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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
CITIZENS FOR RESPONSIBILITY AND :
ETHICS IN WASHINGTON :11 Dupont Circle, N.W. :
Washington, D.C. 20036 :
:
Plaintiff, :
:
v. : No. 1:05cv00806 (RMC)
:
NATIONAL INDIAN GAMING COMMISSION :
1441 L Street, N.W. :
Washington, D.C. 20005 :
:Defendant. :
_________________________________________ :
PLAINTIFFS SUPPLEMENTAL OPPOSITION TO DEFENDANTS
MOTION FOR SUMMARY JUDGMENT
Plaintiff Citizens for Responsibility and Ethics in Washington (CREW), in opposing
the defendant National Indian Gaming Commissions (NIGC) motion for summary judgment,
identified a multitude of areas in which the NIGC failed to provide information necessary to
determine whether the agency conducted a proper search for responsive documents and whether
its claimed exemptions were well-founded. In response, the NIGC challenges the legal and
factual arguments that CREW raised but, with one narrow exception, fails to fill in any of the
blanks in its patently insufficient declarations. In addition, the NIGC now identifies two
additional documents that it discovered as a result of a limited additional search it performed in
three selective offices. CREW hereby responds to this new evidence.
1. The NIGC Has Still Not Demonstrated That It Performed An
Adequate Search Designed To Uncover All Responsive Documents.
In its reply, the NIGC relies on rhetoric and legal citations, untethered to the record
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1 Defendants Reply in Support of Summary Judgment (Ds Reply), pp. 2-3 (emphasis
added).
2 Landmark Legal Foundation v. EPA, 272 F.Supp.2d 59, 66 (D.D.C. 2003) (citation
omitted.
2
before the Court, to substitute for specific facts that would establish the adequacy of the NIGCs
search. But merely reciting the mantra that its declarations are relatively detailed and non-
conclusory,1 will not suffice; the agency must come forward with specific facts that identify the
specific files that were searched, the specific search terms that were used, and the rationale
behind any selective search that the agency conducted. See Plaintiffs Opposition to Defendants
Motion for Summary Judgment (Ps Opp.), pp. 8-10. This the NIGC has yet to do.
To be sure, the NIGC has filled in at least one tiny detail, namely that in its original
search it directed offices to use the names provided in the Sloan letter. Supplemental
Declaration of Regina Ann McCoy (Supp. McCoy Decl.), 6. This bare minimum, however, still
does not afford the Court a sufficient record from which to conclude that the agency conducted a
search reasonably calculated to uncover all responsive documents, the burden it carries under the
Freedom of Information Act (FOIA). See Oglesby v. Dept of the Army, 920 F.2d 57, 68, 287
U.S.App.D.C. 126, 137 (D.C. Cir. 1990). And the NIGC has yet to explain what specific files
were actually searched initially. Instead, it asks the Court to rely solely on the fact that the
agency directed its employees to search all files they consider likely to contain relevant
material. Id. This is clearly an inadequate substitute for the detailed, nonconclusory
declarations that the agency must submit and that must identify what files were searched, what
search terms were used, id., and by whom they were searched.2
That the NIGC has yet to conduct an adequate search is also evidenced by the two
Case 1:05-cv-00806-RMC Document 10 Filed 11/09/2005 PageCase 1:05-cv-00806-RMC Document 11 Filed 11/10/2005 Page
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3 Ds Reply at 5.
3
additional documents it uncovered as a result of an additional search it performed recently. After
a targeted search of the electronic files of three offices those of the Acting General Counsel,
the Director of Congressional and Public Affairs, and the Commissioners the NIGC uncovered
two inter-agency emails. The first is described as a newspaper clipping regarding Abramoff
and a Coushatta tribe, from which internal discussions regarding the newspaper clipping were
redacted. Supp. McCoy Decl., 11. The second one-page document is described only as an
inter-agency email regarding investigations by agencies involved in the federal Indian Gaming
Working Group task force. Id. at 12.
First, the NIGC has failed to explain why it limited its additional search to the files of
only three groups of individuals and why it did not include, for example, other individuals within
those offices or the offices of the Enforcement Division and the field offices. Nor has the NIGC
explained why it limited its additional search to only electronic files. And ,just as significantly,
the NIGC has not explained for what those three offices specifically were asked to search. Thus,
the NIGCs supplemental search has raised more questions than it has answered. But it certainly
has not confirmed that all leads have been pursued, as the NIGC claims.3 Indeed, if this very
narrow and limited supplemental search produced additional responsive documents, it is likely
that a more expanded search would yield yet more documents.
The NIGC also claims that the paucity of documents it has uncovered to date [s]hould
be expected given the NIGCs purportedly limited role in Indian gaming. Ds Reply, p. 6.
According to the NIGC, it takes enforcement action only where tribes do not use their gaming
revenues in conformity with the statutorily prescribed purposes in the Indian Gaming Regulatory
Case 1:05-cv-00806-RMC Document 10 Filed 11/09/2005 PageCase 1:05-cv-00806-RMC Document 11 Filed 11/10/2005 Page
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4
Act (IGRA). Those purposes include tribal gaming revenues used as donations to charitable
organizations. Id.
