Case 1:05-cv-00806-RMC Document 21 Filed 08/14/2006 Page 1 of 10

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

) No. 1:05cv00806 RMC

CITIZENS FOR RESPONSIBILITY AND )
ETHICS IN WASHINGTON, )
)
Plaintiff, )
)
v. )
)
NATIONAL INDIAN GAMING COMMISSION, )
)
Defendant. )
)

THE NATIONAL INDIAN GAMING COMMISSION’S REPLY MEMORANDUM

IN SUPPORT OF ITS RENEWED MOTION FOR SUMMARY JUDGMENT

In accordance with the Court’s Memorandum Opinion, the National Indian Gaming

Commission (“NIGC”) has set forth, fully and in detail, the records that it maintains and the

records that it searched in response to Plaintiff’s FOIA request. In response, Plaintiff has not

identified any record system likely to contain responsive documents that was not searched.

NIGC’s renewed Motions for Summary Judgment should therefore be granted.

I. The Declarations of Regina Ann McCoy Demonstrate that NIGC Has Conducted an
Adequate Search

As the Court is aware, declarations submitted during the initial briefing on NIGC’s

motion for summary judgment detailed the manner in which NIGC conducted the FOIA search in

this case:

When a [FOIA] search request reaches the top of the queue in its track, the FOIA
Office generates search taskers which are sent out to the appropriate locations
within the NIGC. . . . When the [Sloan FOIA] request reached the front of the
processing queue, [the FOIA Officer] prepared search taskers for the information
sought. . . . The FOIA Office sent search taskers to the Office of General Counsel,
the Commissioners, the Office of Congressional and Public Affairs, the
Enforcement Division, the Contracts Division, and the regional and satellite
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offices. . . . When the search responses came back, the FOIA Office sorted
through them for responsive documents.

Declaration of Regina Ann McCoy, ¶¶ 16-18 (Sept. 12, 2005) (attached to NIGC’s Motion for

Summary Judgment, Docket No. 5).

The FOIA Office sent search requests to the Office of General Counsel, the
Commissioners, the Office of Congressional and Public Affairs, the Enforcement
Division, the Contracts Division, and the regional and satellite offices. . . . Each
search request had the Sloan [FOIA] request letter appended to it. . . . [The files]
were searched using the names provided in the Sloan [FOIA request] letter. . . .
The search taskers specifically provide: “While conducting your records search,
please be certain to include a review of any electronic records (e.g., ‘email’) that
may be responsive to this request.” This search included all offices and files
reasonably calculated to uncover all relevant documents and responsive materials.
. . . NIGC employees submitted to the FOIA office electronic records, faxes, and
emails as well as paper documents in response to the search request.

Supplemental Declaration of Regina Ann McCoy, ¶¶ 5-7 (Nov. 4, 2005) (attached to NIGC’s

Reply Brief, Docket No. 9).

The Court found that these descriptions left “no question of [NIGC’s] good faith or that it

performed a wide-ranging search into all NIGC offices.” Mem. Op. at 5. The Court found,

however, a single important omission: “The difficulty is that ‘NIGC employees are asked to

search all files they consider likely to contain relevant material when given a FOIA search

request.’” Id. (quoting Supp. McCoy Decl.) (emphasis in original). As a result, the two initial

declarations did not contain the required “reasonable detail . . . as to what methods were used by

the NIGC employees to identify and search for records likely to contain relevant material.” Id.

Specifically, because multiple individuals had conducted searches, the Court could not tell

“[w]hether each of them searched the same kinds of records.” Id.

NIGC presented the Third Declaration of Regina Ann McCoy which provided, in detail

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and with specificity, the information that the Court identified as lacking in the initial

declarations. See Third Declaration of Regina Ann McCoy, ¶¶ 10-28 (attached to NIGC’s

Renewed Motion for Summary Judgment, Docket No. 18). Specifically, the declaration details

the various records that NIGC maintains and describes which were searched and why. See id.;

Mem. in Support of Defs. Renewed Mot’n for Summary Judgment, Docket No. 18, at 2-6.

In response, Plaintiff has not identified any records that were likely to contain responsive

documents. Instead, Plaintiff presents a series of meritless arguments that seek to impose

onerous burdens on executive agencies in FOIA litigation.

