Hainey v. United States Department of the Interior

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ROSEMARY MCBRIDE HAINEY,

Plaintiff,

v. Civil Action No. 11-cv-1725 (RLW)

UNITED STATES DEPARTMENT

OF THE INTERIOR,

Defendant.

MEMORANDUM OPINION

Plaintiff Rosemary McBride Hainey (“Hainey”) brings this action challenging the United

States Department of the Interior’s response to her request under the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552. This matter is now before the Court on the parties’ Cross-Motions for

Summary Judgment (Dkt. Nos. 12, 14). Upon careful consideration of the parties’ briefing and

the entire record in this case, the Court concludes, for the reasons set forth herein, that Hainey’s

Motion will be DENIED and that the Department’s Motion will be GRANTED.

BACKGROUND

According to her Complaint, Hainey “has established a web-sharing webpage which is

used as a repository for all Freedom of Information Act records obtained from the federal

government,” through which she aims to “promote public understanding and debate of issues

concerning key current public policy issues, focusing on the hiring and employment ethics in the

federal government.” (Dkt. No. 1 (“Compl.”) at ¶ 7). On February 13, 2011, she submitted a

FOIA request to the Department of Interior’s Office of the Secretary, requesting:

[A]ll non-exempt documents relating to vacancy announcements within your

Department from January 1, 2008 through January 31, 2011. The records

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requested includes [sic] but is [sic] not limited to all vacancy announcements, job

analyses, applicant ratings, position descriptions (Form OF-8), applicant

questionnaires, certificates sent to selecting officials, selections made, and any

pass-over requests. This FOIA also requests all non-exempt internal

communications relating to hiring reform and your efforts from January 1, 2009

through January 31, 2011.

(Dkt. No. 17, ECF pp. 28-115 (“Hainey Decl.”), Ex. 1 (“FOIA Request”)). 1 Hainey also sought

a fee waiver in connection with her request, under FOIA’s public interest exception, 5 U.S.C. §

552(a)(4)(A)(iii). 2 (Id.).

The Department received Hainey’s request on February 14, 2011, which meant that,

under the statute, the Department’s response was due on or before March 15, 2011. (Dkt. No.

17, ECF pp. 9-10 (“Pl.’s Facts”) at ¶¶ 2-3). On March 30, 2011, the Department sent its

response letter to the mailing address that Hainey provided in her FOIA request. (Dkt. No. 14,

ECF pp. 3-7 (“Def.’s Facts”) at ¶ 4). Therein, the Department advised Hainey that her fee

waiver was denied, and it also provided its preliminary cost estimate for responding to her

request—but only with respect to information held within the Bureau of Ocean Energy

Management, Regulation, and Enforcement (“BOEMRE”), one of nine separate bureaus that

comprise the Interior Department. 3 (Id. ¶¶ 3-4). In total, the Department estimated that, as to

that particular subset of documents, it would take between 2,373 and 3,164 hours of search time

1

Because Hainey filed her opposition brief and all supporting documents and exhibits as a

single file, rather than as separate attachments through the electronic filing system, for clarity’s

sake, the Court cites to the ECF page numbers within the overall document.

2

This exception provides that documents shall be furnished without charge “if disclosure

of the information is in the public interest because it is likely to contribute significantly to public

understanding of the operations or activities of the government and is not primarily in the

commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii).

3

Along with BOEMRE, the Department of the Interior is also made up of the Bureau of

Indian Affairs, the Bureau of Land Management, the Bureau of Reclamation, the Bureau of

Safety and Environmental Enforcement, the National Park Service, the Office of Surface Mining,

Reclamation and Enforcement, the U.S. Fish and Wildlife Service, and the U.S. Geological

Survey. (Dkt. No. 14-1 (“Lohr Decl.”) at ¶ 5). BOERME houses the Department’s Office of the

Secretary, the Interior Department component to which Hainey submitted her FOIA request.

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to compile the information Hainey sought, at a cost between $99,666.00 and $132,888.00. (Id.).

