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Judicial Watch • JW v FBI Strzok memo 02582

JW v FBI Strzok memo 02582

JW v FBI Strzok memo 02582

Page 1: JW v FBI Strzok memo 02582

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Number of Pages:11

Date Created:March 11, 2019

Date Uploaded to the Library:March 12, 2019

Tags:02582, Strzok memo and order 02582, Hardy, memo, Mueller, agent, bureau, Special, Strzok, search, AGENCY, Counsel, justice, Hillary Clinton, filed, request, document, records, FBI, FOIA, office


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Case 1:17-cv-02682-CRC Document Filed 03/11/19 Page
UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
Case No. 17-cv-02682 (CRC)
U.S. DEPARTMENT JUSTICE,
Defendant.
MEMORANDUM OPINION the spring 2017, former FBI Deputy Assistant Director Peter Strzok was assigned
join Special Counsel Robert Mueller investigation Russian interference the 2016
presidential election. Just few months later, Mueller removed the veteran counterintelligence
agent from the investigation and the FBI reassigned him its Human Resources Division.
Media outlets revealed why that December: Strzok had exchanged text messages with FBI
colleague suggesting potential bias against then-candidate Donald Trump.
Suspecting something was amiss, Plaintiff Judicial Watch, Inc. submitted Freedom
Information Act FOIA request the FBI August 2017 before news the texts broke
seeking records relating Strzok assignment and from the Mueller investigation. The FBI
responded producing all parts pages emails and withholding three other pages
based several overlapping FOIA exemptions. Dissatisfied with the Bureau response,
Judicial Watch sued. Both sides have now moved for summary judgment, focusing entirely
the adequacy the FBI records search. For the reasons that follow, the Court will deny the
government motion for summary judgment and grant Judicial Watch cross motion.
Background
Judicial Watch FOIA request asked for the following records:
Case 1:17-cv-02682-CRC Document Filed 03/11/19 Page
Any and all records regarding, concerning, related the assignment FBI
Supervisor Peter Strzok the special counsel investigation led former
Director Robert Mueller.
Any and all records regarding, concerning, related the reassignment FBI
Supervisor Peter Strzok from the special counsel investigation another position
within the FBI.
This request includes, but not limited to, any and all forms SF-50 and/or SF-52, well any and all related records communication between any official,
employee, representative the FBI and any other individual entity.
Compl., ECF No. response, the FBI searched Agent Strzok personnel file and records maintained its
Human Resources Division and Central Records System. First Declaration David Hardy First Hardy Decl. ECF No. 7-1, 19, 21. These searches produced zero responsive
records. Id. The agency then searched Strzok email account using the terms assignment,
reassignment, and appointment conjunction with the phrase special counsel. Id. 22.
This search produced pages responsive emails and attachments mostly congratulatory
notes from colleagues and discussions about the logistics the transfer. Id. 25. The FBI
released all parts pages and fully withheld three. Id.
Judicial Watch filed suit December 2017 and both parties have now moved for
summary judgment. Judicial Watch challenges only the adequacy the FBI search. Judicial
Watch Mot. Summ. MSJ ECF No.
II.
Legal Standard
FOIA cases are typically resolved summary judgment. See Brayton Office U.S.
Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). Summary judgment appropriate there genuine dispute any material fact and the movant entitled judgment matter
law. Fed. Civ. 56(a).
Case 1:17-cv-02682-CRC Document Filed 03/11/19 Page
Under FOIA, government agencies must adequately search for responsive records.
Rodriguez U.S. Dep Def., 236 Supp. 26, (D.D.C. 2017). When FOIA requester
challenges the adequacy agency search, the agency must show beyond material doubt
that its search was reasonably calculated uncover all relevant documents. Ancient Coin
Collectors Guild U.S. Dep State, 641 F.3d 504, 514 (D.C. Cir. 2011)) (citation, quotation
marks omitted). Courts analyze the appropriateness the methods used the agency rather
than the fruits the search. Francis U.S. Dep Justice, 267 Supp. (D.D.C.
2017). Although requester must reasonably describe the records sought, agency also has
duty construe FOIA request liberally. Nation Magazine, Wash. Bureau U.S. Customs
Serv., F.3d 885, 890 (D.C. Cir. 1995) (alteration, citation, and quotation marks omitted).
More simply, while agencies need not turn over every stone, they must conduct good faith,