The problem with this argument, however, is that the underlying focus of the multiple
investigations currently underway and the hearings conducted by the Senate is precisely within
IGRAs scope, namely the substantial contributions that tribes made to Jack Abramoff and
Michael Scanlon from gaming revenues, including donations to several 501(c)(3) organizations.
In fact, the newly discovered email attached as Exhibit A to Ms. McCoys Supplemental
Declaration discusses the millions of dollars spent on the lobbying practices of Abramoff and
Scanlon by tribes such as the Coushatta Tribe of Louisiana, dollars spent without informing
tribe members. Supp. McCoy Decl., Exhibit A. The Indian gaming scandal has been described
as a national disgrace precisely because it appears that greedy lobbyists bilked millions and
millions of casino-generated dollars out of Indian tribes, a matter squarely within the NIGCs
jurisdiction. Accordingly, one of two conclusions can be drawn, neither of which casts the
NIGC in a favorable light. Either the NIGC has failed utterly to carry out its statutory mandate
under IGRA, explaining why it has so few documents responsive to CREWsFOIA request, or
the NIGC has failed to comply with its statutory mandate under the FOIA.
The inadequacy of the NIGCs two searched is reinforced by documents the Committee
on Senate Indian Affairs recently released as part of continuing oversight hearings it has been
conducted on lobbying practices involving Indian tribes. An email from Jack Abramoff
documents that he and Scanlon certainly had the NIGC in their sights, specifically on the issue of
the Alabama Coushattas and the Tiguas, two clients who hired Abramoff to help them reopen
gaming casinos. See Email from Jack Abramoff to Michael Scanlon, November 12, 2001
Case 1:05-cv-00806-RMC Document 10 Filed 11/09/2005 PageCase 1:05-cv-00806-RMC Document 11 Filed 11/10/2005 Page
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4 This email is available from the Senate Committee at http://indian.senate.gov/at page
138.
5
(attached as Exhibit 1).4 Yet to date the NIGC has located only one document, found as part of
a supplemental search, that deals at all with the Coushattas, casting further doubt on the
adequacy of its searches.
2. The NIGC Has Not Demonstrated That The Two Newly
Discovered Documents Are Exempt From Disclosure.
The NIGCs attempt to justify why the two newly discovered documents are exempt,
either in whole or part, from disclosure under the FOIA suffers from the same defects as the
agencys attempt to justify its earlier withholdings. For example, the NIGC redacted from the
first document an email containing a newspaper clipping internal discussions regarding the
newspaper clipping which it claims constitute deliberate process of the NIGC and are
therefore within Exemption 5. But, as with its earlier Exemption 5 claims, the NIGC has failed
to establish what deliberative process is involved, and the role played by the documents in issue
in the course of that process. Coastal States Gas Corp. v. Dept of Energy, 617 F.2d 854, 868,
199 U.S.App.D.C. 272, 286 (D.C. Cir. 1980). Exemption 5 is not available as a blanket of
secrecy over all internal agency discussions. Instead, its purpose is to protect injury to the
quality of agency decisions. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975). Thus,
a necessary predicate to the invocation of Exemption 5 is that there be an actual agency decision-
making process underway, not merely internal ruminations. This the NIGC has failed to
establish.
The NIGCs efforts to place the second newly discovered document beyond the reach of
the FOIA are equally unavailing. The self-described inter-agency email regarding
Case 1:05-cv-00806-RMC Document 10 Filed 11/09/2005 PageCase 1:05-cv-00806-RMC Document 11 Filed 11/10/2005 Page
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6
investigations is being withheld in full pursuant to Exemption 7(A) due to the pending law
enforcement investigations. Supp. McCoy Decl., 12. As CREW has already explained,
however, in the absence of a clear record as to precisely which investigation or investigations the
documents relate, and which specific federal law or laws are the predicate for the investigation,
the NIGC has not met its burden of proving the records were compiled for law enforcement
purposes. See Ps Opp., pp. 13-15. Nor has the NIGC identified what particular kind of record
the second document is, beyond an email regarding investigation. Supp. McCoy Decl., 12.
This is simply insufficient to carry the NIGCs burden of demonstrating interference with law
enforcement proceedings. See Ps Opp., pp. 16-20.
CONCLUSION
For the foregoing reasons, and those set forth in Plaintiffs Opposition to Defendants
Motion for Summary Judgment, Defendants motion should be denied.