The letter also advised that, given the denial of her fee waiver, Hainey would be responsible for

the costs of processing her FOIA request beyond the initial 2 hours of search time and the first

100 pages produced. (Lohr Decl., Ex. B). Finally, the Department’s letter indicated that, if

Hainey did not submit an amended FOIA request or an agreement to cover the processing fees

within twenty business days, the Department would assume that she was no longer interested in

pursuing her request and would close its files. (Id.).

As it happens, the Department’s response did not reach Hainey and was returned to the

Department as “unclaimed” on April 26, 2011. (Def.’s Facts at ¶ 6). The Department attempted

to send its response to Hainey a second time, on May 11, 2011, but that letter was also returned

to the Department as “unclaimed” on June 13, 2011. (Id. ¶¶ 7-9).

Meanwhile, having received no response on her end, Hainey had already filed an appeal

of her FOIA request on March 25, 2011. (Pl.’s Facts at ¶ 5). Apparently, it took the Department

almost six months to process that appeal, but ultimately, the Department denied her appeal on

September 19, 2011, explaining, in relevant part:

Upon receipt of your appeal, the Department contacted the OS [Office of the

Secretary] to ascertain why it has not responded to your FOIA request. The OS

has advised that it sent to you a letter dated March 30, 2011, responding to your

FOIA request on two separate occasions (copy attached). The OS sent the March

30, 2011, letter to you at the address you provided in your FOIA request and this

appeal, however, both were returned by the U.S. Postal Service as being

“unclaimed” (copies of the mailing envelopes are attached). Because the OS’s

March 30, 2011, letter to you was returned on two separate occasions and you did

not otherwise resolve the defects with your requests that the OS presented in its

March 30, 2011, letter to you, the OS properly closed its files on your request.

Should you continue to want copies of the documents you seek in your February

13, 2011, FOIA request, you must submit a new FOIA request to the OS.

However, please be sure to provide a return address by which the OS can

successfully communicate with you and resolve all of the defects that the OS

identified in its March 30, 2011, letter.

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(Lohr Decl., Ex. B). One week later, on September 26, 2011, Hainey filed her Complaint

initiating this lawsuit. 4

After this action was filed, the Department renewed their attempts to respond to Hainey’s

FOIA request. To this end, the Department confirmed the estimate originally received from

BOEMRE and gathered similar estimates from the Department’s other Bureaus. (Id. ¶ 11).

Overall, the Department determined that, during the time period covered by Hainey’s request, it

had posted more than 30,000 vacancy announcements, and that those vacancy announcements

had garnered approximately 3.8 million applications. (Id. ¶¶ 11-12). According to the

Department, a conservative estimate of the scope of those materials could “easily exceed” 11

million pages. (Id. ¶ 13).

On November 21, 2011, counsel for the Department contacted Hainey and

communicated, among other issues, the Department’s concerns about the scope of her FOIA

request. (Id., Ex. F) (“[T]here are likely over a million people who applied for these vacancies

and your request asks for all related documents.”) (emphasis in original). Hainey responded to

the Department’s message the following day, at which time she produced a spreadsheet she had

received from the Energy Department in response to “the very same FOIA request,” stating that:

As you can see from the attached, all pertinent information relating to each

vacancy announcement is included. I have accepted the Department of Energy’s

timely response as fully responsive to the exact same FOIA request.

(Id.). Several weeks later, after considering Hainey’s response, the Department’s Office of the

Secretary sent her another letter on December 23, 2011, regarding the status and scope of her

FOIA request. Therein, the Department indicated that, in its view, a total search in response to

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Hainey’s Complaint asserts five separate counts against the Department: (1) Failure to

Respond to FOIA Request Within 20 days; (2) Failure to Provide Written Notice of Intent to

Take 10-Day Extension; (3) Improper Extension of Time to Determine Fee Waiver; (4) Failure

to Timely Respond to FOIA Appeal; and (5) Failure to Apply Statutory Waiver of Search Fees.

(See generally Compl.).

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her request would be “unreasonably burdensome,” but the Department did propose several

options for narrowing her request. (Id., Ex. H).

