1

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

MARK W. MILLER, )

 )

Plaintiff, ) Civ. No. 1:12-cv-00242-SJD

 )

v. ) Chief Judge Susan J. Dlott

 )

FEDERAL ELECTION COMMISSION, ) MOTION FOR SUMMARY

 ) JUDGMENT

Defendant. )

)

DEFENDANT FEDERAL ELECTION COMMISSION’S

MOTION FOR SUMMARY JUDGMENT

Pursuant to Federal Rule of Civil Procedure 56(c) and S.D. Ohio Civil R. 7.2,

defendant Federal Election Commission (“FEC” or “Commission”) respectfully moves 

for summary judgment because this matter is moot. Plaintiff Mark W. Miller’s 

Complaint seeks only to compel the Commission to respond to his request under the 

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

conducted an adequate and reasonable search for documents responsive to the request and 

provided all non-exempt materials to Mr. Miller on April18, 2012. Accordingly, the 

Commission has fully discharged its FOIA obligations, there is no genuine issue of 

material fact, and the Commission is entitled to judgment as a matter of law. 

In support of this motion the Commission submits the attached brief, a statement 

of material facts not in dispute, the declarations of Commission staff involved in 

preparing the response to plaintiff’s FOIA request, and an index of responsive and 

redacted records pursuant to Vaughn v. Rosen, 523 F. 2d 1136 (D.C. Cir. 1975), 

describing the information withheld under the applicable FOIA exemptions. 

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WHEREFORE, the FEDERAL ELECTION COMMISSION respectfully requests 

that this Honorable Court dismiss the Complaint in this matter.

Respectfully submitted,

Anthony Herman

General Counsel

David Kolker

Associate General Counsel

Lisa J. Stevenson 

Special Counsel to the General Counsel

Harry J. Summers

Assistant General Counsel

s/ Benjamin A. Streeter III

Benjamin A. Streeter III

Attorney

FOR THE DEFENDANT FEDERAL

ELECTION COMMISSION

999 E Street, N.W.

Washington, DC 20463

(202) 694-1650

September 21, 2012

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CERTIFICATE OF SERVICE

Benjamin A. Streeter III hereby certifies that on September 21, 2012, he filed the 

foregoing Defendant Federal Election Commission’s Motion for Summary Judgment, 

Memorandum of Law in Support thereof, Fed. Civ. R. Proc 56(c) Statement of 

Undisputed Material Facts, Declaration of William F. Buckley, Jr., Declaration of 

Gregory R. Baker, Declaration of Eyana J. Esters, Declaration of Candace J. Salley, 

Declaration of Christopher Mealy and the Commission’s Vaughn Index with the Clerk of 

the United States District Court for the Southern District of Ohio via the electronic filing 

system, which served a copy of this filing on this date to the following counsel of record:

Curt Carl Hartman

The Law Firm of Curt C. Hartman

3749 Fox Point

Ameila, OH 45102

hartmanlawfirm@fuse.net 

 

Christopher P. Finney

FINNEY, STAGNARO, SABA

 & PATTERSON CO., LPA

2623 Erie Avenue

Cincinnati, OH 45208

cfinney@fssp-law.com

s/ Benjamin A. Streeter III

Benjamin A. Streeter III

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

____________________________________

MARK W. MILLER, 

Plaintiff,

v.

FEDERAL ELECTION 

COMMISSION, 

 Defendant. 

____________________________________

)

) 

)

) Civ. No. 1:12-cv-00242-SJD

)

) 

) MEMORANDUM IN SUPPORT 

) OF SUMMARY JUDGMENT

) 

)

)

DEFENDANT FEDERAL ELECTION COMMISSION’S MEMORANDUM

IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

Anthony Herman

General Counsel

David Kolker

Associate General Counsel

Lisa J. Stevenson

Special Counsel to the General Counsel

Harry J. Summers 

Assistant General Counsel 

Benjamin A. Streeter III

Attorney

September 21, 2012 FOR THE DEFENDANT

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, D.C. 20463

(202) 694-1650 

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TABLE OF CONTENTS

Page

BACKGROUND ........................................................................................................1

ARGUMENT..............................................................................................................6

I. SUMMARY JUDGMENT STANDARDS ......................................................6

II. THIS CASE IS MOOT BECAUSE THE COMMISSION FULLY 

RESPONDED TO PLAINTIFF’S FOIA REQUEST IN APRIL 2012..............7

III. EVEN IF PLAINTIFF HAD CHALLENGED THE COMMISSION’S 

SEARCH FOR RECORDS OR WITHHOLDING DECISIONS, 

THE RECORD DEMONSTRATES THAT THE COMMISSION 

RESPONDED FULLY AND ADEQUATELY TO MILLER’S 

FOIA REQUEST.............................................................................................8

A. FOIA Standards...................................................................................9

B. The Commission’s Affidavits and Vaughn Index Demonstrate 

that the Agency Conducted a Reasonable and Adequate Search in 

Response to Miller’s FOIA Request...................................................11

C. The Commission Properly Withheld from Disclosure Certain

Responsive Information Pursuant to Applicable Exemptions 

under FOIA........................................................................................14

1. The Commission properly withheld confidential 

investigatory records under FOIA Exemption 3 ......................15

2. The Commission properly withheld pursuant to FOIA 

Exemption 5 confidential material subject to the attorney

work-product doctrine and the deliberative process 

privilege .................................................................................17 

