CEI Appeals Agency’s Withholding of Documents about Its 2013 Government Shutdown Shenanigans
Earlier, I wrote about how Obama administration officials have been very “tight-lipped in response to FOIA requests” about their “government shutdown shenanigans,” such as closing private businesses and non-profit tourist attractions out of spite, and blocking access to private homes and tourism sites within or merely next to public land. I have now appealed the National Forest Service’s very scanty response to my FOIA request about the planning and implementation of those closures both before and after the shutdown, in an administrative appeal you can view at this link.
Although I submitted FOIA requests about the October 2013 government shutdown to both the National Park Service and the National Forest Service, the Park Service hasn’t produced any documents at all, while the Forest Service produced only emails for the period after the shutdown ended (and nothing from the email accounts of Forest Service employees who were discussing with the press the very issues covered by my FOIA request). The National Park Service has also apparently stonewalled other FOIA requestors.
The Forest Service has not explained how it could only have emails sent after, but not before or during, the shutdown, a suspicious fact that indicates that it did not comply with FOIA. Under FOIA, the agency has to show that it has conducted a thorough search; it is not my burden as the requester to prove the opposite. (See, e.g., Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir.1994) (citing 5 U.S.C. § 552(a)(4)(B)).
Under FOIA, an agency must demonstrate that “each document that falls within the class requested either has been produced,” or is “exempt from” FOIA. (See Goland v. C.I.A., 607 F.2d 339, 352 (D.C. Cir. 1978)). The Forest Service has not done so, as I explained earlier.
Under FOIA, a search must be “reasonably calculated to uncover all relevant documents.” (See, e.g., Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)).
A reasonable search means that “all files likely to contain responsive materials . . . were searched.” See Cuban v. SEC, 795 F.Supp.2d 43, 48 (D.D.C. 2011); see also Landmark Legal Foundation v. E.P.A., 2013 WL 4083285, *6 (D.D.C. Aug. 14, 2013) (rejecting agency’s attempt to dismiss FOIA lawsuit against it, and finding inadequate search, where “EPA did not search the personal email accounts of the Administrator, the Deputy Administrator, or the Chief of Staff,” but rather only searched only “accounts that were in its possession and control,” despite the existence of “evidence that upper-level EPA officials conducted official business from their personal email accounts”); Yonemoto v. Department of Veterans Affairs, 686 F.3d 681, 689 (9th Cir. 2012) (Freedom of Information Act lawsuit against agency should not be dismissed if additional emails could be uncovered through a more thorough search; dismissal is inappropriate where “the agency produces what it maintains is all the responsive documents, but the plaintiff challenges ‘whether the [agency’s] search for records was adequate,’” quoting Nw. Univ. v. Dep’t of Agric., 403 F.Supp.2d 83, 85–86 (D.D.C.2005).