First, with respect to the “vacancy announcement” portion of her request, the Department

offered to produce spreadsheets similar to the Department of Energy sample Hainey forwarded,

and it even included a sample spreadsheet listing what the Department perceived to be the

pertinent “vacancy announcement” information from the Bureau of Reclamation. (Id.). With

respect to the other aspect of Hainey’s request—the “hiring reform” component—the

Department explained that, because it had previously convened a 25-employee task force to work

on hiring reform efforts, a full search for responsive records would be burdensome and

prohibitive, insofar as it would require reviewing more than two years’ worth of email

correspondence for 25 different employees. (Id.). Instead, the Department proposed to narrow

that portion of Hainey’s FOIA request to the following documents: “(a) Proposed actions plans

from each Bureau submitted to the Hiring Reform Task Force; (b) Initial action plan PowerPoint

submitted to OMB; (c) Action plan detailing 180 actions taken by the Department; (d)

Scorecards on the action plans; (e) Status reports submitted to OMB regarding [the

Department’s] progress; and (f) Reports related to time-to-hire improvements.” (Id.). The letter

advised that, if Hainey agreed to limit production to those documents, the Department would

“happily provide them as quickly as possible.” (Id.). The Department also forwarded a copy of

that letter to Hainey via email message on December 28, 2011. (Id., Ex. J).

Hainey responded on January 1, 2012, rejoining that “[t]he statutory time for the

agency’s response has expired,” and that “the proposed Hiring Reform modification/substitution

does not remotely provide the level of detail requested in the initial FOIA request.” (Id.). With

respect to the vacancy announcement portion of her FOIA request, however, she asked to receive

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an electronic copy of the Bureau of Reclamation spreadsheet so that she could more

meaningfully review the issue. (Id.). The Department sent a copy of that report on January 4,

2012. (Id.). Subsequently, after several follow-up attempts by the Department, Hainey

ultimately responded on January 20, 2012, claiming that the spreadsheet was insufficient;

instead, she again referenced the Department of Energy spreadsheet, which she confirmed was

“an adequate substitute for the individual documents that could be responsive to the FOIA

request.” (Id.). After some additional back-and-forth, the Department inquired of Hainey

whether, “if Interior makes a spreadsheet, similar to Dep’t of Energy, that includes all of the

information you requested, it would not be responsive to your FOIA request?” (Id., Ex. M)

(emphasis in original).

Hainey responded and apparently took issue with the Department’s approach, asserting

that “creating a document that does not exist violates the Freedom of Information Act,” and that

she was “merely cautioning [the Department] on creating a document for the express purpose of

responding to a FOIA request.” (Id.). Persisting, the Department again attempted to confirm

whether Hainey would consider “a report similar to the one done by Energy . . . [as] responsive

to [her] FOIA request.” (Id.). Hainey did not immediately respond. The Department sent

another message on January 24, 2012, explaining that, “[r]egarding the FOIA request, the report

is generated based on various search terms . . . . [I]f you want a report similar to the one you

received from Energy, please confirm all of the fields you want and a search can be done and a

report will be generated.” (Id., Ex. N) (emphasis in original). The Department sent Hainey at

least four additional email messages during the ensuing weeks that went unreturned, until, on

February 27, 2012, she finally responded as follows:

I am not sure I can devote the time to constantly review the submissions as timely

as you would like. To reduce this constant back and forth, please use the sample I

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forwarded to you in December. If the sample is somehow unclear, please let me

know.

(Id.) (emphasis added). In a separate message sent on the same date, Hainey reiterated: “please

provide all of the fields from the Energy sample I sent you.” (Id., Ex. N).

Thereafter, on April 18, 2012, the Department produced to Hainey forty-eight (48)

separate spreadsheets totaling more than 30 megabytes in size. The spreadsheets contained fields

identical or equivalent to the fields contained in the Department of Energy sample Hainey had

provided. (Id. ¶ 22-25, Ex. O). At that point, because the Department believed it had produced

all the information requested through the “narrowed” scope of Hainey’s request, it considered

her FOIA request closed. (Id. ¶ 26). Notably, the Department did not assess Hainey any fees in

connection with the processing or production of this information.