CONCLUSION.........................................................................................................19

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Defendant Federal Election Commission (“FEC” or “Commission”) moves for summary 

judgment because the sole claim in plaintiff Mark W. Miller’s complaint — that the Commission 

failed to respond to his Freedom of Information Act (“FOIA”) request — was rendered moot by 

the Commission’s production of responsive documents in April 2012, and this Court therefore

lacks jurisdiction over this matter. Even if plaintiff had made a claim regarding the adequacy of 

the Commission’s search or its decision to withhold portions of the records, there would be no 

genuine dispute of material fact and the FEC would be entitled to judgment. The Commission 

complied with FOIA in its search for and disclosure of records, as demonstrated by evidence 

provided with this motion, which includes declarations from Commission staff explaining the 

rigorous search undertaken as well as a detailed Vaughn index specifying the FOIA exemptions 

justifying the withholding of some responsive information. Thus, this Court should enter 

summary judgment on behalf of the Commission.

BACKGROUND

Congress established the Federal Election Commission to administer and enforce federal 

campaign finance laws, including the Federal Election Campaign Act (“FECA”), 2 U.S.C. 

§§ 431-57. (FEC’s Statement of Undisputed Material Facts (“FEC Facts”) ¶ 1.) Plaintiff Mark 

W. Miller is a resident of Ohio (Complaint for Declaratory and Injunctive Relief (“Complaint”) 

¶ 1 (Doc. 1).)

Requests to the Commission under FOIA, 2 U.S.C. § 552 et seq., are processed by the 

FEC Office of General Counsel’s General Law and Advice Division (“GLA”), primarily by 

GLA’s Administrative Law Team, which is also known as the “FOIA Service Center.” (FEC 

Facts ¶¶ 2, 4.) The FOIA Service Center received Miller’s written FOIA request on December 5, 

2011, via regular mail, although the request was dated November 23, 2011. (FEC Facts ¶¶ 5, 6.) 

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That request sought “copies of all records received, produced, maintained, or kept by the Federal 

Elections [sic] Commission pertaining to a letter sent to [the] Commission by Phil Greenberg on 

behalf of [the] Schmidt for Congress Committee (“Greenberg Letter”). [The AO request did] not

request a copy of the Greenberg Letter, nor . . . request a copy of the public comment letter 

submitted by David Krikorian received by the Commission on October 26, at approximately 3:20 

p.m.” (FEC Facts ¶ 6.) The referenced letter from Mr. Greenberg, which was dated October 7, 

2011, had sought an advisory opinion from the Commission on behalf of the Schmidt for 

Congress Committee regarding the lawfulness of using campaign funds to pay certain legal 

expenses related to a lawsuit brought in this Court by one of Congresswoman Jean Schmidt’s 

2008 election campaign opponents. See 2 U.S.C. § 437f; Complaint Exh. A.1 

Under the FOIA Service Center’s standard procedures, Miller’s request was logged into 

the agency’s case management system as FOIA Request 2012-13, and a FOIA Intake and 

Processing Form was prepared. (FEC Facts ¶¶ 5, 9, 13.) FOIA Service Center paralegal 

Christopher Mealy sent Miller a standard acknowledgement letter via e-mail on December 5, 

2011. (FEC Facts ¶ 9.) This standard e-mail gave Miller the tracking number and contact 

information and also explained that the FOIA Service Center might be able to respond more 

quickly to a narrower request. (Id.) 

Shortly after the FEC received the Miller FOIA request, FEC Attorney William F. 

Buckley, Jr., undertook the assignment to handle the FOIA request. (FEC Facts ¶ 8.) Mr. 

Buckley calculated that the determination date for the Miller would be January 4, 2012, twenty 

 1

 The Commission is authorized, pursuant to 2 U.S.C. § 437f, to issue an advisory opinion 

(“AO”) on proposed transactions or campaign finance activity. Individuals who rely in good 

faith upon Commission-issued advisory opinions cannot be subject to any sanctions for 

violations of FECA for the activity approved in an advisory opinion. 2 U.S.C. § 437f(c)(1).

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working days following receipt of the request. (FEC Facts ¶ 19.) The Commission’s FOIA 

regulations, 11 C.F.R. Part 4, create three possible tracks on which FOIA requests can be 

processed. In setting a twenty-day deadline for responding to Miller’s request, FEC staff 

determined that the request could be placed on the “simple” track. See 5 U.S.C. 

§ 552(a)(6)(A)(i); 11 C.F.R. § 4.7(f); FEC Facts ¶¶ 14, 16. On December 6, 2011, shortly after 

the FEC received the Miller request, Mr. Buckley transmitted to Larry Calvert, then the 

Commission’s Chief FOIA officer, a draft e-mail that would be sent to the pertinent FEC units 

asking them to search for relevant documents. (FEC Facts ¶ 20.) Messrs. Calvert and Buckley 

then determined that the FEC unit that would possess responsive documents was OGC’s Policy 

Division, the only office involved with processing requests for Advisory Opinions. (Id.)

Mr. Buckley also noted that Mr. Miller had included his e-mail address in his FOIA 

request letter, so Mr. Buckley then checked the FEC FOIA e-mail account as far back as 

November 23, 2011, the purported date of Miller’s request, to ascertain if that request had been 

submitted to the FOIA Service Center by e-mail. (FEC Facts ¶ 10.) Mr. Buckley found no 

e-mail from Mr. Miller on or about November 23, 2011. (Id.) Paralegal Christopher Mealy 

searched the same FOIA e-mail account at Buckley’s behest and also found no November e-mail 

from Miller. (FEC Facts ¶ 11, 12.) 

