1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MEMORANDUM OPINION

I. Introduction

Plaintiff Democracy Forward Foundation (“Democracy 

Forward”) has sued Defendant U.S. Department of Justice (“DOJ”) 

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

to obtain communications between the Trump Administration 

Transition Team (“the Transition Team”) and the Executive Office 

for United States Attorneys (“EOUSA”). See Compl., ECF No. 1 ¶ 

26.

On January 19, 2018, DOJ moved for summary judgment on the 

issue of the adequacy of its search for responsive records. See

Def.’s Mot. Summ. J., ECF No. 10; Mem. P. & A. in Supp. of 

DEMOCRACY FORWARD FOUNDATION,

Plaintiff,

 

v.

U.S. DEPARTMENT OF JUSTICE,

Defendant.

Civil Action No. 17-1877

(EGS/GMH)
2

Def.’s Mot. Summ. J., ECF No. 10-2 at 4.1 On June 7, 2018, the 

matter was referred to Magistrate Judge Harvey for a Report and 

Recommendation (“R. & R.”). Magistrate Judge Harvey has since 

issued an R. & R. recommending that the Court deny DOJ’s Motion 

for Summary Judgment without prejudice. See R. &. R., ECF No. 16 

at 14.

Pending before the Court are Democracy Forward’s Objections 

to Magistrate Judge Harvey’s R. & R., see Pl.’s Objs. Magistrate 

Judge’s Proposed Findings & Recommendations (“Pl.’s Objs.”), ECF 

No. 18; and DOJ’s Objections to Magistrate Judge Harvey’s R. & 

R., see Def.’s Objs. Magistrate Judge’s R. & R. (“Def.’s 

Objs.”), ECF No. 19. Upon careful consideration of the R. & R., 

the objections, oppositions, and reply thereto, the applicable 

law, and the entire record herein, the Court hereby ADOPTS the 

R. & R, see ECF No. 16; and DENIES DOJ’s Motion for Summary 

Judgment, see ECF No. 10.

II. Background

A. Factual

On June 2, 2017, Democracy Forward submitted a FOIA request 

to EOUSA seeking all communications sent to or from 67 named 

members of the Transition Team between November 9, 2016 and

1 When citing electronic filings throughout this Opinion, the 

Court refers to the ECF page numbers, not the page numbers of 

the filed documents.
3

January 21, 2017. See Def.’s Statement of Material Facts as to 

Which There is No Genuine Issue & Pl.’s Statement of Genuine 

Issues in Opp’n to Def.’s Statement of Material Facts (“SOMF”), 

ECF No. 14 ¶ 1. Although EOUSA acknowledged receipt of this 

request on June 7, 2017, it did not at that time provide any 

substantive response. See id. ¶ 3. Democracy Forward thus filed 

this lawsuit on September 13, 2017. Id. ¶ 4. 

At some point after receiving the FOIA request, EOUSA began 

to search for responsive records. Id. ¶ 6 (citing Jolly Decl., 

ECF No. 10-3 ¶ 7). The agency’s search efforts are detailed by a 

declaration submitted by Mr. Vinay Jolly (“Mr. Jolly”), an 

attorney advisor in EOUSA’s FOIA unit. Mr. Jolly explains that 

the agency located one responsive record based on searches it 

conducted pursuant to other FOIA requests: the “Briefing Book 

Transition Team.” Id. ¶ 7 (citing Jolly Decl., ECF No. 10-3 ¶ 

7). On October 13, 2017, after this litigation began, EOUSA 

released 129 pages of the Briefing Book in full and 20 pages in 

part to Democracy Forward. Id. ¶ 8 (citing Jolly Decl., ECF No. 

10-3 ¶¶ 6, 7).

In the meantime, EOUSA continued to search for responsive 

records. Id. ¶ 9. Mr. Jolly avers that the Office of the 

Director (“Director’s Office”) was the only EOUSA component 

likely to have responsive records because “the Director’s Office 

would be the only component to have authority to communicate 
4

with the Transition Team.” Jolly Decl., ECF No. 10-3 ¶¶ 7-8. Mr. 

Jolly explains that he made this determination based on his nine 

years of experience in the FOIA unit. SOMF, ECF No. 14 ¶¶ 10-12 

(citing Jolly Decl., ECF No. 10-3 ¶ 8). EOUSA thereafter 

forwarded Democracy Forward’s request to the Director’s Office. 

