1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

DAVID COLE, 

 

Plaintiff, 

v. 

WALTER G. COPAN,1 et al. 

Defendants. 

Civ. Action No. 15-1991 (EGS/GMH) 

MEMORANDUM OPINION 

Plaintiff David Cole (“Mr. Cole” or “Plaintiff”) has sued 

Defendants, the National Institute of Standards and Technology 

(“NIST”) and the Federal Emergency Management Agency (“FEMA”), 

under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. 

See Complaint, ECF No. 1. Mr. Cole’s lawsuit arises from a May 

20, 2011, FOIA request for certain records related to the 

collapse of the World Trade Center (“WTC”) buildings on 

September 11, 2001, and alleges that defendants have made an 

inadequate search for, and disclosure of, responsive records. On 

January 7, 2019, Judge Sullivan referred the case to a 

Magistrate Judge for full case management and on January 9, 

1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, 

the Acting Director of the National Institute of Standards and 

Technology, Walter G. Copan, is substituted as Defendant for 

former Director of the National Institute of Standards and 

Technology, Willie E. May. See Fed. R. Civ. P. 25(d). 
2 

2019, the case was randomly referred to Magistrate G. Michael 

Harvey. See ECF No. 36. 

Pending before the Court are Defendants’ Motion for Summary 

Judgment, see Mot. for Summ. J. (“Defs.’ Mot.”), ECF No. 23; and 

Mr. Cole’s Combined Motion For Limited Discovery and For Summary 

Judgment, see Pl.’s Combined Motion Pursuant to Rule 56 for 

Leave to Conduct Limited Discovery Before a Response to 

Defendants’ Summary Judgement Motion is Required, and For 

Summary Judgment (“Pl.’s Mots.”), ECF No. 30. 

Magistrate Judge Harvey issued a Report and Recommendation 

(“R. & R.”) recommending that this Court deny both the Motions 

for Summary Judgment, and grant Mr. Cole’s Motion for Limited 

Discovery. See R. & R., ECF No. 37. The defendants raise several 

objections to Magistrate Judge Harvey’s R. & R. See generally 

Defendants’ Objections to Magistrate Judge’s Proposed Findings 

and Recommendations (“Defs.’ Objections”), ECF No. 43. In 

addition, Mr. Cole also raises an objection to the R & R. See 

Pl. David Cole’s Objection to Magistrate Judge’s R. & R. (“Pl.’s 

Objection”), ECF No. 44. 

Upon careful consideration of the R. & R., the objections 

of both parties and opposition thereto, the applicable law, and 

the entire record herein, the Court hereby ADOPTS IN PART AND 

REJECTS IN PART the R. & R., see ECF No. 37; DENIES Defendants’ 

Motion for Summary Judgment, see ECF No. 23; GRANTS Plaintiff’s 
3 

Combined Motion for Limited Discovery, see ECF No. 30; and 

DENIES Plaintiff’s Motion for Summary Judgment, see id. 

I. Background2

A. Factual Background 

On May 20, 2011, Mr. Cole submitted a FOIA request to FEMA 

for certain documents related to the collapse of the WTC 

buildings on September 11, 2001. See Statement of Material Facts 

Not in Dispute (“SMF”), ECF No. 23-1 at 6. Specifically, he 

requested “all background or raw data” used for the FEMA 403 

Building Performance Study (“BPS”)

3

regarding the WTC buildings, 

“including photographs, video, audio, field notes, memoranda, 

lab samples, and lab results.” Id. On May 26, 2011, FEMA sent 

Mr. Cole a letter acknowledging his request, and tasked the 

search for responsive records to three of its offices: (1) 

External Affairs, the office that controls FEMA’s Photo Library; 

(2) the Federal Insurance and Mitigation Administration 

(“Mitigation”); and (3) the Region II Office (“Region II”), the 

regional office that covers New York. Id.; Decl. of Eric 

Neuschaefer with Exhibits (“Neuschaefer Decl.”, ECF No. 23-2 at 

¶¶ 20, 25. By December 19, 2011, all three offices had finished 

their searches and found that they possessed no responsive 

2 The Factual Background section, as well as a large part of the 

Procedural Background, reflects Magistrate Judge Harvey’s R. & 

R. See ECF No. 37, Section I. 
4 

records. See SMF, ECF No. 23-1 at 6; Neuschaefer Decl., ECF No. 

23-2 at 6, 49, 52, 55. 

At some point during the searches of External Affairs, 

Mitigation, and Region II, FEMA determined that it had sent all 

BPS-related records to NIST around May 2002 (“May 2002 

Documents”) and that it had retained no physical or electronic 

copies of those records. See SMF, ECF No. 23-1 at 6–7, 10; 

Neuschaefer Decl., ECF No. 23-2 at 3–4, 20–21. Accordingly, on 

December 23, 2011, FEMA forwarded Mr. Cole’s request to NIST. 

See SMF, ECF No. 23-1 at 7; Neuschaefer Decl. ECF No. 23-2 at 

63. On that same day, FEMA also sent Mr. Cole a letter informing 

him that NIST would be handling his request going forward. See 

SMF, ECF No. 23-1 at 6–7; Neuschaefer Decl., ECF No. 23-2 at 60. 

NIST received Mr. Cole’s request from FEMA on December 28, 

2011. See Decl. of Catherine S. Fletcher with Attachments 

(“Fletcher Decl.”), ECF No. 23-3 at 1–2. Shortly thereafter, it 

determined that the only NIST office likely to contain 

responsive records was the Engineering Laboratory, which had 

received all WTC-related records from FEMA during the May 2002 

transfer. See id. ¶ 6. According to NIST, the Engineering 

Laboratory searched “all files and locations likely to contain 

responsive documents,” and it found 70 documents comprising 

3,947 pages that were potentially responsive to Mr. Cole’s 

request. Id. ¶¶ 6– 7. On January 19, 2012, NIST sent those 
5 

documents to FEMA’s Disclosure Branch—the office tasked with 

managing FOIA requests—for further review, and FEMA examined 

those documents with a subject-matter expert (“SME”). See SMF, 

ECF No. 23-1 at 8; Fletcher Decl., ECF No. 23-3 at 29. By June 

29, 2012, FEMA had determined that, of the potentially 

responsive records it had received from NIST— 3,950 pages by 

FEMA’s count—3,789 pages were “releasable in whole or in part,” 

three pages were “not responsive,” and 158 pages potentially 

fell under the purview of the Department of Energy (“DOE”). See 

Neuschaefer Decl., ECF No. 23-2 at 77–78. With respect to the 

158 pages potentially under DOE’s purview, FEMA recommended 

sending them to DOE “for direct reply to [NIST] or [Mr. Cole].” 

Id. at 78. It is unclear whether any of those pages were ever 

sent to DOE or ever produced to Mr. Cole. See generally id.; 

Fletcher Decl., ECF No. 23-3. 

