Case 1:14-cv-00805-TSC Document 1 Filed 05/14/14 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JASON LEOPOLD 1669 Benedict Canyon Drive Beverly Hills, California 90210,
PLAINTIFF vs.
NATIONAL SECURITY AGENCY, 9800 Savage Rd. Fort Meade, MD 20755
and
DEPARTMENT OF JUSTICE, 950 Pennsylvania Ave., NW Washington, DC 20530-0001
DEFENDANTS

) ) ) Judge _____________ ) Civil Action No. ____________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

COMPLAINT

THE PARTIES 1. Plaintiff Jason Leopold is a citizen of California residing at 1669 Benedict Canyon Drive, Beverly Hills, CA 90210. 2. Mr. Leopold is an investigative reporter covering a wide-range of issues, including Guantanamo, national security, counterterrorism, civil liberties, human rights, and open government. His reporting has been published in The Wall Street Journal, The Financial Times, Salon, CBS Marketwatch, The Los Angeles Times, The Nation, Truthout, Al Jazeera

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English and numerous other domestic and international publications. Currently, he is a contributor to Al Jazeera America and is the editor-at-large for The Public Record.
3. Mr. Leopold seeks access to certain public records to write a news report for distribution to the general public. His connections and relationships with a wide range of domestic and international media organizations will ensure that any story he drafts based on the information contained in these records will be published and reprinted
4. Defendant National Security Agency (NSA) is an agency of the United States. 5. Defendant Department of Justice (DOJ) is an agency of the United States. 6. The Office of Legal Counsel (OLC) is a component of the DOJ. 7. The NSA and DOJ have possession, custody and control of the records Plaintiff seeks.
JURISDICTION AND VENUE 8. This action arises under the Freedom of Information Act (“FOIA”), 5 USC § 552. 9. This Court has jurisdiction over the parties and subject matter pursuant to 5 USC § 552(a)(4)(B). 10. Venue is proper in this district pursuant to 5 USC § 552(a)(4)(B).
INTRODUCTION 11. Hardly a day goes by without new revelations of warrantless and suspicionless surveillance by the NSA. 12. In just the past year, the public has learned that the NSA hacked into United Nations videoconferences,1 intercepted the phone calls of allied foreign leaders,2 and engaged in bulk collecting and storage of telephone metadata relating to calls made in the United States.3
1 David Meyer, “NSA Hacked into Encrypted UN Communications, leaked documents show,” The Guardian (Aug. 25, 2013). 2 Ian Traynor, “Angela Merkel: NSA Spying on allies is not on,” The Guardian (Oct. 24, 2013).
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13. The Foreign Intelligence Surveillance Court has ruled that the NSA’s bulk collection and storage of telephone metadata is consistent with both the Fourth Amendment and Section 215 of the USA PATRIOT Act. In re application of the Federal Bureau of Investigation for an order requiring the production of tangible things from [REDACTED], No. BR 13-109 (F.I.S.C. 2013). According to the court, bulk collection is permissible because there is no requirement for “specific and articulable facts” or that the records pertain to “a foreign power or an agent of a foreign power.” Id. Though the court required access to the bulk data to be limited through a query that requires reasonable, articulable suspicion, the FISC “Court is aware that in prior years there have been incidents of non-compliance with respect to NSA’s handling of produced information,” despite the fact that “[a]ccording to the government, in the prior authorization period there have been no compliance incidents.” Id.
14. The vast scope of the NSA’s surveillance program has raised questions about whether the agency has spied on the coordinate branches of the federal government. In response to an inquiry from Sen. Bernie Sanders about whether the NSA spies on members of Congress, NSA director Gen. Keith Alexander responded, “Nothing NSA does can fairly be characterized as ‘spying on members of Congress or other American elected officials[.]’”4 But the response stated that the agency could make no guarantees that representatives or senators have not had their telephone metadata caught in broad government sweeps.5 Further, Alexander did not rule out the possibility that the NSA would, in the future, examine the telephone metadata of specific members of Congress or other American elected officials. According to Alexander, “The NSA can query the metadata only based on phone numbers reasonably suspected to be associated with specific foreign terrorist groups” and “[f]or that reason, NSA cannot lawfully search to determine
3 Roberta Rampton, “Obama to propose ending NSA bulk collection of phone records: official,” Reuters (Mar. 25, 2014). 4 Adam Silverman, “Responding to Sanders, NSA director denies spying on Congress,” Burlington Free Press (Jan. 14, 2014). 5 Id.
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if any records NSA has received under the program have included metadata of the phone calls of any member of Congress, other American elected officials, or any other American without that predicate.”6 But according to Sen. Feinstein, such a query apparently does not require approval from the FISA court.7
15. Jerrold Nadler, an attorney and Congressman on the House Judiciary Committee who attended a secret briefing, relayed that he was told that the contents of a phone call could be accessed “simply based on an analyst deciding that.”8
16. These revelations beg the question of whether the NSA has spied on the third branch of government, the judiciary.
17. Little is known about whether the NSA has surveilled judges or their staff. With regard to spying on lawyers in the United States more generally, a recent report published by the National Lawyers Guild, Breach of Privilege, details covert governing spying on the legal profession by federal agencies, including the NSA.
18. The NSA, and the Executive branch more generally, have a powerful incentive in intercepting communications involving judges or their staff. For example, the NSA might desire to learn about deliberations by this Court in cases involving Guantanamo detainees, or in cases involving the Foreign Intelligence Surveillance Court. It is not beyond peradventure that the NSA would conclude that such deliberations are relevant to an investigation into foreign terrorism and that a federal judge’s phone number could be “associated” with a foreign terrorist organization, in the broadest sense of that word.
19. The Department of Justice, one of the defendants in this case, has previously taken the position that it has the legal authority to mislead federal courts on issues involving
6 Id. (emphasis added). 7 Dan Roberts, “US Intelligence outlines checks it says validate surveillance,” The Guardian (June 15, 2013). 8 Id.
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national security. Islamic Shura Council of S. Cal. v. FBI, 779 F. Supp. 2d 1114, 1117 (C.D. Calif. 2011)(“The Government asserts that it had to mislead the Court regarding the Government's response to Plaintiffs’ FOIA request to avoid compromising national security.”) To an agency which has taken the position that federal judges cannot be trusted to avoid compromising national security, it would be a logical step to approve, or at least to consider, surveillance of judges who handle national security cases.
STATEMENT OF FACTS PLAINTIFF’S FOIA REQUESTS OLC 20. On March 10, 2014, Mr. Leopold sent, via email, a FOIA request to the OLC requesting “any and all memoranda and legal opinion from the Office of Legal Counsel about the propriety of surveilling federal and state judges.” Mr. Leopold requested a waiver of fees. 21. OLC assigned Mr. Leopold’s FOIA request number 14-035. 22. In a letter dated April 2, 2014, OLC informed Mr. Leopold that it had located no responsive records. 23. Mr. Leopold filed an administrative appeal. In a letter dated April 11, 2014, DOJ informed Mr. Leopold that it had received his administrative appeal on April 5, 2014, and assigned it number AP-2014-02314. 24. As of the filing of this Complaint, Mr. Leopold has not received a final response to his appeal AP-2014-02314. 25. Under 5 USC § 552(a)(6)(C)(i), Mr. Leopold is deemed to have exhausted his administrative remedies with regard to the appeal of his FOIA request to OLC because Defendant has failed to comply with the statutory time limit.
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NSA 26. On March 10, 2014, Mr. Leopold sent, via email, a FOIA request to the NSA
requesting “any and all NSA policies, memoranda, training materials and guidance about the propriety of surveilling federal and state judges.” Mr. Leopold requested a waiver of fees.
27. NSA assigned Mr. Leopold’s FOIA request number 77093. 28. In a letter dated April 4, 2014, NSA informed Mr. Leopold that it had begun processing his request. 29. As of the filing of this Complaint, Mr. Leopold has not received a response to his FOIA to NSA with a determination as to whether NSA will grant his request for a fee waiver. 30. As of the filing of this Complaint, Mr. Leopold has not received a response to his FOIA request to NSA with a determination as to whether NSA will release or withhold all of the requested records. 31. Under 5 USC § 552(a)(6)(C)(i), Mr. Leopold is deemed to have exhausted his administrative remedies with regard to his FOIA request to NSA because Defendant has failed to comply with the statutory time limit.
COUNT I: VIOLATION OF FOIA 32. This Count realleges and incorporates by reference all of the preceding paragraphs. 33. Each of the documents referred to in this Complaint is incorporated herein by reference. 34. Defendants have violated FOIA by improperly withholding the requested records. 35. Defendants have violated FOIA by failing to conduct an adequate search.
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36. Defendants have violated FOIA by failing to grant Mr. Leopold’s requests for a fee waiver.
37. Mr. Leopold has been and will continue to be irreparably harmed until Defendants are ordered to produce the requested records.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that this Court: (1) Declare Defendant’s failure to comply with FOIA to be unlawful; (2) Declare that Plaintiff is entitled to a fee waiver under FOIA; (3) Order Defendant to process the requested records without further delay and release all nonexempt portions to Plaintiff without charging Plaintiff fees; (4) Grant Plaintiff an award of attorney fees and other litigation costs reasonably incurred in this action pursuant to 5 USC § 552(a)(4)(E)(i); (5) Grant Plaintiff such other and further relief which the Court deems proper.
Respectfully Submitted, __/s/ Jeffrey Light_______________
Jeffrey L. Light D.C. Bar #485360 1712 Eye St., NW Suite 915 Washington, DC 20006 (202)277-6213 Jeffrey.Light@yahoo.com Counsel for Plaintiff
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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