On January 12, 2012, Mr. Buckley received an e-mail from Candace Salley, a paralegal 

specialist in the FOIA Response Center, stating that she had received a voice-mail from attorney 

Christopher Finney on behalf of Mr. Miller, inquiring into the status of his FOIA request. Mr. 

Buckley instructed Ms. Salley to call Mr. Finney and inform him that the FOIA Service Center 

was working on the request. (FEC Facts ¶ 21.) Ms. Salley did so on January 12, 2012. (Id.)

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On January 18, 2012, Mr. Calvert sent an e-mail to Assistant General Counsel for Policy 

Amy Rothstein and Policy Attorney Cheryl Hemsley, the attorneys who had handled the Schmidt 

advisory opinion request (“AOR”), asking them to search for documents responsive to Miller’s 

FOIA request. (FEC Facts ¶ 22.) Specifically, the two Policy Division attorneys were requested

to provide “all records pertaining to the AOR except the AOR itself and the Krikorian comment 

letter.” (FEC Facts ¶ 22; Declaration of William F. Buckley, Jr. (“Buckley Decl.”), Exh. 1.) 

(emphasis in original) Ms. Hemsley delivered potentially responsive documents to Mr. Buckley 

via e-mail and by hand the following week. (FEC Facts ¶ 23.)

On February 29, 2012, Mr. Buckley received by letter from Mr. Miller a FOIA appeal, 

dated January 9, 2012, which again included Mr. Miller’s e-mail address. (FEC Facts ¶¶ 26, 27.) 

On or about February 29, 2012, Messrs. Buckley and Mealy and Ms. Salley checked the FOIA 

Service Center e-mail account to ascertain if Mr. Miller had e-mailed his appeal on January 9, 

but they found no such e-mail. (FEC Facts ¶¶ 28, 29, 30.) 

In March 2012, Gregory R. Baker was named the Commission’s Chief FOIA Officer, 

replacing Larry Calvert. (FEC Facts ¶ 31.) At the same time, Eyana Esters was appointed to fill 

the vacant position of Assistant General Counsel for Administrative Law and FOIA Public 

Liaison in an acting capacity. (FEC Facts ¶ 32.) After Ms. Esters was appointed to this first line 

supervisory position, the FOIA Service Center began processing the pending backlog of nineteen 

open FOIA requests, as well as seven new FOIA requests that arrived during March 2012. (FEC 

Facts ¶ 33.) The GLA team had a total of about 54 pending matters to resolve at the time of Ms. 

Esters’s promotion. (FEC Facts ¶ 34.) In selecting FOIA requests for immediate processing, the 

Service Center considered the age of the request, the complexity of the issues presented, the 

progress made to date, and the political sensitivity of the request. (FEC Facts ¶ 33.) All draft 

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FOIA responses must be sent to the first line supervisor and Chief FOIA Officer for review, 

comment, and approval. (FEC Facts ¶ 25.) Mr. Buckley sent the Miller FOIA response 

materials to Ms. Esters on March 1, 2012. (FEC Facts ¶ 33.) On April 2, 2011, Ms. Esters 

completed her review of the Miller FOIA response materials. (FEC Facts ¶ 35.) Mr. Baker also 

approved the response, and the response was then given its final processing to prepare it for 

transmittal to Mr. Miller. (FEC Facts ¶ 35.)

On April 18, 2012, Mr. Buckley transmitted the FOIA response to Mr. Miller via e-mail. 

(FEC Facts ¶ 37.) The response consisted of 218 pages, although the majority of the information 

on those pages was redacted pursuant to either: (a) FOIA Exemption 3, based on FECA’s

confidentiality provision for information regarding pending investigations, 2 U.S.C. 

§ 437g(a)(12); or (b) FOIA Exemption 5, because the material consisted of confidential 

information protected from disclosure by the attorney work product doctrine or the deliberative

process privilege. Because the Commission responded fully to Miller’s FOIA request in April 

2012, the agency denied his FOIA appeal as moot on July 11, 2012. (FEC Facts ¶ 38.)

Mr. Miller filed his Complaint in this action on March 26, 2012, about one week before 

Ms. Esters completed her review of the proposed FOIA response. The Complaint alleges that the 

Commission unlawfully denied Mr. Miller access to records he sought pursuant to the Freedom 

of Information Act, 5 U.S.C. § 552. Mr. Miller seeks a declaration that “the FEC has failed to 

comply with its legal obligations and duties” under FOIA and an injunction compelling 

production of all agency records responsive to his FOIA request. (Complaint ¶¶ 43-44.) 

However, the Complaint challenges neither the adequacy of the FEC’s search nor the application 

of the FOIA exemptions the FEC has invoked. 

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ARGUMENT

I. SUMMARY JUDGMENT STANDARDS

Summary judgment is proper when the moving party has demonstrated that there is no

genuine issue of material fact and that the moving party is entitled to judgment as a matter of 

law. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). The Commission, as the moving party, 

“has the initial burden of proving that no genuine issue of material fact exists, and [the Court]

must draw all reasonable inferences in the light most favorable to the nonmoving party.” Care to

Live v. FDA, 631 F.3d 336, 340 (6th Cir. 2011) (internal citation and quotation marks omitted). 