Plaintiff first contends that “Ms. McCoy’s declaration does not disclose what she told the

‘search taskers’ to provide to her.” Pl. Br. at 3. This contention is meritless. First, as is clear

from the declaration provisions quoted in block above, “search taskers” are not people who can

be given oral instructions; they are documents that contain written instructions. Second, the

written instructions contained in these search taskers is demonstrated in the declarations: The

taskers attached the Sloan FOIA request, instructed recipients to search for responsive

documents, and reminded recipients to search electronic files in addition to paper files. Thus, it

is the very text drafted and submitted by Plaintiff (text which specifically listed individuals and

entities and sought any records concerning them) that was provided to all searchers and it was

that text that formed the instruction to search. This is nearly identical to the search that was

approved by this Court in Gallace v. Dep’t of Agriculture, 273 F. Supp. 2d 53 (D.D.C. 2003).

See id. at 55 (“The FOIA Officer sent written memoranda and [the FOIA request] letter to [other

agency employees] asking them to search for responsive documents . . . .”); see also Hunt v.

United States Marine Corps, 935 F. Supp. 46, 50 (D.D.C. 1996) (“Defendants demonstrated

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through the [agency declaration] that they performed a comprehensive search for all the

requested documents by directing plaintiff’s requests to the four agency offices reasonably

expected to hold the responsive information.”). It is difficult to conceive of how NIGC could

provide more specificity into what documents were searched for, other than describing each of

the thousands of documents searched and stating how each one does or does not contain a name

from the FOIA request. Such onerous documentation is not required. See Gallace, 273 F. Supp.

2d at 60 (“The affidavit[] need not ‘set forth with meticulous documentation the details of an

epic search for the requested records.’”) (quoting Perry v. Block, 684 F.2d 121, 127 (D.C. Cir.

1982)).

Plaintiff next contends that the declarations do not adequately describe the electronic

searches conducted. Plaintiff concedes that NIGC conducted electronic searches using “the

names of individuals and entities in CREW’s FOIA request.” Pl. Br. at 4. This is all that is

required. Plaintiff cites no authority for the purported requirement that NIGC “provide what

Boolean operators” were used or otherwise detail the computer science of electronic searches.

Pl. Br. at 5. Searching electronic documents for specified key words is an elementary computer

function, and one that does not require a detailed technical explanation. Cf. Schrecker v. United

States Dep’t of Justice, 217 F. Supp. 2d 29, 33 (D.D.C. 2002) (“An agency’s affidavits need not

be precise but they must provide basic information on what records were searched, by whom,

and in what manner.” (Emphases supplied)).

Finally, Plaintiff criticizes NIGC for not searching a database that did not exist at the time

of the search. Pl. Br. at 5. But, Plaintiff admits, as it must, that FOIA sensibly does not require

the search of a database that does not exist at the time of the search. Id.

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***

The submitted declarations make clear that NIGC engaged in “a good faith effort to

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

produce the information requested.” Oglesby v. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir.

1990). The D.C. Circuit has held that “a search need not be perfect, only adequate, and adequacy

is measured by the reasonableness of the effort in light of the specific request.” See Meeropol v.

Meese, 790 F.2d 942, 956 (D.C. Cir. 1986). “[I]n the absence of countervailing evidence or

apparent inconsistency of proof, affidavits that explain in reasonable detail the scope and method

of the search conducted by the agency will suffice to demonstrate compliance with the

obligations imposed by the FOIA.” Perry, 684 F.2d at 127. NIGC has met this burden, and thus,

summary judgment should be granted.

II. NIGC’s Adherence to the Privacy Act Does Not Render Its Search Inadequate

Section II of Plaintiff’s Opposition conflates issues and contains inaccuracies. First,

Plaintiff’s assertion that NIGC’s Contracts Division did not conduct a search is incorrect. Pl. Br.

at 6. To the contrary, “[t]he Contracts Division conducted electronic searches (including e-mail)

of the Sloan request by name of the entities and tribes listed in paragraphs 2 and 3 of the search

request.” Third McCoy Decl., ¶ 24. Likewise, “[t]he Division of Enforcement conducted

electronic searches (including e-mail) of the Sloan request by name of the individuals, entities,

and tribes listed in paragraphs 2 and 3 with the exception of the Phoenix office for the Southwest

region.” Id., ¶ 26. It was only two of NIGC’s many file systems that were not searched due to

the fact that no Privacy Act waivers were submitted. Second, contrary to Plaintiff’s implication

(see Pl. Br. at 7), NIGC is not withholding any documents on the basis of the Privacy Act. The

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issue here is the adequacy of the search, not the status of specific documents under FOIA.