JASON LEOPOLD,

)

)

Plaintiff,

)

)

v.

)

)

NATIONAL SECURITY AGENCY, et al., )

)

Defendants.

)

)

Civil Action No. 14-cv-805 (TSC)

MEMORANDUM OPINION

Plaintiff Jason Leopold submitted two FOIA requests seeking records related to

surveillance of federal and states judges—one to the National Security Agency (“NSA”) and one

to the Department of Justice’s Office of Legal Counsel (“OLC”). Both agencies indicated they

had no records responsive to Leopold’s requests. Defendants have filed a motion for summary

judgment; Leopold opposes the motion because he claims the agencies failed to perform

adequate searches for a variety of reasons. While the court agrees with Defendants on most of

the issues raised by Leopold, the court finds that on a small number of issues, Defendants have

failed to conduct an adequate search or failed to adequately explain the basis for their search. As

a result, Defendants’ motion is granted in part and denied in part.

I. BACKGROUND

In March 2014, Leopold submitted two similar FOIA requests to NSA and OLC. The

NSA request sought “disclosure of any and all National Security Agency policies, memoranda,

training materials and guidance about the propriety of surveilling federal and states judges.”

(Phillips Decl. Tab 1). The OLC request sought “any and all memoranda and legal opinion [sic]

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from the Office of Legal Counsel about the propriety of surveilling federal and states judges.” (Colborn Decl. Ex. A).
OLC responded the next month and stated that a search of its files located no records responsive to the request. Leopold appealed this determination, and the administrative appeal remained pending at the time Leopold filed this suit.
In August 2014 (after Leopold had filed this lawsuit), NSA similarly responded that it found no responsive records. NSA directed Leopold to two websites that contained publicly available policies, guidance, and training materials related to surveillance of U.S. persons, explaining that any policy applicable to U.S. persons would also apply if that person was a federal or state judge.
Leopold challenges the adequacy of the NSA and OLC searches on multiple grounds, which are set forth below.
II. LEGAL STANDARD a. Motion for Summary Judgment
Summary judgment may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). Summary judgment may be rendered on a “claim or defense . . . or [a] part of each claim or defense.” Fed. R. Civ. P. 56(a). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A). “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.” Holcomb, 433 F.3d at 895
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(quoting Liberty Lobby, 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.’” See id. The party seeking summary judgment “bears the heavy burden of establishing that the merits of his case are so clear that expedited action is justified.” Taxpayers Watchdog, Inc., v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987).
In considering a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Liberty Lobby, 477 U.S. at 255; see also Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 850 (D.C. Cir. 2006). The nonmoving party’s opposition, however, must consist of more than mere unsupported allegations or denials, and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The nonmovant is required to provide evidence that would permit a reasonable jury to find in his favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987).
b. FOIA “FOIA provides a ‘statutory right of public access to documents and records’ held by federal government agencies.” Citizens for Responsibility & Ethics in Washington v. DOJ, 602 F. Supp. 2d 121, 123 (D.D.C. 2009) (quoting Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982)). FOIA requires that federal agencies comply with requests to make their records available to the public, unless such “information is exempted under clearly delineated statutory language.” Id. (internal quotation marks omitted); see also 5 U.S.C. § 552(a), (b). “‘FOIA cases typically and appropriately are decided on motions for summary judgment.’” Georgacarakos v. FBI, 908 F. Supp. 2d 176, 180 (D.D.C. 2012) (quoting Defenders
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of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009)). In ruling on the adequacy of an agency’s search in response to a FOIA request, “[t]he question is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate. The adequacy of the search, in turn, is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case. In demonstrating the adequacy of the search, the agency may rely upon reasonably detailed, nonconclusory affidavits submitted in good faith.” Steinberg v. DOJ, 23 F.3d 548, 551 (D.C. Cir. 1994) (internal quotation marks and citations omitted). An agency may prove the reasonableness of its search via the declaration of a responsible agency official, so long as the declaration is reasonably detailed and not controverted by contrary evidence or evidence of bad faith. Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). There is no requirement that an agency search every record system, but the agency must conduct a good faith, reasonable search of those systems of records likely to possess the requested information. Oglesby v. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The agency declaration can demonstrate reasonableness by “setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched.” Id. Once an agency has provided adequate affidavits, the burden reverts to the plaintiff to demonstrate the lack of a good faith search. The presumption of good faith “cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks and citation omitted).
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III. ANALYSIS a. Adequacy of NSA’s Search
Leopold challenges the adequacy of the NSA’s search on three grounds: that it failed to search the appropriate offices, failed to search the appropriate records systems, and inadequately explained its use of search terms.
i. Failure to Search the Appropriate Offices Pamela Phillips, (former) Chief of the FOIA and Privacy Office at the NSA, explained in her declaration that in response to Leopold’s request, NSA searched the Office of General Counsel (“OGC”) and the Signals Intelligence1 Office of Policy and Corporate Issues. The OGC is “responsible for legal oversight and compliance of NSA activities . . . [and] maintains documents pertaining to NSA policy on the conduct of Signals Intelligence activities.” (Phillips Decl. ¶ 12). A FOIA representative within the OGC searched an electronic database that “maintains information on policies, memoranda, training materials and other documents that have been submitted for review by the Office of General Counsel,” and also “sent a request to attorneys within the OGC who would be tasked with reviewing [Signals Intelligence] policies regarding particularities of surveillance.” (Id.). Neither search produced any results. The Signals Intelligence Office of Policy and Corporate Issues is “the entity responsible for policy and guidance pertaining to Signals Intelligence . . . [and] is tasked with conducting the necessary minimization procedures of the electronic surveillance of U.S. persons.” (Id. ¶ 13). Phillips explained that “the subject matter experts within the [office] are well aware of all of the
1 “NSA’s foreign intelligence mission includes the responsibility to collect, process, analyze, produce, and disseminate signals intelligence (‘SIGINT’) information.” (Phillips Decl. ¶ 3). As this signal intelligence relates to surveillance of U.S. persons, Phillips explained that “[i]n order to intentionally collect the communications of any U.S. person (including federal and states judges) NSA would first have to obtain authorization from the Foreign Intelligence Surveillance Court (FISC). NSA’s policies, procedures, and training for handling U.S. person information in FISC-authorized surveillances would apply to federal and state judges as well as other U.S. persons.” (Id. ¶ 5).
