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Case 1:15-cv-01979-RJL Document 16 Filed 07/29/16 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

THE DAILY CALLER NEWS


FOUNDATION and RICHARD POLLOCK,
Plaintiffs,

Civil Docket No. 15-cv-1979 (RJL)

v.
U.S. DEPARTMENT OF STATE,
Defendant.

DEFENDANTS REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT


AND OPPOSITION TO PLAINTIFFS CROSS-MOTION FOR DISCOVERY
INTRODUCTION
In this Freedom of Information Act (FOIA) case, Plaintiffs challenge the adequacy of
the U.S. Department of States (State) search for records responsive to Plaintiffs FOIA
request, which sought records showing that five State officials, including former Secretary of
State Hillary Clinton, completed mandatory security and information technology training courses
regarding the handling of classified materials and communications. State searched the
Department-wide training systems and databases that contain records of all official training
activity for security and information technology courses undertaken by State employees and
produced all responsive records pertaining to the identified officials. Plaintiffs singular
challenge to this search is that State failed to also search individual-specific hard drives and/or
shared drives utilized by any of the specific senior State officials on the chance that they might
contain courtesy cop[ies] of . . . certifications showing that those officials completed security
and information technology training courses. Mem. in Opp. to Def.s Mot. for Summ. J. at 5,
ECF No. 13 [hereinafter Opposition].

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Plaintiffs argument fails as a matter of law. State searched the record systems and
databases that would contain records showing that the specified individuals completed the
mandatory training courses if they in fact completed themspecifically, the Student
Management Training System (STMS), the Cyber Security Administration database, and
Sensitive Compartmented Information (SCI) electronic training records. Sec. Decl. of Eric F.
Stein 4, 6 [hereinafter Second Stein Declaration]. Those record systems maintain all such
records for the requested timeframe. See id. State was therefore not obligated to conduct an
additional search of individual-specific or shared drives for copies of the requested training
certifications, because such certifications, if they existed, would be retained in the databases and
records systems previously searched (i.e, the STMS, Cyber Security Administration database,
and SCI training records). Id. 7.
The issue of whether State had to search for any duplicate copies of training certifications
that the officials might have saved on any individual or shared drives, when it had already
searched the centralized record systems responsible for maintaining and retaining such
certifications, is a legal one that can be resolved on the summary judgment record. The Court
should therefore deny Plaintiffs unusual request for discovery in a FOIA case. Plaintiffs
request is unsupported by any showing that Plaintiffs cannot respond to States motion for
summary judgment without discovery, or any allegation or evidence of bad faith by State. As
such, discovery is unwarranted, and the Court should grant States motion for summary
judgment.
ARGUMENT
I.

State Reasonably Limited Its Search for Responsive Records to the Foreign
Service Institute, the Bureau of Diplomatic Security, and the Bureau of
Information Resource Management

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As an initial matter, Plaintiffs do not challenge the search that State actually conducted
that is, its decision to search the Foreign Service Institute (FSI), the Bureau of Diplomatic
Security (DS), and the Bureau of Information Resource Management (IRM), and the search
methods employed by those offices. As set forth in States motion for summary judgment, State
determined that these were the offices reasonably likely to have records responsive to Plaintiffs
FOIA request for records certifying that certain State officials had satisfied mandatory security
and information technology training courses regarding the handling of classified materials and
communications. See Def.s Mot. for Summ. J. at 57, ECF No. 12; Decl. of Eric F. Stein 10,
ECF No. 12-2 [hereinafter Stein Declaration]. After learning that IRM was not responsible for
maintaining the types of training records requested by Plaintiffs, Stein Decl. 14, State
reasonably focused its search efforts on FSI and the Security Infrastructure Directorate (DS/SI)
at DS. The former is the primary training institution for [State], while the latter has access to
SCI electronic training records. Sec. Stein Decl. 3, 6.
At FSI, a management analyst searched both the STMS, which contains a record of all
official training activity undertaken by Department employees, and the Cyber Security
Administration database, which contains records of all online training activity specifically
related to the Departments Cyber Security Awareness course (PS800). Id. 4. The analyst
specifically searched the employee training profiles of the individuals identified in Plaintiffs
FOIA request using their names and unique numeric identifiers as search terms. Stein Decl.
12. Similarly, at DS/SI, the Special Assistant for DS/SI searched the offices electronic and
paper filesincluding records of Cyber Security Awareness trainings, SCI electronic training