Third, Plaintiff misunderstands the relationship between FOIA and the Privacy Act. The

Privacy Act prohibits the disclosure of personally identifiable records if those records are

retrieved from a system of records in which the record is retrieved based on an individual’s name

or other personal identifier. 5 U.S.C. § 552a. Management Contract individual background files

(from the Contracts Division) and individual background investigation files (from the

Enforcement Division) clearly fall within the protection of the Privacy Act. Moreover, while the

Privacy Act does not prevent disclosure where it is “required” by FOIA (5 U.S.C. § 552a(b)(2)),

the Privacy Act does apply where the records fall under a FOIA exemption. See, e.g., Dep’t of

Defense v. FLRA, 510 U.S. 487, 502 (1994); United States Dep’t of the Navy v. FLRA, 975 F.2d

348, 354-56 (7th Cir. 1992). NIGC individual investigatory files are law enforcement documents

which, in the absence of a waiver, are exempt from FOIA under Exemption 7(C) because their

disclosure “could reasonably be expected to constitute an unwarranted invasion of privacy,” 5

U.S.C. § 552(b)(7)(C). See Melius v. NIGC, Cv. No. 98-2210 (TFH), 1999 U.S. Dist. LEXIS

17537, at *14-15 (holding that NIGC’s individual background files are law enforcement

document subject to Exemption 7(C), and that in the absence of a waiver, disclosure of an

individual’s information is not required by FOIA because “[i]ndividuals mentioned in law

enforcement investigatory reports . . . have a presumptive privacy interest in keeping their names

undisclosed”); see also Fourth Declaration of Regina Ann McCoy, ¶¶ 5, 7 (attached hereto).

The law enforcement documents at issue are clearly protected by Exemption 7(C) and

Exemption 6. The respective tests for Exemptions 7(C) and 6 are described in NIGC’s initial

memorandum, docket no. 5, at 12-17. As the Court found in Melius, the personal privacy

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interests in the information at issue is substantial. See also, e.g., United States Dep’t of Justice v.

Reporters Committee for the Freedom of the Press, 489 U.S. 749, 763 (1989) (for purposes of

FOIA, “privacy encompass[es] the individual’s control of information concerning his or her

person”); id. at 780 (FBI “rap sheet” protected by Exemption 7(C)); Dep’t of Defense v. FLRA,

510 U.S. 487, 502 (1994) (personal addresses are protected by Exemption 6).1 There is no

countervailing public interest in disclosure because the information would not inform the public

about “the conduct of the agency that has possession of the requested records.” Reporters

Committee, 489 U.S. at 773. Indeed, the Supreme Court has held “as a categorical matter that a

third party’s request for law enforcement records or information about a private citizen can

reasonably be expected to invade that citizen’s privacy, and that when the request seeks no

‘official information’ about a Government agency, but merely records that the Government

happens to be storing, the invasion of privacy is ‘unwarranted.’” Id. at 780.

Where a FOIA requester seeks documents concerning specified individuals, even

acknowledging that such law enforcement investigatory records exist would violate the

“presumptive privacy interest” as it would reveal that the specified individuals were “mentioned

in law enforcement investigatory reports.” Melius, 1999 U.S. Dist. LEXIS 17537, at *14-15; see

also Reporters Committee, 489 U.S. 749 (1989) (upholding the FBI’s decision, pursuant to

Exemption 7(C), to refuse to confirm or deny the existence of law enforcement records on a

particular individual in response to a FOIA request). Thus, NIGC’s policy of declining to search

individual investigatory files in the absence of a Privacy Act waiver is an appropriate application

1
The specific personal information included in these files is detailed in paragraphs 4
through 7 of the Fourth Declaration of Regina Ann McCoy.

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of the Privacy Act, and does not render the search in this case inadequate.

Nevertheless, in a further show of good faith, NIGC is providing additional information

regarding the two records systems at issue. See Fourth Declaration of Regina Ann McCoy.

