DOJ declares “no documents” – parties move to dismiss

October 22, 2012

Posted by Matt Ehling

In May of this year, PRM sued the U.S. Department of Justice over DOJ’s withholding of documents related to UAV drones and domestic use of force issues. Read our previous posts on the case here and here .

On September 21, 2012, the U.S. Department of Justice filed a motion for summary judgment, seeking to end the litigation through a judge’s ruling on the merits of the case. Summary judgment is the typical mechanism for the resolution of FOIA cases. PRM was scheduled to make its own motion for summary judgment in November of this year.

Along with its summary judgment memo, the agency filed a declaration to support an earlier claim (made during litigation, but not before) that no documents existed that were responsive to the category of records sought by PRM.

Case background
In November of 2011, the Office of Legal Counsel (a component of DOJ) responded to our October 2011 FOIA request that sought three categories of documents, including legal opinions related to the use of lethal force by UAV drones against persons located within the United States (“Item 3” of our three categories).

OLC’s November letter provided a “Glomar” response to Item 1 of our request, stating that it could “neither confirm nor deny” the existence of responsive documents. OLC further stated that it held documents that were “responsive to the remaining items” in our request, but denied production under three separate FOIA exemptions.

We filed an administrative appeal seeking only documents responsive to Item 3 of our request, and later sued when DOJ did not respond to our appeal within the statutory time frame.

Once litigation commenced, DOJ informed PRM verbally – and then in writting – that OLC did not, in fact, have documents responsive to Item 3, and that its November letter referred only to Item 2 documents “construed broadly.”

Declaration of John E. Bies
In order to obtain additional information about OLC’s search for records (and its corollary claim that no Item 3 records existed), we continued our litigation with the expectation that DOJ would need to file declarations on these points.

On September 21st, DOJ filed its summary judgment motion, and attached a lengthy declaration from John E. Bies, Deputy Assistant Attorney General in the OLC. The Bies Declaration provided additional detail on the procedures that OLC used in its document search. The Bies Declaration stated that OLC conducted two separate searches for records – the first in October of 2011, and another in April of 2012, in response to additional FOIA requests on the same topic. According to the declaration, neither search turned up documents responsive to Item 3 of PRM’s FOIA request.

In addition to the Bies Declaration, DOJ also submitted an exhibit that detailed the terms that OLC used to search for responsive documents, including the terms “drone, UAV, extrajudicial killing, lethal force” and others.

An exhibit in a separate UAV FOIA lawsuit has revealed that the same terms were used to search for other UAV-related legal opinions. According to DOJ filings in the New York Times/ACLU case, these terms produced documents responsive to the FOIA requests of those organizations. A Vaughn Index entered as an exhibit in the NYT/ACLU case describes the existence of several OLC e-mail chains that refer to deliberations about the “use of lethal force in a foreign country against U.S. citizens in certain circumstances.” PRM has been seeking to establish whether a related, but more specific set of documents might exist within OLC – a set with a domestic nexus, tied to the potential use of UAVs.

PRM, DOJ move for dismissal
PRM was scheduled to reply to DOJ’s summary judgment motion on October 19, 2012. After reviewing the Bies Declaration and evaluating other factors (which we will detail in a future post) we made a decision to seek a dismissal of our case, and to litigate over fees. DOJ has stipulated to this, and we are awaiting word from the court on next steps. Watch this space for more information.