MUSGRAVE v. DEPARTMENT OF JUSTICE

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
SHAWN MUSGRAVE, )
)
Plaintiff, )
)
v. ) Case No. 21-cv-554 (APM)
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U.S. DEPARTMENT OF JUSTICE, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION
In November 2020, Plaintiff Shawn Musgrave submitted a five-part Freedom of
Information Act (FOIA) request to the Federal Bureau of Investigation (FBI). Part Four of the
request sought: “All emails in the FBI email system(s) or personal email folders on personal
computers, regardless of whether they are stored in the [Central Records System], used by the
Washington Field Office and San Franscico Field Office mentioning @DevinCow.” The FBI
declined to respond to Part Four, concluding that fulfilling the request would require an
unreasonably burdensome search. The sole question before the court is whether the FBI’s refusal
to search was proper. It was.
I.
“An agency need not honor a request that requires an unreasonably burdensome search.”
Am. Fed’n of Gov’t Emps., Local 2782 v. U.S. Dep’t of Com. (AFGE), 907 F.2d 203, 209 (D.C. Cir.
1990) (internal quotation marks and citation omitted). An agency also should read a FOIA request
“as drafted, not as either agency officials or the requester might wish it was drafted.” Nat’l Sec.
Couns. v. CIA, 969 F.3d 406, 410 (D.C. Cir. 2020) (cleaned up). “The upshot is that, when the
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request as drafted would require an agency to undertake an unreasonably burdensome search, the
agency can decline to process the request.” Id. The agency must “provide sufficient explanation”
to justify its refusal to search. Nation Mag., Washington Bureau v. U.S. Customs Serv., 71 F.3d
885, 892 (D.C. Cir. 1995).
A.
To support its decision in this case, the FBI submits two declarations—one publicly
docketed, the other submitted ex parte—from Shannon R. Hammer, the agency’s Acting Section
Chief of the Record/Information Dissemination Section, Information Management Division. Decl.
of Shannon R. Hammer, ECF No. 48-2 [hereinafter Hammer Decl.]; Ex Parte, In Camera Decl. of
Shannon R. Hammer [hereinafter Ex Parte Hammer Decl.]. Hammer explains that the FBI’s
“email communications are stored within the separate email accounts of FBI employees.”
Hammer Decl. ¶ 7. Employees typically have two accounts: one classified and one unclassified.
Id. “Due to this structure,” to identify potentially responsive emails, “the FBI must first identify
likely custodians of responsive records,” id. ¶ 7, and “then develop appropriate search terms to
utilize when searching individual accounts,” id. ¶ 10. The FBI does not contend here that
formulating search terms would be burdensome. It agrees that the single search term
“@DevinCow” would be adequate to identify responsive records. Id. It is the process of
identifying the custodians that presents the undue burden.
According to Hammer, the trouble with Part Four is that it “does not first identify specific
custodians within” the D.C. or San Fransisco field office, id. ¶ 10, and it contains no specified
temporal scope, see id. ¶ 11. “With no clear list of custodians and no specified timeframe, the FBI
would be required to identify who was employed within the two field offices across an unspecified
timeframe during which individuals would have been coming and going, assembling a list of those
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individuals, and then querying both their [classified and unclassified] email accounts using the
supplied terms.” Id. This would require the FBI “to search the email accounts of thousands of
FBI employees, which would tax the FBI’s electronic systems and would require a significant
amount of time and review by FBI analysts.” Id. ¶ 10. Hammer specifies the number of personnel
employed by the two field offices as of November 2020: 2,302.1 Ex Parte Hammer Decl. ¶ 2. So,
to carry out a search for records responsive to Part 4, the agency first would have to identify at
least 2,300 personnel and then search over 4,600 email accounts.
The court agrees that Part Four of Plaintiff’s request requires “an unreasonably burdensome
search.” AFGE, 907 F.2d at 209. The Hammer Declarations are sufficiently detailed and thus
entitled to a presumption of good faith. See Eddington v. U.S. Dep’t of Defense, 35 F.4th 833, 838
(D.C. Cir. 2022). Plaintiff also presents no contrary evidence. Hammer explains the extraordinary
effort and resources it would take to identify the thousands of potential custodians whose email
accounts—both classified and unclassified—would need to be searched. That difficulty is
compounded by Plaintiff’s failure to include any time constraints on the request. The further back
in time the FBI is required to search, the more custodians it would have to identify, see Hammer
Decl. ¶ 12 (“[T]he shifting of personnel alone would considerably increase those numbers and
would require extensive documentation and research.”), and the more searches it would have to
perform. “[T]here are some limits on what an agency must do to satisfy its FOIA obligations.”
Nation Mag., 71 F.3d at 891. Part Four of Plaintiff’s request exceeds those limits.
