UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) JASON LEOPOLD, ) ) Plaintiff, ) ) v. ) ) Civil Action No. 14- cv-805 (TSC)
N ATIONAL SECUR ITY AGENCY, et al. , ) ) Defendants. ) )
MEMORANDUM OPINION In March 2014, Plaintiff Jason Leopold submitted two Freedom of Information Act (“FOIA”) requests seeking record s related to surveillance of fe deral and state judges – one to the National Security Agency (“NSA ”) and one to the Department of J ustice’s Office of Legal Counsel (“OLC” and, together wit h NSA, “Defendants”). Both age ncies indicated that they had no records responsive to the FOI A requests, prompting Plaintiff to initiate this litigation. In July 2015, this court grante d in part and denied in part Def endants’ first motion for summary judgment, finding that De fendants had failed to conduct an adequate search and to adequately explain the basis fo r their search in certain limite d respects. Among other things, the court ordered OLC to reprocess Pl aintiff’s FOIA request by sear ching for draft memoranda and legal opinions related to surv eillance of federal and state jud ges. Defendants have now renewed their motion for summary judgment. Plaintiff challenges only the manner in which OLC sear ched for these draft memorandaand legal opinions. Upon consideration of Defendants’ r enewed motion for summary ju dgment and the parties’ briefs in support th ereof and in opposition thereto , and for the reasons set forth below, Defendants’ motion is hereby DENIED

.2 I. BACKGROUND The procedural and factual backgr ound of this case is set forth in the court’s July 2015 Memorandum Opinion granting in part and denying in part Defenda nts’ first motion for summary judgment. See generally Leopold v. Nat’l Sec. Agency , 118 F. Supp. 3d 302 (D.D.C. 2015). The July 2015 Memorandum Op inion ordered that two addit ional searches be conducted and that certain other informa tion be provided to Plaintiff. See id. Defendants’ renewed motion for summary judgment centers on one of the additional searches ordere d by the court: The court is persuaded that “any and all memoranda and legal op inion[s]” means exactly what it says – any and all, meaning drafts and final pr oduct. OLC has not provided any persuasive justific ation regarding why it did not search for drafts, and is therefore ordered to reproces s Leopold’s request and conduct a search for draft memoranda and legal opinions. Id. at 309-10 (citation to record omitted). Prior to the issuance of the c ourt’s July 2015 Memorandum Opini on and Order, “OLC had already conducted a search for final legal advice ‘about th e propriety of surveilling federal and state judges’ and located no r esponsive documents.” (Mot. Ex. 3 (“Third Colborn Decl.”) ¶ 10). According to OLC Special Counsel Paul P. Colborn, “[t]h e fact that no final legal advice on this subject was located . . . made it much more difficult t o identify any likely locations to search for any draft legal a dvice that might exist.” ( Id. ). For example, [h]ad OLC located final legal advice concerning the topic, [OLC ] would have been able to determine whether a file had been maintained with mater ials related to the advice, and could have located any drafts that may have been ma intained in that file. [OLC] also likely would have been able to identify the p rincipal attorneys who had worked on the advice. With that information as a lead, [OL C] would have searched the individual hardcopy and computer files of those at torneys for drafts of the advice. ( Id. ).3 The search that OLC ultimatel y conducted pursuant to the court’ s July 2015 Memorandum Opinion and Order proceeded as follows: [A]n OLC attorney asked an OLC Deputy Assistant Attorney Genera l and an OLC Senior Counsel, both of whom are senior attorneys with long tenures in OLC (the Deputy Assistant Attorney Gener al joined the Office in 1989; th e Special Counsel joined the Office in 1998, departed for nine years in 2001, and rejoined the Office in 2010) and have close familiarity with OLC’s work on national security and surveillance matters, . . . whet her they were aware of any clas sified or unclassified OLC projects concerning the “prop riety of surveilling federal o r state judges,” regardless of whether the projec t resulted in final legal advic e. ( Id. ¶¶ 6, 9). “This inquiry yielde d no responsive records.” ( Id. ¶ 9). Additionally, shortly after Pla intiff filed his brief opposing Defendants’ renewed motion for summary judgment, “a general inquiry was sent to all OLC at torneys . . . asking if they had, or were aware of, any draft lega l memoranda or opinions relatin g to the ‘proprie ty of surveilling federal and state judges.’” ( Reply Ex. 1 (“Fourth Colborn Decl .”) ¶ 11). “[A]ll OLC attorneys reported that they did not have and were not aware of any such records.” ( Id. ). Colborn avers that searching OLC ’s paper files, the email files of departed OLC attorneys and the hard drives of departed us ers “likely would take severa l years and the diversion of resources from other FOIA reque sts,” which “would result in a dramatic increase in [OLC’s] FOIA processing backlog.” ( Id. ¶ 9).
