CREW v. NIGC: Regarding Indian Gaming Scandals: 7/17/06 - Motion for Summary Judgement

8/7/2019 CREW v. NIGC: Regarding Indian Gaming Scandals: 7/17/06 - Motion for Summary Judgement

1/26

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

) No. 1:05cv00806 RMC

CITIZENS FOR RESPONSIBILITY AND )

ETHICS IN WASHINGTON, ))

Plaintiff, )

)

v. )

)

NATIONAL INDIAN GAMING COMMISSION, )

)

Defendant. )

)

THE NATIONAL INDIAN GAMING COMMISSIONSRENEWED MOTION FOR SUMMARY JUDGMENT

Defendant hereby renews its motion for summary judgment pursuant to Fed. R. Civ. P.

56. The grounds for this motion for summary judgment are set forth in the memorandum

submitted herewith.

Dated: July 17, 2005 Respectfully submitted,

PETER D. KEISLERAssistant Attorney General

KENNETH L. WAINSTEIN

United States Attorney

/s/

ELIZABETH J. SHAPIRO (Bar No. 418925)

JEFFREY M. SMITH (Bar No. 467936)

ALEXANDER K. HAAS (CA Bar 220932)

Of Counsel: Federal Programs Branch

Andrea Lord United States Department of Justice

Staff Attorney 20 Massachusetts Ave., N.W.

National Indian Gaming Commission Washington, D.C. 20001

Tel: (202) 514-5751/ (202)307-3937

Fax: (202) 616-8470

Counsel for Defendant

Case 1:05-cv-00806-RMC Document 18 Filed 07/17/2006 Pag


2/26



) No. 1:05cv00806 RMC



Plaintiff, )

)

v. )

)


)

Defendant. )

)

MEMORANDUM IN SUPPORT OF THE NATIONAL INDIAN GAMINGCOMMISSIONS RENEWED MOTION FOR SUMMARY JUDGMENT

As this Court is aware, Plaintiff Citizens for Responsibility and Ethics in Washington

(CREW) filed a request for information pursuant to the Freedom of Information Act (FOIA),

5 U.S.C. 552. The National Indian Gaming Commission (NIGC) has fully complied with

this request, and previously filed a motion for summary judgment. See Docket Entry 5. Rather

than repeating the facts set forth there and in Defendants reply, Defendant incorporates here by

reference the facts and legal arguments in this earlier round of briefing.

On May 17, 2006, the Court denied this motion without prejudice, finding that the

government might have fully performed its duties to search and disclose requested non-exempt

documents but [has not provided] the Court sufficient information to make that determination.

See Memorandum Opinion(Mem. Op.), at 1 (May 17, 2006). In compliance with the Courts

Opinion and Order, NIGC hereby provides the Court with additional information regarding its

search and renews its motion for summary judgment both with respect to the adequacy of the

search and the claimed exemptions. See Docket Entries 5 and 9.



3/26

2

I. NIGC Conducted an Adequate Search

A FOIA search is adequate if it is reasonably calculated to discover the requested

documents. Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991); Wilson v.

DEA, 414 F. Supp. 2d 5, 9-12 (D.D.C. 2006). To be adequate, a search need not uncover all

relevant documents, so long as the agency can show that it searched all locations likely to contain

documents responsive to the FOIA request. Oglesby v. U.S. Dept of the Army, 920 F.2d 57, 68

(D.C. Cir. 1990); Wilson, 414 F. Supp. 2d at 11 (The adequacy of an agencys search is not

determined by the results of the search or by the quantity of information ultimately released.

Rather, the adequacy of a FOIA search is generally determined . . . by the appropriateness of the

methods used to carry out the search.) (quoting Iturralde v. Comptroller of the Currency, 315

F.3d 311, 315 (D.C. Cir. 2003)).

In its Opinion, the Court held that [t]here is no question of [NIGCs] good faith or that it

performed a wide-ranging search into all NIGC offices. Mem. Op., at 5. The Court declined to

grant summary judgment however, because it found that NIGC had not provided sufficient

information as to what methods were used by the NIGC employees to identify and search for

records likely to contain relevant material. Id. (citing Oglesby, 920 F.2d 57). The Third

Declaration of Regina Ann McCoy provides this information by explaining: (i) the file systems

maintained by NIGC divisions; and (ii) the file systems searched by NIGC, the rationale for

searching those file systems, and the type of search performed by NIGC in each division. See

Third Declaration of Regina Ann McCoy (3d McCoy Decl.), attached as Exhibit A. In short,

NIGC searched all paper and electronic files that were reasonably likely to contain documents

relating to the individuals and entities listed in the Sloan FOIA request, including tribal files,



4/26

3

investigatory files, enforcement, files, and correspondence files (see id. 26) and electronic

(including e-mail) files (see id. 21-24, 26) in numerous offices in Washington, D.C. and

around the country.