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policy, memoranda, and training documents associated with [Signals Intelligence] activities, and have knowledge that there are no such documents related to the surveillance of federal or state judges . . . As such, the [office], with knowledge that FISA does not delineate federal or state judges for differential treatment, knew that NSA would not have any documents responsive to Plaintiff’s request.” (Id. ¶ 14).
Leopold objects to the scope of NSA’s search efforts and identifies numerous other offices that should have been searched, including the Office of the Inspector General, Office of the General Counsel (which was searched), Office of Director of Compliance, the Authorities Integration Group, Associate Directorate for Policy and Records, the Civil Liberties and Privacy Office, the National SIGINT Committee, the Associate Directorate of Training and Education, and each major NSA organization’s Directorate Compliance Component. Leopold deduced that these offices may have responsive records from a report titled “NSA’s Civil Liberties and Privacy Protections for Targeted SIGINT Activities Under Executive Order 12333,” a copy of which Leopold did not provide. (Pl. Opp’n 9). In response to Leopold’s claims, the NSA provided a declaration by Paul Blaskowski, who apparently replaced Phillips as Chief of the NSA FOIA office after Defendants filed their motion. Blaskowski explained that NSA searched only the OGC and the Signals Intelligence Office of Policy and Corporate Issues because those are the “two offices that would create policy, guidance, memoranda or training materials, or would have the responsibility of reviewing such materials.” (Blaskowski Decl. ¶ 5). According to Blaskowski, searching the offices Leopold identified would be unnecessary or redundant because they “would either not have documents relevant to the request . . . or would only have documents previously vetted by the Office of the General Counsel and/or the Signals Intelligence Office of Policy and Corporate Issues . . . any document maintained by the other offices
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addressed by Mr. Leopold would also be contained within the records” of the two offices NSA searched. (Id.).
The names of at least some of the offices Leopold identifies suggest they may have responsive records—for example, the Associate Directorate of Training and Education is reasonably likely to have training materials. However, there is “no requirement that an agency search every division or field office in response to a FOIA request,” Marrera v. U.S. Dep’t of Justice, 622 F. Supp. 51, 54 (D.D.C. 1985), and Leopold offers no evidence that responsive records that were not otherwise to be found as a result of the agency search may reside in any of the additional offices. The agency provided reasonably detailed affidavits explaining why it only searched two offices, and why a search of the offices Leopold identifies would be redundant and not likely to result in the location of any responsive records. Phillips and Blaskowski are both responsible government agency officials and their testimonials are neither lacking in detail nor controverted by contrary evidence or evidence of bad faith. See Military Audit Project, 656 F.2d at 738. Leopold’s “purely speculative claims about the existence and discoverability of other documents” do not overcome the “presumption of good faith” afforded to the agency’s declarations. SafeCard Servs., 926 F.2d at 1200.
ii. Failure to Search the Proper Records Systems 1. Emails
Leopold claims that the NSA should have searched emails for responsive records, especially in light of the fact that he included in his “INSTRUCTIONS REGARDING SEARCH” a request that the agency conduct an email search. (Phillips Decl. Tab 1). However, as Defendants correctly point out, an agency is “not obliged to look beyond the four corners of the request for leads to the location of responsive documents.” Kowalczyk v. Dep’t of Justice, 73
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F.3d 386, 389 (D.C. Cir. 1996). Leopold’s request sought “policies, memoranda, training materials and guidance.” It was reasonable for NSA to determine that an email search was unlikely to uncover responsive records, especially given that other databases were available that specifically compiled policies, memoranda, training materials, and guidance. See Mobley v. CIA, 924 F. Supp. 2d 24, 44 (D.D.C. 2013) (“even when a requester specifically asks an agency to search a particular database, the agency has no obligation to do so unless that database is ‘likely to contain responsive materials.’”) (internal citation omitted).
2. Directives Next, Leopold alleges that NSA should have searched the United States Signals Intelligence Directive System (“USSID”) (via two records systems called NSA Net and INTELINK), as they contain directives that reflect policies related to systems intelligence. (Pl. Opp’n 10). Leopold notes that NSA directed him to a publicly available directive (titled “USSID 18”) as potentially “of interest,” but nowhere indicates whether it searched for other USSID directives. NSA argues that it did search for responsive directives by asking members of the Signals Intelligence Office of Policy and Corporate Issues whether any responsive records existed. It appears that NSA intends to argue that asking for all responsive records was sufficient, because responsive directives would implicitly be included within this universe, meaning NSA searched for responsive directives by default. Given that NSA itself identified a directive “of interest” but failed to explain why it did not search for other directives, and because Leopold has identified a particular source of records which may hold responsive documents, NSA is ordered to conduct a search of the United States Signals Intelligence Directive System and disclose responsive documents, if any, or claim an exemption.
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iii. Search Terms Lastly, Stein faults the OGC’s choice of search terms. OGC used the terms “surveillance state judges,” “surveillance federal judges,” “federal judges,” and “state judges.” Leopold argues that the NSA’s declaration does not provide enough information to understand how the computerized database works and whether, for example, “surveillance federal judges” would also capture “surveillance of federal judges” or “surveillance of a federal judge.” (Pl. Opp’n 1011 (emphasis added)). NSA responds that it developed search terms based on the language of the request, and that Leopold’s particular concerns are irrelevant because, for example, it does not matter whether “surveillance federal judges” captures “surveillance of federal judges” or “surveillance of a federal judge” because the NSA also searched “federal judges.” (Def. Reply 7-8). The court finds that while NSA could have provided additional explanation regarding the nature of its database search, ultimately the terms “federal judges” and “state judges” are terms taken directly from the request, and were reasonably calculated to capture any responsive records.
b. Adequacy of OLC’s Search Leopold challenges the adequacy of the OLC’s search on six grounds: that it failed to search for drafts of memoranda and legal opinions, failed to search for letters and other types of records, inadequately searched for classified records, failed to search the correct records systems, used inadequate search terms, and failed to state whether it located non-responsive records.
i. Drafts Leopold’s OLC request sought “any and all memoranda and legal opinion[s] from the Office of Legal Counsel about the propriety of surveilling federal and states judges.” (Colborn Decl. Ex. A). The OLC only searched for final legal opinions and memoranda. Leopold argues
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that it should have also searched for drafts. Defendants argue in response that the natural meaning of the terms “opinion” and “memoranda” are limited to only final opinions and memoranda, not drafts. The court is persuaded that “any and all memoranda and legal opinion[s]” means exactly what it says—any and all, meaning drafts and final product. OLC has not provided any persuasive justification regarding why it did not search for drafts, and is therefore ordered to reprocess Leopold’s request and conduct a search for draft memoranda and legal opinions.