II. LEGAL STANDARD

a. Motion for Summary Judgment Summary judgment may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986); Holcomb v.
Powell , 433 F.3d 889, 895 (D.C. Cir. 2006). Summary judgment may be rendered on a “claim or defense . . . or [a] part of each claim or defense.” Fed. R. C iv. P. 56(a). “A party asserting that a4 fact cannot be or is genuinely d isputed must support the assert ion by . . . citing to particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A). “A fact is ‘material’ i f a dispute over it might affect the outcome of a su it under governin g law; factual disputes that are ‘irrelevant or unnecessary’ do not affect the sum mary judgment determination.” Holcomb , 433 F.3d at 895 (quoting Anderson , 477 U.S. at 248). “An issue is ‘ genuine’ if ‘the evidence is such that a reasonable jury could return averdict for the nonmoving party. ’” See id. The party seeking summary judgment “bears the hea vy burden of establishing that t he merits of his case are so clear that expedited action is justified.” Taxpayers Watchdog, Inc., v. Stanley , 819 F.2d 294, 297 (D.C. Cir. 1987) (citing Walker v. Washington , 627 F.2d 541, 545 (D.C. Cir. 1980)). In considering a motion for summary judgment, “[t]he evidence o f the non-movant is to be believed, and all justifiabl e inferences are to be drawn in his favor.” Anderson , 477 U.S. at 255 (citing Adickes v. S.H. Kress & Co. , 398 U.S. 144, 158-59 (1970)); see also Mastro v.
Potomac Elec. Power Co. , 447 F.3d 843, 850 (D.C. Cir. 2006). The nonmoving party’s opposition, however, must consist of more than mere unsupported allegations or denials, and must be supported by affidavits, declarations or other competen t evidence setting forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-movant is required to provi de evidence that would permit a reasonable jury to find in his favor. See Laningham v. U.S. Navy , 813 F.2d 1236, 1242 (D.C. Cir. 1987). b. FOIA “FOIA provides a ‘statutory r ight of public access to documents and records’ held by federal government agencies.” Citizens for Responsibility & Ethi cs in Washington v. U.S. Dep’t of Justice , 602 F. Supp. 2d 121, 123 (D.D.C. 2009) (quoting Pratt v. Webster , 673 F.2d 408, 413 (D.C. Cir. 1982)). FOIA requires th at federal agencies comply with requests to make their5 records available t o the public, unless such “information is ex empted under clearly delineated statutory language.” Id. (internal quotation marks omitted); see also 5 U.S.C. § 552(a), (b). “‘FOIA cases typically and appr opriately are decided on motions for summary judgment.’” Georgacarakos v. Fed. Bureau of Investigation , 908 F. Supp. 2d 176, 180 (D.D.C. 2012) (quoting Defenders of Wildlife v. U.S. Border Patrol , 623 F. Supp. 2d 83, 87 (D.D.C. 2009)). In ruling on the adequacy of an agency’s search in res ponse to a FOIA request, “[t]he question is not whether there m ight exist any other documents p ossibly responsive to the request, but rather whether the search for those documents was adequate. The adequacy of the search, in turn, is judged by a standard of reasonableness and depends, no t surprisingly, upon the facts of each case. In demonstrating the a dequacy of the s earch, the ag ency may rely upon reasonably detailed, nonconclusory affidavits submitted in good faith.” Steinberg v. U.S. Dep’t of Justice , 23 F.3d 548, 551 (D.C. Cir. 1994) (internal quotation marks and citations omitted). An agency may prove the reasonab leness of its search via the de claration of a responsible agency official, so long as the de claration is reasonably detai led and not controverted by contrary evidence or evidence of bad faith. Military Audit Project v. Casey , 656 F.2d 724, 738 (D.C. Cir. 1981) (citations omitted). There is no requirement that an age ncy search every record system, but the agency must conduct a good faith, reasonable search of those systems of records likely to possess the requested information. See Oglesby v. Dep’t of Army , 920 F.2d 57, 68 (D.C. Cir. 1990). The agency declaration can d emonstrate reasonableness b y “setting forth the search terms and the type of search performed, a nd averring that all files l ikely to contain responsive materials (if such records exist) were searched.” Id. Once an agency has provided ade quate affidavits, the burden shi fts back to the plaintiff to demonstrate the lack of a good faith search. The presumption o f good faith “cannot be rebutted by purely speculative claims about the existence and discoverab ility of other documents.”6 SafeCard Servs., Inc. v. Securities & Exchange Comm’n , 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks and citation omitted).