ANALYSIS

A. Standard of Review

Summary judgment is appropriate when the moving party demonstrates that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

of law. FED. R. CIV. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Moore

v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). “FOIA cases typically and appropriately are

decided on motions for summary judgment.” Defenders of Wildlife v. U.S. Border Patrol, 623 F.

Supp. 2d 83, 87 (D.D.C. 2009). In a FOIA action to compel production of agency records, the

agency “is entitled to summary judgment if no material facts are in dispute and if it demonstrates

‘that each document that falls within the class requested either has been produced . . . or is

wholly exempt from the [FOIA’s] inspection requirements.’” Students Against Genocide v.

Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352

(D.C. Cir. 1978)). Summary judgment may be based solely on information provided in an

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agency’s supporting affidavits or declarations if they are relatively detailed and when they

describe “the documents and the justifications for nondisclosure with reasonably specific detail,

demonstrate that the information withheld logically falls within the claimed exemption, and are

not controverted by either contrary evidence in the record nor by evidence of agency bad faith.”

Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).

B. Hainey’s Challenges to the Declaration of Gabriel Lohr

Given that Hainey devotes a substantial portion of her opposition brief attacking the

agency declaration submitted in support of the Department’s cross-motion, the Court begins

here. The Department relies on the declaration of Gabriel Lohr, an Attorney-Advisor in the

Department’s Branch of General Legal Services. (Lohr Decl. at ¶ 1). According to Mr. Lohr, he

“provide[s] legal advice to the Office of the Secretary’s FOIA Office,” “assist[s] the OS FOIA

Office with FOIA litigation,” and was assigned to this case involving Hainey’s FOIA request.

(Id. ¶¶ 2-3). Hainey argues that Mr. Lohr’s declaration is “patently defective” because, in her

view: (1) his assertions are not based upon his personal knowledge; (2) his declaration is “riddled

with inadmissible hearsay”; (3) he fails to aver that he is “competent” to testify to the facts

alleged; and (4) he failed to affirm that his declaration was provided under penalty of perjury,

under 28 U.S.C. § 1746. (Dkt. No. 17, ECF pp. 1-15 (“Pl.’s Opp’n”) at 1-3). None of these

arguments is meritorious.

First, the Court finds that Mr. Lohr sufficiently established his personal knowledge of the

facts contained in his declaration, as well as his “competency” to address those facts. To start

with, Mr. Lohr clearly and unequivocally sets forth his competency and personal knowledge in

the text of his affidavit—he expressly states that he has “personal knowledge of this case because

[he] was assigned to it on or about October 18, 2011,” and he expressly confirms that “[a]ll of

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the information set forth in [his] declaration is based upon [his] personal knowledge or upon

information furnished to [him] in [his] official capacity.” (Lohr Decl. at ¶ 3-4). Hainey’s

arguments in this regard essentially boil down to the contention that, because Mr. Lohr was not

“assigned to” her case from February through October 2011, he cannot have personal knowledge

of the events that transpired during that time period. She also suggests that, because Mr. Lohr

was not copied or included on particular email messages regarding her FOIA request, he lacks

personal knowledge of the contents of those messages and the overall communications between

herself and the Department. (Pl.’s Opp’n at 2-3, 8-15). These arguments are unavailing.

In the FOIA context, a declarant satisfies the personal knowledge requirement of Federal

Rule of Civil Procedure 56(e) if, “in his declaration, [he] attest[s] to his personal knowledge of

the procedures used in handling [a FOIA] request and his familiarity with the documents in

question.” Hall v. Dep’t of Justice, 63 F. Supp. 2d 14, 16 n.1 (D.D.C. 1999) (quoting Spannaus

v. Dep’t of Justice, 813 F.2d 1285, 1289 (4th Cir. 1987)) (brackets in original); Schoenman v.

FBI, 575 F. Supp. 2d 166, 171-72 (D.D.C. 2008) (same). In addition, it is well settled that

“FOIA declarants may include statements in their declarations based on information they have

obtained in the course of their official duties.” Barnard v. Dep’t of Homeland Sec., 598 F. Supp.

2d 1, 19 (D.D.C. 2009); Thompson v. Exec. Office for United States Attorneys, 587 F. Supp. 2d

202, 208 n.4 (D.D.C. 2008). Mr. Lohr’s declaration readily satisfies these standards, rendering

Hainey’s personal knowledge, competency, and hearsay objections without merit.