Once the FEC has demonstrated the absence of any genuine issue of material fact, Miller “may 

not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts 

showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 

248 (1986) (internal citation and quotation marks omitted). The Court does not weigh the 

evidence to determine the truth of the matter, but only to decide if there is an issue for trial; 

should the non-moving party’s evidence be “merely colorable” or “not significantly probative,” 

the Court may enter summary judgment. Sinkfield v. HUD, No. 10-885, 2012 WL 893876, at * 2 

(S.D. Ohio Mar. 12, 2012) (citing Anderson, 477 U.S. at 249). 

FOIA actions are typically resolved through summary judgment, before a plaintiff can 

conduct discovery. Jones v. FBI, 41 F.3d 238, 242 (6th Cir. 1994); Rimmer v. Holder, 2011 WL 

4431828, at *4 (M.D. Tenn. Sept. 22, 2011) (citing Reliant Energy Power Generations v. FERC, 

520 F. Supp. 2d. 194, 200 (D.D.C. 2007)). Under FOIA, a court conducts a de novo review to 

determine whether the government properly withheld records under any of FOIA’s nine statutory 

exemptions. 5 U.S.C. § 552(a)(4)(B). The Court may award summary judgment solely on the 

basis of information provided by the agency in declarations when the declarations describe “the 

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documents and the justifications for nondisclosure with reasonably specific detail, demonstrate 

that the information withheld logically falls within the claimed exemption, and are not 

controverted by either contrary evidence in the record nor by evidence of agency bad faith.” 

Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981) (footnote omitted). Agency 

declarations must be “relatively detailed and non-conclusory,” but such declarations 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) (internal citation and quotation marks omitted).

II. THIS CASE IS MOOT BECAUSE THE COMMISSION FULLY RESPONDED 

TO PLAINTIFF’S FOIA REQUEST IN APRIL 2012

The Commission’s April 2012 response to Miller’s FOIA request was the fruit of a 

reasonable search and provided him every non-exempt document that was responsive to his 

request. Because the Complaint seeks only to compel the Commission to respond to the FOIA 

request and does not challenge the agency’s search or withholding decisions, this case is now 

moot and the Court lacks subject matter jurisdiction. 

FOIA grants jurisdiction to district courts to enjoin agencies from withholding records 

and to compel the production of improperly withheld records. 5 U.S.C. § 552(a)(4)(B). 

Accordingly, federal subject matter jurisdiction here depends upon a showing that the 

Commission has improperly withheld agency records. Kissinger v. Reporters Comm. for 

Freedom of Press, 445 U.S. 136, 142 (1980). But if the agency shows that responsive records 

have been released to the requester, the suit should be dismissed on mootness grounds, as there is 

no justiciable case or controversy. “[A] case is moot when the issues presented are no longer 

‘live’ or the parties lack a legally cognizable interest in the outcome.” County of Los Angeles v. 

Davis, 440 U.S. 625, 631 (1979) (internal citation and quotation marks omitted). Indeed, 

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“[m]ootness results when events occur during the pendency of a litigation which render the court 

unable to grant the requested relief.” Constangy, Brooks & Smith v. NLRB, 851 F.2d 839, 841 

(6th Cir. 1988) (internal citation and quotation marks omitted). 

Thus, in a FOIA case, “[o]nce the [agency] turned over everything in its possession 

related to plaintiff’s FOIA request, the merits of plaintiff’s claim for relief, in the form of 

production of information, became moot.” GMRI, Inc. v. EEOC, 149 F.3d 449, 451 (6th Cir. 

1998). See Cornucopia Inst. v. USDA, 560 F.3d 673, 675 (7th Cir. 2009) (dismissing FOIA 

claim as moot after agency provided responsive records while suit was pending); Voinche v. FBI, 

999 F.2d 962, 963 (5th Cir. 1993) (holding that plaintiff’s “claim was rendered moot by the FBI’s 

response to his request”); Tijerina v. Walters, 821 F.2d 789, 799 (D.C. Cir. 1987) (holding case 

moot because “the agency by now has released all nonexempt materials the Tijerinas seek”). 

Citing GMRI, the Western Division of this District Court dismissed as moot a FOIA case when 

the agency provided a full response after the complaint had been filed. See Landers v. Dept. of 

the Air Force, No. c-3-00-567 (S.D. Ohio Feb. 25, 2002) (Slip opinion). Although the 

Commission did not complete its response to Miller’s FOIA request before he filed his 

Complaint, the Commission has provided him all responsive materials to which he is entitled as 

of five months ago. See infra section III. Accordingly, this Court is “unable to grant the 

requested relief,” Constangy, 851 F.2d at 841, and Miller’s Complaint should be dismissed as 

moot.

III. EVEN IF PLAINTIFF HAD CHALLENGED THE COMMISSION’S SEARCH 

FOR RECORDS OR WITHHOLDING DECISIONS, THE RECORD 

DEMONSTRATES THAT THE COMMISSION RESPONDED FULLY AND 

ADEQUATELY TO MILLER’S FOIA REQUEST 

Even if Miller had challenged the adequacy of the Commission’s search for records or its 

decision to withhold certain privileged documents, such claims would lack merit. On April 18, 

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2012, the Commission provided about 30 pages of documents in full and another 180 pages or so

of documents with full or partial redactions. Thus, the factual record shows that the FEC’s FOIA 

Service Center staff adequately and fully responded to Miller’s FOIA request. In support of this 

motion for summary judgment, the Commission submits a Fed. R. Civ. P. 56(c) statement of 

undisputed material facts (attached hereto as Exh. A) based on and supported by five affidavits 

executed by the FEC staff who prepared the response to Miller’s FOIA request. These affidavits 

(attached as Exhs. B-F) describe the steps staff took to locate and assemble responsive records 

and to redact information pursuant to FOIA’s statutory exemptions. 5 U.S.C. § 552(b). The 

Commission also submits a “Vaughn index” (attached as Exh. G) that provides details regarding 

the basis for withholding information. See Vaughn v. Rosen, 523 F.2d 1136 (D.C. Cir. 1975). 

