1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) JAMES MADISON PROJECT, ) ) Plaintiff, ) ) v. ) Civil Action No. 15-1307 (RMC) ) DEPARTMENT OF JUSTICE, et al. , ) ) Defendants. ) )

MEMORANDUM OPINION Plaintiff James Madison Project (JMP) brought this action pursu ant to the Freedom of Information Act ( FOIA), 5 U.S.C. § 552, appealing th e disposition of records it requested from, among other agen cies, the Department of Defense (DoD). On September 22, 2016, the Court granted in part a nd denied in part Defendants’ Motion for Summary Judgment, denying summary judgment on Count T hree against DoD due to the inadequacy of the search. See James Madison Project v. DOJ , 208 F. Supp. 3d 265 (D.D.C. 2016). DoD submitted a supplemental supporting declarati on and renewed its motion for summary judgment on May 5,
2017. See DoD Renewed MSJ [Dkt. 20]; see also Second Declaration of Mark H. Herrington [Dkt. 20-1] (Herrington 2nd Decl .). Based on the uncontested f acts in DoD’s supplemental declarations, and for the reasons set forth below, the Court wi ll grant DoD’s Renewed Motion for Summary Judgment.
I. BACKGROUND In 2014, JMP requested records fr om, among other agencies, the DoD, “pertaining to the Book ‘No Eas y Day: The Firsthand Account of the Mission that Killed Osama2 Biden Laden [sic].’” ( No Easy Day ). Compl. ¶¶ 7, 21 [Dkt. 1]. JMP sought:
1. Legal analyses of the extent to which the author of No Easy Day , identified by the pseudonym Mark Owen (“Mr. Owen”), was bound by non-disclosure agreements to submit written manuscripts for pre-publication review; 2. Analyses of the extent to which information contained within th e published version of No Easy Day remains properly classified; 3. Any “damage” or “harm” assessments made regarding the impact that the disclosure of any properly classified informati on has had upon the national securi ty of the United States; 4. Legal analyses of the viability of taking legal action against Mr. Owen, including civil and/or criminal litigation;
5. Any documentation memorializing analyses of administrative measures that could be taken against Mr. Owen, including with respect to his continued eligibility for access to classified information; and 6. Legal analyses of the viability of taking legal action against the Penguin Group USA, the company that published No Easy Day

. Id. ¶ 8. The period of time from whi ch records were sought was Ja nuary 1, 2011 to the date of acceptance of the request. See id . At issue here are DoD’s r esponse to JMP concerning the No Easy Day FOIA request submitted directly to it, as well as DoD’s respon se with respect to a record referred to DoD by the Civ il Division of the Department of Justice (Civil Division). On July 30, 2014, JMP submitted the same No Easy Day FOIA request to the Civil Division. See Declaration of Angie A. Cecil [Dkt. 9-1] ¶ 3 (Cecil Decl.). B y letter dated September 12, 2014, the Civil Divi sion noted it had referred a record responsive to category 2 of
JMP’s No Easy Day FOIA request to DoD for a di rect response. Cecil Decl. ¶ 5; see also Declaration of Mark H. Herri ngton [Dkt. 9-3] ¶ 12 (Herrington 1 st Decl.). On November 5, 2014, DoD notified JMP that it was withholding the referred rec ord under Exemptions 1 and 5,3 and explained JMP’s appellate r ights. Herrington 1st Decl. ¶ 1 2. JMP admits that it did not file an appeal. JMP’s Resp. to DoD’s Statement of Material Facts [D kt. 12-1] ¶ 15. JMP also submitted its No Easy Day FOIA request directly to DoD on July 30, 2014. Herrington 1st Decl. ¶ 3. DoD responded on February 10, 2016, withholding all responsive records under Exemptions 5 and 6. See 5 U.S.C. § 552(b)(5), (6); Herrington 1st Decl. ¶¶ 4-12. On September 22, 2016, the Court granted summary judgment in fa vor of all Defendants except DoD, finding t hat DoD failed to satisfy the r equirements of FOIA § 552(b) because the agency failed to dem onstrate that a good-faith effo rt was made to search for responsive records. See James Madison Project , 208 F. Supp. 3d at 287-88. In his First Declaration in support of the age ncy’s Motion for Summary Judgm ent, DoD’s representative, Mark Herrington, failed to indica te that a search was conducted at all, “but instead attempt[ed] a
