Case 1:05-cv-00806-RMC Document 19 Filed 07/28/2006 Page 1 of 9

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________
)
CITIZENS FOR RESPONSIBILITY )
AND ETHICS IN WASHINGTON )
1400 Eye Street, N.W. )
Suite 450 )
Washington, D.C. 20005 )
)
Plaintiff, )
) Civil Action No. 05-0806 (RMC)
v. )
)
NATIONAL INDIAN GAMING )
COMMISSION, )
)
Defendant. )
____________________________________)

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN

OPPOSITION TO DEFENDANT’S RENEWED MOTION FOR SUMMARY
JUDGMENT

Plaintiff, Citizens for Responsibility and Ethics in Washington (“CREW”), filed its

Freedom of Information Act (“FOIA”) request with the National Indian Gaming Commission

(“NIGC”) seeking records of any contacts between the NIGC and 10 enumerated individuals, as

well as employees and entities associated with those individuals, and the offices of five members

of Congress.1 In response, NIGC, the federal agency tasked with oversight regulations of Indian

1
In particular, CREW’s request sought documents and records relating to any contact
between NIGC and Jack Abramoff, Michael Scanlon, James Dobson, Ralph Reed, Scott Reed,
Itlia Federici, Grover Norquist, David Safavian, Congressmen Bob Ney and Tom Delay, House
Speaker Denny Hastert, Senator Conrad Burns, staff members of the Congressmen and Senator,
employees of the law firms of Greenberg Traurig LLP and Preston Gates Ellis LLP, Capital
Campaign Strategies, Council of Republicans for Environmental Advocacy, National Center of
Public Policy Research, and Americans for Tax Reform.

-1-
 Case 1:05-cv-00806-RMC Document 19 Filed 07/28/2006 Page 2 of 9

gaming operations under the Indian Gaming Regulatory Act of 1988, 26 U.S.C. § 2701 et seq.,

released a mere 84 pages of documents. NIGC identified on its Vaughn index 14 documents

from which requested material is being withheld in whole or in part.

The Court denied without prejudice NIGC’s first motion for summary judgment, and it

should deny with prejudice NIGC’s renewed motion for summary judgment. Although the

Court, in its May 17, 2006 memorandum opinion provided a virtual roadmap for the agency (as

well as another attempt to address previous failures), NIGC’s latest effort fares no better.

CREW’s opposition is not simply a suggestion that there should have been a larger number of

responsive documents identified by NIGC. Rather, NIGC still fails to demonstrate the adequacy

of its search, as well as the propriety of the exemptions it raises. Even if the third declaration of

Regina Ann McCoy addresses some of the concerns raised in the Court’s memorandum opinion,

there remain significant inadequacies, barring summary judgment in defendant’s favor.

Plaintiff respectfully incorporates by reference its facts and legal arguments in the prior

briefing.2 In addition, CREW requests oral argument on this matter. Lcvr 7(f).

ARGUMENT

I. NIGC HAS FAILED TO MEET ITS BURDEN OF DEMONSTRATING

THAT ITS SEARCH FOR RESPONSIVE DOCUMENTS WAS
ADEQUATE.

As the Court noted in its memorandum opinion, in responding to a properly submitted

FOIA request, an agency is required to conduct a reasonable search, and in order to obtain

summary judgment, the agency must demonstrate in its declarations “‘with reasonable detail,

2
NIGC did not submit a new statement of material facts with its renewed motion for
summary judgment. LCvr 7(h). In electing to adopt its previous statement without any
supplementation, it has failed to identify any new material facts relevant to the motion.

-2-
 Case 1:05-cv-00806-RMC Document 19 Filed 07/28/2006 Page 3 of 9

that the search method . . . was reasonably calculated to uncover all relevant documents [and] . . .

identify the terms searched [and] . . . how the search was conducted.’” Memorandum Opinion at

4, quoting Oglesby v. Department of the Army, 920 F.2d 57 (D.C. Cir. 1990).

Notably, the third declaration of Regina Ann McCoy submitted with NIGC’s motion does

not disclose the method used in searching for records that were responsive to her interpretation

of CREW’s request.3 Ms. McCoy’s declaration does not disclose what she told the “search

taskers” to provide to her. That communication–precisely what the declarant instructed agency

search taskers to do–is absent from her recently submitted declaration. In paragraph 6 of her

declaration, Ms. McCoy notes that the search taskers were instructed to include a review of any

electronic records, but she does not discuss anywhere in the declaration what instructions those

tasked with isolating agency records for her review were given. As the D.C. Circuit has noted,

an agency declaration must denote which files were searched and reflect a systematic approach

to document location in order to enable the appellant to challenge the procedures utilized. See

Weisberg v. United States Department of Justice, 627 F.2d 365, 371 (D.C. Cir. 1980). Simply

revealing which offices the search taskers went to with a general instruction to be sure and

review electronic mail, is just not sufficient. While we have Ms. McCoy’s statement that she

sorted through the documents submitted to her by agency personnel and applied her

3
In her declaration, Ms. McCoy notes several times that she informed CREW of her
“interpretation” of the FOIA request as one seeking records or contacts with the tribes named in
the request that showed a relationship to the parties mentioned in paragraphs two and four of the
request. See, e.g., McCoy Decl. at ¶ 5. That formulation of the request was not objectionable to
CREW; however, as CREW noted in its response to defendant’s statement of material facts not
in dispute filed with its original motion for summary judgment, this interpretation was not an
appealable action, as NIGC suggests. Indeed, suit was already filed at the time that NIGC shared
this interpretation with CREW.