These materials demonstrate the FOIA Service Center staff’s efforts to release all appropriate 

records pursuant to FOIA’s mandate and to memorialize the completeness and adequacy of those 

efforts. Because the FEC performed an adequate search and responded fully to Miller’s request, 

the agency has satisfied its obligations under FOIA.

A. FOIA Standards

The Freedom of Information Act requires federal agencies to “determine within 20 

[work] days” whether they will comply with a request for records made pursuant to the Act. 

5 U.S.C. § 552(a)(6)(A)(i). Federal agencies shall “make records available after receiving a 

request that reasonably describes the records and is made in accordance with the agency’s 

published rules governing such requests.” Care To Live, 631 F.3d at 340. “The agency may 

only withhold or limit the availability of records that fall within one of the Act’s specific 

exemptions.” Id. FOIA embodies “a general philosophy of full agency disclosure unless 

information is exempted under clearly delineated statutory language,” Dep’t of the Air Force v. 

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Rose, 425 U.S. 352, 360-61 (1976), and “[t]hese limited exemptions do not obscure the basic 

policy that disclosure, not secrecy, is the dominant objective of the [FOIA],” Dep’t of the 

Interior v. Klamath Water Users Protective Ass’n., 532 U.S. 1, 7-8 (2001) (citing Rose).

Claims that an agency has denied or refused a FOIA request are reviewed by the district 

court de novo. 5 U.S.C. § 552(a)(4)(B); Detroit Free Press, Inc. v. Dep’t of Justice, 73 F.3d 93, 

95 (6th Cir. 1996). The Sixth Circuit has long recognized that FOIA cases arrive in “a peculiar 

posture, difficult for our adversarial system to handle,” Jones, 41 F.3d at 242, because only the 

agency knows the content of any material withheld from production and the plaintiff has not yet 

been afforded any opportunity for discovery. Courts generally address FOIA cases by carefully 

examining affidavits provided by agencies to explain their search and withholding decisions, as 

well as with the Vaughn index, “a routine device through which the defend[ing] agency describes 

the responsive documents withheld or redacted and indicates why the exemptions claimed apply 

to the withheld material.” Id. at 241.

Use of Vaughn affidavits is normal procedure in FOIA cases because 

(1) detailed description of material withheld could reveal exactly what the 

agency may be entitled ... or required to withhold; and (2) agency actions and 

affidavits are normally entitled to a presumption of good faith. 

Id. at 242. 

During judicial review, the “factual question . . . is whether the search was reasonably 

calculated to discover the requested documents, not whether it actually uncovered every

document extant.” Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991). The 

agency bears the burden of establishing the adequacy of its search. 5 U.S.C. § 552(a)(4)(B); 

Rugiero v. U.S. Dep’t of Justice, 257 F.3d 534, 547 (6th Cir. 2001). The search “need not be 

perfect, only adequate, and adequacy is measured by the reasonableness of the effort in light of 

the specific request.” Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir. 1986) (emphasis added). 

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[T]he agency may rely on affidavits or declarations providing reasonable 

detail of the scope of the search. In the absence of countervailing evidence or 

apparent inconsistency of proof [such affidavits] will suffice to demonstrate 

compliance with the obligations imposed by the Act. . . . This inquiry focuses 

not on whether additional documents exist that might satisfy the request, but 

[only] on the reasonableness of the agency’s search.

Care to Live, 631 F.3d at 340-41 (internal citations omitted). The affidavits need not “set forth 

with meticulous documentation the details of an epic search for the requested records.” Perry v. 

Block, 684 F.2d 121, 127 (D.C. Cir. 1982). “If the agency satisfies its burden of establishing that 

it conducted a reasonable search, the requestor must make a showing of bad faith . . . sufficient to 

impugn the agency’s affidavits or declarations, or provide some other evidence why summary 

judgment is inappropriate.” Care to Live, 631 F.3d at 345 (internal citations and quotation marks 

omitted).

B. The Commission’s Affidavits and Vaughn Index Demonstrate that the 

Agency Conducted a Reasonable and Adequate Search in Response to 

Miller’s FOIA Request 

The Commission’s search for documents in response to Miller’s request was reasonable

and clearly met the agency’s obligation under FOIA. As exhibits to this memorandum (Exhs. BF), the Commission is submitting five affidavits from its FOIA Service Center staff that detail 

the steps taken to respond to Miller’s FOIA request. Those affidavits — from personnel 

including supervisor Eyana Esters, attorney William Buckley, and paralegal specialist 

Christopher Mealy — describe in detail the processing of the original request pursuant to 

11 C.F.R. § 4.7(f); how FEC personnel were selected to conduct a search for responsive 

documents; how the targeted personnel were contacted and how they responded; and who 

reviewed the selected documents, applied any appropriate FOIA exemptions, and made the 

ultimate production to plaintiff. 