Despite FEMA’s June 29, 2012, determination that 3,789 

pages of the May 2002 Documents were releasable in whole or in 

part, NIST, for some reason that remains unclear, did not 

disclose any records to Mr. Cole but rather “continued its 

attempts to work with FEMA to process FEMA’s referral” of his 

FOIA request between July and September 2012. Neuschaefer Decl., 

ECF No. 23-2 at 77; SMF, ECF No. 23-1 at 8; Fletcher Decl., ECF 

No. 23-3 ¶ 10. NIST avers that, “[t]hrough these discussions,” 

it concluded—at some point that remains unspecified—that it was 
6 

unable to determine the responsiveness of any of the May 2002 

Documents because it could not determine which of them FEMA had 

used in the BPS. Fletcher Decl., ECF No. 23-3 ¶ 10. NIST also 

“determined that it was not the proper authority to withhold any 

of FEMA’s records under FOIA and therefore could not issue a 

final determination” regarding releasability. Id. ¶ 11. 

Meanwhile, by August 2012, FEMA believed that it had 

addressed all issues with respect to NIST’s referral and that 

NIST would make the final response to Mr. Cole’s request. See 

SMF, ECF No. 23-1 at 9; Neuschaefer Decl., ECF No. 23-2 ¶¶ 33–

34. On August 3, 2012, FEMA sent a letter to NIST stating that 

FEMA “considered its work on the case complete and that NIST 

should make the final determinations” regarding Mr. Cole’s 

request. Neuschaefer Decl., ECF No. 23-2 ¶ 33. According to 

Defendants, “[a]s a result of this mix-up”— i.e., each agency 

believing that the other would issue the final response to Mr. 

Cole—no responsive documents—other than 2,435 images, 83 video 

files, and 269 pages of documents that NIST identified in the 

public domain and which NIST disclosed to Mr. Cole in February 

2012 and February 2013—were disclosed to Mr. Cole at that time. 

See Fletcher Decl., ECF No. 23-3 at ¶¶ 8, 12. 

FEMA’s last communication with Mr. Cole before this lawsuit 

commenced was an August 30, 2012, letter in which FEMA indicated 

that NIST would be making all disclosures of responsive records. 
7 

See Neuschaefer Decl., ECF No. 23-2 at 89 (“It is our 

understanding the records you have been (or will be) provided by 

NIST were retrieved from all of the available records FEMA 

transferred to NIST.”). In that letter, FEMA also informed Mr. 

Cole that it had determined there were approximately 490,000 

pages of “supplemental” WTC-related records in storage at the 

National Archives and Records Administration (“NARA”). Id. 

Although the inventory of the NARA records did not “readily 

indicate any additional responsive material,” FEMA stated that 

Mr. Cole could submit a new FOIA request if he was “interested 

in searches being conducted” on those records. Id. There is no 

indication that Mr. Cole ever submitted such a request or that 

FEMA ever searched the NARA records. See generally ECF Nos. 23, 

23-2, 23-3, 30. 

On March 22, 2013, FEMA asked NIST to return all remaining 

May 2002 Documents for further review. Fletcher Decl., ECF No. 

23-3 at 3, 47–49. On April 10, 2013, NIST complied with this 

request, and it sent FEMA a letter informing it that, because it 

could not “determine which of the FEMA records received [ ] were 

‘used’ for the completion of the [BPS],” it was “referring all 

records [it] received on behalf of FEMA to [FEMA’s] attention 

for review and direct reply to [Mr. Cole].” Id. at 51. On that 
8 

same day, NIST sent a letter to Mr. Cole informing him that FEMA 

would provide the final response to his FOIA request. Id. at 55. 

B. Procedural Background 

Having received no responsive records or further 

communication from Defendants in the ensuing two-and-a-half 

years, Mr. Cole filed this lawsuit on November 12, 2015. See 

Complaint, ECF No. 1. At some point after this lawsuit 

commenced, FEMA’s Disclosure Branch conducted another search 

within Region II and consulted with an SME, through which it 

confirmed that the only responsive records FEMA possessed were 

the May 2002 Documents that NIST had sent to FEMA. See 

Neuschaefer Decl., ECF No. 23-2 ¶ 37; Exhibit 4, ECF No. 30-8 at 

2–4. On April 20, 2016, FEMA sent Mr. Cole portions of the May 

2002 Documents in an amount that remains unspecified in the 

record. April & September 2016 Correspondence to Plaintiff, ECF 

No. 23-4 at 1. Invoking 5 U.S.C. § 552(b)(6) (“Exemption 6”), 

FEMA withheld certain personally identifying information from 

those records in the interest of maintaining the privacy of 

individuals who could potentially be identified. SMF, ECF No. 

23-1 at 12–13; ECF No. 23-2 at 9, ¶¶ 38– 43; see 5 U.S.C. § 

552(b)(6) (permitting the government to withhold “files the 

disclosure of which would constitute a clearly unwarranted 

invasion of personal privacy”). FEMA also claims that pursuant 

to 5 U.S.C. § 552(b), it “segregated and disclosed non-exempt 
9 

information.” Defs.’ Mot., ECF No. 23 at 10 (citing 5 U.S.C. § 

552(b) (“Any reasonably segregable portion of a record shall be 

provided to any person requesting such record after deletion of 

the portions which are exempt under this subsection.”)). 

Mr. Cole reviewed the April 20, 2016, disclosures, and on 

June 7, 2016, his counsel sent an email to Defendants’ counsel 

identifying a list of missing records that were referenced in 

the disclosures. Exhibit 1, ECF No. 30-2 at 1–3. For example, 

Mr. Cole’s counsel noted that, although a document produced by 

FEMA showed that a set of WTC-related drawings had been sent to 

a FEMA contractor, FEMA had failed to produce those drawings. 

Id. at 1. He also cited an inventory of BPS- related records 

that FEMA had sent to NIST in 2002, and which listed CDs, a 

video, and other drawings that he believed were responsive to 

Mr. Cole’s request, but which were absent from the records that 

Mr. Cole had received. Id. at 1–2. 

Defendants’ counsel responded by email on August 23, 2016, 

stating that FEMA had been unable to locate those missing 

records. See Exhibit 2, ECF No. 30-6 at 1–2. Defendants’ counsel 

also stated that some of those records might be located in 

Region II’s local archives and that FEMA would be “willing to 

send two of its personnel to the warehouse to perform a 

reasonable search” for them. Id. In an October 11, 2016, email, 
10 

Mr. Cole’s counsel requested that FEMA search Region II’s local 

archives. Exhibit 3, ECF No. 30-7 at 3, 4. 

On November 22, 2016, Defendants’ counsel responded by 

email that: (1) FEMA had sent Mr. Cole all responsive records in 

its possession; (2) despite its search and consultation with an 

SME, FEMA could not locate the missing records that Mr. Cole’s 

counsel had identified; and (3) this served as Defendants’ final 

response to Mr. Cole. Exhibit 4, ECF No. 30-8 at 2–4. In that 

email, Defendants’ counsel also repeatedly stated that 

“responsive records were not sent to the NARA archives” and that 

FEMA had “determined that there is no FEMA Region II archive.” 