-3-
 Case 1:05-cv-00806-RMC Document 19 Filed 07/28/2006 Page 4 of 9

interpretation in determining what was responsive, we are still left guessing what the original

search taskers’ interpretation was, and we have no information regarding the methods that they

were instructed to use to locate and retrieve responsive information.

The Court’s Memorandum Opinion was clear regarding this identical deficiency:

NIGC’s affidavits fail to meet the Oglesby standards. There is no question of its
good faith or that it performed a wide-ranging search into all NIGC offices. 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.” Def.’s Reply, 2nd
McCoy Decl. ¶ 6 (emphasis added). This description does not provide the requester or
the Court with the reasonable detail that Oglesby requires, i.e., information as to what
methods were used by the NIGC employees to identify and search for records likely to
contain relevant material. NIGC offices in twelve separate locations were involved,
which means that at least twelve separate people had to decide individually what records
would be searched. Whether each of them searched the same kinds of records or whether
some performed one kind of search and others performed a different kind of search is
unknown at this point in time. NIGC’s search might have been adequate and it might
not; all that can be said is that its description of its search is definitely inadequate.

Memorandum Op. At 5 (bold emphasis added). Apparently, Ms. McCoy is not in any different

position to provide the precise instructions given than she was in previous declarations; it still

appears that NIGC employees themselves determined (as she previously stated) what they

considered to be relevant material when responding to CREW’s FOIA request, but we have no

idea what formed the basis for their determination. Since the CREW search was not re-done

following the Court’s decision, the current declaration is no more adequate on this critical point

that the previous declarations. As such, the search performed by NIGC was inadequate and

summary judgment must be denied.

Similarly deficient in required detail is the description given in Ms. McCoy’s declaration

regarding the electronic searches. Decl. ¶¶ 21, 23, 26. Simply acknowledging that electronic

searches were performed using names of individuals and entities in CREW’s FOIA request does

-4-
 Case 1:05-cv-00806-RMC Document 19 Filed 07/28/2006 Page 5 of 9

not provide the reasonable detail necessary to determine whether the search performed was

reasonably calculated to uncover relevant documents, nor does it reveal precisely how the search

was conducted. For example, Ms. McCoy’s declaration fails to provide what Boolean operators4

(if any) were used to accomplish the electronic search. In addition, NIGC has not revealed any

information regarding the actual databases or indices searched to inform how information was

maintained in the database. Indeed, we have no way of knowing whether the actual text of

documents was searched electronically or whether simply indices of documents were searched.

Without such information, it is not possible to conclude that the search performed by the agency

was adequate, and again, NIGC has failed to meet its burden.

NIGC, through the declaration of Ms. McCoy, also indicates that “[t]he Indian lands

database was not extant at the time the Sloan FOIA search was conducted and was therefore not

searched.” McCoy Decl. ¶ 23. It is true that NIGC had no independent obligation to search that

particular database since it did not exist at the time the CREW search was performed; however,

it certainly was not precluded from searching that database. NIGC must recognize that this is

true, given that in its renewed motion, it actually argues that NIGC’s recent search of visitor

logbooks–which were lost before the CREW request was received--was evidence of their “good

faith.” Def. Brf at 6. To be sure, a database search performed electronically, would have been

one way to search for any responsive materials. Moreover, NIGC does not address how, if at all,

those documents contained in the subsequently created database were considered in the agency’s

search for responsive materials; that really is the critical issue. Notably, the declaration does

4
Boolean operators essentially are connectors (and, or, not, near) used to tell electronic
search engines which keywords a searcher wants results to include or exclude and whether the
searcher requires that the keywords appear close to each other.

-5-
 Case 1:05-cv-00806-RMC Document 19 Filed 07/28/2006 Page 6 of 9

not address this fact. It is well-settled that upon receipt of a properly submitted FOIA request, an

agency must conduct a search that is “reasonably calculated to uncover all relevant documents.”

Weisberg v. U.S. Department of Justice, 705 F.2d 1344, 1351 (D.C. Cir 1983); see also Truitt v.

Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990). Declining to search a particular

database because it did not exist at the time that the CREW search was performed begs the

question of whether the underlying documents contained in the database were otherwise

searched. NIGC is silent on this inquiry.

II. THE PRIVACY ACT DOES NOT RESTRICT DISCLOSURE

OF ANY OF THE RECORDS THAT CREW HAS REQUESTED
UNDER FOIA.