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In particular, the FOIA Service Center staff determined that materials regarding the 

advisory opinion request that was the subject of the FOIA request would reside in the Office of 

General Counsel’s Policy Division, which handles advisory opinion requests, and the staff

properly directed their search to that Division. See Pac. Fisheries, Inc. v. IRS, No. 04-2436, 

2006 WL 1635706, at *2-*3 (W.D. Wash. June 1, 2006) (agency’s search was adequate when the 

agency sent search queries to people “likely to have responsive documents”). Specifically, on 

January 18, 2012, the Commission’s FOIA staff asked the two Policy Division attorneys who 

had handled the Schmidt AOR that was the subject of the Miller FOIA request to provide “all 

records pertaining to the AOR except the AOR itself and the Krikorian comment letter.”2

 (FEC 

Facts ¶ 22; Buckley Decl., Exh. 1.) In response, on January 26, 2012, one of these Policy 

Division attorneys provided to the FOIA staff all relevant documents that the Policy Division had 

located, including e-mails between the Policy Division and the Office of Communications 

regarding placing and removing the AOR from the FEC website. (FEC Facts ¶ 23.) The 

“detailed and non-conclusory” affidavits submitted by the FEC show that the FOIA Service 

Center “conducted reasonable searches.” Dillard v. Dep’t of Treasury, BATF, 87 Fed. Appx. 

524, 526 (6th Cir. 2004). 

In sum, the FOIA Service Center staff’s affidavits show that standard procedures were 

followed, the FEC Division that reasonably would be expected to have records relating to 

advisory opinion requests was contacted, the documents located were carefully reviewed, and all 

the responsive documents were either produced or withheld subject to an appropriate invocation 

of FOIA’s exemptions, as discussed infra section III.C. Indeed, “the adequacy of the search is 

determined by the appropriateness of the method employed,” Dillard, 87 Fed. Appx. at 526, and 

 2 The two exceptions were expressly excluded from the scope of Miller’s FOIA request. 

(See Compl., Exh. B.)

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here, “the detailed affidavits that the [agency] submitted to the district court establish the 

adequacy of its search.” Care to Live, 631 F. 3d at 341.

The FEC’s affidavits are entitled to a presumption of good faith. Rugiero, 257 F.3d at 

544; Dillard, 87 Fed. Appx. at 536; Chilingirain v .U.S. Attorney Executive Office, 71 Fed. 

Appx. 571, 572 (6th Cir. 2003). Miller’s Complaint implies (see Compl. ¶ 26) that there may 

have been something irregular in the Commission’s removal from its website of materials related 

to AO request 2011-20, but that action preceded Miller’s FOIA request and had nothing to do 

with how his request was processed. In any event, the exempted documents described in the 

Vaughn index show that the AOR was withdrawn from the public record because it was deemed 

incomplete for legitimate reasons involving FECA’s confidentiality provision, 2 U.S.C. 

§ 437g(a)(12), and that later Mr. Greenberg (the original AO requestor) withdrew the request —

the AOR was not withdrawn from the website for any actions taken in bad faith.

3 See, e.g., Exh. 

G at 1-2 (FEC 0002 – 0010). See also infra section III.C.1. The record shows that the modest 

delay in responding to Mr. Miller stemmed from the adverse impact of managerial vacancies and 

changes that took place in the FOIA Service Center during the pendency of the request. 

 Moreover, to rebut the Commission’s affidavits supporting summary judgment, Miller

cannot rely upon mere contentions — even if had made any in his Complaint — about the FEC’s 

search. Instead, he must now produce facts sufficient to create a genuine issue of material fact. 

Anderson, 477 U.S. at 248. “However, conclusory allegations that the [FEC] did not conduct a 

detailed search are insufficient to create a material question of fact precluding summary 

judgment.” Care to Live, 631 F.3d at 341. Thus, Miller must advance evidence of bad faith, but

 3 That confidentiality provision prevents public disclosure of the full story behind the 

removal of AO request 2011-20 from the agency’s website, but it has no connection to the 

adequacy of the Commission’s document production in response to Miller’s FOIA request. 

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this he cannot do. “In the absence of evidence that contradicts the government’s affidavits or 

establishes bad faith, the court’s primary role . . . is to review the adequacy of the affidavits and 

other evidence.” Sinkfield, 2012 WL 893876, at *3. The Court should therefore find that the 

Commission’s search in response to Mr. Miller’s FOIA request was adequate and reasonable.

C. The Commission Properly Withheld from Disclosure Certain Responsive 

Information Pursuant to Applicable Exemptions under FOIA

The Commission appropriately withheld certain information responsive to plaintiff’s 

FOIA request pursuant to well-established FOIA exemptions, as detailed in the Vaughn index 

submitted with this motion. (See Exh. G.) The FEC’s affidavits and Vaughn index describe with 

specificity each FOIA exemption upon which FEC staff relied in declining production of a 

record to Mr. Miller on a document-by-document basis. See Vaughn, 523 F.2d at 1136. “Use of 

Vaughn affidavits is normal procedure in FOIA cases because ... detailed description of material 

withheld could reveal exactly what the agency may be entitled or required to withhold....” 

Jones, 41 F.3d at 242. As a result, there is sufficient information to “enable[] the court to make a 

reasoned, independent assessment of the claims of exemption.” Id. “If the government fairly 

describes the content of the material withheld and adequately states its grounds for 

nondisclosure, and if those grounds are reasonable and consistent with applicable law, the district 

court should uphold the government’s position.” Ingle v. Dep’t. of Justice, 698 F.2d 259, 265 

(6th Cir. 1983).