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records, records of SCI briefings, and Form SF-312s1for records of courses pertaining to
security training or information technology training completed by the identified individuals. Sec.
Stein Decl. 6.
Plaintiffs sole challenge to the adequacy of States search is that in addition to these
searches, State should have also searched individual hard drives or office shared drives utilized
by any of the specific State officials identified in the request for any copies of training
certifications that the officials may have retained. Oppn at 5. As the Second Stein Declaration
makes clear, however, it was neither reasonable nor necessary to search individual or shared
drives for copies of training certifications because the originals of such certifications, if they
exist, would be retained in the databases and record systems that State did searchnamely,
STMS, the Cyber Security Administration database, and SCI electronic training records.
STMS represents States corporate training database and contains a record of all
official training activity undertaken by Department employees. Sec. Stein Decl. 4. A record
is created and retained in STMS anytime a State employee enrolls in an FSI training course, and
STMS tracks the employees progress through the course from enrollment to course
completion, whether the course is taken online or in a classroom setting. Id. As for the Cyber
Security Administration database, it contains records of all online training activity specifically
related to [States] Cyber Security Awareness course (PS800). Id. Once an employee
completes the PS800 course, a record of that training is automatically retained and kept in the
Cyber Security Administration database. Id. Both STMS and the Cyber Security
Administration database retain training records from the timeframe relevant to Plaintiffs

The form SF-312 is a legally bound agreement between an individual and the United States,
where the individual accepts the responsibility of properly maintaining classified information, in
consideration of being granted access to classified information. Sec. Stein Decl. at 4 n.2.

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requestJanuary 1, 2009, through February 28, 2013. Id. Thus, a search of STMS and the
Cyber Security Administration database would retrieve all records of security or information
technology training completed by [the identified individuals] at FSI during the requested time
period. Id.
The same is true with respect to States search of SCI training records at DS. That office
has access to electronic records of SCI training during the time period established in Plaintiffs
FOIA request. Id. 6. If DSs search of the SCI training records did not locate any training
records for an individual, then the training was not completed, and thus no courtesy copies of
such training records would exist.2 Id.
Consequently, there was no need for State to search individual or shared drives for
courtesy copies of training certifications. Such action would have been duplicative, as the
originals of any training certifications would have been found through States searches of the
record systems and databases discussed above. See id. 4, 6. Because it would be illogical
and wasteful to require an agency to produce multiple copies of the exact same document . . . [an
agencys] search [is] not inadequate simply because it failed to produce duplicate copies of
responsive records. Defs. of Wildlife v. U.S. Dept of Interior, 314 F. Supp. 2d 1, 10 (D.D.C.
2004).
Moreover, under the FOIA, an agency has discretion to confine its inquiry to a central
filing systemas State did hereif additional searches are unlikely to produce any marginal
return. Campbell v. U.S. Dept of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998), as amended (Mar.
3, 1999). Nothing in Plaintiffs Opposition suggests that additional searches of individual or
2

DS also maintains records of the Cyber Security Awareness course PS800, in addition to FSI.
Sec. Stein Decl. 6. As discussed above, FSI searched these records. Id. at 4 n.1. State also
searched its records of SF-312 forms and SCI briefings at DS/SI, which are not training records,
but rather records of briefings conducted by DS officials. Id. 6, 4 n.3.

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shared hard drives would produce any records at all, much less anything more than marginal
returns given that the databases and records systems that State searched would have retained the
original copies of any duplicate training certificates potentially housed in such hard drives. See
Truthout v. Dept of Justice, 968 F. Supp. 2d 32, 37 (D.D.C. 2013) (upholding an agencys
search in the absence of any evidence that would have led the agency to conclude that there
[were] . . . records or files on shared drives responsive to Plaintiffs requests).
Nor is a search of individual or shared drives required because of Plaintiffs belief that
the identified State officials must have taken the mandatory training courses, and certifications
must therefore exist. See Oppn at 6 (Given that it was mandatory for all State employees to
complete those training courses on an annual basis, where are the other records? Why are there
no records for either Secretary Clinton or Ms. Abedin at all? (emphasis in original)).
This argument fails to undercut in any way the reasonableness of States search, as it
conflicts with the well-worn rule . . . that the adequacy of a FOIA search is not to be judged by
its results. Rosenberg v. U.S. Dept of Immigration & Customs Enft, 13 F. Supp. 3d 92, 104
(D.D.C. 2014). The question is not whether there might exist any other documents possibly
responsive to the request, but rather whether the search for those documents was adequate.
Steinberg v. U.S. Dept of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg v. Dept.
of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)) (emphasis in original). Thus, courts have
rejected challenges to the adequacy of a search, even when a slim yield may be intuitively
unlikely and a reasonable observer would find th[e] result[s] unexpected. Ancient Coin
Collectors Guild v. U.S. Dept of State, 641 F.3d 504, 514 (D.C. Cir. 2011). Moreover, as
explained in States supplemental declaration, if its search of STMS, the Cyber Security

