Case 1:07-cv-02003-EGS Document 25 Filed 11/06/2009 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)
CITIZENS FOR RESPONSIBILITY )
AND ETHICS IN WASHINGTON, )
)
Plaintiff, )
)
v. ) Civil Action No. 07-CV-2003 (EGS)
)
U.S. DEPARTMENT OF DEFENSE, )
DEFENSE INFORMATION SYSTEMS )
AGENCY, )
)
Defendant. )
__________________________________________)

DEFENDANT’S RENEWED MOTION FOR SUMMARY JUDGMENT WITH

RESPECT TO THE ADEQUACY OF ITS SEARCH FOR EMAILS PREDATING
OCTOBER 2005

Defendant renews its motion for summary judgment with respect to the adequacy

of its search for documents predating October 2005 that are responsive to Plaintiff’s

FOIA request. This request sought “[a]ny and all emails that came into or went out of

any email system maintained or controlled by WHCA between January 1, 2001 and the

present that were from or to the following email addresses: (1) gwb43.com; (2) rnchq.org

and (3) georgebush.com.” Def.’s Statement of Material Facts ¶ 1. On September 29,

2009, this Court awarded summary judgment to Defendant as to the adequacy of its

search for responsive emails on the “whmo.mil” email domain for records dated October

2005 to the present. 1 See 9/29/09 Order (dkt. No. 23); 9/29/09 Mem. Op. (dkt. No. 24) at

12. In addition, the Court concluded that the evidence submitted by the agency was

1
This Court “conclude[d] that WHCA’s decision to limit its search to the unclassified
‘whmo.mil’ email domain was reasonable,” because this was the only email domain at the agency
capable of sending emails to or receiving emails from an unclassified email address, such as
georgebush.com, rnchq.org or gwb43.com. 9/29/09 Mem. Op. at 10.
 Case 1:07-cv-02003-EGS Document 25 Filed 11/06/2009 Page 2 of 6

“sufficient to establish the reasonableness of defendant’s electronic search for documents

predating October 2005.” 9/29/09 Mem. Op. at 11 (emphasis in original). The Court,

however, denied Defendant’s motion for summary judgment with respect to the

reasonableness of its search for emails predating October 2005, because “defendant has

failed to adequately respond to plaintiff’s contention that ‘to the extent [emails pre-dating

October 2005] are no longer maintained electronically, defendant [is] required to search

for paper copies of the emails.” Id. The Court denied the motion without prejudice,

“recognizing that defendant’s searches may have been adequate and may only suffer from

a lack of documentation.” Id. at 12. Accordingly, pursuant to the Court’s 9/29/09 Order

and Memorandum Opinion, Defendant is hereby filing as Exhibit 1 the Declaration of

Nancy L. Deitch (“Deitch Decl.”), Chief of Staff of the White House Communications

Agency (“WHCA”). The declaration describes the agency’s search for paper copies of

responsive emails dated January 1, 2001 to October 31, 2005 and explains that no paper

copies of responsive emails for this period were located.

As set forth in the attached Declaration, “the responsive email communications

that went into or out of the whmo.mil email system involve agency employees

communicating with White House personnel regarding the President’s travel, logistical

and communication needs, rather than the formulation of policy or other matters of

ongoing operational value.” Deitch Decl. ¶ 3. As a result, “agency personnel concluded

that paper copies of emails responsive to Plaintiff’s FOIA request would not have been

generated.” Id. Therefore, “a search was not originally conducted for paper copies of

emails responsive to Plaintiff’s FOIA request.” Id.

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 Case 1:07-cv-02003-EGS Document 25 Filed 11/06/2009 Page 3 of 6

Pursuant to the agency’s administrative discretion, however, the agency recently

conducted a search for paper copies of emails from January 1, 2001 to October 31, 2005

that are responsive to Plaintiff’s FOIA request. “Specifically, on October 19, 2009, all

WHMO directors were instructed to ensure that their individual components conduct a

search for paper copies of emails dated January 1, 2001 through October 31, 2005 that

contain any one of the following email addresses: gwb43.com, rnchq.org, or

georgebush.com.” 2 Deitch Decl. ¶ 4. Directors were instructed to report on whether any

responsive emails were located by October 30, 2009. Id. All WHMO directors have now

confirmed that no paper copies of emails dated January 1, 2001 through October 31, 2005

containing the email addresses gwb43.com, rnchq.org, or georgebush.com were located. 3

Id.