III. ANALYSIS Defendants contend that simply a sking two senior OLC attorneys whether they were aware of any OLC projects concer ning the propriety of surveilli ng federal or state judges, regardless of whether the projec t resulted in final legal advic e, satisfied the ir obligations under FOIA to conduct the search for dr aft memoranda and legal opinio ns required by the court’s July 2015 Memorandum Opinion and Order. ( See Fourth Colborn Dec l. ¶ 11). Plaintiff disagrees, arguing that merely a sking these two senior OLC atto rneys did not constitute an adequate search. (Opp’n at 7-8). The court agrees with Plaintiff , and finds that the senior atto rneys’ responses to this inquiry do not provide sufficient basis to reasonably conclude either that OLC is unlikely to possess responsive records or tha t responsive records are unlik ely to be found by a more in-depth search. Moreover, the court finds that asking all current OLC attorneys if they had, or were aware of, any draft legal memoranda or opinions relating to the propriety of surveilling federal or state judges – as was done here after Plaintiff filed his oppos ition brief – was also insufficient.

* * * OLC employs approximately twenty to twenty-five attorneys at an y one time ( see Third Colborn Decl. ¶ 2), and Colborn “co nservatively estimates that more than three hundred attorneys have worked in the O ffice during the time period sinc e 1933, the period of Plaintiff’s proposed search.” (Fourth Colborn Decl. ¶ 9(a)). Despite the long tenures of the two senior OLC attorneys who were asked about potentially responsive recor ds, and their familiarity with OLC’s work on national security a nd surveillance matters, merel y asking these two individuals7 about their personal knowledge does not, in the court’s view, s ufficiently demonstrate that responsive documents do not exist or would not be found by a mo re in-depth search. As Plaintiff notes, “[d]raft opinions are a ssigned to a primary Deputy and a n Attorney-Advisor, with a second Deputy only reviewing the dr aft when it is ready for sec ondary review,” and “draft opinions may not have been circula ted to the particular individ uals who were consulted in responding to Plaintiff’s FOIA re quest.” (Opp’n at 8) (citatio n omitted). The same holds true for asking all current OLC atto rneys about whe ther they knew of responsive documents, as such documents could have been generated, unbeknownst to any currentOLC attorneys, by an attorney who is no longer the re, or by any of the hundreds of a ttorneys who worked at the agency before them. The question thus becomes what OLC must do in order to conduct an adequate search for responsive documents. In hi s opposition brief and supporting d ocuments, Plaintiff identifies only four additional actions that OLC could take to search for the requested documents: (i) sending an email to all curre nt OLC attorneys asking if the y had worked on the issue of surveilling judges; (ii) requesti ng that current OLC attorneys search their computers and emails for responsive documents; (iii) searching departed OLC attorney s’ hard drives for responsive documents; and (iv) searching departed OLC attorneys’ emails fo r responsive documents. ( See Opp’n at 5-6; Pl.’s Resp. to Defs. ’ Statement of Facts Not in D ispute ¶ 12; Pl.’s Statement of Facts in Dispute ¶¶ 2-3). Shortly after Plaintiff file d his opposition brief, a general i nquiry was, in fact, sent to all OLC attorneys “asking if the y had, or were aware of, any draft legal memoranda or opinions relating to the ‘propriety of su rveilling federal and state jud ges,’” in response to which “all OLC attorneys reported that they di d not have and were not aware of any such records.” (Fourth Colborn Decl. ¶ 11). Thus, the only s tones left unturned are r equesting that current OLC8 attorneys search their computer s and emails, searching the hard drives of departed OLC attorneys and searching the emails of departed OLC attorneys. The court will not require OLC t o request that its current atto rneys search their computers and emails for responsive documen ts. First, the court agrees w ith Colborn that it is “extremely unlikely that current attorneys , who have indicated that they d o not have, and are not aware, of any draft legal opinions or memo randa on the topic, would nevertheless have such documents within their