Glomar response that all records that might be located would be exemp t under Exemptions 5 or
6.” Id. at 287; see also Phillippi v. CIA , 546 F.2d 1009, 1013 (D.C. Cir. 1976) (recognizing
Glomar responses). This Court held tha t “a categorical refusal to se arch is not sufficient” because DoD “ha[d] not articulated why it [could] neither confi rm nor deny the existence of responsive records , as required in a Glomar response[,]” and, thus, summary judgment was inappropriate. James Madison Project , 208 F. Supp. 3d at 287. DoD submitted the Second Declaration of Mark H. Herrington on M ay 4, 2017 in support of its renewed mo tion for summary judgment. See DoD Renewed MSJ; Herrington 2nd Decl. In his Second Declaration, M r. Herrington stated that a search “was conducted by DoD, and clarif[ied] that the DoD did not intend to provide a Glomar response.” Herrington 2nd Decl. ¶ 3. However, DoD did not describe the methods used to conduct its search. See id. ¶ 5. JMP4 opposed DoD’s Renewed Moti on for Summary Judgment, see Opp’n [Dkt. 22], and DoD replied. See DoD Reply [Dkt. 23]. By leave of the Court, JMP filed a surre ply, see Surreply [Dkt. 26], and DoD filed a sur-surreply. See DoD Sur-Surreply [Dkt. 27]. On June 30, 2017, DoD further supplemented its account of the methods employed to search for responsive records in response to a request from the Court, see Third Declaration of Mar k H. Herrington [Dkt. 29-1] (Herrington 3rd Decl.) , and JMP responded. See JMP Resp. [Dkt. 30]. In his Third Declaration, Mr. H errington explains how he spoke with the attorneys within DoD’s Office of General C ounsel (OGC) “responsible for a ll litigation related to No Easy Day .” Herrington 3rd Decl. ¶ 4. Mr. H errington specifies that, u sing the OGC’s internal filing system and with the help of the rel evant attorneys, he identifi ed all classified and unclassified paper records likely to be responsive to JMP’s No Easy Day FOIA request. Id. ¶ 5. Mr. Herrington describes how he simila rly identified all classified and unclassified electronic records, which were stored in e lectronic folders that could be identified as relating to No Easy Day

. Id. ¶ 6. Finally, Mr. H errington, with the h elp of the attorneys, identified the attorneys’ email folders relating to No Easy Day

. Id. ¶ 7. Mr. Herrington determine d that these locations were likely to contain all r ecords responsive to the No Easy Day FOIA request. Id. ¶ 4. Mr. Herrington states that he revie wed all of these records, and he determined that they were, in fact, responsive to the No Easy Day FOIA request, id. at ¶¶ 5-7, but should be withheld under Exemptions 5 and 6. Herrington 2nd Decl. ¶¶ 6-9. DoD’s Renewed Motion for Summar y Judgment is ripe for review.5 II. LEGAL STANDARD
A. Motion for Summary Judgment under Rule 56 Summary judgment shoul d be granted pursuant to Federal Rule of Civil Procedure 56 if “the movant s hows that there is no genuine disp ute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R . Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247 (1986). Summary j udgment is properly grant ed against a party who “after adequate tim e for discovery and upon motion . . . fails to make a showing sufficient to establish the exis tence of an element essential t o that party’s case, and on which that party will bear the burd en of proof at trial.” Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). In ruling on a motion for summar y judgment, a court must draw a ll justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s eviden ce as true. Anderson , 477 U.S. at 255. A nonmoving party, however, must establish more t han “[t]he mere existence of a scintilla of evidence” in support of its position. Id. at 252.