reasonable search those systems records likely possess requested records. Freedom
Watch, Inc. Nat Sec. Agency, 220 Supp. 40, (D.D.C. 2016) (quoting Cunningham
U.S. Dep Justice, Supp. 71, (D.D.C. 2014)). agency may prove the reasonableness its search through declaration
responsible agency official[.] Cunningham, Supp. 83. Agency declarations,
especially from individuals coordinating the search, are afforded presumption good faith,
which cannot rebutted purely speculative claims about the existence and discoverability
other documents. Freedom Watch, 220 Supp. (quoting SafeCard Servs., Inc.
SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)). Indeed, courts can award summary judgment
based solely agency affidavits and declarations that are relatively detailed and nonconclusory. Id. 45.
Case 1:17-cv-02682-CRC Document Filed 03/11/19 Page
III. Analysis
Judicial Watch challenges the adequacy the FBI search four grounds. First,
says the FBI failure uncover additional responsive documents facially implausible.
Second, claims the Bureau used unreasonably narrow electronic search terms. Third, argues
the agency should have searched the email accounts other FBI officials besides Agent Strzok.
And finally, challenges the FBI failure search certain electronic media used within the
agency, most notably text messages. For the reasons follow, the Court sides mainly with
Judicial Watch and will order the FBI conduct broader search. Facial Implausibility
Judicial Watch contends that, given the prominence Deputy Assistant Director
Strzok assignment and removal from the Mueller investigation, the paucity records
uncovered the search proves that the search was inadequate. This argument largely overlaps
with Judicial Watch complaint that the FBI search was too narrow, which the Court takes
below. The only separate point make here that courts generally consider the absence
responsive documents assessing the adequacy search only where the plaintiff points
particular document the agency should have, but failed to, disclose. See Citizens for
Responsibility Ethics Wash. U.S. Gen. Servs. Admin. CREW No. 18-cv-377, 2018 6605862, (D.D.C. Dec. 17, 2018) (Cooper, J.) (citing Iturralde Comptroller
Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)).
Here, Judicial Watch does point specific documents that were not uncovered the
search, but the FBI adequately explains why that was so. Judicial Watch specifically requested
Case 1:17-cv-02682-CRC Document Filed 03/11/19 Page
two government-wide personnel forms the SF-50 and SF-52 related Agent Strzok
appointment and reassignment, Compl. and argues that even form such SF-50 was
not created, other personnel paperwork must exist, MSJ But the FBI gives three
credible reasons why these forms similar documentation did not turn the search. First,
Strzok assignment and from the [Special Counsel Office] was considered job
assignment rather than formal personnel action and thus formal personal [sic] paperwork
was not required. FBI Opp ECF No. 11, (citing First Hardy Decl. 18). Second,
Special Counsel Mueller removed Agent Strzok from the investigation person and thus did not
document his decision. Id. And third, the FBI does not have access the Special Counsel
Office emails other records even that office did create responsive records. Id.
Agency declarations are afforded presumption good faith that cannot defeated speculative claims about the existence and discoverability other documents. Freedom
Watch, 220 Supp. (quoting SafeCard Servs., 926 F.2d 1200). Because Judicial
Watch offers reason doubt the FBI explanations for not locating those documents the
search, the presumption applies here. The Court declines invalidate the search simply because returned seemingly small number documents. Search Terms
Judicial Watch next argues that the FBI electronic records search was too narrow
because used only the key words special counsel and did not include Mueller. The agency
responds that properly exercised its discretion craft reasonable search concluding that
Standard Form Notification Personnel Action and the SF-52
Request for Personnel Action.
Case 1:17-cv-02682-CRC Document Filed 03/11/19 Page
any document containing Mueller was reasonably likely also include special counsel. The
Court not convinced. agency has duty construe FOIA request liberally. Nation Magazine, F.3d 890. This duty includes searching for synonyms and logical variations the words used the request, and prohibits agencies from fish[ing] myopically for direct hit the records
using only the precise phrasing the request. CREW, 2018 6605862, (quoting
Gov Accountability Project U.S. Dep Homeland Sec., 335 Supp. (D.D.C.
2018) (Cooper, J)). This Court has noticed pattern this type myopia plaguing FOIA