files.” ( Id. ¶ 13). The court will take OLC ’s attorneys at their word. Se cond, the court credits Colborn’s repres entation that re quiring all curre nt OLC attorneys to search their computers and emails would be unduly burdensome, as it “could r equire a significant amount of time by each attorney in the Office, including manually opening files to conduct searches where the search tools permit only the searches of file names and not the content of documents.” ( Id. ). As to searching the hard drives of departed OLC attorneys, Colb orn avers as follows: Documents from the hard drives of over 100 departed [OLC attorn eys and staff members] are available on OLC’s shared network drive on the Dep artment’s electronic file server, total ing over 160,000 individual files. There are over 500 gigabytes in this archive, although some documents appear i n duplicate and some archived emails are included. The names of the files on t hese hard drives are searchable using a Windows search tool. OLC does not have a se arch tool that can search the full text of files across the archive; to do so woul d require opening and searching each document individually. ( Id. ¶ 9(c)). Based on Colborn’s repr esentations, the court finds that requiring OLC to manually open, one-by-one, over 160,000 files from over 100 OLC attorney s and staff members and then search the full text of eac h file individually would be unduly burdensome. See , e.g. , Nation Magazine, Wash. Bureau v. U.S. Customs Serv. , 71 F.3d 885, 892 (D.C. Cir. 1995) (“[A]ppellants have asked Customs to search through 23 years of unindexed files for records9 pertaining to [then-presidentia l candidate H. Ross] Perot, and we concur with the district court’s determination that this searc h would impose an unreasonable bur den on the agency.”). 1 As to searching the email files of departed OLC attorneys, Colb orn declares: The emails of at least 180 departed [OLC attorneys and staff me mbers] may be searched using an eDiscovery search tool called Clearwell. . . . Clearwell searches the full text of emails and their attachments, including PDF fi les. It is my understanding that our departed users’ accounts include data ex ceeding 300 gigabytes of archived email, and that searching this volume of data, without any limitation by date or custodian would consume considerable technical resources of the Department. (Fourth Colborn Decl. ¶ 9(b)). Col born also avers that the “se arch terms that can be used with respect to [Plaintiff’s] reque st necessarily are fairly broad a nd generic, turning l argely on variants of the terms ‘surveillance’ a nd ‘judge,’” and th at such search terms would result in a number of “false hits,” requiring an OLC em ployee to review each “hit” to determine whether it was actually responsive to the FOIA request. ( Id. ¶ 9). The court finds that Defendants have not established that searc hing the email files of departed OLC attorneys woul d be unduly burdensome. While Colbo rn avers that it “likely would take several years and the diversion of resources from other FOIA requests” to search for responsive documents among OLC’s paper files, hard drives and e mails, he does not break out the time and resources that w ould be required to search only th e emails of departed OLC attorneys. ( Id. ). Given that these emails and their attachments can be search ed using an eDiscovery tool without needing to open each email and its atta chments individually, and in the

1 Plaintiff does not specifically a ddress searching OLC’s paper files in his opposition brief. Nonetheless, the court notes that Colborn’s declarations in thi s case indicate that such a search would also be unduly burdensome. ( See Fourth Colborn Decl. ¶ 9(a) ( searching non-classified paper files “would require manua lly reviewing the large volume of paper files of current and departed attorneys that remain in [OLC’s] possession, as well a s the records of any past attorneys that could be recovered fr om [OLC’s] archives”); id. ¶¶ 3, 9(d) (searching cla ssified paper files would require searching “more than 60 drawers of classified mat erials” in individual safes or in OLC’s “Sensitive Compartmented Information Facility”)).10 absence of any representations from Colborn or any other declar ant regarding the burden associated with running such search es separate and apart from s earching OLC’s paper