B. FOIA FOIA requires federal agencies to release government records to the public upon request, subject to nine listed exemptions. See 5 U.S.C. § 552(b); Wolf v. CIA , 473 F.3d 370, 374 (D.C. Cir. 2007). Before commen cing a suit in federal cour t, a FOIA requestor must exhaust its administrative remedies. See Sinito v. DOJ, 176 F.3d 512, 516 (D.C. Cir. 1999). A district court properly grants an agen cy judgment on the pleadings when plaintiff “fail[ s] to internally appeal the agenc[y’s] denial[] and thus to exhaust its administ rative remedies.” Freedom Watch,
Inc. v. NSA , 783 F.3d 1340, 1344 (D.C. Cir. 2015); see also Hidalgo v. FBI , 344 F.3d 1256, 1260 (D.C. Cir. 2003) (instructing distr ict court to dismiss FOIA cl aim for failure to exhaust administrative remedies). A re quester is “deemed to have exhau sted his administrative6 remedies” under FOIA if the agen cy fails to respond to the requ est within the statutorily prescribed 20 days. 5 U.S.C. § 552(a)(6)(C); see also Toensing v. DOJ , 890 F. Supp. 2d 121, 132 (D.D.C. 2012). However, this “s o-called constructive exhau stion ceases to offer a basis for judicial action once an a gency actually responds.” Schwaner v. Dep’t of the Army , 696 F. Supp. 2d 77, 80 (D.D.C. 2010) (citing Oglesby v. Dep’t of the Army , 920 F.2d 57, 61, 63-64 (D.C. Cir. 1990)). “If a requester actually r eceives an agency’s untimely response before filing suit under § 552(a)(6)(A)(i), he must utilize the administrative appeals p rocess.” Schwaner , 696 F. Supp. 2d at 80 (citing Judicial Watch v. Rossotti , 285 F. Supp. 2d 17, 26 (D.D.C. 2003)). Even when a requester has exhausted its administrative remedies , “FOIA cases typically and appropriately are decided on motions for summary judgment.” Defenders of Wildlife v. United States Border Patrol , 623 F. Supp. 2d 83, 87 (D.D.C. 2009). In a FOIA action, “the agency bears the bur den of showing that there is n o genuine issue of material fact, even when the underlying facts are viewed in the light most fav orable to the requester.” Judicial Watch, Inc. v. DOJ , 806 F. Supp. 2d 74, 76-77 (D.D.C. 2011) (citing Weisberg v. DOJ , 705 F.2d 1344, 1350 (D.C. Cir. 1983) ( Weisberg II )). To meet this burden, “[a]gencies may rely on affidavits or declarations of government officials, as long as they are sufficiently clear and detailed and submitted in good faith.” McLaughlin v. DOJ , 530 F. Supp. 2d 210, 212 (D.D.C. 2008) (citing Oglesby v. Dep’t of the Army , 920 F.2d 57, 68 (D.C. Cir. 1990)); see also SafeCard Servs., Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991). Agency declarations ar e afforded a “presumption of good faith.” SafeCard , 926 F.2d at 1200. When an agency has submitted such declarations, the requester th en bears the burden of demonstrat ing a lack of good faith. See Maynard v. CIA , 986 F.2d 547, 560 (1st Cir. 1993).7 For a court to grant an agency’ s motion for summary judgment, t he record must demonstrate that the agency’s se arch for responsive records was adequate, that any exemptions claimed actually apply, and that any reasonably segregable non- exempt parts of records have been disclosed after redaction of exempt information. See Sanders v. Obama , 729 F. Supp. 2d 148, 154 (D.D.C. 2010), aff’d sub nom. Sanders v. DOJ , No. 10-5273, 2011 WL 1769099 (D.C. Cir. Apr. 21, 2011). “[T]he agency must show that it made a good faith effort to con duct a search for the requested records, using methods which can be reasonably ex pected to produce the information requested.” Oglesby , 920 F.2d at 68. The adequacy of a search is “judged by a standard of reasonableness and de pends, not surprisingly, on th e facts of each case.” Weisberg v.