Therefore, in light of the agency’s recently concluded search for paper copies of

emails from January 1, 2001 to October 31, 2005, as well as this Court’s prior conclusion

that the agency’s electronic search for documents predating October 2005 was

reasonable, see 9/29/09 Mem. Op. at 11, Defendant renews its motion for summary

judgment with respect to the reasonableness of its search for documents predating

October 2005. See Oglesby v. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)

(search adequate where agency “show[s] that it made a good faith effort to conduct a

search for the requested records, using methods which can be reasonably expected to

2
As explained in the attached Declaration, WHCA, one of the operational units of the White
House Military Office (“WHMO), maintains the whmo.mil email domain, which is used by
WHMO employees. Deitch Decl. ¶ 2.
3
Since WHCA is one of the operational units of WHMO, WHCA was included in the request to
search for paper copies of emails from January 1, 2001 to October 31, 2005. Id. at 2 n.1.

3
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produce the information requested.”); see also Kidd v. DOJ, 362 F. Supp. 2d 291, 294

(D.D.C. 2005) (Kennedy, J.).

Finally, the Court’s 9/29/09 Order also denied summary judgment without

prejudice with respect to Defendant’s withholding, pursuant to the deliberative process

privilege, of portions of an email communication identified in Group 11 of Defendant’s

Vaughn index. See 9/29/09 Order. The Court upheld all of Defendant’s remaining

withholdings challenged by Plaintiff. Id. Pursuant to the agency’s administrative

discretion, Defendant has produced a copy of the email identified in Group 11 to Plaintiff

without the redactions that were previously made pursuant to the deliberative process

privilege. See Ex. 2: 11/6/09 Email from Nicholas Cartier to Scott Hodes of CREW,

attaching email in Group 11. Therefore, this email is no longer in dispute between the

parties.

CONCLUSION

For the foregoing reasons, Defendant respectfully requests that this Court grant its

Renewed Motion for Summary judgment with Respect to the Adequacy of its Search for

Emails Predating October 2005, and further find that the dispute between the parties with

respect to the email identified in Group 11 of Defendant’s Vaughn index is moot.

Dated: November 6, 2009 Respectfully submitted,

TONY WEST
Assistant Attorney General

JOHN R. TYLER
Assistant Branch Director

/s/ Nicholas Cartier

NICHOLAS CARTIER

4
 Case 1:07-cv-02003-EGS Document 25 Filed 11/06/2009 Page 5 of 6

(D.C. Bar # 495850)

Trial Attorney, Civil Division,
Federal Programs Branch
United States Department of Justice
20 Mass. Ave., N.W., Room 7224
Washington, D.C. 20044
Tel: (202) 616-8351
Facsimile: (202) 616-8470
Email: nicholas.cartier@usdoj.gov

Counsel for Defendant

CERTIFICATE OF SERVICE

I hereby certify that on November 6, 2009, a copy of the foregoing pleading was

filed electronically via the Court’s ECF system, through which a notice of filing will be

sent to all counsel of record.

/s/ Nicholas Cartier

NICHOLAS CARTIER

5
 Case 1:07-cv-02003-EGS Document 25 Filed 11/06/2009 Page 6 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)
CITIZENS FOR RESPONSIBILITY )
AND ETHICS IN WASHINGTON, )
)
Plaintiff, )
)
v. ) Civil Action No. 07-CV-2003 (EGS)
)
U.S. DEPARTMENT OF DEFENSE, )
DEFENSE INFORMATION SYSTEMS )
AGENCY, )
)
Defendant. )
__________________________________________)

[PROPOSED] ORDER

Upon Consideration of Defendant’s Renewed Motion for Summary Judgment

With Respect to the Adequacy of Its Search for Emails Predating October 2005, it is

hereby ORDERED that Defendant’s Motion is GRANTED, and the Court further finds

that the dispute between the parties with respect to the email identified in Group 11 of

Defendant’s Vaughn index is moot.

So ORDERED.

Date: , 2009
Honorable Emmet G. Sullivan
United States District Judge

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