In its brief and in the accompanying McCoy declaration, NIGC notes that neither its

Contract Division nor its Tribal Background Investigation Section within the Division of

Enforcement performed searches in order to locate documents responsive to CREW’s FOIA

request. Significantly, the reason given for failing to conduct these searches is because plaintiff

did not supply Privacy Act waivers. NIGC Brief at 5; McCoy Decl. At ¶¶ 24, 27. Ms. McCoy

goes on to state in her supporting declaration that “without a waiver of the Privacy Act by the

individuals whose records were requested, it would be unlawful for the NIGC to disclose

whether it has such records to produce such records.” Id. Stated simply, NIGC will not even say

if it possess such files requested because, according to Ms. McCoy, such disclosure would be

unlawful because of the Privacy Act. If that is indeed the argument that the government is

making here, it is wholly without merit.

-6-
 Case 1:05-cv-00806-RMC Document 19 Filed 07/28/2006 Page 7 of 9

The Privacy Act, 5 U.S.C.§ 552a(b), provides that no agency shall disclose any record

which is contained in a system of records by any means of communication except pursuant to a

written request by, or with the prior written consent of, the individual to whom the record

pertains. Further, the Privacy Act explicitly permits an agency to disclose information if its

disclosure is required under the FOIA, 5 U.S.C.§ 552. That language represents a Congressional

mandate that the Privacy Act not be used as a barrier to FOIA access. Crumpton v. Stone, 59

F.3d 1400 (D.C. Cir. 1995). Indeed, the question of third party requests is relatively simple: 5

U.S.C § 552a(b)(2) authorizes release of records (from a Privacy Act system of records) which

are “required” to be released under the FOIA. And for release to be required under FOIA,

records must be outside any of the nine exemptions in 5 U.S.C. § 552(b). None of those

exemptions has been cited as a reason to withhold the documents, so release clearly is required.

IV. NIGC HAS FAILED TO DEMONSTRATE THAT ANY OF

ITS WITHHELD DOCUMENTS ARE PROPERLY EXEMPT
FROM DISCLOSURE.

In its previous opposition to defendant’s motion for summary judgment and in its

supplemental opposition, CREW fully addressed its challenge to NIGC’s withheld documents

identified on its Vaughn index. Pacer Docket Record Nos. 6, 11. Our position remains the

same, and we incorporate by reference the discussion at pages 12-25 and 5-6, respectively.

V. LIMITED DISCOVERY WOULD RESOLVE MANY OF THESE

ISSUES.

As the Court is aware, FOIA embodies a general philosophy of full agency disclosure

unless information is exempted under clearly delineated statutory language. The basic objective

of FOIA is disclosure, not secrecy. Department of the Interior and Bureau of Indian Affairs v.

Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001). Consistent with the purposes of the

-7-
 Case 1:05-cv-00806-RMC Document 19 Filed 07/28/2006 Page 8 of 9

FOIA, and on this record currently before the Court, it is wholly appropriate to permit some

limited discovery.

While discovery in FOIA cases is the exception and not the rule, it certainly is not

unprecedented or prohibited, and indeed, it is warranted here See, e.g., Judicial Watch v. U.S.

Department of Commerce, 34 F.Supp. 2d 28, 33 (D.D.C. 1998) (the court ordered discovery on

the issue of the adequacy of the agency’s search for documents and permitted further discovery

when evidence was uncovered that the government illegally destroyed and removed from its

custody responsive documents in an attempt to circumvent FOIA disclosure requirements); Long

v. U.S. Department of Justice, 10 F.Supp. 2d 205, 210 (N.D. N.Y. 1998) (granting discovery in a

FOIA case finding that the government’s affidavits raise questions as to the adequacy of the

search performed by the government).

It would not be productive to identify every single deficiency in the agency’s most recent

submission. CREW already has demonstrated repeatedly that the agency has failed to meet its

burden, despite being given a generous opportunity to make its case. Ms. McCoy obviously has

a wealth of information about where the documents of the agency are located and what records

are regularly maintained; she is, after all, “in charge of the Agency’s records management” Decl.

at ¶ 10. In order to address, expeditiously, these deficiencies in the agency’s production so that

CREW can get all of the documents to which it is entitled, CREW proposes that the Court permit

limited discovery. Respectfully, we request that the Court permit CREW to conduct two

depositions. We request an opportunity to depose Ms. McCoy and one other knowledgeable

witness, pursuant to Fed. R. Civ. Pro. 30(b)(6), from NIGC.

-8-
 Case 1:05-cv-00806-RMC Document 19 Filed 07/28/2006 Page 9 of 9

CONCLUSION

For the foregoing reasons and for the reasons set forth in CREW’s previous oppositions,

NIGC’s motion for summary judgment should be denied, and CREW should be permitted to

depose Ms. McCoy and one Rule 30(b)(6) witness. Plaintiff requests oral argument.

Respectfully Submitted,

/s/
ANNE L. WEISMANN
D.C. Bar No. 298190
SHARON Y. EUBANKS
D.C.. Bar No. 420147
Citizens for Responsibility and
Ethics in Washington
1400 Eye Street, Suite 450
Washington, D.C. 20005
(202) 408-5565

Dated: July 28, 2006

-9-