ii. Letters and other Records Leopold next argues that OLC impermissibly narrowed the scope of his request by only searching for memoranda and legal opinions. He argues that the OLC must have used a term of art to artificially limit the search to only memoranda and legal opinions, and that using a plain meaning approach requires OLC to also search for other types of records, including letters. Once again, the court is persuaded that “any and all memoranda and legal opinion[s],” the terms Leopold chose to use in his request, mean exactly what they say—memoranda and legal opinions, and not any other types of records. See Kowalczyk, 73 F.3d at 389 (the agency is “not obliged to look beyond the four corners of the request for leads to the location of responsive documents.”). Moreover, even if Leopold was correct regarding the scope of the request, OLC confirmed that it searched for all final written work product, not just memoranda and legal opinions, thus negating Leopold’s objection. (Colborn Decl. ¶ 4).
iii. Inadequate Search for Classified Records Leopold next takes issue with the manner in which OLC searched for classified records. Paul Colborn, the Special Counsel at OLC who supervises OLC’s response to FOIA requests, explained that while unclassified records are stored electronically, classified records are stored
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either in individual safes or in OLC’s Sensitive Compartmented Information Facility. (Colborn Decl. ¶ 5). According to Colborn, any final classified legal memoranda or opinions are also stored in a centralized paper file. In response to Leopold’s request, an 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 and have close familiarity with OLC’s work on national security and surveillance matters,” whether they were aware of any classified (or unclassified) records that would be responsive to the request. The two senior officials did not identify any responsive records. (Id. ¶ 7). After Leopold filed suit, OLC conducted an additional search “by reviewing a central index of OLC’s final work product classified at the Secret or Top Secret levels,” which also yielded no results. (Id. ¶ 11). This latter search appears to satisfy Leopold’s concern that if “OLC did no more to search for classified records than asking two long-tenured individuals whether responsive classified records exist, this search was insufficient in light of the existence of other records systems which could have been readily searched.” (Pl. Opp’n 4). While it may or may not have been appropriate to only ask two senior agency officials, see Hall & Assocs. v. EPA, 14 F. Supp. 3d 1, 7 (D.D.C. 2014), the issue is moot given that OLC subsequently searched its central index of classified records, which Leopold suggests (and the court agrees) rendered the search adequate.
iv. Failure to Search the Appropriate Records Systems OLC maintains a centralized database of all final unclassified work product that is searchable using a search engine called Isys Search Software. An OLC attorney familiar with the Isys system searched the database and found no responsive records. (Colborn Decl. ¶¶ 4, 6). Leopold argues that in addition to the Isys system, OLC should have searched four other records systems: (1) OLC Daybooks, a file that allows OLC to locate all hard-copy documents created
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since 1945; (2) the Office Matter Tracking System, which tracks current and former matters and can be keyword searched; (3) the OLC Central File, which Leopold alleges is a master subjectmatter index of OLC files;2 and (4) a chronological list of short summaries of OLC opinions. OLC responds that Leopold did not request that OLC search these sources in his original request, and that any responsive records would have been captured in either the Isys search (which includes all unclassified work product), the classified index, or through discussions with the two senior agency officials. As a result, any additional searches would be redundant. (Def. Reply 11-12).
Because Leopold did not identify the four specific sources in his original FOIA request, and because OLC searched the sources likely to contain responsive records, the court finds OLC’s search adequate in this respect and will not require it to search these additional sources. “There is no requirement that an agency search every record system . . . However, the agency cannot limit its search to only one record system if there are others that are likely to turn up the information requested.” Oglesby, 920 F.2d at 68 (internal citations omitted). It is not even clear whether all the sources Leopold identifies exist, and in any event, the Isys search appears to have been reasonably calculated to uncover all responsive records. Leopold has not identified any records not located on the Isys system that would have been located in the other systems, nor has he rebutted OLC’s explanation that a search of the other systems would be redundant.
v. Insufficient Keyword Searches Leopold proposes numerous search terms that he believes should have been used when OLC searched its electronic databases. While OLC argues that its original search terms were
2 OLC Daybooks and the Office Matter Tracking System are referenced in an OLC webpage outlining OLC’s various record systems. Leopold cites a Federal Register notice as evidence of the OLC Central File, but the cited notice contains no reference to a Central File and does not include the quotations Leopold provides.
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adequate because they mirrored the terms used in the request, it nonetheless ran the searches Leopold requested and located no responsive records. (Second Colborn Decl. ¶ 6). This issue is therefore moot.
vi. Failure to Identify Whether Non-responsive Documents Were Found Lastly, Leopold argues that OLC should be forced to disclose how many non-responsive records, if any, it collected during its search. He identifies one document that, while admittedly non-responsive, should have been found using the OLC’s search terms. This is offered as evidence that because non-responsive records exist, Leopold should be apprised of their existence so he can challenge their non-responsiveness. While FOIA cases are not typically concerned with non-responsive documents, here, because Leopold’s request is narrow and he has identified a specific document that would likely have been captured by the search terms, the court will require OLC to indicate whether it located no records at all, or located some records that were deemed non-responsive. See Ray v. Fed. Bureau of Prisons, 672 F. Supp. 2d 75, 79-80 (D.D.C. 2009) (“On this record, it is impossible to definitively conclude that the documents that the defendant determined to be non-responsive were, in fact, non-responsive.”); cf. NYC Apparel FZE v. U.S. Customs & Border Prot., No. 4-2105, 2006 WL 167833, at *7 (D.D.C. Jan. 23, 2006) (“There may be many plausible explanations for how the agency distinguished between responsive and non-responsive documents that are in the seizure case files; however, the defendant has not provided one.”). OLC is under no obligation to produce non-responsive documents if any exist. See Competitive Enter. Inst. v. EPA, 12 F. Supp. 3d 100, 114 (D.D.C. 2014) (“non-responsive records need never be produced at all”); Pub. Investors Arbitration Bar Ass’n v. SEC, 930 F. Supp. 2d 55, 72 (D.D.C. 2013) (“[I]t is elementary that an agency’s decision to withhold non-responsive material is not a violation of the FOIA.”) (emphasis in
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original), aff’d, 771 F.3d 1 (D.C. Cir. 2014). But on the particular facts of this case, it will be helpful to know whether any records were found or not.
IV. CONCLUSION For the foregoing reasons, Defendants’ motion for summary judgment is granted in part
and denied in part. An appropriate Order accompanies this Memorandum Opinion.