reviewers some our federal agencies. For example, CREW, which involved challenge the General Services Administration search for records concerning the FBI Edgar
Hoover headquarters building, the Court had order the agency expand its initial search
beyond the precise term used the request FBI headquarters include the oft-used
synonyms Hoover Building and JEH Building. Id. *5. Similarly, Bagwell U.S.
Department Justice, 311 Supp. 223 (D.D.C. 2018) (Cooper, J.), suit over documents
related the Penn State child sex abuse scandal, the Court required the Executive Office U.S.
Attorneys search for the vernacular terms Penn State and PSU addition the more
formal one Pennsylvania State University that appeared the FOIA request. Id. 229
30; see also Gov Accountability Project, 335 Supp. (likening the Department
Homeland Security FOIA search game Battleship because targeted only the precise
terms used the request). And this not new problem. See, e.g., Summers U.S. Dep
Justice, 934 Supp. 458, 461 (D.D.C. 1996) (requiring FBI use the search terms
appointment and diary commonly used terms describe the commitment calendars
requested the plaintiff).
Case 1:17-cv-02682-CRC Document Filed 03/11/19 Page
Here, too, the FBI search was overly cramped. Notwithstanding that Judicial Watch
request referred Mueller name, Compl. the Bureau searched only for the term special
counsel. But surely one would expect that Agent Strzok and other FBI personnel might use the
Special Counsel name Mueller rather than his title when discussing Strzok assignment the Russia investigation, especially informal emails. Another logical variation special
counsel its commonly used acronym SCO, which appears used within the Special
Counsel Office itself, reflected documents that the FBI uncovered and produced
Judicial Watch. See FOIA Production, ECF No. 9-2, 10; see also, e.g.,
Government Sentencing Memorandum United States Cohen, No. 18-cr-850-WHP
(S.D.N.Y. Dec. 2018), ECF No. 15. Tellingly, the government also uses the acronym SCO its briefing this case. See FBI MSJ, ECF No. FBI Opp The FBI failure
search for these obvious synonyms and logical variations ran afoul its obligation construe
FOIA requests liberally and conduct search reasonably likely produce all responsive
documents. must therefore conduct more thorough canvassing using these particular search
terms and any others that deems appropriate light the Court ruling. Email Accounts
Judicial Watch next complains that the FBI improperly limited its email search Agent
Strzok account, neglecting those other FBI personnel who may have independently
The Court rejects Judicial Watch alternative argument that the FBI could have instead
manually searched Strzok emails the days surrounding his assignment and reassignment. MSJ FOIA expressly permits agencies conduct automated searches using targeted
search terms rather than manual searches. U.S.C. 552(a)(3)(D). The key, however, that
those targeted searches must reasonably calculated capture responsive material. Freedom
Watch, Inc. Nat Sec. Agency, 783 F.3d 1340, 1345 (D.C. Cir. 2015). the Court has
concluded, the totality search terms used here were not.
Case 1:17-cv-02682-CRC Document Filed 03/11/19 Page
discussed his assignment and removal. The Court again agrees with Judicial Watch that the
Bureau fell short its FOIA obligations this regard.
When agency receives FOIA request, must search all locations that are reasonably
likely contain responsive records. See Oglesby U.S. Dep Army, 920 F.2d 57, (D.C.
Cir. 1990). Here, Judicial Watch requested any and all records related Agent Strzok
assignment and reassignment from the Mueller investigation. Compl. And the request
specifically called for records communication between any official, employee,
representative the FBI and any other individual entity. Id. When came emails, the
FBI searched only Strzok account. Surely, however, other people within the Bureau are likely have discussed the assignment reassignment via email without having shared those
discussions with Strzok. Deputy Assistant Director Strzok was highly regarded
counterintelligence agent who had supervised the Bureau investigation into Hillary Clinton
use personal email server during her tenure Secretary State. The decision then
assign him investigate the Trump campaign likely generated discussion among FBI leadership well general interest within the agency. The same true for the extraordinary
circumstances that led his removal from the Mueller team and reassignment the agency
Human Resources Division. Common sense suggests that some this discussion likely took
place emails exchanged Agent Strzok supervisors and other FBI officials involved
those decisions.
