Judge Tells DOJ Lawyers That A Search For FOIA Docs Requires More Than Chatting With A Couple Of Employees

from the SEARCH-HARDER dept

Tue, Jul 19th 2016 8:44am — Tim Cushing

Jason Leopold is back in court (is he ever NOT there?) battling the NSA and the DOJ's Office of Legal Counsel (OLC) over the release of documents related to the NSA and FBI's surveillance of federal and state judges. The two parties had already been told to do more looking around for responsive records by Judge Tanya Chutkan, who rejected their original request for summary judgment last July.

The two agencies went back and performed another search. And still came up empty-handed.

Let me rephrase that: the two agencies went back and performed another "search." Here's what that "search" actually entailed, as described in the opinion [PDF].

The search that OLC ultimately conducted pursuant to the court’s July 2015 Memorandum Opinion and Order proceeded as follows:

[A]n OLC attorney asked an OLC Deputy Assistant Attorney General and an OLC Senior Counsel, both of whom are senior attorneys with long tenures in OLC (the Deputy Assistant Attorney General joined the Office in 1989; the Special Counsel joined the Office in 1998, departed for nine years in 2001, and rejoined the Office in 2010) and have close familiarity with OLC’s work on national security and surveillance matters, . . . whether they were aware of any classified or unclassified OLC projects concerning the “propriety of surveilling federal or state judges,” regardless of whether the project resulted in final legal advice. (Id. ¶¶ 6, 9).

“This inquiry yielded no responsive records.” (Id. ¶ 9).

According to the OLC, asking a couple of people if they've heard anything about a surveillance program is the same thing as actually searching its own files using keywords and phrases relevant to the subject matter.

In addition, the OLC claimed that actually searching for these documents would bring its slowly-moving FOIA machinery to a near halt.

Colborn avers that searching OLC’s paper files, the email files of departed OLC attorneys and the hard drives of departed users “likely would take several years and the diversion of resources from other FOIA requests,” which “would result in a dramatic increase in [OLC’s] FOIA processing backlog.”

Judge Chutkan didn't find either of these excuses persuasive. As for the OLC's claim that asking a few in-house lawyers about a surveillance program qualifies as a search for responsive documents, the judge had this to say:

The court agrees with Plaintiff, and finds that the senior attorneys’ responses to this inquiry do not provide sufficient basis to reasonably conclude either that OLC is unlikely to possess responsive records or that responsive records are unlikely to be found by a more in-depth search. Moreover, the court finds that asking all current OLC attorneys if they had, or were aware of, any draft legal memoranda or opinions relating to the propriety of surveilling federal or state judges – as was done here after Plaintiff filed his opposition brief – was also insufficient.

Judge Chutkan points out that there's way too much turnover in staff at the OLC to consider asking all current counsel whether or not they've heard of a program to be an adequate substitute for an actual records search. The latter method wouldn't be nearly so dependent on individuals' memory, or whether those who might be familiar with the surveillance program were still working for the agency.

As for its complaint about "diverted resources" and its FOIA processing backlog, the judge similarly has no sympathy.

The court finds that Defendants have not established that searching the email files of departed OLC attorneys would be unduly burdensome. While Colborn avers that it “likely would take several years and the diversion of resources from other FOIA requests” to search for responsive documents among OLC’s paper files, hard drives and emails, he does not break out the time and resources that would be required to search only the emails of departed OLC attorneys. (Id.). Given that these emails and their attachments can be searched using an eDiscovery tool without needing to open each email and its attachments individually, and in the absence of any representations from Colborn or any other declarant regarding the burden associated with running such searches separate and apart from searching OLC’s paper files and hard drives, Defendants have not demonstrated that doing so would constitute an undue burden.

So, for a second time, Judge Chutkan is forced to tell the OLC how to do its job.

Accordingly, the court hereby ORDERS OLC to use the Clearwell eDiscovery tool referenced in the Fourth Colborn Declaration to search the email files of departed OLC attorneys, as well as any attachments to those emails, for any draft legal memoranda or opinions relating to the propriety of surveilling federal or state judges.

Everyone seems to know what tools are available and how to use them… except the agency "responding" to the FOIA request. A search will finally be performed -- after two motions to dismiss, several misspent tax dollars, and an FOIA requester forced to use the court system to get an agency to do its job correctly.

NSA-FOIA-LEOPOLD (PDF)NSA-FOIA-LEOPOLD (Text)

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: doj, foia, jason leopold, searches

14 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

That One Guy (profile), 19 Jul 2016 @ 7:03am

"What's this 'power' button and how do you use it?"
A search will finally be performed -- after two motions to dismiss, several misspent tax dollars, and an FOIA requester forced to use the court system to get an agency to do its job correctly.

Yeah, I'm sure they'll get right on that search.

After they figure out how to turn on the computer(3 months)...

Scramble around to find their log-in credentials that they forgot(6 months)...