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Administration database, and SCI electronic training records did not locate training
certifications, then such courses were not completed. See Sec. Stein Decl. 4, 6.
II.

Plaintiffs Are Not Entitled to Discovery


A.

Plaintiffs Fail to Meet the Standard for Discovery Under Rule 56(d)

Under Federal Rule of Civil Procedure 56(d), a court may allow time to obtain affidavits
or declarations or to take discovery if a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its opposition to a motion for
summary judgment. Courts in this circuit emphasize that the facts sought in such discovery must
be sufficient to defeat a summary judgment motion. Butler v. Schapiro, 839 F. Supp. 2d 252,
258 (D.D.C. 2012) (quoting Estate of Parsons v. Palestinian Auth., 715 F. Supp. 2d 27, 35
(D.D.C. 2010)) (emphasis added). This showing ensures that discovery will not merely unearth
evidence that is immaterial, cumulative, or otherwise not essential. Harrison v. Office of the
Architect of the Capitol, 281 F.R.D. 49, 52 (D.D.C. 2012) (quoting Fed. R. Civ. P. 56(d)).
Moreover, the burden is on the party making [the] Rule 56(d) request to state concretely why
additional discovery is needed. U.S. ex rel. Folliard v. Govt Acquisitions, Inc., 858 F. Supp. 2d
79, 82 (D.D.C. 2012) (quoting Messina v. Krakower, 439 F.3d 755, 762 (D.C. Cir. 2006)). This
requires more than . . . conclusory assertion[s] without any supporting facts to justify the
proposition that the discovery sought will produce the evidence required. Id. (quoting
Messina, 439 F.3d at 762).
Plaintiffs cannot carry their burden under Rule 56(d) because their Cross-Motion for
Discovery is devoid of any suggestion that the requested discovery will reveal facts essential to
their ability to oppose Defendants motion for summary judgment, as required by Rule 56(d).
See Klute v. Shinseki, 840 F. Supp. 2d 209, 215 (D.D.C. 2012). Indeed, Plaintiffs specifically

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argue that their Opposition, which they have already filed, suffices on its own to demonstrate
alleged legal deficiencies of States pending dispositive motion. Mem. in Supp. of Cross-Mot.
for Disc. at 3, ECF No. 14-1 [hereinafter Cross-Motion]. Plaintiffs state that their Opposition
concisely explain[s] why State is not currently entitled to summary judgment regarding the
adequacy of the search it conducted. Id. at 2. They further aver that the Opposition outlined
how there remained genuine issues of material fact still in dispute, including States purported
fail[ure] to explain whether responsive records would have been maintained on individualspecific hard drives or shared drives . . . [and] whether the databases searched by State would
have encompassed any documentation stored on [such drives]. Id. at 23. On these grounds,
Plaintiffs argue that this Court not only should deny summary judgment but also . . . should
authorize limited discovery in an effort to address those deficiencies. Id. at 3 (emphasis added).
Plaintiffs own arguments thus demonstrate that their Cross-Motion must be denied as a
matter of law, as they fail to establish that the discovery [they] seek[] is essential to justify
[their] opposition to summary judgment. Harrison, 281 F.R.D. at 51 (quoting Fed. R. Civ. P.
56(d)) (emphasis added). To the contrary, Plaintiffs position is that their Opposition on its own
explain[s] why State is not currently entitled to summary judgment, and Plaintiffs thus frame
discovery as merely a means of remedying purported deficiencies in States search. CrossMot. at 2, 3. Rule 56(d) does not permit discovery in such a situation.
B.