Id. FEMA has provided no further explanation regarding its 

counsel’s statement that “responsive records were not sent to 

the NARA archives.” Id.; see generally ECF Nos. 23, 23-2. 

However, with respect to the assertion that “there is no FEMA 

Region II archive,” Exhibit 4, ECF No. 30-8 at 2-4; FEMA has 

explained in an affidavit that, “[i]n consulting with Region II, 

. . . it had appeared that there were local archives for New 

York documents. Upon further inquiry, the Disclosure Branch and 

its counsel learned that the only local archives were temporary 

locations that were rented to house information pertaining to 

the Hurricane Sandy disaster. No FEMA archives exist in New York 
11 

that may contain documents responsive to [Mr. Cole’s] FOIA 

request.” Neuschaefer Decl., ECF No. 23-2 at 8, ¶ 37. 

Dissatisfied with those responses, Mr. Cole moved for 

limited discovery on March 27, 2017. See Motion for Discovery, 

ECF No. 15. In support of that motion, he argued that 

Defendants’ searches and disclosures were inadequate and that 

there was evidence of bad faith on Defendants’ part in 

processing his FOIA request. See Pl. David Cole’s Mem. of P. & 

A. in Supp. of Mot. for Leave to Conduct Limited Discovery, ECF 

No. 15-1 at 2–8, 10–11, 13–15. On January 3, 2018, this Court 

denied Mr. Cole’s motion, holding that discovery was premature 

because Defendants had not yet moved for summary judgment. See 

Mem. Op. and Order, ECF No. 19 at 2; see also Cole v. Rochford, 

285 F. Supp. 3d 73, 77–78 (D.D.C. 2018). Nevertheless, this 

Court noted that Mr. Cole had “raised significant questions as 

to whether FEMA [had] processed documents in good faith in 

response to [his] FOIA request” and that it was “troubled by 

multiple aspects of the government’s actions,” including FEMA’s 

delay in disclosing responsive records until April 2016 despite 

its June 2012 determination that 3,789 pages of documents were 

releasable in whole or in part. Mem. Op., ECF No. 19 at 8. This 

Court was also “troubled by the government’s inconsistent, even 

contradictory, responses to [Mr. Cole’s] inquiries regarding his 

FOIA request.” Id. at 9. For example, this Court pointed to the 
12 

discrepancies between FEMA’s initial representations that there 

were 490,000 pages of potentially responsive records at NARA and 

that there might be responsive records in Region II’s local 

archives, and its subsequent assertions that no responsive 

records had been sent to NARA and that no local archives 

existed. Id. 

On April 5, 2018, Defendants moved for summary judgment. 

See Def.’s Mot., ECF No. 23. In support of their motion, they 

argue that they have conducted adequate searches for responsive 

records, that they have released all responsive records in their 

possession to Mr. Cole, that they have properly withheld certain 

information pursuant to Exemption 6, and that they have complied 

with FOIA’s segregability requirement. See id. at 4–10. On June 

13, 2018, Mr. Cole filed a combined motion for limited discovery 

and for summary judgment. See Pl.’s Mots., ECF No. 30. In 

support of his motion, Mr. Cole once again contends that 

Defendants’ searches and disclosures have been inadequate and 

that there is evidence of bad faith on Defendants’ part in 

processing his FOIA request. See id. at 12–43. Mr. Cole, 

however, does not challenge whether FEMA has properly invoked 

Exemption 6 or complied with FOIA’s segregability requirement. 

See Pl.’s Mots., ECF No. 30 at 12–43. 

Pursuant to Local Rule 72.2, the case was referred to 

Magistrate Judge G. Michael Harvey, up to but excluding trial, 
13 

including the preparation of a report and recommendation with 

respect to any potentially dispositive motions. See Min. Order, 

Jan. 7, 2019. Magistrate Judge Harvey has issued an R. & R. 

recommending that this Court deny the Defendants’ Motion for 

Summary Judgment, grant the Plaintiff’s Motion for Discovery, 

and deny the Plaintiff’s Motion for Summary Judgment as 

premature. See R. & R., ECF No. 37. Both parties have raised 

objections to Magistrate Judge Harvey’s R. & R. See Defs.’ 

Objections, ECF No. 43; Pl.’s Objection, ECF No. 44. The motions 

are fully briefed and ripe for adjudication. 

II. Legal Standard 

A. Objections to a Magistrate Judge's Report and 

Recommendation 

Pursuant to Federal Rule of Civil Procedure 72(b), a party 

may file specific written objections once a magistrate judge has 

entered a recommended disposition. Fed. R. Civ. P. 72(b)(1)-(2). 

A district court “may accept, reject or modify the recommended 

disposition.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 

636(b)(1) (“A judge of the court may accept, reject, or modify, 

in whole or in part, the findings or recommendations made by the 

magistrate judge.”). A district court “must determine de novo 

any part of the magistrate judge's disposition that has been 

properly objected to.” Fed. R. Civ. P. 72(b)(3). “If, however, 

the party makes only conclusory or general objections, or simply 
14 

reiterates his original arguments, the Court reviews the [R. & 

R.] only for clear error.” Houlahan v. Brown, 979 F. Supp. 2d 

86, 88 (D.D.C. 2013) (citation omitted). “Under the clearly 

erroneous standard, the magistrate judge's decision is entitled 

to great deference” and “is clearly erroneous only if on the 

entire evidence the court is left with the definite and firm 

conviction that a mistake has been committed.” Buie v. D.C., No. 

CV 16-1920 (CKK), 2019 WL 4345712, at *3 (D.D.C. Sept. 12, 2019) 

(citing Graham v. Mukasey, 608 F. Supp. 2d 50, 52 (D.D.C. 2009)) 

(internal quotation marks omitted). 

Objections must “specifically identify the portions of the 

proposed findings and recommendations to which objection is made 

and the basis for objection.” LCvR 72.3(b). “[O]bjections which 

merely rehash an argument presented to and considered by the 

magistrate judge are not ‘properly objected to’ and are 

therefore not entitled to de novo review.” Shurtleff v. EPA, 991 

F. Supp. 2d 1, 8 (D.D.C. 2013) (quoting Morgan v. Astrue, No. 

08-2133, 2009 WL 3541001, at *3 (E.D. Pa. Oct. 30, 2009)). 

B. Summary Judgment 

Federal Rule of Civil Procedure 56 provides that summary 

judgment motions must be granted if “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, 250 (1986). The moving party 
15 

bears the initial burden “of informing the district court of the 

basis for its motion, and identifying those portions of ‘the 

pleadings, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits, if any,’ which 

it believes demonstrate the absence of a genuine issue of 

material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 

(1986); see also Fed. R. Civ. P. 56(c)(1). This burden “may be 

discharged by ‘showing’ . . . that there is an absence of 

evidence to support the nonmoving party’s case.” Celotex, 477 

U.S. at 325. 