4

 In this case, the Commission has relied upon two of the nine potential 

 4 If the Court determines that the agency’s Vaughn index is not sufficiently detailed, FOIA 

authorizes the Court to review the records in camera. Simon v. Dep’t of Justice, 980 F.2d 782, 

784 (D.C. Cir. 1992). “The in camera review provision is discretionary by its terms, and is 

designed to be invoked when the issue before the District Court could not be otherwise

resolved....” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978). Although the 

Commission believes that its Vaughn index is sufficiently detailed for the Court to evaluate its 

withholding decisions without the need for an in camera inspection, the Commission will be 

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exemptions to support its withholding determination: Exemption 3, for matters specifically 

exempted from disclosure by another statute, i.e., 2 U.S.C. § 437g(a)(12); and Exemption 5, for 

intra-agency materials that would not be available by law to a party other than an agency in 

litigation with the agency. See 5 U.S.C. §§ 552(a)(4)(B), (b)(3), (b)(5).5

1. The Commission properly withheld confidential investigatory records 

under FOIA Exemption 3

As detailed in the Commission’s Vaughn index, the agency withheld records relating to 

ongoing confidential enforcement matters pursuant to FOIA Exemption 3. This exemption 

applies when another statute prohibits disclosure of the information sought in a FOIA request. 

The supporting statute must be one that either (a) “requires that the matters be withheld from the 

public in such a manner as to leave no discretion on the issue”; or (b) “establishes particular 

criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 

552(b)(3)(A) & (B). To qualify as a statute supporting FOIA Exemption 3, the statute “must, on 

its face, exempt matters from disclosure.” Reporters Comm. For Freedom of the Press v. Dep’t 

of Justice, 816 F.2d 730, 735 (D.C. Cir. 1987), modified on other grounds, 831 F.2d 1124 (D.C. 

Cir. 1987), rev’d on other grounds, 489 U.S. 749 (1989). 

 

providing to the Court’s chambers an unredacted copy of the responsive materials, as counsel for 

the Commission noted at the status conference on August 15, 2012. 

5 In addition, small portions of personally identifiable information such as personal e-mail 

addresses and telephone numbers were removed from produced documents. Such redactions are 

required by the Privacy Act, 5 U.S.C. § 552a(b), and might also be subject to FOIA Exemption 

6, which prohibits the production of “personnel and medical and similar files the disclosure of 

which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. 

§ 552(b)(6). Given the limited scope of the actual redactions that were made, a full discussion of 

the applicability of Exemption 6 is not required. The specific redacted documents are: FEC 008, 

FEC 0112, FEC 0166, FEC 0169 (e-mail address redacted); FEC 0091 (home telephone number 

redacted); FEC 0141, FEC 0144 (personal telephone number redacted).

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FECA’s confidentiality provision, 2 U.S.C. § 437g(a)(12), plainly meets the Exemption 3 

standard. Section 437g(a)(12) provides that “[a]ny notification or investigation made under this 

section shall not be made public by the Commission or by any person without the written 

consent of the person receiving such notification or the person with respect to whom such 

investigation is made.” (Emphasis added.) The confidentiality considerations that underlie this 

FECA provision are analogous to the “strong confidentiality interest” served by Federal Rule of 

Criminal Procedure 6(e)(6). In re Sealed Case, 237 F.3d 657, 666-67 (D.C. Cir. 2001). Section 

437g(a)(12) allows information about FEC investigations, which are conducted by the Office of 

General Counsel’s Enforcement Division, to be made public only if the person who is the subject 

of that inquiry or the recipient of notice provides written consent. In the absence of such written 

consent, however, section 437g(a)(12) “requires that the matters be withheld from the public in 

such a manner as to leave no discretion on the issue.” 5 U.S.C. § 552(b)(3)(A). 

Miller’s FOIA request sought records concerning AOR 2011-12. Although the 

confidentiality requirements of 2 U.S.C. § 437g(a)(12) address FEC enforcement proceedings 

rather than AO requests, documents described in the attached Vaughn index show that it quickly 

became apparent to the Policy staff handling AOR 2011-12 that the issues raised therein 

implicated a confidential investigation being handled by OGC’s Enforcement Division.6

 Indeed, 

because the Policy staff could see no way to respond to the AOR without breaching the 

confidentiality of the enforcement matter, they concluded that the AOR had not been perfected 

and had to be removed from the Agency’s public internet site. The AO requester subsequently 

withdrew the request. Documents FEC 002-003 and FEC 004 from the Vaughn index, for 

 6 Those documents include FEC 0002 – 0003, FEC 0004, FEC 0006, FEC 0023 – 0024, 

FEC 0025 – 0033, FEC 0087 – 0088 FEC 0094, FEC 0105 – 0108, FEC 0112 – 0114, FEC 

0122, FEC 0129 – 0133, and FEC 0158 – 0159.

 

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example, describe communications between the Policy staff responsible for handling AOR 2011-

20 and the attorney representing the respondent in the enforcement matter. Because the 

respondent in that unnamed enforcement matter never issued the required written consent, 

section 437g(a)(12) prohibits the release of any information concerning that confidential 

investigation to Mr. Miller. Thus, the Commission properly withheld such materials pursuant to 

FOIA Exemption 3. (See Buckley Decl. ¶ 33; Exh. G (Vaughn Index identifying documents 

withheld under Exemption 3).)