NIGC has conducted an electronic search of the Contracts Division’s individual background files

and found no responsive documents. Id. ¶ 14. NIGC has determined that the Enforcement

Division’s individual background investigation files, which are background files on applicants to

key employee or primary management official positions, are not reasonably likely to contain

responsive documents. Id. ¶¶ 9, 12. The public figures named by Plaintiff are Congressmen,

Washington lobbyists, and political strategists (see Compl. ¶¶ 15-25), and are not likely to be

working as blackjack dealers, bingo callers, or other employees of Indian casinos. See Fourth

McCoy Decl. ¶¶ 9-10, 12-13. The agency’s determination in this matter is reasonable and its

search is adequate. See Weisberg v. United States Dep’t of Justice, 745 F.2d 1476, 1485-89

(D.C. Cir. 1984).

III. There Is No Basis for Discovery in this Case

Plaintiff’s renewed request for discovery is baseless. See Minute Entry (July 17, 2006)

(denying Plaintiff’s oral motion for discovery). As Plaintiff concedes, “discovery in FOIA cases

is the exception and not the rule.” Pl. Br. at 8. Indeed, “discovery in a FOIA action is generally

inappropriate.” Judicial Watch, Inc. v. Export-Import Bank, 108 F. Supp. 2d 19, 25 (D.D.C.

2000); accord Allen v. U.S. Secret Service, 335 F. Supp. 2d 95, 100 (D.D.C. 2004) (discovery

generally inappropriate in FOIA case); Wheeler v. CIA, 271 F. Supp. 2d 132, 139 (D.D.C. 2003)

(“Discovery is generally unavailable in FOIA actions.”); Public Citizen, Inc. v. Department of

State, 100 F. Supp. 2d 10, 28 (D.D.C. 2000) (“Discovery is to be sparingly granted in FOIA

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actions.”); see also Comment to LCvR 16.2(b) (FOIA cases exempt from requirements of

LcvR 16.3 “because they are actions that typically do not require discovery”).

As the Court recognized when ruling on Plaintiff’s oral motion, this case does not fall

into the small category of FOIA cases where discovery is warranted, a fact that is confirmed by

the cases cited by Plaintiff. In Judicial Watch v. United States Dep’t of Commerce, 34 F. Supp.

2d 28 (D.D.C. 1998), “the illegal destruction of documents and the illegal removal of documents

from [the agency’s] custody in knowing violation of the FOIA and the orders of this Court” led to

“closely supervised” discovery in order to determine the identities of the individuals who had

removed the documents and/or were in possession of the documents, in order to determine to

whom the court’s order would apply. Id. at 29, 46. In Long v. United States Dep’t of Justice, 10

F. Supp. 2d 205 (N.D.N.Y. 1998), discovery was permitted because a material conflict in agency

affidavits brought “into question good faith on the part of” the agency. Id. at 210.

In contrast to these extraordinary cases, there is no evidence of bad faith or misconduct,

and the Court has already found that “there is no question of [NIGC’s] good faith.” Mem. Op.

at 5. The Court’s conclusion is consistent with D.C. Circuit law. An agency’s FOIA declarations

are to be “accorded a presumption of good faith.” SafeCard Servs. 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)); accord Kay v. Federal Communications Comm’n, 976 F. Supp. 23, 33 (D.D.C. 1997).

And, this presumption of good faith “cannot be rebutted by ‘purely speculative claims about the

existence and discoverability of other documents.’” SafeCard, 926 F.2d at 1200. Because

Plaintiff has presented no rebuttal to the assumption of good faith, discovery is unwarranted. See

Summers v. United States Dept. of Justice, 733 F. Supp. 443, 443 (D.D.C. 1991) (denying

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discovery in light of the submission of an agency declaration).

CONCLUSION

For the foregoing reasons as well as the reasons set forth in NIGC’s previous memoranda,

the renewed motion for summary judgment should be granted.

Dated: August 14, 2006 Respectfully submitted,

PETER D. KEISLER
Assistant Attorney General

KENNETH L. WAINSTEIN
United States Attorney

/s/
ELIZABETH J. SHAPIRO (Bar No. 418925)
Assistant Branch Director
JEFFREY M. SMITH (Bar No. 467936)
ALEXANDER K. HAAS (CA Bar 220932)
Trial Attorneys, Federal Programs Branch
Of Counsel: United States Department of Justice
Andrea Lord 20 Massachusetts Ave., N.W.
Staff Attorney Washington, D.C. 20001
National Indian Gaming Commission Tel: (202) 514-5751/ (202)307-3937
Fax: (202) 616-8470
Counsel for Defendant

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