In evaluating a summary judgment motion, “[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 

(quoting Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59 

(1970)). Summary judgment turns on “whether the evidence 

presents a sufficient disagreement to require submission to a 

jury or whether it is so one-sided that one party must prevail 

as a matter of law.” Id. at 251-52. “[I]f the evidence is such 

that a reasonable jury could return a verdict for the nonmoving 

party”–and thus a “genuine” dispute over a material fact exists–

then summary judgment is not available. Id. at 248. 

For purposes of summary judgment, materiality is determined 

by the substantive law of the action. Id. Accordingly, the 

substantive law identifies “which facts are critical and which 
16 

facts are irrelevant,” and “[o]nly disputes over facts that 

might affect the outcome of the suit under the governing law 

will properly preclude the entry of summary judgment.” Id. 

Similarly, the applicable substantive evidentiary standards of 

the action guide “whether a given factual dispute requires 

submission to a jury.” Id. at 255. The Court’s role at the 

summary judgment stage “is not . . . to weigh the evidence and 

determine the truth of the matter but to determine whether there 

is a genuine issue for trial.” Id. at 249. 

C. FOIA 

FOIA is based on the recognition that an informed citizenry 

is “vital to the functioning of a democratic society, needed to 

check against corruption and to hold the governors accountable 

to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 

214, 242 (1978). It was enacted to “pierce the veil of 

administrative secrecy and to open agency action to the light of 

public scrutiny,” and it favors “full agency disclosure.” Dep’t 

of the Air Force v. Rose, 425 U.S. 352, 360–61 (1976) (quoting 

Rose v. Dep’t of the Air Force, 495 F.2d 261, 263 (2d Cir. 

1974)). FOIA cases are usually resolved on motions for summary 

judgment. Brayton v. Office of the U.S. Trade Rep., 641 F.3d 

521, 527 (D.C. Cir. 2011). The agency has the burden of 

justifying its response to the FOIA request it received, and the 

court reviews its response de novo. 5 U.S.C. § 552(a)(4)(B). 
17 

D. Adequate Search 

To prevail on summary judgment in a FOIA case, the agency 

must show that it conducted an adequate search for records 

responsive to the plaintiff’s FOIA request. See Morley v. CIA, 

508 F.3d 1108, 1114 (D.C. Cir. 2007). To make a prima facie 

showing of adequacy, the agency must demonstrate that it made a 

good-faith effort to search for responsive records “using 

methods which can be reasonably expected to produce the 

information requested.” Reporters Comm. for Freedom of Press v. 

FBI, 877 F.3d 399, 402 (D.C. Cir. 2017) (quoting Oglesby v. U.S. 

Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)); see Iturralde 

v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) 

(adequacy depends on the “appropriateness of the methods used” 

rather than the “fruits of the search”). 

It may do so by submitting “[a] reasonably detailed 

affidavit, 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.” 

Reporters Comm., 877 F.3d at 402 (quoting Oglesby, 920 F.2d at 

68). Such affidavits “are accorded a presumption of good faith, 

which 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) 

(quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 
18 

(D.C. Cir. 1981)). However, “[a]t a bare minimum, the agency’s 

affidavits need to specify ‘what records were searched, by whom, 

and through what process.’” Rodriguez v. DOD, 236 F. Supp. 3d 

26, 38 (D.D.C. 2017) (quoting Steinberg v. DOJ, 23 F.3d 548, 552 

(D.C. Cir. 1994)). 

“The agency fails to meet this burden such that summary 

judgment is inappropriate when the agency fails to set forth the 

search terms and the type of search performed with specificity 

or otherwise provides ‘no information about the search 

strategies of the [agency] components charged with responding to 

[a] FOIA request’ and ‘no indication of what each [component’s] 

search specifically yielded.’” Otero v. DOJ, 292 F. Supp. 3d 

245, 251 (D.D.C. 2018) (quoting Reporters Comm., 877 F.3d at 

402). 

E. Discovery 

“It is well established that discovery is rare in FOIA 

cases.” Cole, 285 F. Supp. 3d at 76; see Thomas v. FDA, 587 F. 

Supp. 2d 114, 115 n.2 (D.D.C. 2008) (noting that “discovery is 

an extraordinary procedure in a FOIA action”). “Where an 

agency’s declarations are insufficient to support a finding that 

its search was adequate, courts ‘generally will request that an 

agency supplement its supporting declarations rather than order 

discovery.’” Landmark Legal Found. v. EPA, 959 F. Supp. 2d 175, 

183 (D.D.C. 2013) (quoting Wolf v. CIA, 569 F. Supp. 2d 1, 10 
19 

(D.D.C. 2008)). “However, discovery may be granted when [a] 

plaintiff has made a sufficient showing that the agency acted in 

bad faith, has raised a sufficient question as to the agency’s 

good faith, or when a factual dispute exists and the plaintiff 

has called the affidavits submitted by the government into 

question.” Citizens for Responsibility and Ethics in Wash. v. 

DOJ, No. Civ. 05- 2078 (EGS), 2006 WL 1518964, at *3 (D.D.C. 

June 1, 2006) [hereinafter “CREW”] (internal citations omitted). 

III. Analysis 

In their summary judgment motion, Defendants NIFT and FEMA 

argue that they conducted a reasonable search for the records 

Mr. Cole requested, and complied with FOIA’s segregability 

requirement, and should therefore be granted summary judgment 

because there are no genuine disputes of material fact. See 

Defs.’ Mot., ECF No. 23 at 2-3. Mr. Cole responds that summary 

judgment is unwarranted and that he should be “granted leave 

under Rule 56(d) to conduct limited discovery” because “genuine 

disputes of material fact exist regarding whether Defendants 

have made a complete disclosure of responsive documents.” Pl.’s 

Mots., ECF No. 30 at 13. 

Magistrate Judge Harvey finds that “Defendants have not 

shown that their searches were adequate due to their failure to 

provide this Court with sufficient details about their 

methodologies” and consequently recommends denying the motion 
20 

for summary judgment. R. & R., ECF No. 37 at 11. He further 

finds that “Defendants’ conduct—engaging in lengthy delays and 

inconsistent representations and failing to adequately explain 

them despite this Court’s clear expressions of concern,” 

warrants limited discovery for Mr. Cole regarding the adequacy 

of the government’s searches. Id. at 19. As a result, he 

recommends denying Mr. Cole’s motion for summary judgment as 

premature. Id. at 20. 

Defendants FEMA and NIST object to Magistrate Judge 

Harvey’s report, arguing that: (1) they conducted a reasonably 

adequate search; and (2) the remaining issues should be 

addressed through supplemental declarations, rather than 

discovery. See Defs.’ Objections, ECF No. 43 at 1-2. Mr. Cole 

raises a third objection, arguing that discovery should also 

include the “fact question” of whether responsive records could 

have been stored in a FEMA Region II local archive. 

The Court discusses the appropriate standard of review for 

each of the three objections before considering the substantive 

merits. The Court does not discuss the parts of Magistrate 

Harvey’s R. & R. to which no objection is raised, including 
21 

whether the Defendants have satisfied FOIA’s segregability 

requirement. 