Id. ¶ 10.

EOUSA describes its search efforts in the Director’s Office 

with a declaration from Mr. Norman Wong (“Mr. Wong”), the Deputy 

Director and Counsel to the Director at EOUSA. Mr. Wong explains 

that DOJ’s Justice Management Division (“JMD”) facilitated a 

meeting between EOUSA employees Mr. Wong, Director Monty 

Wilkinson (“Mr. Wilkinson”), Deputy Director Suzanne L. Bell

(“Ms. Bell”), and Chief Financial Officer Jonathan Pelletier

(“Mr. Pelletier”) and members of the Transition Team on December 

2, 2016. Id. ¶ 14 (citing Wong Decl., ECF No. 10-4 ¶ 4). Mr. 

Wong explains that JMD “closely coordinated” communications 

between EOUSA and the Transition Team, including setting up the 

December 2016 meeting. Id. ¶¶ 14-17 (citing Wong Decl., ECF No. 

10-4 ¶ 4). He claims that he is “unaware of any other contact 

between EOUSA leadership and any Transition Team Members,” and

that, apart from the December 2016 meeting, “EOUSA did not 

communicate directly with the Transition Team.” Wong Decl., ECF 

No. 10-4 ¶ 4.
5

Upon receiving Democracy Forward’s FOIA request, Mr. Wong 

determined that he, Mr. Wilkinson, Ms. Bell, and Mr. Pelletier 

were “the only custodians likely to have responsive records.”

SOMF, ECF No. 14 ¶ 19 (citing Wong Decl., ECF No. 10-4 ¶ 4). He 

then spoke with and exchanged emails with those individuals to 

inquire about “the extent of all written and oral communications 

that [they] had with the Transition Team at any point from its 

formation until [they] became aware of the instant FOIA 

request.” Id. ¶ 20 (citing Wong Decl., ECF No. 10-4 ¶ 5). Each 

custodian confirmed that “(1) they had no contact with the 

Transition Team during the requested timeframe (except . . . at 

the December 2 meeting), (2) they neither sent nor received any 

email or other written correspondence to or from any Transition 

Team member during the requested timeframe . . . , and (3) the 

only responsive record in [EOUSA’s] office is the Briefing 

Book.” Id. ¶ 21 (citing Wong Decl., ECF No. 10-4 ¶ 5). Mr. Wong 

also avers that “there is no other location in the Director’s 

Office where any other records that might be responsive to this 

request are likely to be located.” Id. ¶ 23 (citing Wong Decl., 

ECF No. 10-4 ¶ 6). 

B. Procedural

On January 19, 2018, DOJ moved for summary judgment on the 

issue of the adequacy of its search. See Def.’s Mot. Summ. J., 

ECF No. 10; Mem. P. & A. in Supp. of Def.’s Mot. Summ. J., ECF 
6

No. 10-2 at 4. Democracy Forward filed its brief in opposition 

on February 27, 2018, see Pl.’s Opp’n Def.’s Mot. Summ. J., ECF 

No. 12; and DOJ filed a reply on March 22, 2018, see Reply in 

Supp. of Def.’s Mot. Summ. J., ECF No. 13.

The Court referred DOJ’s Motion for Summary Judgment to 

Magistrate Judge Harvey for an R. & R. See Minute Order (July 5, 

2018). On August 29, 2019, Magistrate Judge Harvey issued his R. 

& R. recommending that the Court deny DOJ’s Motion for Summary 

Judgment. See R. & R., ECF No. 16 at 14.

On September 19, 2019, both Democracy Forward and DOJ filed 

objections to the R. & R. See Pl.’s Objs., ECF No. 18; Def.’s 

Objs., ECF No. 19. Democracy Forward submitted its response in 

opposition to DOJ’s objections on October 3, 2019, see Pl.’s 

Opp’n Def.’s Objs. (“Pl.’s Opp’n”), ECF No. 20; and DOJ filed 

its response in opposition to Democracy Forward’s objections the 

same day, see Def.’s Resp. Pl.’s Objs. Magistrate Judge’s R. & 

R. (“Def.’s Opp’n”), ECF No. 21. Democracy Forward filed its 

reply in support of its objections on October 10, 2019. See

Pl.’s Reply in Supp. of Objs. (“Pl.’s Reply”), ECF No. 22. The 

objections and the motion are ripe and ready for adjudication.

