Agency Declarations
- This article is part of a series on Litigation
Introduction
It has long been the law of the D.C. Circuit that an agency may be entitled to summary judgment in a FOIA case on the basis of a sufficiently detailed declaration so long as it is “not controverted by either contrary evidence in the record nor by evidence of agency bad faith.”[1] So when records produced, or some other fact/piece of evidence, controvert what's in a declaration, it can lessen the credibility of the declaration and preclude summary judgment for the agency on the basis of the declaration.
Requirements
Agency declarations are often official written statements by agency FOIA officers or records management personnel in which the agency staff who conducted the search for responsive records will explain the nature and scope of their search parameters. In Shapiro v. United States Department of Justice, 944 F.3d 940, 943 (D.C. Cir. 2019), the judge reaffirmed that conclusory declarations explaining non-responsiveness determinations will not support summary judgment for the agency. Specifically, the court's holding in this case appears to pave the way for the argument that an agency must offer a non-conclusory explanation for situations in which there is a “hit” for a search term (e.g., a discrete keyword search) and the documents are later deemed to be non-responsive. See id.
Declarations can also speak to the propriety of the agency's withholdings under FOIA's exemptions. For instance, with regard to Exemption 7(E), "no agency can rely on a declaration written in vague terms or in a conclusory manner.”[2] Although the degree of specificity required in a declaration can shift base on the purported harm at issue (e.g., Exemption 5 versus Exemption 7(F), declarations require reasonably specific detail.[3]
See Also
External Links
References
- ↑ Mil. Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); accord, e.g., Citizens for Resp. & Ethics in Wash. v. Dep’t of Justice, 746 F.3d 1082, 1088 (D.C. Cir. 2014) (stating same); Knight First Amend. Inst. v. CIA, 11 F.4th 810, 818 (D.C. Cir. 2021) (stating same).
- ↑ Kolbusz v. FBI, No. 1:17-CV-00319 (EGS/GMH), 2021 WL 1845352, at *23 (D.D.C. Feb. 17, 2021), report & recommendation adopted, No. CV 17-319 (EGS/GMH), 2023 WL 2072481 (D.D.C. Feb. 17, 2023).
- ↑ See, e.g. Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citation omitted) (explaining that an agency’s affidavits in support of its withholdings must “describe 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”).