A. The Standard of Review for Magistrate Judge Harvey’s R. 

& R. Varies Based on the Objection 

Pursuant to Federal Rule of Civil Procedure 72(b), once a 

magistrate judge has entered a recommended disposition, a party 

may file specific written objections. The district court “must 

determine de novo any part of the magistrate judge’s disposition 

that has been properly objected to,” and “may accept, reject or 

modify the recommended disposition.” Fed. R. Civ. P. 72(b)(3). 

Proper objections “shall specifically identify the portions of 

the proposed findings and recommendations to which objection is 

made and the basis for objection.” Local R. Civ. P. 72.3(b); see 

also Means v. District of Columbia, 999 F. Supp. 2d 128, 132 

(D.D.C. 2013). 

“If, however, the party makes only conclusory or general 

objections, or simply reiterates his original arguments, the 

Court reviews the [R. & R.] only for clear error.” Houlahan, 979 

F. Supp. 2d at 88 (internal citation omitted). “Under the 

clearly erroneous standard, the magistrate judge's decision is 

entitled to great deference” and “is clearly erroneous only if 

on the entire evidence the court is left with the definite and 
22 

firm conviction that a mistake has been committed.” Buie, No. CV 

16-1920 (CKK), 2019 WL 4345712, at *3.

1. Magistrate Judge Harvey’s R. & R. is Reviewed Only 

For Clear Error For Defendants’ Objections Related 

to the Adequacy of Their Search

Defendants FEMA and NIST first argue that contrary to 

Magistrate Judge Harvey’s conclusion, they conducted a 

reasonably adequate search for the records requested by Mr. 

Cole. See Defs.’ Objections, ECF No. 43 at 2. Defendants make no 

new arguments not presented in their motion for summary 

judgment, other than calling attention to the preexisting 

record. See id. at 3 (arguing that the declaration of Eric 

Letvin, who at the time was the Deputy Assistant Administrator 

for Mitigation, “is mentioned only in a footnote and the 

significance of his testimony appears not to have been 

appreciated by the Magistrate Judge.”). In essence, the 

Defendants reiterate that FEMA requested a search by its 

External Affairs, Federal Insurance and Mitigation 

Administration, and FEMA Region II (the regional office that 

covers New York) divisions, all three of which responded that 

they did not have the requested records. See Def.’s Objections, 

ECF No. 43 at 3; Def.’s Mot., ECF No. 23 at 5-6. Since 
23 

Defendants present no new argument, their objection is reviewed 

only for clear error. See Houlahan, 979 F. Supp. 2d at 88/ 

Defendants next “object to any finding or recommendation in 

the Report predicated on the possibility that some records were 

not retained.” Defs.’ Objections, ECF No. 43 at 4 (referring to 

R. & R., ECF No. 37 at 18). The Court finds that this objection 

is conclusory and general, since it fails to point to any 

specific findings or recommendations in the R. & R. that were in 

fact based on non-retention of records. See generally id. The 

objection also incorrectly captures Magistrate Harvey’s 

position. Although the R. & R. states that “[t]he insufficiency 

[of FEMA’s search] is further exacerbated by FEMA’s repeated 

failures to locate missing records,” the “failures” it 

references are not non-retention of generic records. Rather, the 

R. & R. points out “FEMA’s repeated failures to locate missing 

records that are undisputedly referenced in its disclosures, as 

well as by its cursory explanations for its inability to locate 

those missing records and, more generally, the inadequate 

descriptions of its searches.” R. & R., ECF No. 37 at 18 

(emphasis added). Selectively picking sentence fragments does 

not make for a valid objection that the Court can consider. 

Defendants also object to the R. & R.’s conclusion that 

NIST’s declaration is deficient because it fails to set forth 

sufficient detail about its search. See Defs.’ Objections, ECF 
24 

No. 43 at 4-5 (citing R. & R., ECF No. 37 at 15). Here too the 

Defendants do not present new arguments, but simply highlight 

information in the preexisting record. See id. at 5-6. In 

addition, Defendants challenge some of the R. & R.’s reasoning, 

specifically the R. & R.’s observation that “[d]espite FEMA’s 

June 29, 2012, determination that 3,789 pages” in NIST’s 

possession were releasable in whole or in part, “NIST, for some 

reason that remains unclear, did not disclose any records to 

Plaintiff.” Id. at 6. Other than highlighting the reason for 

NIST’s non-disclosure, however, which Magistrate Judge Harvey 

himself pointed out, Defendants do not present an objection. See 

id. The Court is hard pressed to interpret any of the areas the 

Defendants present as “aspects of the Report that Defendants 

believe would benefit from further clarification” as specific 

and proper objections to the R. & R. The Court concludes that 

all of Magistrate Judge Harvey’s findings related to whether the 

Defendants conducted a reasonably adequate search are reviewable 

only for clear error. See Houlahan, 979 F. Supp. 2d at 88. 

2. Magistrate Judge Harvey’s R. & R. is Partly Reviewed 

De Novo, and Partly for Clear Error, For Defendants’ 

Objections Challenging a Grant of Discovery to Mr. 

Cole 

Defendants object to Magistrate Judge Harvey’s 

recommendation that Mr. Cole be granted limited discovery based 

on his finding that FEMA “provided no explanation for its delay” 
25 

between April 2013 and April 2016 in disclosing responsive 

records. See Defs.’ Objections, ECF No. 43 at 7 (internal 

citation omitted). However, the argument Defendants present, 

that there was an oversight by the agencies, is the same 

argument as in their summary judgment motion. Compare Defs.’ 

Objections, ECF No. 43 at 7 with Defs.’ Mot., ECF No. 23 at 6 

(both stating that “NIST apparently made the determination that 

it was unable to properly determine the responsiveness of the 

records and was not the proper authority to withhold FEMA’s 

records under FOIA, and therefore could not issue a final 

determination. FEMA thought that its response to NIST’s referral 

completed its obligations and that NIST would be making the 

final determinations and response to the requestor”) (internal 

citations omitted). The argument is therefore reviewed only for 

clear error. See Houlahan, 979 F. Supp. 2d at 88. 

Defendants also object to the R. & R. citing “as a reason 

for discovery the fact that “FEMA failed to explain its 

significant change in position over the existence of potentially 

responsive documents stored at NARA.” Defs.’ Objections, ECF No. 

43 at 7 (citing R. & R., ECF No. 37 at 17). Defendants assert 

that the record does not support “an interpretation of a 

“reversal” of FEMA’s position on the potential for WTC-related 

documents to be stored at NARA.” Id. Because this objection is 
26 

specific and provide a valid basis for objection, the Court 

reviews it de novo. See Local R. Civ. P. 72.3(b). 

Defendants next object to the R. & R.’s observation that 

they failed to adequately explain discrepancies despite the 

Court’s expressions of concern. See Defs.’ Objections, ECF No. 