III. Legal Standard

A. Objections to a Magistrate Judge’s R. & R.

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

may file specific written objections once a magistrate judge has 
7

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

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

disposition.” Id. 72(b)(3); see also 28 U.S.C. § 636(b)(1)(C)

(“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 

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. Dist. of 

Columbia, No. CV 16-1920 (CKK), 2019 WL 4345712, at *3 (D.D.C. 

Sept. 12, 2019) (citation and 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 the objection.” LCvR 72.3(b). “[O]bjections 

which merely rehash an argument presented 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. 
8

2d 1, 8 (D.D.C. 2013) (citation and internal quotation marks 

omitted). The Court reviews Plaintiff’s and Defendant’s

objections de novo.

B. Summary Judgment

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. Off. 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). 

Generally, summary judgment is warranted “if the movant 

shows [by affidavit or other admissible evidence] that there is 

no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

A party opposing a summary judgment motion must show that a 

genuine factual issue exists by “(A) citing to particular parts 
9

of materials in the record . . . or (B) showing that the 

materials cited do not establish the absence . . . of a genuine 

dispute.” Fed. R. Civ. P. 56(c). Any factual assertions in the 

moving party’s affidavits will be accepted as true unless the 

opposing party submits his own affidavits or other documentary 

evidence contradicting the assertion. See Neal v. Kelly, 963 

F.2d 453, 456 (D.C. Cir. 1992). However, “the inferences to be 

drawn from the underlying facts . . . must be viewed in the 

light most favorable to the party opposing the motion.” 

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 

U.S. 574, 587 (1986) (citation and internal quotation marks 

omitted).

C. 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.” Reps. 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) 
10

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

rather than the “fruits of the search”). 

The agency may meet its burden 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.” Reps. 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 (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] 
11

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

245, 251 (D.D.C. 2018) (quoting Reps. Comm., 877 F.3d at 402). 

IV. Analysis

A. EOUSA Properly Confined Its Search for Responsive 

Records

To determine whether an agency conducted an adequate search 

for responsive records, the Court “must first ascertain the 

scope of the request itself.” Nation Mag., Wash. Bureau v. U.S. 

Customs Serv., 71 F.3d 885, 889 (D.C. Cir. 1995). The agency 

must “read [the request] as drafted,” Urb. Air Initiative, Inc. 

v. Env’t Prot. Agency, 271 F. Supp. 3d 241, 255–56 (D.D.C. 2017)

(quoting Miller v. Casey, 730 F.2d 773, 777 (D.C. Cir. 1984)); 

and “may not narrow the scope of a FOIA request to exclude 

materials reasonably within the description provided by the 

requester,” id. (citing Nation Mag., 71 F.3d at 889–90, 892).

Democracy Forward first objects that DOJ “improperly 

construed Plaintiff’s search as limited to ‘authorized’

communications between the Transition Team and EOUSA.” Pl.’s 

Objs., ECF No. 18 at 4-5. The organization clarifies that it 

requested “all incoming and outgoing communications between the 

named members of the Transition Team and all of EOUSA.” Pl.’s 

Objs., ECF No. 18 at 5. This request included unauthorized 

communications, which “could well be the most informative and 
12

revealing records concerning the relationship between the 

Transition Team and EOUSA.” Id.

Democracy Forward raises this objection in the context of 

its challenge to the adequacy of EOUSA’s search, and so “the 

factual question it raises is whether the search was reasonably 

calculated to discover the requested documents.” SafeCard 

Servs., 926 F.2d at 1201. EOUSA’s search meets this standard.

The agency considered the scope of Democracy Forward’s request—

all communications between the named Transition Team members and 

EOUSA—and reasonably determined that the only records likely to 

exist are authorized communications. See Def.’s Opp’n, ECF No. 

21 at 3. Indeed, DOJ admits in its briefing that EOUSA 

understood that it was to search for all communications. See

Def.’s Opp’n, ECF No. 21 at 3. The briefing, bolstered by Mr. 

