Monday, November 27, 2023

Judicial Watch's Wishing Well

The United States District Court for the District of Columbia (Judge Howell) has granted summary judgment to the FBI in connection with a FOIA demand of Judicial Watch for records relating to a search warrant of Project Veritas

The search warrants about which plaintiff’s FOIA request sought records were executed in connection with a criminal investigation into the theft of a diary belonging to the President’s daughter, Ashley Biden.

The New York Times had reported on the investigation

On November 10, 2021—even before the final updates to the NYT articles were made on November 12—plaintiff submitted to the FBI the FOIA request at issue, seeking records, from October 1, 2021, to “present,” of communications between FBI officials and the NYT regarding what plaintiff described as “the FBI search warrants and raid” on the homes of O’Keefe and [employee]Meads. Compl. ¶ 5. The FOIA request detailed that the requested “communications” included “email ( or email accounts), text message, or instant chat,” with FBI officials, including “in the offices of the FBI Director, FBI Deputy Director, Office of General Counsel, Office of Public Affairs, and/or the FBI New York Field Office” (“NYFO”).

The court

plaintiff’s “purely speculative claims about the existence and discoverability” of documents through alternate search terms does not overcome the “presumption of good faith” to which the FBI’s conclusion regarding the adequacy of its search is entitled. Shapiro, 40 F.4th at 613–14 (upholding agency search against complaint that the FBI “search[ed] its card catalogues rather than leaf[ed] through every book in the library” because “an agency’s search need only be ‘reasonably expected to produce the information requested’” (quoting Reps. Comm. for Freedom of Press, 877 F.3d at 402); Eddington v. U.S. Dep’t of Def., 35 F.4th 833, 839 (D.C. Cir. 2022) (“[Plaintiff’s] assertions . . . amount to ‘purely speculative claims about the existence and discoverability’ of his requests and are insufficient to overcome the presumption of good faith accorded to the [agency’s] Declaration.” (quoting SafeCard Servs., Inc., 926 F.2d at 1200, and citing Mobley, 806 F.3d at 582)).


Although the FBI’s search “did not produce certain materials [plaintiff] believes exist and had hoped to find,” “FOIA is not a wishing well; it only requires a reasonable search for records an agency actually has.” Clemente, 867 F.3d at 118 (quoting DiBacco v. U.S. Army, 795 F.3d 178, 188, 190 (D.C. Cir. 2015)); see also Watkins L. & Advoc., PLLC, 78 F.4th at 445 (“[T]he question . . . ‘is not whether there might exist any other documents possibly responsive to the request, but 24 rather whether the search for those documents was adequate.’” (emphasis omitted) (quoting Weisberg, 745 F.2d at 1485)). The FBI’s search satisfies this standard.

(Mike Frisch)

Current Affairs | Permalink


Post a comment