43 at 8; see also R. & R., ECF No. 37 at 18 (stating that 

“Defendants were on notice about this Court’s concerns over 

their delays and inconsistencies, and they were given the 

opportunity to avoid discovery by addressing those concerns in 

reasonably detailed affidavits in support of a motion for 

summary judgment”). Defendants assert that although they can 

“appreciate how more attention could have been directed to those 

concerns,” “the appropriate remedy is to order Defendants to 

provide supplemental declarations or affidavits addressing the 

areas that the Magistrate Judge found to be deficient or 

unclear.” Defs.’ Objections, ECF No. 43 at 8-9. The Court 

concludes that Defendants present a properly specific objection 

that will be reviewed de novo. See Local R. Civ. P. 72.3(b). 

3. Magistrate Judge Harvey’s R. & R. is Reviewed De 

Novo For Mr. Cole’s Objection to Limited Discovery 

Mr. Cole in turn raises an objection to the R. & R., 

arguing that discovery should include the question of whether 

responsive records might have been stored in a FEMA Region II 

local archive. See Pl.’s Objections, ECF No. 44 at 1. Mr. Cole 
27 

asserts that even though Magistrate Judge Harvey concludes that 

Defendants have adequately explained the major discrepancy in 

their representations to Plaintiff regarding Region II warehouse 

storage, the explanation was “based on hearsay from unidentified 

personnel, which prevents any meaningful assessment of the 

credibility or accuracy of this latter representation.” Id. at 

2. The Court concludes that it will review this objection de 

novo, since it specifically identifies “the portions of the 

proposed findings and recommendations to which objection is made 

and the basis for objection.” Local R. Civ. P. 72.3(b). 

B. Defendants FEMA and NIST Did Not Conduct a Reasonably 

Adequate Search 

As discussed supra, see § III(A)(1), Magistrate Judge 

Harvey’s R. & R. is reviewed only for clear error for 

defendants’ objections related to the adequacy of their search. 

Magistrate Judge Harvey finds that FEMA’s declaration is 

deficient “because it ‘gives no details about the scope or 

methods of the searches conducted in these three locations.’” R. 

& R., ECF No. 37 at 11 (citing Defs. of Wildlife v. U.S. Border 

Patrol, 623 F. Supp. 2d 83, 92 (D.D.C. 2009)). Defendants FEMA 

and NIST object that they conducted a reasonably adequate search 

for the records requested by Mr. Cole. See Defs.’ Objections, 
28 

ECF No. 43 at 2. The Court finds no clear error in Magistrate 

Judge Harvey’s conclusion. 

As Magistrate Judge Harvey explains, FEMA has failed to 

explain both how its searches were carried out and what files 

the searches covered. Id. at 11-12. The testimony FEMA 

references from Mr. Letvin and Mr. Tertell, asserting that all 

records were turned over to NIST, does not provide any detail on 

the search conducted, see Defs.’ Objections’, ECF No. 43 at 3; 

nor does the Neushchaefer Declaration make up for enough of 

these deficits. See R. & R., ECF No. 37 at 11. Without more 

information, “even if the Court can make ‘reasonable guesses 

about the answers to those questions,’ the Court cannot award 

the agency summary judgment on the adequacy of its search.” R. & 

R., ECF No. 37 at 12 (citing Davidson v. U.S. Dep’t of State, 

206 F. Supp. 3d 178, 191 (D.D.C. 2016)). 

Defendants FEMA and NIST also object to the R. & R.’s 

conclusion that NIST’s declaration is deficient because it fails 

to set forth sufficient detail about its search. See Defs.’ 

Objections, ECF No. 43 at 4-5 (citing R. & R., ECF No. 37 at 

15). Defendants argue that it is “important to recognize that 

NIST is involved in this FOIA litigation only because FEMA had 

transferred the responsive documents to it in 2002” and 

accordingly, “there would be no need for NIST to perform any 

search beyond what is necessary to locate the files transferred 
29 

by FEMA.” Id. at 5. Again, the Court finds no clear error in 

Magistrate Harvey’s R. & R. 

Like FEMA, NIST fails to lay out its search terms or 

methodology in any detail. See Valencia-Lucena v. U.S. Coast 

Guard, 180 F.3d 321, 326 (D.C. Cir. 1999). For the purposes of 

FOIA, this Court’s concern is not how or why NIST came to be in 

possession of the records that Mr. Cole seeks; the Court’s focus 

is simply on whether NIST has adequately searched for the 

records transferred to it rather than leaving the Court to 

speculate. See Wilson, 192 F. Supp. 3d at 128. The Court can 

appreciate the added complexity of searching records that an 

agency did not create itself, for which “it doesn’t already have 

a listing of potentially responsive material,” Defs.’ 

Objections, ECF No. 43 at 5; but that does not excuse NIST’s 

failure to explain how it went about its search. 

Defendants reply that “[e]xpecting a list of search terms 

misses the point that NIST had lists or logs of the responsive 

BPS material in its possession that were transferred by FEMA and 

that NIST used those lists or logs to guide its search for the 

BPS material.” Defs.’ Reply in Supp. of Objections, ECF No. 46 

at 3. The Court can certainly appreciate how the log would be a 

useful basis for the BPS material search, but Defendants 

continue to miss the point that they have not explained how the 

lists guided their search, and what their methodology was when 
30 

searching the log. NIST has established that it does indeed have 

(1) a “database listing of all items received by FEMA in May 29, 

2002, that had been digitized by the time the FOIA request was 

received in December 2011”; and (2) a “comprehensive listing of 

all records in NIST’s possession that were identified as 

potentially responsive to the request, i.e. all locatable 

records received from FEMA on May 29, 2002.” Id. What the Court 

is missing is how the records were searched. The Court finds 

that Magistrate Harvey did not clearly err in concluding that 

NIST’s “blanket assurance” that it searched “all files and 

locations likely to contain responsive documents” is 

insufficient. See R. & R., ECF No. 37 at 15. 

C. The Remaining Issues Are Properly Addressed Through 

Discovery Rather Than Supplemental Declarations 

Magistrate Judge Harvey recommends that Mr. Cole be granted 

limited discovery because “Defendants’ conduct—engaging in 

lengthy delays and inconsistent representations and failing to 

adequately explain them despite this Court’s clear expressions 

of concern—'raises a question’ as to whether Defendants have 

‘been diligent and expeditious in complying with [their] FOIA 

obligations.’” R. & R., ECF No. 37 at 19 (citing quoting CREW, 

2006 WL 1518964, at *5). Defendants object that: (1) they have 

provided an explanation for their delay, namely “an oversight by 

the agencies”; (2) they have explained the inconsistencies in 
31 

their representations; and (3) the Court’s remaining concerns 

should be addressed through supplemental declarations. Defs.’ 

Objections, ECF No. 43 at 7-9. As discussed supra § III(A)(2), 

for the first objection to granting discovery, which reiterates 

Defendants’ summary judgment argument, the R. & R. is reviewed 

only for clear error. The R. & R. is reviewed de novo for the 

second and third objections. 

