Case 1:12-cv-00127-BJR Document 40 Filed 03/04/15 Page 7 of 22
Bradley Decl.) ¶ 9. 3 CES stated that there was an “ongoing criminal investigation relating to
WikiLeaks and [the] unauthorized disclosure of classified information.” Id. The lead CES
attorney on this investigation indicated that the only place where any potentially responsive
documents would reasonably be contained was in his/her electronic files, and that files in other
locations would merely be duplicative of responsive records found in his/her files. Id. NSD
FOIA personnel was given access to the lead attorney’s files and reviewed them before
determining that “all responsive files are part of a pending criminal investigation and are
therefore exempt from disclosure pursuant to FOIA Exemption []7(A).” Bradley 1st Decl. ¶ 10.
EPIC contends that NSD’s search is lacking because the agency “does not explain how
[it] determined which components to search,” or why all responsive records found outside of the
lead attorney’s files would be duplicative, “or the terms used, if any, to search electronic files.”
Pl.’s Cross-Mot. at 20-21. In response, NSD rehashes the aforementioned steps taken by NSD to
locate responsive records, concluding that the “search was sufficiently comprehensive.” Defs.’
Mot. Summ. J. at 8. NSD claims it provided details regarding how it conducted its search in its
ex parte declaration because “disclosure would itself compromise the investigation.” 4 Id.
The Court agrees that NSD has failed to provide evidence of an adequate search. Despite
NSD’s assertion, its ex parte declaration fails to provide any further explanation regarding how
its search was conducted. 5 See Bradley 2d Decl. ¶ 4. Such an explanation is especially
3
Mark A. Bradley is the director of the FOIA and Declassification Unit of the Office of Law and
Policy for the NSD. Bradley 1st Decl. ¶ 1.
4
Bradley submitted an ex parte declaration in addition to his public declaration. See Def.’s Mot.,
Ex. 4.
5
Instead of explaining how its search was conducted, NSD’s ex parte declaration focuses on the
fruits of its search. See Bradley 2d Decl. ¶ 4. However, the adequacy of a FOIA search is not determined
by the fruits of the search, but by the appropriateness of the methods used to carry out the search.
Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (citing Steinberg v. Dep't of
Justice, 23 F.3d 548, 551 (D.C. Cir. 1994)).
7