files and hard drives, Defendants have not demonstrated that doing so wou ld constitute an undue burden. Plaintiff also states in his Sta tement of Material Facts in Dis pute that “OLC could have had paralegals search, through Mic rosoft Outlook, the email of departed attorneys whose email files are on the shared drive ,” and that “doing so would not ha ve taken an unreasonable amount of effort.” (Pl.’s Statement of Facts in Dis pute ¶ 3). In sup port, Plaintiff cites Colborn’s March 2012 declaration from Nat’l Day Laborer Org. Network v. U. S. Immigration & Customs Enforcement Agency , 877 F. Supp. 2d 87 (S.D.N.Y. 2012) [hereinafter NDLON ], in which Colborn details just such a search. ( See Opp’n Ex. 1 ¶ 8). Indeed, the NDLON search appears to have been conducted without the bene fit of the eDiscovery tool referenced in the Fourth Colborn Declaration: [P]aralegals used the Microsoft Outlook program to search the e -mail files of all departed attorneys who had been employed at OLC between June 1, 2007 and October 15, 2010 and whose e-mail files were on OLC’s shared ne twork drive. E-mails were searched for a total of 25 departed attorneys. . . . No responsive documents were identified i n these e-mail searches. ( Id. ). Defendants respond onl y by noting that that the NDLON search covered a time period of less than four years and involved “ fairly narrow” search terms, whereas here there is no time limit for the search and the sear ch terms would be “fairly broa d and generic.” (Reply at 10) (quoting Fourth Colborn Decl. ¶ 12). While the court notes the distinctions between NDLON and the instant case, and while it is cognizant of the risk of forc ing OLC to sift through signifi cant numbers of “false hits,” the burden of the email search to be conducted here can nonetheless certainly be minimized by well-crafted search terms and r easonable limitations on dates and custodians. For example, the Fourth Colborn Declaration discus ses “OLC attorneys and staff w ho are no longer employed at11 OLC” (Fourth Colborn Decl. ¶ 9(b) ), but Plaintiff appears to be interested only in searching “all departed attorneys’ email files, ” and not the email files of de parted non-attorney OLC staff members. ( See Opp’n at 6). The parties should therefore be able to agree oncustodian limitations that exclude non-atto rney OLC staff members. The c ourt is also hopeful that the parties can further limit the num ber of custodians whose emails will need to be searched by excluding attorneys who worked i n areas where the topic of surv eilling federal and state judges would not have arisen. In the same vein, the court als o notes that a search of emails alone will be less burdensome than the search of e mails, paper files and hard driv es contemplated in the Fourth Colborn Declaration, because a n email-only search would, by def inition, be limited to attorneys who have worked at OLC since the advent of email, whereas searc hes of emails, paper files and hard drives would presumably go ba ck much further, and thereby encompass more custodians. Additionally, given Plaintiff’s reference in his opposition bri ef to the “critical period of 2001-2010,” the court is hopeful th at the parties will be able to agree on some kind of date range limitation to further reduce the number of search returns. ( Id. at 8). Accordingly, the court hereby ORDERS OLC to use the Clearwell eDiscovery tool referenced in the Fourth Colborn D eclaration to search the emai l files of departed OLC attorneys, as well as any attach ments to those emails, for any draft legal memoranda or opinions relating to the propriety of surv eilling federal or state judge s. The parties ar e hereby further
ORDERED to meet and confer to jointly dev ise the search terms to be us ed this search, and to attempt to narrow the searc h – such as, for example, by devisin g date and custodian limitations – so as to lessen OLC’s burden in c onducting it. Th e parties are hereby further ORDERED to file with the court a joint propose d scheduling order setting forth their agreed-upon search plan and parameters by no later than August 11, 2016.12 IV. CONCLUSION For the foregoing reasons, Defe ndants’ renewed motion for sum mary judgment is hereby DENIED

. An appropriate Order accompani es this Memorandum Opinion.

Date: July 11, 2016 

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