DOJ , 745 F.2d 1476, 1485 (D.C. Cir. 1984) ( Weisberg III ). An agency need not show that it “actually uncovered every document extant.” SafeCard , 926 F.2d at 1201. However, it must provide a detailed description of the methods it used to conduc t its search. See Aguirre v. SEC , 551 F. Supp. 2d 33, 61 (D.D.C. 2008); see also , Judicial Watch, Inc. v. DOJ , 185 F. Supp. 2d 54, 64 (D.D.C. 2002) (citing Valencia–Lucena v. United States Coast Guard , 180 F.3d 321, 325 (D.C. Cir. 1999)) (finding descript ion of search inadequate whe re Court could not determine whether efforts reasonably calcu lated to locate responsive reco rds).
III. ANALYSIS 1
A. Exhaustion DoD did not respond to the No Easy Day FOIA request that JMP submitted directly to it until Februar y 10, 2016—over two years after the request was filed and six months

1 Section 552(a)(4)(B) gives this c ourt subject matter jurisdict ion over all actions brought under FOIA, and makes this an appropriate forum for venue purposes. 5 U.S.C. § 552(a)(4)(B); see Jones v. Nuclear Regulatory Comm’n , 654 F. Supp. 130, 131 (D.D.C. 1987). The Court’s8 after the commencemen t of this litigation. See Herrington 1st Decl. ¶¶ 4-12. Because DoD’s response occurred after the commencement of litigation, JMP is deemed to have constructively exhausted its administrative remedies. See Toensing , 890 F. Supp. 2d at 129 (citing 5 U.S.C. § 552(a)(6)(C)). However, the Court finds that JMP failed to exhaust its adminis trative remedies with respect to the record refe rred to DoD by the Civil Divisio n. DoD provided its response regarding that record two months after it was referred. See Cecil Decl. ¶ 5; Herrington 1st Decl. ¶ 12. However, JMP did not file its Complaint until August 12, 2015. See Compl. Thus, DoD responded to JMP regarding the ref erred record before JMP filed this action, and “[a]t that point, [JMP] was obligated to exhaust [ its] administrative remedies.” Schwaner , 696 F. Supp. 2d at 81. Because JMP admits that it failed to do so, see JMP’s Resp. to DoD’s S tatement of Material Facts ¶ 15, the Court will grant summary judgment as to the ref erred record.
B. Reasonableness of the Search Under FOIA, an agency must undertak e a search that is “reasonab ly calculated to uncover all relevant documents.” Weisberg II , 705 F.2d at 1351. The three declarations submitted by DoD describe a searc h of all of DoD’s folders—phys ical, electronic, and email— by identifying the individuals lik ely to have responsive record s and interviewing them to determine where all records relevant to No Easy Day would be located and then reviewing each of those records individually. See Herrington 2nd Decl. ¶¶ 4-6; Herrington 3rd Decl. ¶¶ 4-7. JMP argues that DoD should have ut ilized search terms to identi fy the relevant records instead of

jurisdiction under FOIA extends on ly to claims arising from the improper withholding of agency records. See 5 U.S.C. § 552(a)(4)(B); see also Lazaridis v. DOJ , 713 F. Supp. 2d 64, 66 (D.D.C. 2010) (citing McGehee v. CIA, 697 F.2d 1095, 1105 (D.C. Cir. 1983) (quoting Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980))).9 merely asking individuals where relevant records were located i n their physical and electronic files. Specifically, JMP argues that “DoD’s refusal to utilize search terms in this context should be rejected by this Court as ina dequate as a matter of law.” J MP Resp. at 2. FOIA defines the term search as “to review, manually or by auto mated means, agency records for the purpose of locating those records which are responsive to a request.” 