Date: July 31, 2015

Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge

14

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

JASON LEOPOLD,

)

)

Plaintiff,

)

)

v.

)

)

NATIONAL SECURITY AGENCY, et al., )

)

Defendants.

)

)

Civil Action No. 14-cv-805 (TSC)

MEMORANDUM OPINION

In March 2014, Plaintiff Jason Leopold submitted two Freedom of Information Act

(“FOIA”) requests seeking records related to surveillance of federal and state judges – one to the

National Security Agency (“NSA”) and one to the Department of Justice’s Office of Legal

Counsel (“OLC” and, together with NSA, “Defendants”). Both agencies indicated that they had

no records responsive to the FOIA requests, prompting Plaintiff to initiate this litigation.

In July 2015, this court granted in part and denied in part Defendants’ first motion for

summary judgment, finding that Defendants had failed to conduct an adequate search and to

adequately explain the basis for their search in certain limited respects. Among other things, the

court ordered OLC to reprocess Plaintiff’s FOIA request by searching for draft memoranda and

legal opinions related to surveillance of federal and state judges.

Defendants have now renewed their motion for summary judgment. Plaintiff challenges

only the manner in which OLC searched for these draft memoranda and legal opinions.

Upon consideration of Defendants’ renewed motion for summary judgment and the

parties’ briefs in support thereof and in opposition thereto, and for the reasons set forth below,

Defendants’ motion is hereby DENIED.

I. BACKGROUND
The procedural and factual background of this case is set forth in the court’s July 2015
Memorandum Opinion granting in part and denying in part Defendants’ first motion for
summary judgment. See generally Leopold v. Nat’l Sec. Agency, 118 F. Supp. 3d 302 (D.D.C.
2015). The July 2015 Memorandum Opinion ordered that two additional searches be conducted
and that certain other information be provided to Plaintiff. See id.
Defendants’ renewed motion for summary judgment centers on one of the additional
searches ordered by the court:
The court is persuaded that “any and all memoranda and legal opinion[s]” means exactly what it says – any and all, meaning drafts and final product. OLC has not provided any persuasive justification regarding why it did not search for drafts, and is therefore ordered to reprocess Leopold’s request and conduct a search for draft memoranda and legal opinions. Id. at 309-10 (citation to record omitted).
Prior to the issuance of the court’s July 2015 Memorandum Opinion and Order, “OLC
had already conducted a search for final legal advice ‘about the propriety of surveilling federal
and state judges’ and located no responsive documents.” (Mot. Ex. 3 (“Third Colborn Decl.”)
¶ 10). According to OLC Special Counsel Paul P. Colborn, “[t]he fact that no final legal advice
on this subject was located . . . made it much more difficult to identify any likely locations to
search for any draft legal advice that might exist.” (Id.). For example,
[h]ad OLC located final legal advice concerning the topic, [OLC] would have been able to determine whether a file had been maintained with materials related to the advice, and could have located any drafts that may have been maintained in that file. [OLC] also likely would have been able to identify the principal attorneys who had worked on the advice. With that information as a lead, [OLC] would have searched the individual hardcopy and computer files of those attorneys for drafts of the advice. (Id.).
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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). Additionally, shortly after Plaintiff filed his brief opposing Defendants’ renewed motion for summary judgment, “a general inquiry was sent to all OLC attorneys . . . asking if they had, or were aware of, any draft legal memoranda or opinions relating to the ‘propriety of surveilling federal and state judges.’” (Reply Ex. 1 (“Fourth Colborn Decl.”) ¶ 11). “[A]ll OLC attorneys reported that they did not have and were not aware of any such records.” (Id.). 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.” (Id. ¶ 9).
II. LEGAL STANDARD a. Motion for Summary Judgment
Summary judgment may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). Summary judgment may be rendered on a “claim or defense . . . or [a] part of each claim or defense.” Fed. R. Civ. P. 56(a). “A party asserting that a
3

fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A). “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.” Holcomb, 433 F.3d at 895 (quoting 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.’” See id. The party seeking summary judgment “bears the heavy burden of establishing that the merits of his case are so clear that expedited action is justified.” Taxpayers Watchdog, Inc., v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (citing Walker v. Washington, 627 F.2d 541, 545 (D.C. Cir. 1980)).
In considering a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)); see also Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 850 (D.C. Cir. 2006). The nonmoving party’s opposition, however, must consist of more than mere unsupported allegations or denials, and must be supported by affidavits, declarations or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-movant is required to provide evidence that would permit a reasonable jury to find in his favor. See Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987).
b. FOIA “FOIA provides a ‘statutory right of public access to documents and records’ held by federal government agencies.” Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t of Justice, 602 F. Supp. 2d 121, 123 (D.D.C. 2009) (quoting Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982)). FOIA requires that federal agencies comply with requests to make their
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records available to the public, unless such “information is exempted under clearly delineated statutory language.” Id. (internal quotation marks omitted); see also 5 U.S.C. § 552(a), (b).
“‘FOIA cases typically and appropriately are decided on motions for summary judgment.’” Georgacarakos v. Fed. Bureau of Investigation, 908 F. Supp. 2d 176, 180 (D.D.C. 2012) (quoting Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009)). In ruling on the adequacy of an agency’s search in response to a FOIA request, “[t]he question is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate. The adequacy of the search, in turn, is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case. In demonstrating the adequacy of the search, the agency may rely upon reasonably detailed, nonconclusory affidavits submitted in good faith.” Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (internal quotation marks and citations omitted).
An agency may prove the reasonableness of its search via the declaration of a responsible agency official, so long as the declaration is reasonably detailed and not controverted by contrary evidence or evidence of bad faith. Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981) (citations omitted). There is no requirement that an agency search every record system, but the agency must conduct a good faith, reasonable search of those systems of records likely to possess the requested information. See Oglesby v. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The agency declaration can demonstrate reasonableness by “setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched.” Id.
Once an agency has provided adequate affidavits, the burden shifts back to the plaintiff to demonstrate the lack of a good faith search. The presumption of good faith “cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.”
5

SafeCard Servs., Inc. v. Securities & Exchange Comm’n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks and citation omitted).
III. ANALYSIS Defendants contend that simply asking two senior OLC attorneys whether they were
aware of any OLC projects concerning the propriety of surveilling federal or state judges, regardless of whether the project resulted in final legal advice, satisfied their obligations under FOIA to conduct the search for draft memoranda and legal opinions required by the court’s July 2015 Memorandum Opinion and Order. (See Fourth Colborn Decl. ¶ 11). Plaintiff disagrees, arguing that merely asking these two senior OLC attorneys did not constitute an adequate search. (Opp’n at 7-8).
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.
* * * OLC employs approximately twenty to twenty-five attorneys at any one time (see Third Colborn Decl. ¶ 2), and Colborn “conservatively estimates that more than three hundred attorneys have worked in the Office during the time period since 1933, the period of Plaintiff’s proposed search.” (Fourth Colborn Decl. ¶ 9(a)). Despite the long tenures of the two senior OLC attorneys who were asked about potentially responsive records, and their familiarity with OLC’s work on national security and surveillance matters, merely asking these two individuals
6