1 Defendant submitted this total sum of employees in an ex parte, in camera filing. The court has decided to publish
the number, as it does not believe its redaction is required by the Hubbard factors. See United States v. Hubbard,
650 F.2d 293, 317–322 (D.C. Cir. 1980); Metlife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661, 665 (D.C. Cir.
2017) (describing the Hubbard factors).
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B.
Plaintiff defends his request in multiple ways. First, he insists that he “did identify specific
custodians: all the employees in the Washington Field Office and San Fransisco Field Office.”
Pl.’s Mem. of P&A in Opp’n to Def.’s Renewed Mot. for Summ. J. and in Support of Pl.’s Cross-
Mot. for Summ. J., ECF No. 50 [hereinafter Pl.’s Opp’n], at 9. But that response simply begs the
question whether such a demand places an unreasonable burden on the agency. Citing various
cases, Plaintiff argues that his request is reasonable because it is “significantly smaller” than
“offices across the country,” “every field office,” and “every branch office, staff office [etc.].” Id.
(first quoting Dale v. IRS, 238 F. Supp. 2d 99, 105 (D.D.C. 2002); then quoting Marks v. U.S. Dep’t
of Just., 578 F.2d 261, 263 (9th Cir. 1978); finally quoting AFGE, 907 F.2d at 208). But none of
those cases suggest that the requests at issue established a floor below which a search cannot be
said to be unreasonably burdensome. Hammer’s declarations demonstrate with specificity how,
given the structure of the FBI’s email storage systems, a search of every email account of FBI
personnel in two field offices would unreasonably burden the agency. Plaintiff offers no evidence
to disbelieve Hammer. See Brody v. U.S. Dep’t of Just., No. 22-5043, 2023 WL 1511679, at *2
(D.C. Cir. Feb. 3, 2023) (affirming the district court’s unreasonable burden finding where the
plaintiff offered no evidence to “disbelieve the FBI’s declarations”).
Next, Plaintiff contends that the FBI can avoid an unreasonable burden by how it performs
the search. Pl.’s Opp’n at 10–12. Plaintiff acknowledges that Part Four “poses a problem if the
search is being done by the FOIA office,” but contends that an easier way to proceed would be to
“task [] custodians with performing searches of their own records and sending any responsive
records to the FOIA office for review.” Id. at 10. Citing to two declarations submitted in prior
cases, Plaintiff contends that the FBI “for years” has directed individual employees to search their
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own emails and cannot eschew that less burdensome approach to avoid a search in this case. Id.
at 10–12. But the prior declarations that Plaintiff cites do not establish an FBI practice to have
individual employees search for potentially responsive emails. They say just the opposite. Both
state that the FBI lacks the technical capability to perform searches without identified custodians
and that “it is simply not reasonable (or even feasible)” to ask thousands of employees to conduct
email searches for potentially responsive material. Id. (citation omitted). The FBI says the same
thing here, and the court credits the representation.
Finally, Plaintiff contends that the absence of a time restriction in Part Four does not create
an unreasonable burden. Id. at 12–13. He argues that the problem is one of the FBI’s own making.
If the agency had only conducted the search in 2021 soon after it received the FOIA request, it
would not have had to identify—as it must do now—those custodians who were present then but
may no longer be in either field office. This argument is hard to follow. The burden created by
the lack of any time restriction does not have to do with when the search is conducted, but rather
the uncertainty it instills as to the relevant time period for the search. Nowhere does Plaintiff
specify in Part 4 how far back the FBI must search for potentially responsive records. The further
back in time the FBI goes, the more custodians it would need to identify, and the greater the burden.
See Hammer Decl. ¶ 12 (stating that the problem of identifying custodians would “compound
exponentially” if the “timeframe is extended”).
Plaintiff’s answer to this is to say that it would have been adequate for the FBI to have
conducted a search of “all active email accounts” as of 2021, which would have captured “almost
all of the employees who were employed in 2020.” Pl.’s Opp’n at 13. Alternatively, Plaintiff
proposes that the FBI “search the email accounts of the employees who are employed on the day
of the search.” Id. But the FBI is required to read the request “as drafted.” Nat’l Sec. Couns., 969
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F.3d at 410. And Part Four contains no indication that Plaintiff intended for the agency to limit its
search only to email accounts “active” in 2021 or the email accounts of personnel “employed on
the day of the search.” Plaintiff cannot lessen the burden created by his unbounded request by
narrowing it now.
III.
For the foregoing reasons, the court agrees with the FBI that it was not required to honor
Part Four of Plaintiff’s FOIA request because it requires an unreasonably burdensome search.
Accordingly, the court grants Defendant’s Renewed Motion for Summary Judgment, ECF No. 48,
and denies Plaintiff’s Cross-Motion for Summary Judgment, ECF No. 51.
A separate, final appealable order accompanies this Memorandum Opinion.
Dated: December 3, 2025 Amit P. Mehta
United States District Judge
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