already passed
since DOJ received Plaintiff FOIA request December 2017 and Defendant has not even
begun its search. Any proposed bifurcation the search will only further unduly delay this case.
Finally, Defendant request for Plaintiff identify which custodians from 2015
and 2016 within the Office the Attorney General are reasonably likely possess
communications responsive Plaintiff request another attempt shift the burden proof
under FOIA. Id. asymmetrical relationship exists between Plaintiff, FOIA
requester, and Defendant, federal agency that obtains all records being sought, and Defendant
attempt shift the burden inappropriate under FOIA. See, e.g., Judicial Watch, Inc. Food
Case 1:18-cv-00491-RBW Document Filed 05/29/18 Page
and Drug Admin., 449 F.3d 141, 145-46 (D.C. Cir. 2006) (noting that the asymmetrical
distribution knowledge between the agency and the requestor FOIA litigation distorts the
traditional adversary nature our legal system form dispute resolution.
Plaintiff only seeks that the DOJ undertake good faith efforts conduct
reasonable search more expeditiously and produce all non-exempt, responsive records within
reasonable timeframe. Evidenced the parties differing positions this status report,
number issues surrounding Defendant search have already arisen.
Therefore, Plaintiff respectfully requests that the Court order status conference address these issues before the Court that further delay can avoided. addition,
Plaintiff respectfully submits that the Court order the parties abide the following schedule this case: Defendant Department Justice completes its entire search obligated under
FOIA from January 2015 December 12, 2017 for all responsive records
within three months (by August 29, 2019); and That the parties file joint status report two weeks thereafter with proposed
production schedule (by September 12, 2018).
Defendant Proposal issue this Freedom Information Act (FOIA) lawsuit Plaintiff Judicial Watch,
Inc. December 21, 2017 request Defendant, the United States Department Justice, seeking
the following records from January 2015 the present:2 Any and all records communication, including but not limited emails, text
messages and instant chats, between DOJ officials the Attorney General
Office and Fusion GPS employee contractor Nellie Ohr.
Although the request letter and complaint contained two-part search, the parts are identical. See Compl.
Case 1:18-cv-00491-RBW Document Filed 05/29/18 Page Any and all records communication, including but not limited emails, text
messages and instant chats, between DOJ officials the Attorney General
Office and Fusion GPS employee contractor Nellie Ohr. status report filed May 11, 2018, Defendant reported that had identified, date, least individuals who worked the Office the Attorney General from January 2015, January 19, 2017, but was not able determine which these individuals were reasonably
likely have communicated with Nellie Ohr, Fusion GPS, able narrow the list
custodians searched for records responsive the FOIA request. ECF No.
Defendant further explained that was able determine that the current Attorney General, and
those who worked for him, are not reasonably likely possess responsive records and therefore
was able limit its search the previous administration. Id. n.2. Defendant proposed that
the parties given additional time determine the parties could further limit the list
custodians searched order reduce the amount time that the search would take. Id. The Court granted that request, directing the parties file additional joint status report before May 29, 2018, regarding whether the parties are able reduce the number
custodians whose records are searched, and proposed schedule for further proceedings
this case. May 15, 2018 Minute Order.
Defendant has identified additional six individuals who worked the Office the
Attorney General from January 2015 January 19, 2017, bringing the total number 30.
Consistent with the Court order, Defendant sent Plaintiff list identifying these individuals,
with their titles where was possible identify them, and asked Plaintiff could identify
which individuals were reasonably likely possess communications responsive its request, effort narrow the list custodians searched. These discussions did not lead
agreement between the parties the appropriate schedule this case.
Case 1:18-cv-00491-RBW Document Filed 05/29/18 Page
Absent greater selectivity the part Plaintiff terms which custodians search,
Defendant plans search the records all custodians who worked for the Office the
Attorney General between January 2016, and January 20, 2017, subject the reservation that
Defendant would search for records dating back January 2015 the search established that
Ms. Ohr had been contact with the Attorney General office prior 2016. Defendant
currently estimates that this search will take six months complete. set forth Defendant
previous status report, when the number custodians searched was least 24, this
proposed timeframe due the number custodians records searched and the heavy
FOIA caseload DOJ Office Information Policy OIP (the office responsible for
processing FOIA requests for records the Office the Attorney General and five other
leadership offices), which has dramatically increased over the past two years. See ECF No.