Discovery Would Shed No Light on the Adequacy of States Search

Even without Plaintiffs concession, the discovery Plaintiffs seek is plainly not essential
to their opposition to States motion. As noted above, the issue of whether it was reasonable for
State to search the definitive sources for training certifications, and not to search for copies of
those certifications in individual or office shared drives, is a legal issue that requires no factual
development. The question of whether copies of such certifications were likely to exist on

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individual or shared drives (the issue Plaintiffs discovery is aimed at) is irrelevant to that legal
issueState was not obligated to search for copies of certifications when the databases and
records systems that it searched would have contained the originals of such certifications.3
C.

Plaintiffs Offer No Evidence of Bad Faith, and Thus This Is Not One of
the Rare FOIA Cases in Which Discovery Is Appropriate

Moreover, Plaintiffs cannot establish that this case presents the type of exceptional
circumstances that would merit discovery in FOIA litigation. [D]iscovery is an extraordinary
procedure in a FOIA action, Thomas v. Dept of Health & Human Servs., Food & Drug Admin.,
587 F. Supp. 2d 114, 115 (D.D.C. 2008), and thus is generally unavailable in FOIA actions,
Wolf v. C.I.A., 569 F. Supp. 2d 1, 9 (D.D.C. 2008) (quoting Wheeler v. C.I.A., 271 F. Supp. 2d
132, 139 (D.D.C. 2003)). It is therefore only the rare case in which an order of discovery is
appropriate. Schrecker v. U.S. Dept of Justice, 217 F. Supp. 2d 29, 35 (D.D.C. 2002); see also
Asarco, Inc. v. EPA, No. 08-cv-1332, 2009 WL 1138830, at *1 (D.D.C. Apr. 28, 2009) (noting
the consistent holding in case after case that discovery is not favored in [FOIA] cases and only
allowed under rare circumstances).
Those rare cases are generally limited to instances in which a plaintiff can demonstrate
some bad faith or malfeasance by the government. See, e.g., Carney v. U.S. Dept of Justice, 19
F.3d 807, 812 (2d Cir. 1994) (finding that in order to justify discovery in a FOIA case, the
plaintiff must make a showing of bad faith on the part of the agency sufficient to impugn the
agencys affidavits or declarations, or provide some tangible evidence that . . . summary
judgment is otherwise inappropriate (citing Wash. Post Co. v. U.S. Dept of State, 840 F.2d 26,
3

Plaintiffs also express a desire to take discovery on States practices with respect to providing
verbal briefings to senior officials in lieu of mandatory training requirements. Cross-Mot. at 1
2. Such discovery clearly exceeds the scope of Plaintiffs FOIA request, which specifically
seeks training course certifications. And whether or not verbal briefings occurred has no bearing
on the adequacy of States search, which is assessed based on whether State searched those
locations reasonably likely to contain responsive records, should they exist.

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28 (D.C. Cir. 1988))); Judicial Watch v. U.S. Dept of Commerce, 34 F. Supp. 2d 28, 3233
(D.D.C. 1998) (ordering discovery on the issue of the adequacy of the agencys search when
evidence was uncovered that the government destroyed and removed from its custody responsive
documents in an attempt to circumvent FOIA disclosure requirements). Plaintiffs agree with this
reading of applicable case law. See Cross-Mot. at 4 (noting that the most common justification
[for FOIA discovery] is evidence of bad faith by the agency).
Plaintiffs err in suggesting that discovery is merited here on the basis of bad faith. Their
sole argument on this point is that their Opposition addressed in detail . . . how State improperly
excluded from its searches locations reasonably likely to maintain responsive records. Id. at 4
5. This assertion is flatly inconsistent, however, with Plaintiffs actual Opposition, which is
devoid of any suggestion or allegation of bad faith on the part of the agency. Rather, Plaintiffs
merely argue that reasonable questions . . . not addressed by the Stein Declaration . . . justif[y]
denying summary judgment at this time. Oppn at 5.
Moreover, Plaintiffs standalone (and incorrect) allegation that State excluded from its
searches locations reasonably likely to maintain responsive records, Cross-Mot. at 45, fails as
a matter of law in demonstrating bad faith. Findings of bad faith in the context of FOIA
typically involve purposeful[] attempt[s] to skirt disclosure under the FOIA. Landmark Legal
Found. v. E.P.A., 959 F. Supp. 2d 175, 184 (D.D.C. 2013); see also Hall v. C.I.A., 881 F. Supp.
2d 38, 52 (D.D.C. 2012) (noting that an agency must not withhold information in bad faith).
Nowhere do Plaintiffs attribute to State any purpose or intent to circumvent disclosure under the
FOIA. See Natl Sec. Counselors v. C.I.A., 960 F. Supp. 2d 101, 181 (D.D.C. 2013) (noting that
bad faith in the FOIA context requires a showing of specific intent on the part of the agency).