Otherwise, Hainey argues that Mr. Lohr’s declaration must be rejected because he failed

to sign the declaration under penalty of perjury, pursuant to 28 U.S.C. § 1746. Simply put, this

assertion is not true. At the conclusion of Mr. Lohr’s original declaration, he expressly avers:

“In accordance with 28 U.S.C. § 1746, I declare that the foregoing is true and correct to the best

9

of my knowledge.” (Lohr Decl., at p. 10). To the extent Hainey is complaining about Mr.

Lohr’s use of the qualifying phrase “to the best of my knowledge,” the Court rejects that

argument because Mr. Lohr’s certification “substantially compl[ies] with the verification

requirements of § 1746.” Am. Mgmt. Servs., LLC v. Dep’t of the Army, 842 F. Supp. 2d 859, 868

n.6 (E.D. Va. 2012); Hamilton v. Mayor & City Council of Baltimore, 807 F. Supp. 2d 331, 353

(D. Md. 2011) (finding affirmation that statements were “true and accurate to the best of [my]

knowledge and belief” sufficient under § 1746); Kersting v. United States, 865 F. Supp. 669,

676-77 (D. Haw. 1994). 5 Accordingly, Mr. Lohr’s declaration is fully admissible.

C. Hainey’s Claims Surrounding the Timeliness of the Department’s Response

As Hainey makes clear in her summary judgment briefing, her legal challenges in the

case stem almost exclusively from the Department’s delay in responding to her initial FOIA

request and her FOIA appeal—“this case challenges the timing of the agency responses to

plaintiff’s FOIA request and FOIA appeal.” (Dkt. No. 12 (“Pl.’s Mem.”) at 1). According to

Hainey, the Department’s “failure to respond within the statutory timeframe whether it would

grant or deny the fee waiver request and its decision to release or withhold records responsive to

the FOIA request demonstrates that this Court must grant summary judgment in plaintiff’s

favor.” (Id. at 1-2). She therefore seeks relief based solely on the timing and delay of the

5

Hainey’s objection on this ground is further undermined by the fact that Mr. Lohr

submitted a revised declaration with the Department’s reply brief, removing the above-described

“qualifying” language from the affidavit. (Dkt. No. 19-1 at 10) (“In accordance with 28 U.S.C. §

1746, I declare under penalty of perjury that the foregoing is true and correct.”). Therefore,

while the Court reiterates that Mr. Lohr’s original affidavit satisfied the requirements of § 1746,

the unequivocal statement in his revised declaration removes any and all doubt. Relatedly,

although Mr. Lohr’s two declarations are otherwise substantively identical, for clarity’s sake, the

Court’s references herein to the “Lohr Declaration” should be understood to mean Mr. Lohr’s

original declaration, appearing at Docket Entry 14-1.

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Department’s response—indeed, the entirety of the arguments set forth in her summary judgment

briefing relate to these issues. (See generally id.). 6

While the Court agrees that the Department’s responses were untimely under the statute,

the Department’s untimely responses, in and of themselves, do not entitle Hainey to judgment in

her favor. Richardson v. Dep’t of Justice, 730 F. Supp. 2d 225, 231-32 (D.D.C. 2010) (“The

timing of an agency’s release of records responsive to a FOIA request does not determine

whether the agency has complied with its obligations under the FOIA.”); Jacobs v. Fed. Bureau

of Prisons, 725 F. Supp. 2d 85, 89 (D.D.C. 2010) (“The BOP’s untimely response does not

entitle plaintiff to judgment in his favor.”); Landmark Legal Found. v. EPA, 272 F. Supp. 2d 59,

68 (D.D.C. 2003) (“[A] lack of timeliness or compliance with FOIA deadlines does not preclude

summary judgment for an agency, nor mandate summary judgment for the requester.”). Stated

another way, “whether the search was completed before or after the requestor files a lawsuit, the

remedy available to the plaintiff is the same: access to the documents to which [s]he is entitled

under the law.” Richardson, 730 F. Supp. 2d at 232; Tunchez v. Dep’t of Justice, 715 F. Supp.