Jolly and Mr. Wong’s affidavits, adequately explains that the 

agency found it likely that only authorized communications exist 

and confined its search accordingly. See R. & R., ECF No. 16 at 

6-9; Jolly Decl., ECF No. 10-3 ¶¶ 7-9 (basing this determination 

on his nine years of experience); Wong Decl., ECF No. 10-4 ¶¶ 4-

6 (reasoning based on his knowledge that only participants in 

the December 2016 meeting had any contact with the Transition 

Team).

The cases Democracy Forward cites in its briefing are 

distinguishable. In Urban Air Initiative, the affidavits did not 
13

support a conclusion that the agency conducted an adequate 

search because they did “not aver that no other custodians were 

likely to possess responsive documents.” Urb. Air Initiative, 

Inc., 271 F. Supp. 3d at 256 (citing Oglesby, 920 F.2d at 68). 

By contrast, here, the affidavits state that only authorized 

communications and no other communications are likely to exist. 

Mr. Wong makes clear that he, Mr. Wilkinson, Ms. Bell, and Mr. 

Pelletier “would have been the only EOUSA individuals to 

communicate with any Transition Team members” and that “[o]ther 

than at [the December 2016] meeting, EOUSA did not communicate 

directly with the Transition Team.” Wong Decl., ECF No. 10-4 ¶ 4

(emphasis added). Mr. Jolly explains the same, averring that “no 

. . . EOUSA component” other than the Director’s Office “would 

be likely to have responsive records.” Jolly Decl., ECF No. 10-3 

¶ 8. 

Utahamerican Energy, Inc. v. Mine Safety & Health Admin., 

725 F. Supp. 2d 78 (D.D.C. 2010) provides even less support. 

There, the court held that the agency’s search was inadequate 

because the agency “centered the search around [other] requests 

for documents, and not around [the plaintiff]’s FOIA request.” 

725 F. Supp. 2d at 82. Since Democracy Forward does not allege 

that EOUSA conducted a search responsive to FOIA requests other 

than its own, see generally Pl.’s Objs., ECF No. 18; this case 

is not instructive.
14

Moreover, FOIA does not require an agency to “make hopeless 

and wasteful efforts to locate” documents that would not “have 

been created in the normal course.” SafeCard Servs., 926 F.2d at 

1201. Unauthorized communications would not have been created in 

the normal course. See Wong Decl., ECF No. 10-4 ¶¶ 4-6. 

Democracy Forward offers only “[m]ere speculation that as yet 

uncovered documents may exist.” SafeCard Servs., 926 F.2d at 

1201. It reasons that unauthorized communications between EOUSA 

and the Transition Team must exist because: “multiple federal 

law enforcement agencies were investigating President Trump and 

his associates before, during, and after the transition”; 

President “Trump attempted to influence those investigations”; 

“President Trump had recently fired 46 U.S. Attorneys, including 

one investigating a cabinet official”; and “congressional 

investigators were simultaneously attempting to obtain 

information about illicit contacts.” Pl.’s Reply, ECF No. 22 at 

2 (citations omitted). Whatever evidence there may be of other 

illegal activity, that evidence does not provide enough support 

for the charge that EOUSA possesses unauthorized communications—

particularly in the face of EOUSA’s declarations to the 

contrary. See Light v. Dep’t of Just., 968 F. Supp. 2d 11, 23 

(D.D.C. 2013) (“An agency’s declarations are accorded ‘a 

presumption of good faith, which cannot be rebutted by purely 
15

speculative claims about the existence and discoverability of 

other documents.’” (quoting SafeCard Servs., 926 F.2d at 1200)).

Democracy Forward also objects to Magistrate Judge Harvey’s 

conclusion that EOUSA properly cabined its search to the 

individuals who participated in the December 2016 meeting. See

Pl.’s Objs., ECF No. 18 at 6-8. It contends that EOUSA “‘cannot 

limit its search to only one record system if there are others 

that are likely to turn up the information requested.’” Id. at 

7-8 (quoting Nation Mag., 71 F.3d at 890). And other systems are 

likely to have responsive records, it continues, because

“[g]overnment officials do not always stay within the bounds of 

their lawful authority, particularly with respect to the rules 

governing authorized and unauthorized communications.” Pl.’s 

Objs., ECF No. 18 at 6-7.

The Court disagrees. First, there is significant caselaw 

suggesting that “in the absence of clear evidence to the 

contrary, courts presume that [government officials] have 

properly discharged their official duties.” United States v. 