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Moreover, agency affidavits attesting to a reasonable search are afforded a presumption


of good faith, and can be rebutted only with evidence that the agencys search was not made in
good faith. Riccardi v. U.S. Dept of Justice, 32 F. Supp. 3d 59, 63 (D.D.C. 2014) (quoting
Defenders of Wildlife v. U.S. Dept of Interior, 314 F. Supp. 2d 1, 8 (D.D.C. 2004)) (emphasis
added). Plaintiffs proffer no such evidence to rebut the presumption that State conducted its
search in good faith apart from the incorrect and unsupported allegation in their Cross-Motion
quoted above. Cf. Assassination Archives & Research Ctr. v. C.I.A., 177 F. Supp. 2d 1, 8
(D.D.C. 2001) (noting that a mere assertion of bad faith is not sufficient to overcome a motion
for summary judgment). Absent actual evidence that [an agency] responded to [a partys]
FOIA request in bad faith, courts in this circuit reject blanket statements that an agency did
not, in good faith, fully and completely respond to . . . [a partys] FOIA request.4 Hall &
Associates v. E.P.A., 846 F. Supp. 2d 231, 246 (D.D.C. 2012). This Court should do so as well.
D.

States Declaration Amply Justified the Scope of Its Search, But Even if It
Did Not, the Court Should Direct State to Conduct Supplemental
Searches or File a Supplemental Declaration in Lieu of Discovery

As discussed above, States first declaration explained in detail how and why its search
for records responsive to Plaintiffs FOIA request was reasonable and thus satisfied its
obligations under the FOIA, and State has now supplemented that declaration. Even if the Court
were to find these declarations insufficient, however, discovery pursuant to Rule 56(d) would not
be the proper remedy. Rather, the Court should then order State to conduct supplemental
searches or to further supplement its declarations. See, e.g., Campbell, 164 F.3d at 3132 (noting
the district courts order of a small supplemental disclosure); Inst. for Policy Studies v. C.I.A.,
4

Moreover, discovery is improper when it appears that discovery would only [afford the party]
an opportunity to pursue a bare hope of falling upon something that might impugn the
affidavits. Military Audit Project v. Casey, 656 F.2d 724, 751 (D.C. Cir. 1981) (quoting
Founding Church of Scientology v. NSA, 610 F.2d 824, 83637 n.101 (D.C. Cir. 1979)).

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885 F. Supp. 2d 120, 154 (D.D.C. 2012) (finding that the CIA performed an inadequate search
and ordering the agency to conduct additional searches); Judicial Watch v. U.S. Dept of Justice,
185 F. Supp. 2d 54, 65 (D.D.C. 2002) (noting that courts generally will request that the agency
supplement its supporting declarations).5
CONCLUSION
For all the foregoing reasons, and for the reasons set forth in States motion for summary
judgment, the Court should enter summary judgment in States favor. The Court should also
deny Plaintiffs cross-motion for discovery.
Dated: June 29, 2016

Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
MARCIA BERMAN
Assistant Director, Federal Programs Branch
/s/ Jason Lee_
JASON LEE (CA Bar No. 298140)
Trial Attorney
Federal Programs Branch
U.S. Department of Justice, Civil Division
Telephone: (202) 514-3367
Fax: (202) 616-8470
Email: Jason.Lee3@usdoj.gov
Mailing Address:
Post Office Box 883
Washington, DC 20044
Courier Address:
20 Massachusetts Ave., NW Rm. 7107
Washington, DC 20001

Plaintiffs reference two other cases in which they claim district courts have imposed
discovery-like burdens upon State in similar FOIA proceedings. Cross-Mot. at 6. Those
cases, in which State opposed discovery, did not involve the legal issue presented herewhether
a search is adequate when it was limited to the definitive sources for a category of records and
not extended to search for any duplicate copies that may exist within the agency.

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Counsel for Defendant

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