The FBI defense its email search comes short. first contends that limiting the
search Strzok emails was eminently reasonable because was the named subject the
request. FBI Opp (citing Second Declaration David Hardy Second Hardy Decl.
ECF No. 12-1, 7). That misconstrues the request. While the subject matter the requested
Case 1:17-cv-02682-CRC Document Filed 03/11/19 Page
records was Strzok assignments, the request specifically called for any and all
communications among FBI personnel regarding the assignments. Because one would naturally
expect others have engaged those communications, including without looping Strzok,
was not reasonable (let alone eminently so) search only Agent Strzok emails.
The FBI also argues was not obligated expand the email search because the fruits
the search Agent Strzok account mere pages emails did not reveal leads that
others may have separately discussed his appointment reassignment. Id. (citing Second Hardy
Decl. 7). This argument conflates the agency obligation dig deeper when proper initial
search produces records that suggest other responsive records are likely exist places that
were not searched, with its duty design reasonably comprehensive search the first place.
The FBI failed the latter for the reasons explained above. Moreover, the purported absence leads Agent Strzok emails does not suggest the absence other responsive emails:
comes surprise that colleagues who communicated with Strzok about the assignment might
not indicate him that they were also communicating with others about the same topic.
Lastly, the Bureau asserts that its search the agency Central Records Systems CRS bolsters the reasonableness its email search. But the CRS search was limited
Strzok personnel file. First Hardy Decl. 21; Second Hardy Decl. Why searching
Strzok personnel file would likely turn communications discussing the assignment
(especially emails among other FBI personnel), the agency does not explain. The Court can
fathom reason.
The government doubt correct that the [agency] the best position
determine custodians most likely have relevant records. FBI Opp (quoting MSJ
4). But that truism and the deference that accompanies does not insulate search that
Case 1:17-cv-02682-CRC Document Filed 03/11/19 Page
overlooks locations where responsive materials are reasonably likely found. Because the
FOIA request here called for any and all correspondence involving discussions among FBI
personnel regarding Agent Strzok assignment and reassignment from the Mueller
investigation, and because one would reasonably expect that others besides Strzok exchanged
emails the topic, the agency erred confining its search Strzok email account.
Accordingly, the Court will order the agency conduct further email search. The search shall
include the email accounts any Agent Strzok superiors other Bureau officials who were
involved the decision assign him the Special Counsel Office the decision reassign
him the FBI Human Resources Division after his removal from the Mueller investigation.
The Court will leave the good graces the Bureau determine who those officials are. Other Electronic Systems
Finally, Judicial Watch challenges the FBI failure search other electronic
communications systems used Agent Strzok and his colleagues, such text messages, instant
messages, and personal email accounts. The search should have encompassed these other media,
Judicial Watch says, because undisputed that Strzok and his colleagues used variety
other electronic media conduct government business. MSJ (citing Office the
Inspector Gen., Dep Justice, Review Various Actions the Federal Bureau
Investigation and Department Justice Advance the 2016 Election 395 430 (June 2018),
https://www.justice.gov/file/1071991/download). While FBI personnel may have used such
other media, the Bureau counters that there indication that these systems are reasonably
likely contain records responsive Plaintiff specific FOIA request[.] FBI Opp The
Court disagrees, least with respect Agent Strzok documented use text messages. Given
that use, strikes the Court reasonably likely that discussed his assignment the Special
Case 1:17-cv-02682-CRC Document Filed 03/11/19 Page
Counsel Office text messages which again the standard for assessing agency
selection search locations. for other custodians whose email accounts the FBI will now
search pursuant this ruling, the Court will leave the Bureau determine the first
instance whether search other media warranted.
IV. Conclusion
For the foregoing reasons, the Court will deny the FBI motion for summary judgment
and will grant Judicial Watch cross motion. separate Order shall accompany this
Memorandum Opinion.
CHRISTOPHER COOPER
United States District Judge
Date: March 11, 2019