Chem. Found., 272 U.S. 1, 14–15 (1926). Second, FOIA 

declarations “are accorded a presumption of good faith” 

regardless of the underlying government conduct. SafeCard 

Servs., 926 F.2d at 1200. Because Democracy Forward does not 

cite any caselaw to support its position and does not allege 

that EOUSA acted in bad faith, the Court rejects this argument. 
16

At base, Democracy Forward speculates—based on other 

actions of the Transition Team and other investigations—that 

there may be unauthorized communications between EOUSA and 

certain members of the Transition Team. But under FOIA, the 

Court assesses whether the agency’s search “can be reasonably 

expected to produce the information requested” and will prohibit 

the agency from “limit[ing] its search to only one record system 

if there are others that are likely to turn up the information 

requested.” Nation Mag., 71 F.3d at 890 (citations omitted). 

Democracy Forward has not shown that EOUSA’s search was 

unreasonably limited or that other EOUSA employees were likely 

to have responsive records. For these reasons, the Court agrees 

with Magistrate Judge Harvey that EOUSA properly confined its 

search to authorized communications between the named members of 

the Transition Team and the individuals in the Director’s Office 

who participated in the December 2016 meeting.

B. EOUSA’s Failure to Search the December 2016 Meeting 

Participants’ Records Was Unreasonable

“[R]easonableness is the hallmark of an adequate FOIA 

search, and must be decided on the facts of the case.” Landmark 

Legal Found. v. E.P.A., 272 F. Supp. 2d 59, 64 (D.D.C. 2003)

(citing Weisberg v. U.S. Dep’t of Just., 745 F.2d 1476, 1485 

(D.C. Cir. 1984)). FOIA does not require that the agency’s 

search “take any particular form.” Toensing v. U.S. Dep’t of 
17

Just., 890 F. Supp. 2d 121, 144 (D.D.C. 2012). “However, the 

agency cannot limit its search to only one record system if 

there are others that are likely to turn up the information 

requested.” Oglesby, 920 F.2d at 68.

DOJ objects to Magistrate Judge Harvey’s conclusion that 

EOUSA’s search was inadequate for its failure to search the 

email records and other written correspondence of the December 

2016 meeting participants. Def.’s Objs., ECF No. 19 at 5-10. The 

agency refers to Mr. Wong’s declaration, which explains that he 

“personally spoke with and exchanged emails with” the other 

December 2016 meeting participants and, based on those 

conversations, determined that “they neither sent nor received 

any email or other written correspondence to or from any 

Transition Team member during the requested timeframe.” Id. at 6 

(citing Wong Decl., ECF No. 10-4 ¶ 5). In other words, DOJ 

argues that Mr. Wong’s conversations with the other meeting 

participants constitutes a search and that the search was 

adequate because “it was not reasonable to believe that 

responsive records existed in those email accounts.” Id. at 7 

(citing Wong Decl., ECF No. 10-4 ¶ 6).

The Court agrees with Magistrate Judge Harvey that Mr. 

Wong’s conversations with the other likely custodians of 

responsive records “are no substitute for actually searching 

those employees’ records.” R. & R., ECF No. 16 at 11. The facts 
18

here are analogous to those in Toensing, where the court held 

the “search” to be “clearly inadequate” when the declarant 

acknowledged that “she spent ‘[n]o additional search time’

because she and her colleagues ‘kn[ew] there were no 

tapes/transcripts responsive to the request.’” Toensing, 890 F. 

Supp. 2d at 143. Here, Mr. Wong attests that he did not conduct 

any further searches after discussing the matter with the other 

December 2016 meeting participants. See Wong Decl., ECF No. 10-4 

¶ 6. Mr. Wong at no point claims that he or any of the other 

meeting participants performed any search of their own records 

to support their representations. See generally id. ¶¶ 4-6. 

Although the Court presumes good faith here, FOIA still requires 

that the agency conduct some search and forbids it from relying

on “professed personal knowledge that no responsive records 

exist.” Toensing, 890 F. Supp. 2d at 143.

The cases DOJ cites do not counsel differently because in 

each case, the agency actually reviewed its records. In James 

Madison Project v. Dep’t of Justice, 267 F. Supp. 3d 154 (D.D.C. 

