By Linnaea Honl-Stuenkel
December 21, 2018

A federal court issued a decision this week concluding that the General Services Administration’s (GSA) search for documents about the cancellation of the FBI headquarters move from the J. Edgar Hoover (JEH) building was deficient on multiple grounds. At every opportunity, GSA apparently attempted to avoid transparency about why exactly the project was so abruptly halted. As CREW previously noted, the GSA and FBI’s curious decision to reverse course on the proposed move despite years of planning and bipartisan support raises questions about whether the change was influenced by the fact that moving the headquarters could result in competition for President Trump’s nearby hotel. The day after the cancellation, on July 12, 2017, CREW filed a Freedom of Information Act (FOIA) request with the GSA to understand the reasoning behind the cancelled procurement contract, and what role the president might have played in that decision, and later sued for documents when the GSA failed to adequately respond.

An Inspector General report on the project’s cancellation published in August 2018 revealed that over 50,000 documents and emails exist on the relocation, yet only 29 pages of documents were released in response to CREW’s FOIA request. CREW filed suit, challenging the limited returns and requesting a new search. On December 17, 2018, the Court issued an opinion largely agreeing with CREW that the GSA needed to fill in significant gaps, and search again.

Agencies have a duty to interpret FOIA requests liberally, rather than “fish myopically” to avoiding turning over inconvenient documents. GSA fell short of fulfilling its obligation on several fronts in response to CREW’s request. The agency’s search was inadequate in scope, failing to use reasonable search terms. GSA searched for documents that included the terms “FBI” and “FBI Headquarters,” but not obvious synonyms used by employees, like “JEH” and “the Hoover building.” CREW also requested any communications between GSA and the White House, the FBI, or the Office of Management and Budget (OMB), which GSA simply did not search for.

CREW explicitly requested that GSA search beyond electronic records, but GSA failed to do that either. To explain why, GSA referenced its record retention policy, which it characterized as  saying that all records would be accounted for through an electronic search. As the Court noted, “the trouble for GSA is that CREW happened to read the ‘record retention policy’.” In direct contradiction of the GSA’s claim, the policy addresses management of paper documents, and says that employees create documents on a variety of media that may not leave GSA.

GSA also provided insufficient explanations for withholding information. They relied on the exemption for documents that are created before making a decision, called “deliberative-process privilege.” However, the descriptions of the documents that were withheld do not even say who drafted them, or what they were for — simply that they part agency’s deliberative process. As the Court noted, the deficiency of this explanation is “plain on its face.”

The Court ordered a new search that includes non-electronic records, more keywords, and communications with OMB and the FBI. It also ordered more comprehensive justifications for withholdings, that do not simply rely on the term for exemption itself.

GSA performed a myopic search that turned over only a handful of records out of tens of thousands that exist regarding the FBI headquarters relocation project. Why don’t they want these records to see the light of day?

Read the memorandum opinion and order here.