5 U.S.C. § 552(a)(3)(D). “[R]easona bleness is the hallmark of an adequate FOIA search, and must be decided on the facts of the case.” Landmark Legal Found. v. EPA , 272 F. Supp. 2d 59, 64 (D.D.C. 2003) (citing Weisberg III , 745 F.2d at 1485); see also Davis v. DOJ , 460 F.3d 92, 103 (D.C. Cir. 2006); Truitt v. Dep’t of State , 897 F.2d 540, 542 (D.C. Cir. 1990) (The “adequacy of an agency’s search is measur ed by a standard of reasonableness, and is dependent upon the circumstances of the case.”); Wright v. Admin. for Children & Families , No. 15-218, 2016 WL 5922293, at *5 (D.D.C. Oct. 11, 2016) (quoting Campbell v. DOJ , 164 F.3d 20, 28 (D.C. Cir. 1998), as amended (Mar. 3, 1999) (“The FOIA demands only a reasonable search tai lored to the nature of a particular request.”)). Although a reasonable searc h of electronic records may necessitate the use of search terms in some cases, FOIA does not demand it in all case s involving electronic records. JMP’s citation to Toensing v. DOJ , 890 F. Supp. 2d. 121, 143 (D.D.C. 2012) does not support its argument that DoD must use sear ch terms as a matter of law. In Toensing , the plaintiffs requested “a copy of all documents and recordings collected, ac cumulated, and/or maintained” by the Department of Justice rela ted to the investigation and e ventual subpoenas of plaintiffs. Id

. at 126-27. The Assistant United Sta tes Attorney assigned to th e case, Patricia Hannigan, “certified, without performing any search , that [the individuals handl ing the request] kn[e]w there were no tapes/transcripts responsive to the request.” Id. at 127 (emphasis added) (internal10 citations omitted). The Toensing Court held that “Ms. Hannigan’ s response, which admits that no search was performed and relies instead on professed persona l knowledge that no responsive records exist, cannot possibly cons titute an adequate search.” Id. at 143. Toensing does not stand for the proposition, as ar gued by JMP, that “reliance upo n ‘personal knowledge’ as a substitute for using . . . search terms in looking for responsi ve records amidst electronic files and databases appears to be disf avored.” JMP Resp. at 1. In fact, later in its analysis, the Toensing court held that “[t]he FOIA doe s not require that a ‘search’ of records take any particular form.” 809 F. Supp. 2d at 144. An agency cannot fail to search at all based upon alleged personal knowledge, but courts have not found t hat a particular type of search is required by FOIA, merely that a reasonable sear ch must be conducted; and, in this case, the DoD did conduct a search. Thus, Toensing is inapposite here. In this case, the responsive file s were readily identifiable wi thout search terms and the records in all of the files were indi vidually reviewed. See Herrington 3rd Decl. ¶¶ 4-8. Based upon DoD’s three supporting d eclarations and the presumpt ion of good faith afforded to them, the Court finds that DoD “u s[ed] methods which [could] be reasonably expected to produce the information request ed,” and the search was, therefo re, adequate. Oglesby , 920 F.2d
at 68.