Are forced to go through a software update for some unrelated yet somehow critical pieces of software(2 months)...

Have to find the sticky-note that contains the password for the program itself(3 months)...

Send back for clarification as to the exact terms being requested to be searched for(5 months)...

Perform the search itself(6 months)...

Realize they somehow used the wrong terms during the search and have to ask again which terms are being requested(8 months)...

Finally culminating in being forced to tell the requester that no responsive documents for the terms they indicated have been found, followed by whining about how much effort it took, trying to shake the requester down for several million for 'costs', and informing them that if they would like to try again with a different set of terms they are welcome to start again from the very beginning.

There's absolutely no penalty for stonewalling requests like this, even if the one making the request gets a judge involved, so why would they ever do anything but drag it out in hopes that the other person will run out of money and/or give up in disgust?
[ link to this | view in thread ]
Anonymous Coward, 19 Jul 2016 @ 9:01am

Loophole in the judge's order
On prior passes, OLC (supposedly) inquired whether any currently on staff attorneys recalled any relevant documents, and got back negative responses. The judge's latest order instructs them to search the e-mails of former attorneys. Any current attorney's e-mail will not be searched under that order. Therefore, any documents handled by a current attorney, who may have forgotten the matter and thus legitimately returned a negative response on the prior "search" will not be found by this order, and were not found by the prior order.
[ link to this | view in thread ]
Jason, 19 Jul 2016 @ 9:07am

I think that if this is the standard method used by the DOJ to search for documents, organizations or individuals who are subject to DOJ investigation should be allowed to do it too.

Get a subpoena for document discovery in a DOJ investigation?

"Sorry, your honor, we asked a guy in the cafeteria and he didn't know of any files on this subject, and he's been here for over five years. No relevant results."
[ link to this | view in thread ]
Hans, 19 Jul 2016 @ 9:47am

PRISM or Upstream?
If only there were a government agency that monitored all communication and had the ability to search through years of stored data...
[ link to this | view in thread ]
DannyB (profile), 19 Jul 2016 @ 10:19am

Memo to all Janitorial staff
If you have any direct knowledge of any classified surveillance programs, please come forward to your manager or our legal department immediately.
[ link to this | view in thread ]
Berenerd (profile), 19 Jul 2016 @ 10:29am

"A search will finally be performed -- after two motions to dismiss, several misspent tax dollars, and an FOIA requester forced to use the court system to get an agency to do its job correctly."

Yeah right, they will use this time to come up with another excuse.
[ link to this | view in thread ]
Anonymous Coward, 19 Jul 2016 @ 10:33am

It's great that the judge isn't buying any of the DOJ's BS but simply re-ordering them to do a proper search isn't going to do much. The various govt agencies have shown little to no interest in actually complying even after being ordered to do so by a judge, there needs to be some serious reform of the FOIA system. Until that happens though there should be some actual punishments given by the judges including jail time, like there should be in this case. It probably won't do a whole lot in getting them to actually do something but there will be a real punishment for refusing to do your damn job unlike now.
[ link to this | view in thread ]
Anonymous Coward, 19 Jul 2016 @ 11:13am

The Order is dated July 11. How much do you want to bet that on July 12, the "Clearwell eDiscovery tool" got renamed so they didn't have to comply?
[ link to this | view in thread ]
Anonymous Coward, 19 Jul 2016 @ 11:19am

A judge orders the DOJ to do better when a FOIA request conerns the surveillance of judges. How could the DOJ think that they could go away with it?
[ link to this | view in thread ]
Anonymous Coward, 19 Jul 2016 @ 11:27am

Re: getting away with misconduct
This is not solely about getting away with it. It's also about stonewalling. They block anything that they would prefer not to share, even if they know at the outset that eventually it will get shared. If they can slow walk it long enough, then by the time it gets out, many people will not care. Anyone that still cares can be mocked for caring about "old news" on some project that "ended years ago" (by getting renamed), even though the public release of sordid details of that project is recent news.
[ link to this | view in thread ]
Anonymous Coward, 19 Jul 2016 @ 12:36pm

Put it on the web and let the crowd do your job.
[ link to this | view in thread ]
Unanimous cowword, 19 Jul 2016 @ 3:45pm

Will this man damn us?
Will this man damn us with orders to our jobs properly?
[ link to this | view in thread ]
Bees!, 20 Jul 2016 @ 9:20am

Re:
No, it doesn't work like that. An "aha!" move like that would result in sanctions against the DOJ counsel, personally, and a likely complaint to the attorney's respective bar licensing bodies.

There are specious arguments in court, but even judges- especially judges- have a line. And that would cross it.
[ link to this | view in thread ]
Anonymous Coward, 23 Jul 2016 @ 11:46am

Re: Re:
...judges- especially judges- have a line. And that would cross it.

I've seen judges permit far worse.
[ link to this | view in thread ]