The Third Declaration sets forth the nature of the discrete file systems maintained by each

NIGC subdivision. Thus, the Court now has before it detailed explanations of the file systems

of, and kinds of documents retained by, the Office of the Chairman and Commissioners, the

Office of Congressional and Public Affairs, the Office of General Counsel (OGC), the Division

of Contracts, the Division of Audits, the Division of Enforcement, the NIGC regional and

satellite offices, within the Division of Enforcement, the Tribal Background Investigation

Section, within the Division of Enforcement, and the Office of Administration.See id. 11-19.

In light of the file systems maintained by each division, the kinds of documents retained,

and the nature of the FOIA request, NIGC sent the FOIA request on to Office of the Chairman

and Commissioners, Office of Congressional and Public Affairs, Office of General Counsel,

Division of Contracts, and the Division of Enforcement because those were ones that had a

reasonable possibility of containing responsive documents. Id. 20.

At the Office of the Chairman and Commissioner, several of the records categories were

not searched as they were not responsive to the search. Thus, NIGC bulletins; biographical files

regarding the NIGC Chairman, Commissioners, and General Counsel; copies of speeches given

by NIGC executives; and internal Commission meeting files, invitations to speak at or attend

conferences or events were not searched because they contain data pertaining only to

information about and generated by the Commission and do not include contacts or records

with tribes or individuals as sought by the Sloan request. Id. 21. However, outgoing



5/26

4

correspondence and subject files were searched at this office because these might have the names

of individuals and tribes or entities subject to the request. Id.

At the Office of Congressional and Public Affairs, electronic keyword searches by name

of the individuals, entities, and tribes listed in the Sloan request were conducted. Id. 22.

Other manual searches were conducted of draft legislation working files, outgoing

correspondence, press releases and a media contact list. Id. The Office of Congressional and

Public Affairs did not search files maintaining only internally generated documents that would

not contain information on contacts related to the tribes or entities and the named individuals.

Thus neither congressional hearing testimony nor reports to Congress by the Commission were

searched. Id. Similarly, [s]ubject files on pending litigation and issues were not searched as the

person conducting the search, the Director of Congressional and Public Affairs, was personally

aware that he had not had contact with the individuals, entities, and tribes named in the Sloan

search request relating to these files. Id.

The Office of General Counsel conducted electronic keyword searches by name of the

individuals, entities, and tribes listed in the Sloan request were conducted. Id. 23. The OGC

also searched subject matter files, outgoing correspondence files, pending legislation files, and

contract review files because these sorts of files would most likely produce records related to

or contacts between the Commission and people, tribes, or other entities that were named in the

Sloan search request. Id. However, OGC did not search files related to enforcement actions or

Indian land files because no documents in either category were kept against the tribes subject to

the Sloan request. The OGCs litigation files were not searched because the attorneys

performing the search request had personal knowledge that their files contained no information



6/26

The Phoenix office did not search because that none of the Indian tribes cited in the1

search request were in that region, and that the region had never heard of the other entities and

individuals involved. That regional office therefore decided it was not reasonably likely that it

would have electronic records responsive to the search terms. Id.

5

pertaining to the named individuals, entities, and tribes. Id.

The Contract Division conducted electronic keyword searches by name of the

individuals, entities, and tribes listed in the Sloan request were conducted. Id. 24. A search of

the outgoing correspondence file was also searched. Id. The electronic search revealed that no

management contracts were ever submitted to the agency by the named tribes. Id. In light of

the absence of such contracts, there would also be no National Environmental Policy Act files to

search. See id. The Contract Division also did not search individual background files because

NIGC could not produce those records without a Privacy Act waiver, which Plaintiff did not

supply. Id.

The Division of Enforcement conducted electronic keyword searches by name of the

individuals, entities, and tribes listed in the Sloan request were conducted, with the exception of

the Phoenix office for the Southwest region. Id. 26. In addition, both regional and satellite1

offices of NIGC searched tribal files, investigatory files, enforcement files, and outgoing

correspondence. Id. However, memoranda of agreements with tribal governments for the

processing of fingerprint background checks were not searched because they were not likely to

uncover responsive documents. Id. Moreover, because Plaintiff did not supply Privacy Act

waivers, the Tribal Background Investigation Section within the Division of Enforcement was

not asked to conduct a search for the Sloan FOIA. Id. 27.

NIGCs Division of Audits was not tasked with performing a search in response to the



7/26

NIGCs logbook of visitors was not searched during NIGCs initial search. Id. 29.2

The logbook covering the relevant time period had been lost before the Sloan request was

received and therefore could not have been searched. Id. After this book was recently found,

NIGC searched it and found one additional page. Id. This additional search is further indication

of NIGCs good faith. SeeMeeropol v. Meese, 790 F.2d 942, 953 (D.C. Cir. 1986) (performance