C. Exemption 5 Exemption 5 permits the withholdi ng of “inter-agency or intra-a gency memorandums or letters whic h would not be available by law to a party . . . in litigation with the agency.” 5 U.S.C. § 552(b)(5). I t protects records that are “ normally privileged in the civil discovery context.” NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 149 (1975). Exemption 5 covers “the attorney -client privilege, the attorney work-produc t privilege, [and] the executive11 deliberative process privilege.” Rockwell Int’l Corp. v. DOJ , 235 F.3d 598, 601 (D.C. Cir. 2001). “To qualify as exempt under this section, a document mu st meet two conditions: ‘its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agenc y that holds it.’” Stolt-Nielsen Transp. Grp. Ltd. v. United States , 534 F.3d 728, 733 (D.C. Cir. 2008) (quoting Dep’t of Interior v. Klamath Water Users Protective Ass’n , 532 U.S. 1, 8 (2001)). In a FOIA action, “[t]he non- movant . . . bears the burden of c ontroverting the movant’s asserted justificatio ns by either contrary evidence in the record [or] by evidence of agency bad faith.” Augustus v. McHugh , 870 F. Supp. 2d 167, 172 (D.D.C. 2012); see also
Skinner v. DOJ , 893 F. Supp. 2d 109, 112 (D.D.C. 2012), aff’d sub nom. Skinner v. Bureau of Alcohol, Tobacco, Firearms & Explosives , No. 12-5319, 2013 WL 3367431 (D.C. Cir. May 31, 2013) (“[T]he Court may treat as conceded any argument raised i n a motion which the opposing party fails to address.”). The DoD relies on Exemption 5 and the three cited privileges to withhold in their entirety all records responsive to JMP’s No Easy Day FOIA request. Herrington 2nd Decl. ¶¶ 6- 9; see also Herrington 1st Decl. ¶¶ 5-11. JMP concedes the appropriatenes s of these withholdings. Opp’n at 1 (“Upon rev iew of DoD’s Motion, JMP is conceding the appropriateness of the withholdi ngs made by the Government.”).
D. Exemption 6 In the alternative to Exemption 5, the DoD invokes Exemption 6, see 5 U.S.C. § 552(b)(6), to withhold the pers onal identifying information o f junior DoD personnel. See Herrington 2nd Decl. ¶ 9. Because this Court finds that all of the responsive records were properly withheld under Exemption 5, it need not reach this arg ument, see UtahAmerican12 Energy, Inc. v. Dep’t of Labor , 685 F.3d 1118, 1123 (D.C. Cir. 2012) (“[T]he government, afte r all, need prevail on only one e xemption.”), however, JMP also c oncedes the applicability of Exemption 6. See Opp’n at 1 (“Upon review of DoD ’s Motion, JMP is conceding the appropriateness of the withholdi ngs made by the Government.”).
E. Segregability If a record contains information t hat is exempt from disclosure , any reasonably segregable information must be r eleased after deleting the exempt portions, unless the nonexempt portions are inextricably i ntertwined with exempt portio ns. See 5 U.S.C. § 552(b); see also Trans-Pacific Policing Agreement v. United States Customs Serv. , 177 F.3d 1022 (D.C. Cir. 1999). The court errs if it “sim ply approve[s] the withholding of an entire document without entering a finding on segregabili ty, or the lack thereof.” Powell v. Bureau of Prisons , 927 F.2d 1239, 1242 n.4 (D.C. Cir. 1991) (quoting Church of Scientology of Cal. v. Dep’t of the Army , 611 F.2d 738, 744 (9th Cir. 1979)). To demonstrate that all re asonably segregable material has been released, the agency must pr ovide a detailed justification rather than conclusory statements. Mead Data Cent., Inc. v. Dep’t of the Air Force , 566 F.2d 242, 261 (D.C. Cir. 1977). Upon review of the declarations submitted by Mr. Herrington, th e Court finds that DoD has adequately explained t hat no portions of the records we re segregable. See Herrington 2nd Decl. ¶ 8.
IV. CONCLUSION The Department of Defense perfor med an adequate search for reco rds responsive to the No Easy Day FOIA request, properly withhel d the records under Exemptions 5 and 6, and demonstrated that no portions of t he exempt records were segreg able. For those reasons, the13 Court will grant the Department of Defense’s Renewed Motion for Summary Judgment, Dkt. 20. A memorializing Order accompanies this opinion.

Date: July 25, 2017 /s/ ROSEMARY M. COLLYER United States District Judge