Defendants first reason that the delay in response was 

occasioned by each agency thinking the other would be issuing 

the final response. Id. Admittedly, as Magistrate Judge Harvey 

explains in the R. & R., this explanation is “problematic” 

because after FEMA sent a letter to NIST stating that it 

“considered its work on the case complete and that NIST should 

make the final determinations,” it then asked NIST several 

months later to return all the remaining May 2002 documents for 

further review. R. & R., ECF No. 37 at 16 (internal citations 

omitted). After complying with this request, NIST then sent FEMA 

a letter stating that it could not “determine which of the FEMA 

records received [ ] were ‘used’ for the completion of the 

[BPS],” it was “referring all records [it] received on behalf of 

FEMA to [FEMA’s] attention for review and direct reply to [Mr. 

Cole].” Fletcher Decl., ECF No. 23-3 at 51. Magistrate Judge 

Harvey correctly points out that “FEMA knew or should have known 

that NIST believed FEMA would be issuing the final response,” R. 
32 

& R., ECF No. 37 at 16. However, FEMA acknowledges this mistake, 

admitting there was “an oversight by the agencies.” Defs.’ 

Objections, ECF No. 43 at 7. As the Defendants concede, the 

proffered explanation is far from a satisfying one. See id. 

Sleeping on its FOIA obligations for several years makes for a 

glaring lack of oversight by FEMA. It does, however, nonetheless 

provide an explanation. While the Court finds a clear error on 

this narrow issue, it does not prevent a grant of discovery, as 

discussed below. 

In support of their argument against discovery, Defendants 

also object to the R. & R. citing “as a reason for discovery the 

fact that ‘FEMA failed to explain its significant change in 

position over the existence of potentially responsive documents 

stored at NARA.’” Defs.’ Objections, ECF No. 43 at 7 (quoting R. 

& R., ECF No. 37 at 17). FEMA initially represented to Mr. Cole 

that there were approximately 490,000 pages of “supplemental” 

WTC-related documents in storage at NARA. See Neuschaefer Decl., 

ECF No. 23-2 at 89. However, FEMA’s counsel then stated in an 

email over four years later that “responsive records were not 

sent to the NARA archives.” ECF No. 30-8 at 2–4. Magistrate 

Judge Harvey concludes that “[t]his statement is plainly 

insufficient to explain FEMA’s reversal.” R. & R., ECF No. 37 at 

17. Defendants argue that the later letter from FEMA’s counsel 

is not inconsistent with FEMA’s earlier representation because 
33 

it “nowhere states that the BPS background or raw data sought by 

Plaintiff was sent to NARA; the letter plainly states that other 

WTC records reside in NARA storage.” Defs.’ Objections, ECF No. 

43 at 8. 

Although Mr. Cole does not specifically address any of the 

Defendants’ other objections discussed thus far, he strongly 

weighs in on Defendants’ argument here. He asserts that “[t]he 

Defendants’ handling of this issue of the 490,000 pages of 

agency 9/11 records sent to NARA reflects bad faith, because: 

(1) Defendants did not even identify these 490,000 pages of 

records to Plaintiff in their initial response to his FOIA; (2) 

Defendants then did not conduct a search of these files once 

their existence was disclosed; (3) Defendants then required, 

contrary to law, Plaintiff to file an additional FOIA request if 

he wanted these files searched to determine if they contained 

responsive records; (4) Defendants then made a false 

representation to Plaintiff which clearly misrepresented that 

the 490,000 pages of 9/11 files sent to NARA were known to 

contain no responsive records, contrary to their initial 

representation; and (5) finally Defendants argued to this Court, 

see Defendants’ Objections at 7-8, that the Magistrate erred on 

this issue in concluding there was an inconsistency in 

Defendants’ representations, without disclosing to this Court 

the complete language of Defendants’ initial representation that 
34 

made this inconsistency apparent.” Pl.’s Resp. to Defs.’ 

Objections, ECF No. 45 at 4. The Court agrees with Mr. Cole, 

even reviewing the R. & R. de novo. 

FEMA’s initial 2012 representation to Mr. Cole stated, as 

FEMA concedes, that there were approximately 490,000 pages of 

“supplemental” WTC-related records in storage at NARA, although 

the “inventory description of the NARA records does not readily 

indicate any additional responsive material for your specific 

WTC requests.” Neuschaefer Decl., ECF No. 23-2 at 89. FEMA tries 

to distinguish between the BPS background or raw data sought by 

Plaintiff, and the “other WTC records” residing in NARA storage,

see Defs.’ Objections, ECF No. 43 at 8; but the Court is unable 

to see how, unless FEMA went through and searched the pages, 

which it does not assert that it did, it can state with 

certainty that “responsive records were not sent to the NARA 

archives.” ECF No. 30-8 at 2–4. 

The Court is cognizant that searching through 490,000 pages 

is an onerous task. However, granting discovery in this case for 

records FEMA itself identified as supplemental does not 

“effectively penalize FEMA for being more transparent,” Defs.’ 

Objections, ECF No. 43 at 8; instead, it ensures FEMA meets its 

legal duty and conducts an adequate search for a FOIA request 

that it improperly ignored for several years. Contrary to FEMA’s 

assertion, Mr. Cole is not advancing “purely speculative claims 
35 

about the existence and discoverability of other documents.” see

Defs.’ Reply in Supp. of Objections, ECF No. 46; he is asking 

for FEMA to search supplemental records it itself identified. 

Defendants’ final challenge to discovery stems from the R. 

& R.’s observation that they failed to adequately explain 

discrepancies despite the Court’s expressions of concern. See 

Defs.’ Objections, ECF No. 43 at 8; see also R. & R., ECF No. 37 

at 18 (stating that “Defendants were on notice about this 

Court’s concerns over their delays and inconsistencies, and they 

were given the opportunity to avoid discovery by addressing 

those concerns in reasonably detailed affidavits in support of a 

motion for summary judgment.”). Magistrate Judge Harvey 

concludes that, based on the record, “it should have been plain 

to Defendants that they would not be given another opportunity 

to address this Court’s concerns if they failed to do so in 

their motion for summary judgment and its accompanying 

affidavits.” R. & R., ECF No. 27 at 19. FEMA and NIST, however, 

state that they “do not read this Court’s 2018 Opinion (ECF No. 

19) as indicating that Defendants would not be given another 

opportunity to address issues raised by the Court or that after 

summary judgment Defendants have now exhausted their 

opportunities to provide written testimony.” Defs.’ Objections, 

ECF No. 43 at 8. They add that since Magistrate Judge Harvey did 

not find that they acted in bad faith, discovery is not 
36 

appropriate. Id. Mr. Cole responds that “[t]he alternative to 

discovery suggested by the government, of permitting the 

government the opportunity to simply provide further 

declarations, is likely to simply lead to more delay as these 

declarations are likely to again prove inadequate and just lead 

to further, time-consuming motion practice.” Pl.’s Resp., ECF 

No. 45 at 8. The Court agrees. 

Discovery is generally limited to whether “the plaintiff 

has made a sufficient showing that the agency acted in bad 

faith.” Voinche v. FBI, 412 F. Supp. 2d 60, 71 (citing Carney v. 

U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir.1994)). 