6

Sloan request. Id. 25. Given NIGCs uncontested interpretation of the FOIA request as

pertaining to tribal records associated with the named individuals or entities, no search was

performed at the Division of Audits because audit reports, internal controls variance reports, and

related correspondence maintained by the Division of Audits would not be likely to produce

responsive documents. Id. Based upon a similar uncontested understanding of the records

sought, the Division of Administration did not initially conduct a search. Id. 28. Some file

systems, such as those relating to procedural guidelines and directives, fee payments and

quarterly reports, billing records, deposits, and FOIA records were not searched because they

had nothing to do with contacts between the Commission and the tribes, entities, and individuals

mentioned and were therefore no likely to contain responsive documents. Id. The

correspondence log, which tracks all incoming mail, packages, and faxes does not itself

contain any documents because it is merely a log of documents and was not searched. Id. The

rationale for not searching this log was that the actual logged documents would be located by

the divisions and offices during their searches. Id. Nevertheless, in an abundance of caution,

NIGC also conducted a search on June 13, 2006, of the incoming correspondence database to

ensure that all correspondence responsive to the Sloan request had been produced. Id. To

verif[y] that the actual search of the documents themselves . . . revealed all responsive

documents, NIGCs search examined this database and did not reveal the existence of any

further responsive records. Id.2



8/26

of additional searches and subsequent releases of information indicates good faith and

suggest[s] a stronger . . . basis for accepting the integrity of the search).

7

Finally, the fact that the search did not uncover the volume of documents that plaintiff

expected casts no doubt on the adequacy of NIGCs search. See Meeropol v. Meese, 790 F.2d

942, 953 (D.C. Cir. 1986) (holding a court cannot dismiss an agencys motion for summary

judgment where plaintiff alleges the existence of [responsive records] simply by virtue of their

supposed subject matter); see also Iturralde, 315 F.3d at 315 (finding that the plaintiff failed to

offer evidence of circumstances sufficient to overcome an adequate agency affidavit where the

plaintiff did not demonstrate that the agency failed to search particular offices or files that may

have contained responsive records); Oglesby, 920 F.2d at 68 (finding plaintiffs own conviction

that the [subject] was of such importance that records must have been created is pure

speculation).

In sum, NIGC has provided the Court with an exhaustive list of the file systems searched,

the rationale for the selection of offices and systems to include in the searches, and the manner in

which these searches were performed. NIGC has also confirmed both that both the physical

records of NIGC were searched and that electronic keyword searches using the names of the

individuals, entities, and tribes listed in paragraphs 2 and 3 of the Sloan request were conducted

in the file systems and divisions noted in the Third McCoy Declaration. NIGCs search was

thorough and systematic, and it is therefore entitled to summary judgment on the adequacy of this

search.

II. The Withheld Documents Are Exempt from Disclosure

In its memoranda and affidavits supporting its initial motion for summary judgment,



9/26

8

NIGC demonstrated that the documents that were withheld from production to plaintiff were

properly found to be exempt under FOIA. See NIGC Opening Br., Docket Entry 5, at 7-19;

Reply Br., Docket Entry 9, at 7-20. The Courts Opinion suggests no way in which the affidavits

were deficient in this respect. NIGC thus respectfully renews its motion for summary judgment

with regard to the withheld documents on the basis of the fully briefed arguments from its initial

motion and incorporates by reference those arguments here.

CONCLUSION

For the foregoing reasons, the United States renewed motion for summary judgment

should be granted.

Dated: July 17, 2006 Respectfully submitted,

PETER D. KEISLER

Assistant Attorney General

KENNETH L. WAINSTEIN

United States Attorney

/s/ELIZABETH J. SHAPIRO (Bar No. 418925)

Assistant Branch Director

JEFFREY M. SMITH (Bar No. 467936)

ALEXANDER K. HAAS (CA Bar 220932)

Trial Attorneys, Federal Programs Branch

Of Counsel: United States Department of Justice

Andrea Lord 20 Massachusetts Ave., N.W.

Staff Attorney Washington, D.C. 20001

National Indian Gaming Commission Tel: (202) 514-5751/ (202)307-3937

Fax: (202) 616-8470

Counsel for Defendant



10/26



) No. 1:05cv00806 RMC



Plaintiff, )

)

v. )

)


)

Defendant. )

)

[proposed] Order

Upon reviewing Defendant National Indian Gaming Commissions renewed motion for

summary judgment, the materials submitted in support thereof and in opposition thereto, it is

hereby ordered as follows this day of

1. Defendants aforesaid motion is hereby granted.

2. Judgment is granted in favor of Defendant National Indian Gaming Commission.

UNITED STATES DISTRICT JUDGE

Case 1:05-cv-00806-RMC Document 18 Filed 07/17/2006 Page


11/26

Case 1:05-cv-00806-RMC Document 18-2 Filed 07/17/2006 Pag


12/26

Case 1:05-cv-00806-RMC Document 18-2 Filed 07/17/2006 Pa


13/26



14/26



15/26



16/26



17/26



18/26



19/26



20/26



21/26



22/26



23/26



24/26

Case 1:05-cv-00806-RMC Document 18-2 Filed 07/17/2006 Page


25/26

Exhibit 1



26/26