2-3. May 29, 2018, OIP has received more than 2,264 requests for this fiscal year,
which puts OIP pace have another fiscal year with significantly more incoming requests
than its historical average about 1,200 per fiscal year. May 29, 2018, OIP has backlog 1,712 FOIA requests and processes requests first-in, first-out basis within three
processing tracks simple, expedited, and complex May 18, 2018 (the most recent
date for which such data available), the request issue here has 956 requests ahead the
complex track. OIP backlog also extends the search process, because most these other
complex track requests also require and are awaiting electronic searches. Additionally, OIP
currently engaged ongoing FOIA litigation matters nearly three-fold increase the past
two years. Many the FOIA litigation matters involve upcoming document production
schedules and court-ordered deadlines. Because this significant surge both FOIA requests
Case 1:18-cv-00491-RBW Document Filed 05/29/18 Page
and litigation matters, OIP under considerable strain its FOIA processing staff, which
currently consists ten employees, struggle keep with this notably increased workload. OIP must search the records dozens custodians over multiple years for this case,
the request will considered complex track request. Even though the search terms for the
request are limited, the process preparing this many custodians email accounts searched time-consuming and, light the many other FOIA requests and cases that OIP working
on, necessitates the six months that Defendant believes will need complete this search.
the Court imposes more burdensome production schedule, such the two-month schedule
proposed Plaintiff its prior status report, OIP would potentially forced reallocate
resources way that would deprive other FOIA requesters and litigants the timely production their documents. See Daily Caller U.S. Dep State, 152 Supp. (D.D.C. 2015) [T]he plaintiff effort accelerate review its requests necessarily will displace
processing priority those third parties who submitted equally urgent requests before the
The parties disagree whether search 2016 records should prioritized over
search for 2015 records. noted above, Plaintiff only aware reports that Ms. Ohr was
working for Fusion GPS 2016. Defendant takes the position that not reasonably likely
that anyone the Attorney General office possesses communication from Ms. Ohr prior
2016. Nonetheless, Defendant willing revisit this issue its search records from 2016
indicates otherwise. any event, the order which Defendant conducts its search record
systems for responsive records within its discretion responding Plaintiff FOIA request
and not properly before the Court for adjudication.
Case 1:18-cv-00491-RBW Document Filed 05/29/18 Page
Similarly, the parties dispute about whether search current administration officials
appropriate, which would course only increase the number custodians whose records are searched and increase the search time, not before the Court for resolution. The scope and
adequacy the search that Defendant conducts for responsive records (e.g., which custodians
believes are reasonably likely have responsive records, which search terms uses, any)
Defendant determination make and defend summary judgment, not when proposing
production schedule. Defendant position, which prepared defend summary judgment, that the current Attorney General, and those who worked for him, are not reasonably likely
possess responsive records because the current Attorney General has recused himself and his
office from matters related Russian interference the 2016 presidential election, the topic
which the request allegedly relates. See U.S. Dep Justice, Attorney General Sessions
Statement Recusal, Mar. 2017, Ms. Ohr husband worked the Office the Deputy Attorney General ODAG and Plaintiff has not requested records from ODAG.
Therefore, Defendant respectfully requests that the Court order the search
completed November 29, 2018, and the parties submit joint status report December
10, 2018, with proposed production schedule once Defendant knows the volume responsive
records processed.
Case 1:18-cv-00491-RBW Document Filed 05/29/18 Page
Respectfully submitted,
May 29, 2018
/s/Ramona Cotca
Ramona Cotca (D.C. Bar No. 501159)
425 Third Street S.W., Suite 800
Washington, 20024
(202) 646-5172
Acting Assistant Attorney General
United States Attorney
Assistant Branch Director
Counsel for Plaintiff
/s/Michael Gerardi
Michael Gerardi (D.C. Bar No. 1017949)
Trial Attorney
United States Department Justice
Civil Division, Federal Programs Branch Massachusetts Ave. NW, Room 7223
Washington, D.C. 20530
Tel: (202) 616-0680
Fax: (202) 616-8460
Counsel for Defendant