2017), the court held the search to be adequate because the 

agency “identif[ied] the individuals likely to have responsive 

records,” “interview[ed] them to determine where all records 

relevant . . . would be located,” and “review[ed] each of those 

records individually.” 267 F. Supp. 3d at 160. In Schrecker v. 

U.S. Dep’t of Justice, 217 F. Supp. 2d 29 (D.D.C. 2002), aff’d, 
19

349 F.3d 657 (D.C. Cir. 2003), the court accepted the search as 

adequate where the agency searched the three records systems 

with “the greatest possibility of containing responsive 

documents.” 217 F. Supp. 2d at 35. And in American Chemistry 

Council, Inc. v. U.S. Dep’t of Health & Human Services, 953 F. 

Supp. 2d 120 (D.D.C. 2013) as well as Walston v. U.S. Dep’t of 

Defense, 297 F. Supp. 3d 74 (D.D.C. 2018), the courts concluded 

that the agencies performed adequate searches because the 

“search of an alternate source” suggested by the plaintiffs

“would be duplicative of a search that ha[d] already been 

conducted.” Am. Chemistry Council, Inc., 953 F. Supp. 2d at 127; 

see Walston, 297 F. Supp. 3d at 78-79.

“Although agencies have discretion in crafting their 

searches,” Walston, 297 F. Supp. 3d at 79; they cannot decline

to actually search for responsive records, see Morley, 508 F.3d 

at 1114. Agencies, of course, may use interviews with likely 

custodians to determine what search methods are “reasonably 

calculated to discover the requested documents.” SafeCard 

Servs., 926 F.2d at 1201. However, they may not use those 

interviews to avoid searching their records altogether. 

Toensing, 890 F. Supp. 2d at 143. The Court therefore concludes 

that EOUSA did not perform an adequate search because it failed 

to search the email and other records of the December 2016 

meeting participants.
20

C. The Court Orders DOJ to Supplement the Record

In a footnote, Democracy Forward objects to Magistrate 

Judge Harvey’s recommendation that the Court permit DOJ to 

supplement the record by explaining why any further search would 

be burdensome. See Pl.’s Objs., ECF No. 18 at 3-4 n.1. The Court 

possesses the authority to order that a record be supplemented. 

See Discepolo v. U.S. Dep’t of Just., No. 16-CV-2351 (DLF/GMH), 

2018 WL 504655, at *12 (D.D.C. Jan. 19, 2018) (requiring an 

agency that failed to search an email account to “supplement its 

declaration to fill this gap in its demonstration of the 

adequacy of its search, either by searching [the email account] 

or by explaining why such a search is unnecessary”), report and 

recommendation adopted, No. CV 16-2351 (DLF/GMH), 2018 WL 

5024921 (D.D.C. May 8, 2018), reconsideration denied, No. 16-CV2351 (DLF), 2018 WL 6620465 (D.D.C. Nov. 2, 2018); see also

Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 

504, 515 (D.C. Cir. 2011) (remanding case and requiring 

defendant to provide “further clarification . . . about the 

seeming gaps” in its search). This supplementation is 

particularly appropriate here as DOJ explained in its briefing 

that a search through the four meeting participants’ email 

records may be burdensome. See Def.’s Objs., ECF No. 19 at 9-10 

(explaining that the agency will have “to expend resources to 

comb through for responsiveness”); see id. at 10 (describing 
21

that a search for communications with former Attorney General

Jeff Sessions is likely to result in a large number of 

nonresponsive “hits” because he was “the ultimate boss of EOUSA 

during the relevant timeframe”). 

V. Conclusion

For the foregoing reasons, the Court ADOPTS Magistrate 

Judge Harvey’s R. & R., ECF No. 16; and DENIES DOJ’s Motion for 

Summary Judgment as to the adequacy of EOUSA’s search, ECF No. 

10.

The Court orders DOJ to supplement the record by: (a) 

searching the email and other records of the four individuals in 

the Director’s Office who participated in the December 2016 

meeting with the Transition Team, using the names from Democracy 

Forward’s FOIA request; (b) submitting an affidavit explaining

that those individuals have already conducted those searches; or 

(c) submitting an affidavit detailing with specificity why the 

search would be overly burdensome.

An appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan

United States District Judge

November 23, 2022