2d 49, 54 (D.D.C. 2010) (same).

Thus, given that the Department has now responded to Hainey’s request—a fact she does

not dispute—the only issue for the Court to consider at this point is whether the Department’s

response complies with its obligations under FOIA. Perry v. Block, 684 F.2d 121, 125 (D.C. Cir.

1982) (“[H]owever fitful or delayed the release of information under the FOIA may be, once all

requested records are surrendered, federal courts have no further statutory function to perform.”);

Crooker v. State Dep’t, 628 F.2d 9, 10 (D.C. Cir. 1980) (“Once the records are produced the

6

This has been Hainey’s approach since the inception of her lawsuit, as evidenced by

some of her earliest communications with the Department’s counsel in November 2011. (See,

e.g., Lohr Decl., at Ex. F) (“As you are aware, the complaint essentially charges the defendant

with failing to adhere to certain [FOIA] deadlines.”).

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substance of the controversy disappears and becomes moot since the disclosure which the suit

seeks has already been made.”); Atkins v. Dep’t of Justice, Case No. 90-5095, 1991 WL 185084,

at *1, 1991 U.S. App. LEXIS 22309, at *1 (D.C. Cir. Sept. 18, 1991) (“The question whether

DEA complied with the Freedom of Information Act’s (FOIA) time limitations in responding to

Aaron Atkins’ request is moot because DEA has now responded to this motion.”).

Although Hainey does not challenge the sufficiency of the Department’s response

anywhere in either her Complaint or her moving papers, inasmuch as the Department seeks

summary judgment on the grounds that it fully and adequately responded to her FOIA request,

the Court will proceed to consider those issues nonetheless. 7

D. The Sufficiency of the Department’s Response

Both Hainey and the Department construe her FOIA request as two distinct requests

seeking two different categories of information: (1) “all non-exempt documents relating to

vacancy announcements within [the Department of Interior] from January 1, 2008 through

January 31, 2011”; and (2) “all non-exempt internal communications relating to hiring reform

and your efforts from January 1, 2009 through January 31, 2011.” (See, e.g., Lohr Decl., Ex. H)

(emphases added). Therefore, consistent with the parties’ approach, the Court will separate its

7

Hainey’s failure to challenge the adequacy of the Department’s response in her

Complaint is somewhat understandable, given that the only response she had received from the

Department as of the filing of this action on September 26, 2011, was the denial of her FOIA

appeal. But her failure to make any mention of those issues in her summary judgment motion is

significantly less excusable. By April 2012, Hainey had long since received the Department’s

original response to her FOIA request and her appeal denial. In addition, by that time, the

Department had engaged in months’ worth of substantial efforts to reasonably narrow the scope

of Hainey’s FOIA request and provide responsive documents. Inexplicably, Hainey failed to

include any mention of these developments whatsoever in her moving papers.

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analysis accordingly, dealing first with Hainey’s “vacancy announcement” request, and then

turning to her “hiring reform” request.

1. Hainey’s “Vacancy Announcement” Request

The Court first concludes that the Department fully satisfied its FOIA obligations with

respect to Hainey’s “vacancy announcement” request. Originally, this component of Hainey’s

initial FOIA request sought “all non-exempt documents relating to vacancy announcements

within [the Department of Interior] from January 1, 2008 through January 31, 2011. The records

requested includes [sic] but is not limited to all vacancy announcements, job analyses, applicant

ratings, position descriptions (Form OF-8), applicant questionnaires, certificates sent to selecting

officials, selections made, and any pass-over requests.” (FOIA Request). Through its initial

response, the Department concluded that the estimated “search time” cost to compile only a

portion of the requested records—records produced by just one of the Interior Department’s nine

bureaus—would amount to nearly $100,000.00. (Lohr Decl., Ex. B). Of course, that response

never reached Hainey, and it was not until the Department rendered a determination on Hainey’s

FOIA appeal—and she subsequently initiated this lawsuit—that the Department was informed

that Hainey still sought those records.