2. The Commission properly withheld pursuant to FOIA Exemption 5 

confidential material subject to the attorney work-product doctrine

and the deliberative process privilege 

The Commission also exempted a number of documents from production to Mr. Miller 

based on Exemption 5, which protects “inter-agency or intra-agency memorandums or letters 

which would not be available by law to a party other than an agency in litigation with the 

agency.” 5 U.S.C. § 552(b)(5). In essence, documents that would not “routinely” be disclosed in 

private litigation are exempt from disclosure under FOIA. United States v. Weber Aircraft 

Corp., 465 U.S. 792, 799 (1984) (citation omitted); see also Schell v. Dep’t of Health and 

Human Servs., 843 F.2d 933, 939 (6th Cir. 1988). “Courts have construed this exception to 

preserve the recognized evidentiary privileges, such as the attorney-client privilege, the attorney 

work-product privilege, and the deliberative process privilege.” Rugiero, 257 F.3d at 550; 

Parke, Davis & Co. v. Califano, 623 F.2d 1, 5 (6th Cir. 1980). By definition, documents for 

which a party would have to make a showing of need, such as might justify overcoming qualified 

privileges in civil discovery, are not routinely disclosed. FTC v. Grolier Inc., 462 U.S. 19, 28 

(1983). Accordingly, an agency need only make a threshold showing that information is 

protected by a common law privilege to justify withholding it under Exemption 5. See id.

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The FEC’s Vaughn index shows that the records the Commission withheld under 

Exemption 5 constitute attorney work product. The attorney work product privilege “protects the 

files and mental impressions of an attorney . . . reflected, of course, in interviews, statements, 

memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other 

tangible and intangible ways prepared” in anticipation of litigation. Hickman v. Taylor, 329 U.S. 

495, 510 -11 (1947). E-mails among Policy Division attorneys and other FEC attorneys involved 

in the AOR process, as well as their own individual notes, contain their mental impressions, 

conclusions, opinions, and legal theories. The work product privilege attaches to such material 

even if no court case is actually pending or threatened. Indeed, the courts have adopted a 

flexible approach that asks not if litigation is a certainty, but “whether the document was created 

with an eye toward litigation.” A. Michael’s Piano, Inc. v. FTC, 18 F.3d 146, 148 (2nd Cir. 1994)

(internal quotation marks omitted). Once the FEC’s Policy Division attorneys recognized that 

their work on AOR 2012-20 implicated a confidential enforcement matter, they certainly adopted 

an “eye towards litigation” that informed all their work on that AOR, because all FEC 

enforcement decisions may themselves lead to litigation, either as de novo civil enforcement 

suits matters (see 2 U.S.C. § 437g(a)(6)) or in challenges to FEC decisions by administrative 

complainants pursuant to 2 U.S.C. § 437g(a)(8). Moreover, the responses of the Commission to 

advisory opinion requests may themselves lead to litigation. See, e.g., Unity08 v. FEC, 583 F. 

Supp. 2d 50 (D.D.C. 2008). The Commission thus appropriately exempted from disclosure 

pursuant to Exemption 5 all documents that contain the work product of its attorneys. (See

Buckley Decl. ¶ 34; Exh. G (Vaughn Index identifying documents withheld as attorney workproduct under Exemption 5).)

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The Commission also withheld confidential, pre-decisional recommendations and 

opinions under Exemption 5 because they are protected by the deliberative process privilege. 

The deliberative process privilege protects the “decision making processes of government 

agencies.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975). The privilege protects not 

merely documents, but also the integrity of the deliberative process itself. Schell, 843 F.2d 

at 940. Exemption 5 applies as long as the document is part of the continuing process of agency 

decision-making. Thus, “[t]he exemption ... covers recommendations, draft documents, 

proposals, suggestions, and other subjective documents which reflect the personal opinions of the 

writer rather than the policy of the agency.... the key question in Exemption 5 cases [is] whether 

disclosure of materials would expose an agency’s decisionmaking process in such a way as to 

discourage discussion within the agency and thereby undermine the agency’s ability to perform 

its functions.” Id. (internal citations and quotations omitted). That standard is clearly met here, 

where the materials withheld on the basis of Exemption 5 consist mainly of communications 

among attorneys in the Office of the General Counsel regarding a pending advisory opinion 

request and that request’s relationship to a pending confidential enforcement matter. Disclosure 

of such information would plainly interfere with agency decision-making and the information 

was appropriately withheld. (See Buckley Decl. ¶ 34; Exh. G (Vaughn index identifying 

documents withheld as protected by the deliberative process privilege under Exemption 5).) 

CONCLUSION

Because the Commission has already provided Mr. Miller all the documents to which he 

is entitled, the Court should dismiss the Complaint in this matter as moot. Even if this Court has 

jurisdiction, because the Commission’s search for responsive documents was thorough and its 

redactions were appropriate under FOIA Exemptions 3 and 5, any other allegations Miller might 

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20

make about the adequacy of the Commission’s response would lack merit and the Commission is 

therefore entitled to summary judgment.

Respectfully submitted,

Anthony Herman

General Counsel

David Kolker

Associate General Counsel

Lisa J. Stevenson 

Special Counsel to the General Counsel

Harry J. Summers

Assistant General Counsel

/s Benjamin A. Streeter III

Benjamin A. Streeter III

Attorney

FOR THE DEFENDANT FEDERAL

ELECTION COMMISSION

999 E Street, N.W.

Washington, DC 20463

(202) 694-1650

September 21, 2012

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