about their personal knowledge does not, in the court’s view, sufficiently demonstrate that responsive documents do not exist or would not be found by a more in-depth search. As Plaintiff notes, “[d]raft opinions are assigned to a primary Deputy and an Attorney-Advisor, with a second Deputy only reviewing the draft when it is ready for secondary review,” and “draft opinions may not have been circulated to the particular individuals who were consulted in responding to Plaintiff’s FOIA request.” (Opp’n at 8) (citation omitted). The same holds true for asking all current OLC attorneys about whether they knew of responsive documents, as such documents could have been generated, unbeknownst to any current OLC attorneys, by an attorney who is no longer there, or by any of the hundreds of attorneys who worked at the agency before them.
The question thus becomes what OLC must do in order to conduct an adequate search for responsive documents. In his opposition brief and supporting documents, Plaintiff identifies only four additional actions that OLC could take to search for the requested documents: (i) sending an email to all current OLC attorneys asking if they had worked on the issue of surveilling judges; (ii) requesting that current OLC attorneys search their computers and emails for responsive documents; (iii) searching departed OLC attorneys’ hard drives for responsive documents; and (iv) searching departed OLC attorneys’ emails for responsive documents. (See Opp’n at 5-6; Pl.’s Resp. to Defs.’ Statement of Facts Not in Dispute ¶ 12; Pl.’s Statement of Facts in Dispute ¶¶ 2-3).
Shortly after Plaintiff filed his opposition brief, a general inquiry was, in fact, sent to all OLC attorneys “asking if they had, or were aware of, any draft legal memoranda or opinions relating to the ‘propriety of surveilling federal and state judges,’” in response to which “all OLC attorneys reported that they did not have and were not aware of any such records.” (Fourth Colborn Decl. ¶ 11). Thus, the only stones left unturned are requesting that current OLC
7

attorneys search their computers and emails, searching the hard drives of departed OLC attorneys and searching the emails of departed OLC attorneys.
The court will not require OLC to request that its current attorneys search their computers and emails for responsive documents. First, the court agrees with Colborn that it is “extremely unlikely that current attorneys, who have indicated that they do not have, and are not aware, of any draft legal opinions or memoranda on the topic, would nevertheless have such documents within their files.” (Id. ¶ 13). The court will take OLC’s attorneys at their word. Second, the court credits Colborn’s representation that requiring all current OLC attorneys to search their computers and emails would be unduly burdensome, as it “could require a significant amount of time by each attorney in the Office, including manually opening files to conduct searches where the search tools permit only the searches of file names and not the content of documents.” (Id.).
As to searching the hard drives of departed OLC attorneys, Colborn avers as follows: Documents from the hard drives of over 100 departed [OLC attorneys and staff members] are available on OLC’s shared network drive on the Department’s electronic file server, totaling over 160,000 individual files. There are over 500 gigabytes in this archive, although some documents appear in duplicate and some archived emails are included. The names of the files on these hard drives are searchable using a Windows search tool. OLC does not have a search tool that can search the full text of files across the archive; to do so would require opening and searching each document individually. (Id. ¶ 9(c)). Based on Colborn’s representations, the court finds that requiring OLC to manually open, one-by-one, over 160,000 files from over 100 OLC attorneys and staff members and then search the full text of each file individually would be unduly burdensome. See, e.g., Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 892 (D.C. Cir. 1995) (“[A]ppellants have asked Customs to search through 23 years of unindexed files for records
8

pertaining to [then-presidential candidate H. Ross] Perot, and we concur with the district court’s
determination that this search would impose an unreasonable burden on the agency.”).1
As to searching the email files of departed OLC attorneys, Colborn declares:
The emails of at least 180 departed [OLC attorneys and staff members] may be searched using an eDiscovery search tool called Clearwell. . . . Clearwell searches the full text of emails and their attachments, including PDF files. It is my understanding that our departed users’ accounts include data exceeding 300 gigabytes of archived email, and that searching this volume of data, without any limitation by date or custodian would consume considerable technical resources of the Department.
(Fourth Colborn Decl. ¶ 9(b)). Colborn also avers that the “search terms that can be used with
respect to [Plaintiff’s] request necessarily are fairly broad and generic, turning largely on variants
of the terms ‘surveillance’ and ‘judge,’” and that such search terms would result in a number of
“false hits,” requiring an OLC employee to review each “hit” to determine whether it was
actually responsive to the FOIA request. (Id. ¶ 9).
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
1 Plaintiff does not specifically address searching OLC’s paper files in his opposition brief. Nonetheless, the court notes that Colborn’s declarations in this case indicate that such a search would also be unduly burdensome. (See Fourth Colborn Decl. ¶ 9(a) (searching non-classified paper files “would require manually reviewing the large volume of paper files of current and departed attorneys that remain in [OLC’s] possession, as well as the records of any past attorneys that could be recovered from [OLC’s] archives”); id. ¶¶ 3, 9(d) (searching classified paper files would require searching “more than 60 drawers of classified materials” in individual safes or in OLC’s “Sensitive Compartmented Information Facility”)).
9

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.
Plaintiff also states in his Statement of Material Facts in Dispute that “OLC could have had paralegals search, through Microsoft Outlook, the email of departed attorneys whose email files are on the shared drive,” and that “doing so would not have taken an unreasonable amount of effort.” (Pl.’s Statement of Facts in Dispute ¶ 3). In support, Plaintiff cites Colborn’s March 2012 declaration from Nat’l Day Laborer Org. Network v. U. S. Immigration & Customs Enforcement Agency, 877 F. Supp. 2d 87 (S.D.N.Y. 2012) [hereinafter NDLON], in which Colborn details just such a search. (See Opp’n Ex. 1 ¶ 8). Indeed, the NDLON search appears to have been conducted without the benefit of the eDiscovery tool referenced in the Fourth Colborn Declaration:
[P]aralegals used the Microsoft Outlook program to search the e-mail files of all departed attorneys who had been employed at OLC between June 1, 2007 and October 15, 2010 and whose e-mail files were on OLC’s shared network drive. E-mails were searched for a total of 25 departed attorneys. . . . No responsive documents were identified in these e-mail searches. (Id.). Defendants respond only by noting that that the NDLON search covered a time period of less than four years and involved “fairly narrow” search terms, whereas here there is no time limit for the search and the search terms would be “fairly broad and generic.” (Reply at 10) (quoting Fourth Colborn Decl. ¶ 12). While the court notes the distinctions between NDLON and the instant case, and while it is cognizant of the risk of forcing OLC to sift through significant numbers of “false hits,” the burden of the email search to be conducted here can nonetheless certainly be minimized by well-crafted search terms and reasonable limitations on dates and custodians. For example, the Fourth Colborn Declaration discusses “OLC attorneys and staff who are no longer employed at
10

OLC” (Fourth Colborn Decl. ¶ 9(b)), but Plaintiff appears to be interested only in searching “all departed attorneys’ email files,” and not the email files of departed non-attorney OLC staff members. (See Opp’n at 6). The parties should therefore be able to agree on custodian limitations that exclude non-attorney OLC staff members. The court is also hopeful that the parties can further limit the number of custodians whose emails will need to be searched by excluding attorneys who worked in areas where the topic of surveilling federal and state judges would not have arisen.
In the same vein, the court also notes that a search of emails alone will be less burdensome than the search of emails, paper files and hard drives contemplated in the Fourth Colborn Declaration, because an email-only search would, by definition, be limited to attorneys who have worked at OLC since the advent of email, whereas searches of emails, paper files and hard drives would presumably go back much further, and thereby encompass more custodians. Additionally, given Plaintiff’s reference in his opposition brief to the “critical period of 2001-2010,” the court is hopeful that the parties will be able to agree on some kind of date range limitation to further reduce the number of search returns. (Id. at 8).
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. The parties are hereby further ORDERED to meet and confer to jointly devise the search terms to be used this search, and to attempt to narrow the search – such as, for example, by devising date and custodian limitations – so as to lessen OLC’s burden in conducting it. The parties are hereby further ORDERED to file with the court a joint proposed scheduling order setting forth their agreed-upon search plan and parameters by no later than August 11, 2016.
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IV. CONCLUSION For the foregoing reasons, Defendants’ renewed motion for summary judgment is
hereby DENIED. An appropriate Order accompanies this Memorandum Opinion.