Thereafter, in response to the Department’s concerns regarding the overbreadth of her

request, Hainey provided the Department with an exemplar spreadsheet she had previously

received from the Energy Department, which she considered to be “fully responsive” “to the

very same FOIA request.” (Id., Ex. F). Hainey confirmed that she was narrowing this aspect of

her FOIA request during subsequent communications with the Department, again asking the

Department to “use the [Energy Department] sample I forwarded to you in December,” and

“provide all of the fields from the Energy sample I sent you.” (Id., Ex. N). In turn, the

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Department prepared and produced to Hainey on April 19, 2012, forty-eight (48) separate

spreadsheets using fields that were “identical or equivalent to” the parameters from the Energy

sample that Hainey herself provided. (Id. ¶ 21-25, Exs. O, P).

Hainey does not dispute these facts, nor does she contend that the Department’s

production is not fully responsive to this aspect of her FOIA request. Instead, she appears to

argue only that the Department has not complied with its obligations with respect to the “hiring

reform” component of her request. (See Pl.’s Opp’n at 7) (“The fact that the Agency’s belated

endeavors [sic] to produce partial records relating to vacancy announcements does not cancel the

part of the February 13, 2011 FOIA request seeking hiring reform efforts.”); (“[T]he Department

has not established that the Plaintiff is not entitled to the hiring reform records . . . .”).

Therefore, insofar Hainey apparently concedes that the Department fully satisfied its FOIA

obligations by producing the various spreadsheets in response to her “vacancy announcement”

request, the Court will grant summary judgment in the Department’s favor on these grounds.

Perry, 684 F.2d at 125; Crooker, 628 F.2d at 10. But even if Hainey were potentially arguing

that the Department should produce additional records in response to this portion of her

request—above and beyond the extensive spreadsheets produced by the Department—this

argument fails. The Department fully complied with Hainey’s modified request, and she cannot

now argue that she is entitled to additional records that fall outside the scope of the request as she

narrowed it. See Wilson v. Dep’t of Transp., 730 F. Supp. 2d 140, 152 (D.D.C. 2010) (holding

that the plaintiff, who agreed to narrow his FOIA request “cannot now argue that he meant

something else”); Kenney v. Dep’t of Justice, 603 F. Supp. 2d 184, 189 (D.D.C. 2009) (stating

14

that the “[p]laintiff cannot allege that the agency failed to produce responsive records, when the

records he now identifies fall outside the scope of his appropriately narrowed request”). 8

2. Hainey’s “Hiring Reform” Request

Turning to the “hiring reform” portion of Hainey’s FOIA request, the Court agrees that

the Department properly declined to respond to her request as unreasonably burdensome. It is

well established that “an agency need not honor a [FOIA] request that requires ‘an unreasonably

burdensome search.’” Am. Fed’n of Gov’t Employees, Local 2782 v. Dep’t of Commerce, 907

F.2d 203, 209 (D.C. Cir. 1990) (quoting Goland, 607 F.2d at 353); see also Nation Magazine v.

U.S. Customs Serv., 71 F.3d 885, 891-92 (D.C. Cir. 1995); Int’l Counsel Bureau v. Dep’t of

Defense, 723 F. Supp. 2d 54, 59-60 (D.D.C. 2010); Pub. Citizen, Inc. v. Dep’t of Educ., 292 F.

Supp. 2d 1, 6 (D.D.C. 2003). This is because “FOIA was not intended to reduce government

agencies to full-time investigators on behalf of requestors.” Assassination Archives & Research

Ctr., Inc. v. CIA, 720 F. Supp. 217, 219 (D.D.C. 1989). Accordingly, “it is the requester’s

responsibility to frame requests with sufficient particularity to ensure that searches are not

unreasonably burdensome.” Id. (citing Yeager v. DEA, 678 F.2d 315 (1982)); Judicial Watch,

Inc. v. Export-Import Bank, 108 F. Supp. 2d 19. 27-28 (D.D.C. 2000). Where an agency claims

that a search would be unreasonable, however, the burden falls on the agency to “provide

8

Hainey’s Complaint also asserted a claim surrounding the Department’s denial of her fee

waiver. (See Compl. at ¶¶ 30-32). But given the fact that Hainey failed to address this claim at

any point during the briefing on the parties’ cross-motions for summary judgment, the Court

presumes she has abandoned that aspect of her case. See, e.g., Ramirez v. Dep’t of Justice, 594

F. Supp. 2d 58, 61 (D.D.C. 2009). Moreover, the record establishes that the Department waived

any and all fees associated with the spreadsheets it did produce in response to Hainey’s FOIA

request—a fact that Hainey does not dispute. Accordingly, this component of her claims appears

moot in any event.