“However, discovery may be granted when [a] plaintiff has made a 

sufficient showing that the agency acted in bad faith, has 

raised a sufficient question as to the agency’s good faith, or 

when a factual dispute exists and the plaintiff has called the 

affidavits submitted by the government into question.” CREW, 

2006 WL 1518964, at *3. Here, as Magistrate Judge Harvey 

astutely observes, “[d]efendants’ conduct—engaging in lengthy 

delays and inconsistent representations and failing to 

adequately explain them despite this Court’s clear expressions 

of concern—'raises a question’ as to whether Defendants have 

‘been diligent and expeditious in complying with [their] FOIA 
37 

obligations.’” R. & R., ECF No. 37 at 19 (quoting CREW, 2006 WL 

1518964, at *5). 

This Court had previously noted that Mr. Cole “has raised 

significant questions as to whether FEMA has processed documents 

in good faith in response to [his] FOIA request,” and that it 

was “troubled by the government’s inconsistent, even 

contradictory, responses to [Mr. Cole’s] inquiries regarding his 

FOIA request.” Cole, 285 F. Supp. 3d at 77. However, the Court 

denied Mr. Cole’s first motion for limited discovery precisely 

because FEMA and NIST had not “submitted any declarations 

setting forth details related to [their] search.” Id. at 77-78. 

The Court further stated that if Mr. Cole believed the 

declarations were insufficient to show an adequate search, he 

could oppose the government’s motion for summary judgment on 

that ground, and “[i]f the Court agrees with [Plaintiff], it may 

reconsider [Plaintiff’s] request for discovery at the summaryjudgment stage.” Id. at 78. Based on the continued lack of 

details in the affidavits provided by FEMA, the Court concludes 

that this is the rare case where discovery, rather than 

supplemental declarations, is warranted as to the Defendants’ 

searches. The Court finds it unnecessary to address the scope of 

discovery at this juncture and will direct the parties to submit 
38 

a proposed plan for obtaining discovery limited to the adequacy 

of the Defendants’ searches. 

D. The Grant of Discovery To Mr. Cole Should Be Limited as 

Recommended in the R. & R. 

Magistrate Judge Harvey concludes in his R. & R. that 

although FEMA has not explained the discrepancy regarding the 

490,000 pages in storage at NARA, it has sufficiently explained 

the other major discrepancy, i.e., whether certain missing 

records might be in Region II’s local archives. See R. & R., ECF 

No. 37 at 17 n.16. In its August 23, 2016, email to Plaintiff, 

Defendants’ counsel had initially stated that certain missing 

records might be in Region II’s local archives and that the 

agency would be “willing to send two of its personnel to the 

warehouse to perform a reasonable search” for them. Exhibit 2, 

ECF No. 30-6 at 1–2. FEMA subsequently asserted that, “[u]pon 

further inquiry, the Disclosure Branch and its counsel learned 

that the only local archives were temporary locations that were 

rented to house information pertaining to the Hurricane Sandy 

disaster. No FEMA archives exist in New York that may contain 

documents responsive to [Plaintiff’s] FOIA request.” Neushaefer 

Decl., ECF No. 23-2 ¶ 37. Magistrate Judge Harvey observed that 

“[w]hile this explanation is not a model of thoroughness and 

clarity, it suffices for purposes of explaining why Region II’s 
39 

local archives would be unlikely to contain records responsive 

to Plaintiff’s FOIA request.” R. & R., ECF No. 37 at 17 n.16. 

Mr. Cole objects that “the explanation offered was based on 

hearsay from unidentified personnel, which prevents any 

meaningful assessment of the credibility or accuracy of this 

latter representation,” and that “[t]here is no way under the 

circumstances, other than discovery,” for him to determine 

whether this hearsay is “trustworthy.” Pl.’s Objection, ECF No. 

44 at 2. FEMA and NIST respond that “supposedly missing 

documents does [sic] not render a search inadequate as FOIA only 

obligates an agency to disclose those records which the agency 

has retained.” Def.’s Reply in Support of Objections, ECF No. 46 

at 6 (referencing Kissinger v. Reporters Comm. for Freedom of 

the Press, 445 U.S. 136, 151–52 (1980)). The Court agrees with 

the Defendants and Magistrate Judge Harvey that discovery is 

unnecessary with regard to Region II’s local archives. 

The question for the Court is not whether Mr. Cole finds 

FEMA’s explanation and sources trustworthy; the legal standard 

is that the agency must demonstrate that it made a good-faith 

effort to search for responsive records “using methods which can 

be reasonably expected to produce the information requested.” 

Reporters Comm. for Freedom of Press, 877 F.3d at 402. FEMA has 

demonstrated its good-faith effort regarding the Region II 

archives, and its affidavits are “accorded a presumption of good 
40 

faith . . .,’” SafeCard Servs., Inc., 926 F.2d at 1200; such 

that the Court has no reason to question their trustworthiness 

as long as they satisfy the relevant legal standard. Here, the 

agency’s affidavits must specify “what records were searched, by 

whom, and through what process.’” Rodriguez, 236 F. Supp. 3d at 

38 (internal quotation and citation omitted). Contrary to Mr. 

Cole’s assertion, FEMA does explain that the Region II local 

archives were searched by “the Disclosure Branch and its 

counsel,” who “learned that the only local archives were 

temporary locations that were rented to house information 

pertaining to the Hurricane Sandy disaster.” Neushaefer Decl., 

ECF No. 23-2 ¶ 37. Mr. Cole does not refer the Court to any 

authority that requires FEMA to provide the names of every 

employee involved in the search. See generally Pl.’s Objection, 

ECF No. 44. 

The Court concludes that FEMA has satisfied its burden with 

respect to the Region II local warehouse search, and discovery 

on this issue is unwarranted.3

IV. Conclusion 

For the foregoing reasons, Magistrate Judge Harvey’s 

R. & R., see ECF No. 37, is ADOPTED IN PART and REJECTED IN 

3 Neither party contests Magistrate Judge Harvey’s finding that a 

grant of summary judgment to Mr. Cole would be premature given 

the grant of discovery. See R. & R., ECF No. 37 at 2. The Court 

accordingly does not discuss Mr. Cole’s summary judgment motion. 
41 

PART. The only portion of the R. &. R that is rejected is 

Magistrate Judge Harvey’s finding that Defendants have not 

adequately explained their delay in responding to Mr. Cole’s 

FOIA request. See R. & R., ECF No. 37 at 16-17. Defendants FEMA 

and NIST’s Motion for Summary Judgment, see ECF No. 23; is 

DENIED. Mr. Cole’s Combined Motion, see ECF No. 30, is DENIED IN 

PART as to summary judgment as premature and GRANTED IN PART as 

to limited discovery. 

The parties shall submit, by no later than January 7, 2022, 

a Joint Status Report with a proposed plan for obtaining 

discovery limited to the adequacy of the Defendants’ searches, 

excluding the question of whether responsive records were stored 

in the Region II warehouses. 

An appropriate Order accompanies this Memorandum Opinion. 

SO ORDERED. 

Signed: Emmet G. Sullivan

 United States District Judge 

 December 21, 2021