Date: July 11, 2016

Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge

12

 
 Case: 1:14-cv-805 As of: 10/26/2017 10:32 AM EDT 1 of 5
CLOSED,TYPE−I
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:14−cv−00805−TSC

LEOPOLD v. NATIONAL SECURITY AGENCY et al Assigned to: Judge Tanya S. Chutkan Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 05/14/2014 Date Terminated: 03/01/2017 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

JASON LEOPOLD

represented by Jeffrey Louis Light LAW OFFICES OF JEFFREY LIGHT 1712 Eye Street, NW Suite 915 Washington, DC 20006 (202) 277−6213 Fax: (202) 223−5316 Email: jeffrey@lawofficeofjeffreylight.com ATTORNEY TO BE NOTICED

V. Defendant NATIONAL SECURITY AGENCY
Defendant DEPARTMENT OF JUSTICE

represented by Jacqueline E. Coleman Snead U.S. DEPARTMENT OF JUSTICE Civil Division 20 Massachusetts Avenue, NW Room 7218 Washington, DC 20530 (202) 514−3418 Fax: (202) 616−8470 Email: jacqueline.snead@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rodney Patton U.S. DEPARTMENT OF JUSTICE Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 (202) 305−7919 Fax: (202) 616−8470 Email: rodney.patton@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jacqueline E. Coleman Snead (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rodney Patton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:14-cv-805 As of: 10/26/2017 10:32 AM EDT 2 of 5

Date Filed 05/14/2014 05/14/2014 05/15/2014 05/24/2014 05/27/2014 06/10/2014 06/18/2014 07/30/2014 07/31/2014
08/13/2014 08/14/2014
09/26/2014 10/24/2014 11/07/2014

# Docket Text
1 COMPLAINT against DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY ( Filing fee $ 400 receipt number 0090−3716068) filed by JASON LEOPOLD. (Attachments: # 1 Civil Cover Sheet, # 2 Summons NSA, # 3 Summons DOJ, # 4 Summons USAO)(Light, Jeffrey) (Entered: 05/14/2014)
Case Assigned to Judge Royce C. Lamberth. (kb) (Entered: 05/15/2014)
2 SUMMONS Issued Electronically as to DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY, and U.S. Attorney. (Attachments: # 1 Consent Form, # 2 Notice of Consent)(kb) (Entered: 05/15/2014)
3 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. NATIONAL SECURITY AGENCY served on 5/19/2014 (Light, Jeffrey) (Entered: 05/24/2014)
4 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/19/2014. Answer due for ALL FEDERAL DEFENDANTS by 6/18/2014. (Light, Jeffrey) (Entered: 05/27/2014)
Case reassigned to Judge Tanya S. Chutkan. Judge Royce C. Lamberth no longer assigned to the case. (ztnr, ) (Entered: 06/10/2014)
5 ANSWER to Complaint by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY.(Coleman Snead, Jacqueline) (Entered: 06/18/2014)
6 MOTION for Order directing parties to meet and confer and file a joint proposed schedule by JASON LEOPOLD (Attachments: # 1 Text of Proposed Order)(Light, Jeffrey) (Entered: 07/30/2014)
ORDER granting 6 Motion for Order Directing Parties to Meet and Confer. The parties shall meet and confer and propose a schedule for proceeding in this matter. The schedule should address the status of Plaintiff's FOIA request, the anticipated number of documents responsive to Plaintiff's FOIA request, the anticipated date(s) for release of the documents requested by Plaintiff, whether a motion for an Open America stay is likely in this case, whether a Vaughn index will be required in this case, whether and when either party anticipates filing a dispositive motion, and any other pertinent issues. The parties shall file a joint status report that addresses these issues and that contains a proposed schedule and order not later than August 13, 2014. Set/Reset Deadlines: due by 8/13/2014. Signed by Judge Tanya S. Chutkan on 7/31/14. (lctsc1) (Entered: 07/31/2014)
7 STATUS REPORT of the Parties by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY. (Coleman Snead, Jacqueline) (Entered: 08/13/2014)
MINUTE ORDER: Upon consideration of the Joint Status Report 7 filed by the parties, it is hereby ordered that the parties shall abide by the following deadlines: Defendants' Motion for Summary Judgment shall be filed not later than September 26, 2014; Plaintiff's Opposition shall be filed not later than October 24, 2014; Defendants' Reply shall be filed not later than November 7, 2014. Defendants' Motion for Summary Judgment will include a Vaughn index if any documents are withheld in full or in part. Signed by Judge Tanya S. Chutkan on 8/14/14. (djs) (Entered: 08/14/2014)
8 MOTION for Summary Judgment by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration of Paul Colborn, # 4 Declaration of Pamela Phillips)(Coleman Snead, Jacqueline) (Entered: 09/26/2014)
9 Memorandum in opposition to re 8 MOTION for Summary Judgment filed by JASON LEOPOLD. (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Light, Jeffrey) (Entered: 10/24/2014)
10 REPLY to opposition to motion re 8 MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY. (Attachments: # 1 Second Colborn Declaration, # 2 Blaskowski Declaration)(Coleman Snead, Jacqueline) (Entered: 11/07/2014)

Case: 1:14-cv-805 As of: 10/26/2017 10:32 AM EDT 3 of 5

07/31/2015 07/31/2015 07/31/2015 08/21/2015 08/21/2015 08/25/2015 08/25/2015 08/28/2015 08/31/2015
08/31/2015 10/14/2015 10/15/2015
11/04/2015 11/18/2015 07/11/2016 07/11/2016

