crew v. dod: regarding disa: 11/6/09 - document 25 (merged)

8/7/2019 CREW v. DOD: Regarding DISA: 11/6/09 - Document 25 (Merged)

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sufficient to establish the reasonableness of defendants electronic search for documents

predating October 2005. 9/29/09 Mem. Op. at 11 (emphasis in original). The Court,

however, denied Defendants motion for summary judgment with respect to the

reasonableness of its search for emails predating October 2005, because defendant has

failed to adequately respond to plaintiffs contention that to the extent [emails pre-dating

October 2005] are no longer maintained electronically, defendant [is] required to search

for paper copies of the emails. Id. The Court denied the motion without prejudice,

recognizing that defendants searches may have been adequate and may only suffer from

a lack of documentation. Id. at 12. Accordingly, pursuant to the Courts 9/29/09 Order

and Memorandum Opinion, Defendant is hereby filing as Exhibit 1 the Declaration of

Nancy L. Deitch (Deitch Decl.), Chief of Staff of the White House Communications

Agency (WHCA). The declaration describes the agencys search for paper copies of

responsive emails dated January 1, 2001 to October 31, 2005 and explains that no paper

copies of responsive emails for this period were located.

As set forth in the attached Declaration, the responsive email communications

that went into or out of the whmo.mil email system involve agency employees

communicating with White House personnel regarding the Presidents travel, logistical

and communication needs, rather than the formulation of policy or other matters of

ongoing operational value. Deitch Decl. 3. As a result, agency personnel concluded

that paper copies of emails responsive to Plaintiffs FOIA request would not have been

generated. Id. Therefore, a search was not originally conducted for paper copies of

emails responsive to Plaintiffs FOIA request. Id.

Case 1:07-cv-02003-EGS Document 25 Filed 11/06/2009 Pag


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Pursuant to the agencys administrative discretion, however, the agency recently

conducted a search for paper copies of emails from January 1, 2001 to October 31, 2005

that are responsive to Plaintiffs FOIA request. Specifically, on October 19, 2009, all

WHMO directors were instructed to ensure that their individual components conduct a

search for paper copies of emails dated January 1, 2001 through October 31, 2005 that

contain any one of the following email addresses: gwb43.com, rnchq.org, or

georgebush.com.2 Deitch Decl. 4. Directors were instructed to report on whether any

responsive emails were located by October 30, 2009. Id. All WHMO directors have now

confirmed that no paper copies of emails dated January 1, 2001 through October 31, 2005

containing the email addresses gwb43.com, rnchq.org, or georgebush.com were located. 3

Therefore, in light of the agencys recently concluded search for paper copies of

emails from January 1, 2001 to October 31, 2005, as well as this Courts prior conclusion

that the agencys electronic search for documents predating October 2005 was

reasonable, see 9/29/09 Mem. Op. at 11, Defendant renews its motion for summary

judgment with respect to the reasonableness of its search for documents predating

October 2005. SeeOglesby v. Dept of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)

(search adequate where agency show[s] that it made a good faith effort to conduct a

search for the requested records, using methods which can be reasonably expected to

Id.

2

As explained in the attached Declaration, WHCA, one of the operational units of the White

House Military Office (WHMO), maintains the whmo.mil email domain, which is used by

WHMO employees. Deitch Decl. 2.

3 Since WHCA is one of the operational units of WHMO, WHCA was included in the request to

search for paper copies of emails from January 1, 2001 to October 31, 2005. Id. at 2 n.1.



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produce the information requested.); see also Kidd v. DOJ, 362 F. Supp. 2d 291, 294

(D.D.C. 2005) (Kennedy, J.).

Finally, the Courts 9/29/09 Order also denied summary judgment without

prejudice with respect to Defendants withholding, pursuant to the deliberative process

privilege, of portions of an email communication identified in Group 11 of Defendants

Vaughn index. See 9/29/09 Order. The Court upheld all of Defendants remaining

withholdings challenged by Plaintiff. Id. Pursuant to the agencys administrative

discretion, Defendant has produced a copy of the email identified in Group 11 to Plaintiff

without the redactions that were previously made pursuant to the deliberative process

privilege. See Ex. 2: 11/6/09 Email from Nicholas Cartier to Scott Hodes of CREW,

attaching email in Group 11. Therefore, this email is no longer in dispute between the

parties.

CONCLUSION

For the foregoing reasons, Defendant respectfully requests that this Court grant its

Renewed Motion for Summary judgment with Respect to the Adequacy of its Search for

Emails Predating October 2005, and further find that the dispute between the parties with

respect to the email identified in Group 11 of Defendants Vaughn index is moot.

Dated: November 6, 2009 Respectfully submitted,

TONY WEST

Assistant Attorney General

JOHN R. TYLER

Assistant Branch Director

/s/ Nicholas CartierNICHOLAS CARTIER



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(D.C. Bar # 495850)

Trial Attorney, Civil Division,Federal Programs Branch

United States Department of Justice

20 Mass. Ave., N.W., Room 7224

Washington, D.C. 20044Tel: (202) 616-8351

Facsimile: (202) 616-8470Email: [email protected]

Counsel for Defendant

CERTIFICATE OF SERVICE

I hereby certify that on November 6, 2009, a copy of the foregoing pleading was

filed electronically via the Courts ECF system, through which a notice of filing will be

sent to all counsel of record.

/s/ Nicholas Cartier

NICHOLAS CARTIER



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