15

sufficient explanation as to why such a search would be unreasonably burdensome.” Nation

Magazine, 71 F.3d at 892; see also Pub. Citizen, 292 F. Supp. 2d at 6.

Here, the “hiring reform” component of Hainey’s original FOIA request sought “all non-

exempt internal communications relating to hiring reform and [the Department’s] efforts from

January 1, 2009 through January 31, 2011.” (FOIA Request). By letter of December 23, 2011,

the Department explained to Hainey that, in June 2009, the Department “created a task force of

25 employees to work on hiring reform in the [Interior] Department.” (Lohr Decl., Ex. H).

Because of this, and because Hainey’s request sought all internal communications on the subject,

the Department concluded that responding to her request would require a search of every email

sent or received by 25 different employees throughout a two-year time period. (Id.). The

Department also added that it would need to individually review each potentially responsive

email to confirm its releasability. (Id.). In sum, the Department concluded that a search and

review along those lines would be “unreasonably burdensome.” (Id.). While the Department

previously offered to produce a more limited range of documents in response Hainey’s “hiring

reform” request, Hainey rejected that proposal and responded that, in her view, the Department’s

proposed modification “[did] not remotely provide the level of detail requested in the initial

FOIA request.” (Id., Ex. J). And even at this point, Hainey continues to insist that the

Department should be required to produce the full scope of records sought through her original

“hiring reform” request. (Pl.’s Opp’n at 7). 9 The Court does not agree.

As set forth above, the Department has demonstrated that responding to the full scope of

Hainey’s original “hiring reform” request would require the Department “to locate, review,

9

Hainey does not argue that the Department should at least be required to produce the

restricted scope of documents it previously offered, and therefore, the Court need not and does

not consider whether this would be an appropriate form of relief.

16

redact, and arrange for inspection of a vast quantity of material.” Am. Fed’n of Gov’t Employees,

Local 2782, 907 F.2d at 209. Hainey does not argue otherwise—indeed, she altogether fails to

respond to the Department’s burdensomeness arguments. She simply asserts that the Department

efforts as to her “vacancy announcement” request “are not factors to determine whether it

satisfied the unmodified portion of the February 13, 2011 FOIA request”—the portion related to

“hiring reform” efforts. (Pl.’s Opp’n at 7). That may be so. But that argument says nothing

about whether the Department can satisfy her “hiring reform” request absent an unreasonably

burdensome search and review process. Therefore, based on the Department’s “explanation as to

why such a search would be unreasonably burdensome,” Nation Magazine, 71 F.3d at 892, and

given the absence of any contrary argument on Hainey’s part, the Court finds that the

Department acted properly. The Court thus grants summary judgment for the Department with

respect to the “hiring reform” portion of Hainey’s FOIA request. 10

CONCLUSION

For the foregoing reasons, the Court concludes that Hainey’s Motion for Summary

Judgment will be DENIED and that the Department’s Cross-Motion for Summary Judgment will

be GRANTED. An appropriate Order accompanies this Memorandum Opinion.

Digitally signed by Judge Robert L.

Wilkins

Date: February 25, 2013 DN: cn=Judge Robert L. Wilkins,

o=U.S. District Court, ou=Chambers

of Honorable Robert L. Wilkins,

email=RW@dc.uscourt.gov, c=US

Date: 2013.02.25 14:02:45 -05'00'

ROBERT L. WILKINS

United States District Judge

10

In view of this holding, the Court need not reach the Department’s alternative argument

that it fully responded to the “hiring reform” request in any event, because Hainey agreed to

accept the spreadsheet documents in lieu of the “hiring reform” documents she requested as well.

17