11 MEMORANDUM AND OPINION. Signed by Judge Tanya S. Chutkan on 7/31/2015. (lctsc2) (Main Document 11 replaced on 8/13/2015) (zsm). (Entered: 07/31/2015)
12 ORDER granting in part and denying in part Defendants' 8 Motion for Summary Judgment. See Order for details. The parties must submit a joint proposed scheduling order for moving forward in this case by August 21, 2015. Signed by Judge Tanya S. Chutkan on 7/31/2015. (lctsc2) (Entered: 07/31/2015)
Set/Reset Deadlines: Proposed Scheduling Order due by 8/21/2015. (zsm) (Entered: 07/31/2015)
13 NOTICE of Appearance by Rodney Patton on behalf of DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY (Patton, Rodney) (Entered: 08/21/2015)
14 STATUS REPORT by Both Parties in Response to the Court's Order of July 31, 2015 by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY. (Patton, Rodney) (Entered: 08/21/2015)
MINUTE ORDER: Having considered the Status Report of the parties 14 , it is hereby ordered that the parties shall file a Status Report, along with a proposed schedule and proposed order, not later than August 28, 2015. Signed by Judge Tanya S. Chutkan on 8/25/15. (DJS) Modified on 8/25/2015 (zsm). (Entered: 08/25/2015)
Set/Reset Deadlines: Status Report and proposed schedule due by 8/28/2015. (zsm) (Entered: 08/25/2015)
15 Joint STATUS REPORT and Joint Proposed Scheduling Order by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY. (Attachments: # 1 Text of Proposed Order)(Patton, Rodney) (Entered: 08/28/2015)
MINUTE ORDER: Having considered the Joint Status Report filed by the parties 15 , it is hereby ordered that the parties shall abide by the following deadlines: Defendant's Motion for Summary Judgment due by October 14, 2015; Plaintiff's Opposition to Summary Judgment Motion due by November 4, 2015; Defendant's Reply in Support of Summary Judgment Motion due by November 18, 2015. Signed by Judge Tanya S. Chutkan on 8/31/15. (DJS) (Entered: 08/31/2015)
Set/Reset Deadlines: Summary Judgment motion due by 10/14/2015. Response to Motion for Summary Judgment due by 11/4/2015. Reply to Motion for Summary Judgment due by 11/18/2015. (zsm) (Entered: 08/31/2015)
16 Renewed MOTION for Summary Judgment by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration, # 4 Text of Proposed Order)(Patton, Rodney) Modified text on 10/15/2015 (td). (Entered: 10/14/2015)
17 ERRATA Relating to the Government's Memorandum of Points and Authorities in Support of the Goverment's Renewed Motion for Summary Judgment by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY 16 Second MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY. (Attachments: # 1 Memorandum in Support)(Patton, Rodney) (Entered: 10/15/2015)
18 Memorandum in opposition to re 16 Second MOTION for Summary Judgment filed by JASON LEOPOLD. (Attachments: # 1 Exhibit 1 − Colborn Declaration from NDLON v. ICE, # 2 Statement of Facts, # 3 Text of Proposed Order)(Light, Jeffrey) (Entered: 11/04/2015)
19 REPLY to opposition to motion re 16 Second MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY. (Attachments: # 1 Exhibit, # 2 Statement of Facts)(Patton, Rodney) (Entered: 11/18/2015)
20 MEMORANDUM OPINION. See Order for additional details. Signed by Judge Tanya S. Chutkan on 7/11/16. (lctsc2) (Entered: 07/11/2016)
21 ORDER denying 16 Motion for Summary Judgment. See Order for additional details. Signed by Judge Tanya S. Chutkan on 7/11/16. (lctsc2) (Entered: 07/11/2016)

Case: 1:14-cv-805 As of: 10/26/2017 10:32 AM EDT 4 of 5

07/12/2016 08/11/2016 08/12/2016 10/11/2016 10/12/2016
10/13/2016 11/10/2016 11/11/2016
12/08/2016 12/12/2016
12/13/2016 12/15/2016 12/16/2016
12/16/2016 01/26/2017 01/26/2017

Set/Reset Deadlines: joint proposed scheduling order due by 8/11/2016. (tth) (Entered: 07/12/2016)
22 Joint STATUS REPORT and Joint Proposed Scheduling Order by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY. (Patton, Rodney) (Entered: 08/11/2016)
MINUTE ORDER: Having considered the Status Report 22 filed by the parties, it is hereby ordered that the parties shall file another joint Status Report by October 11, 2016, along with a proposed order. Signed by Judge Tanya S. Chutkan on 8/12/16. (DJS) (Entered: 08/12/2016)
23 Joint STATUS REPORT by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY. (Attachments: # 1 Text of Proposed Order)(Patton, Rodney) (Entered: 10/11/2016)
MINUTE ORDER: Having considered the parties' Joint Status Report 23 , it is hereby ordered that the parties are to submit another status report on or before November 10, 2016, in which the parties will report either that the issue of fees and costs has been resolved, or, if not, setting forth a proposed briefing schedule − along with a proposed order − on the issue of fees and costs. Signed by Judge Tanya S. Chutkan on 10/12/16. (DJS) (Entered: 10/12/2016)
Set/Reset Deadlines: Status Report due by 11/10/2016 (zsm) (Entered: 10/13/2016)
24 Joint STATUS REPORT by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY. (Patton, Rodney) (Entered: 11/10/2016)
MINUTE ORDER: Having considered the parties' Joint Status Report 24 , it is hereby ordered that the parties are to submit another status report on or before 12/8/16, in which the parties will report either that the issue of fees and costs has been resolved or, if not, set forth a proposed briefing schedule − along with a proposed order − on the issue of fees and costs. Status Report due by 12/8/2016. Signed by Judge Tanya S. Chutkan on 11/11/16. (DJS) (Entered: 11/11/2016)
25 Joint STATUS REPORT by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY. (Attachments: # 1 Text of Proposed Order)(Patton, Rodney) (Entered: 12/08/2016)
MINUTE ORDER: Having considered the parties' Joint Status Report 25 , it is hereby ordered that the parties shall submit another status report on or before December 15, 2016, in which the parties will report either that the issue of attorney's fees and costs has been resolved, or, if not,setting forth a proposed briefing schedule and proposed order on the issue of fees and costs. Signed by Judge Tanya S. Chutkan on 12/12/16. (DJS) (Entered: 12/12/2016)
Set/Reset Deadlines: Status Report due by 12/15/2016 (zsm) (Entered: 12/13/2016)
26 Joint STATUS REPORT by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY. (Attachments: # 1 Text of Proposed Order)(Patton, Rodney) (Entered: 12/15/2016)
MINUTE ORDER: Having considered the parties' Joint Status Report 26 , it is hereby ordered that the following deadlines shall apply: Plaintiff's Motion for Attorney's Fees and Costs due January 30, 2017. Defendants' Opposition due February 20, 2017. Plaintiffs Reply due March 6, 2017. Signed by Judge Tanya S. Chutkan on 12/16/16. (DJS) (Entered: 12/16/2016)
Set/Reset Deadlines: Motions due by 1/30/2017. Response due by 2/20/2017 Reply due by 3/6/2017. (zsm) (Entered: 12/16/2016)
27 Joint MOTION to Vacate The Briefing Schedule by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY (Attachments: # 1 Text of Proposed Order)(Patton, Rodney) (Entered: 01/26/2017)
MINUTE ORDER: Granting 27 Joint Motion to Vacate Briefing Schedule. The current briefing schedule, set by the 12/16/16 Minute Entry Order is hereby VACATED. The parties shall file a Stipulation of Dismissal or Joint Status Report and proposed order by February 27, 2017. Signed by Judge Tanya S. Chutkan on 1/26/17.

Case: 1:14-cv-805 As of: 10/26/2017 10:32 AM EDT 5 of 5

01/31/2017 02/27/2017 02/28/2017

(DJS) (Entered: 01/26/2017)
Set/Reset Deadlines: Joint Stipulation of Dismissal or Joint Status Report due by 2/27/2017. (tb) (Entered: 01/31/2017)
28 Joint STATUS REPORT by DEPARTMENT OF JUSTICE, NATIONAL SECURITY AGENCY. (Attachments: # 1 Text of Proposed Order)(Patton, Rodney) (Entered: 02/27/2017)
29 ORDER OF DISMISSAL: Dismissing case without prejudice. If settlement is not consummated, either party may reopen the action until April 15, 2017, upon motion approved by the Court. Should counsel fail to move to reopen the case within the prescribed period, the case shall, without further order, stand dismissed with prejudice. Signed by Judge Tanya S. Chutkan on 2/28/17. (DJS) (Entered: 02/28/2017)