Respectfully submitted,
___/s/_______________________
Anne L. Weismann
(D.C. Bar No. 298190)
Melanie Sloan
(D.C. Bar No. 434584)
Citizens for Responsibility and
Ethics in Washington
11 Dupont Circle, N.W.
Washington, D.C. 20036
Phone: (202) 588-5565
Fax: (202) 588-5020
Attorneys for Plaintiff
Dated: November 9, 2005
Case 1:05-cv-00806-RMC Document 10 Filed 11/09/2005 PageCase 1:05-cv-00806-RMC Document 11 Filed 11/10/2005 Page
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
CITIZENS FOR RESPONSIBILITY AND :
ETHICS IN WASHINGTON :11 Dupont Circle, N.W. :
Washington, D.C. 20036 :
:
Plaintiff, :
:
v. : No. 1:05cv00806 (RMC)
:
NATIONAL INDIAN GAMING COMMISSION :
1441 L Street, N.W. :
Washington, D.C. 20005 :
:Defendant. :
_________________________________________ :
PLAINTIFFS SUPPLEMENTAL OPPOSITION TO DEFENDANTS
MOTION FOR SUMMARY JUDGMENT
Plaintiff Citizens for Responsibility and Ethics in Washington (CREW), in opposing
the defendant National Indian Gaming Commissions (NIGC) motion for summary judgment,
identified a multitude of areas in which the NIGC failed to provide information necessary to
determine whether the agency conducted a proper search for responsive documents and whether
its claimed exemptions were well-founded. In response, the NIGC challenges the legal and
factual arguments that CREW raised but, with one narrow exception, fails to fill in any of the
blanks in its patently insufficient declarations. In addition, the NIGC now identifies two
additional documents that it discovered as a result of a limited additional search it performed in
three selective offices. CREW hereby responds to this new evidence.
1. The NIGC Has Still Not Demonstrated That It Performed An
Adequate Search Designed To Uncover All Responsive Documents.
In its reply, the NIGC relies on rhetoric and legal citations, untethered to the record
8/7/2019 CREW v. NIGC: Regarding Indian Gaming Scandals: 11/9/05 - Motion for Leave to File
8/15
1 Defendants Reply in Support of Summary Judgment (Ds Reply), pp. 2-3 (emphasis
added).
2 Landmark Legal Foundation v. EPA, 272 F.Supp.2d 59, 66 (D.D.C. 2003) (citation
omitted.
2
before the Court, to substitute for specific facts that would establish the adequacy of the NIGCs
search. But merely reciting the mantra that its declarations are relatively detailed and non-
conclusory,1 will not suffice; the agency must come forward with specific facts that identify the
specific files that were searched, the specific search terms that were used, and the rationale
behind any selective search that the agency conducted. See Plaintiffs Opposition to Defendants
Motion for Summary Judgment (Ps Opp.), pp. 8-10. This the NIGC has yet to do.
To be sure, the NIGC has filled in at least one tiny detail, namely that in its original
search it directed offices to use the names provided in the Sloan letter. Supplemental
Declaration of Regina Ann McCoy (Supp. McCoy Decl.), 6. This bare minimum, however, still
does not afford the Court a sufficient record from which to conclude that the agency conducted a
search reasonably calculated to uncover all responsive documents, the burden it carries under the
Freedom of Information Act (FOIA). See Oglesby v. Dept of the Army, 920 F.2d 57, 68, 287
U.S.App.D.C. 126, 137 (D.C. Cir. 1990). And the NIGC has yet to explain what specific files
were actually searched initially. Instead, it asks the Court to rely solely on the fact that the
agency directed its employees to search all files they consider likely to contain relevant
material. Id. This is clearly an inadequate substitute for the detailed, nonconclusory
declarations that the agency must submit and that must identify what files were searched, what
search terms were used, id., and by whom they were searched.2
That the NIGC has yet to conduct an adequate search is also evidenced by the two
8/7/2019 CREW v. NIGC: Regarding Indian Gaming Scandals: 11/9/05 - Motion for Leave to File
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3 Ds Reply at 5.
3
additional documents it uncovered as a result of an additional search it performed recently. After
a targeted search of the electronic files of three offices those of the Acting General Counsel,
the Director of Congressional and Public Affairs, and the Commissioners the NIGC uncovered
two inter-agency emails. The first is described as a newspaper clipping regarding Abramoff
and a Coushatta tribe, from which internal discussions regarding the newspaper clipping were
redacted. Supp. McCoy Decl., 11. The second one-page document is described only as an
inter-agency email regarding investigations by agencies involved in the federal Indian Gaming
Working Group task force. Id. at 12.
First, the NIGC has failed to explain why it limited its additional search to the files of
only three groups of individuals and why it did not include, for example, other individuals within
those offices or the offices of the Enforcement Division and the field offices. Nor has the NIGC
explained why it limited its additional search to only electronic files. And ,just as significantly,
the NIGC has not explained for what those three offices specifically were asked to search. Thus,
the NIGCs supplemental search has raised more questions than it has answered. But it certainly
has not confirmed that all leads have been pursued, as the NIGC claims.3 Indeed, if this very
narrow and limited supplemental search produced additional responsive documents, it is likely
that a more expanded search would yield yet more documents.
The NIGC also claims that the paucity of documents it has uncovered to date [s]hould
be expected given the NIGCs purportedly limited role in Indian gaming. Ds Reply, p. 6.
According to the NIGC, it takes enforcement action only where tribes do not use their gaming
revenues in conformity with the statutorily prescribed purposes in the Indian Gaming Regulatory
8/7/2019 CREW v. NIGC: Regarding Indian Gaming Scandals: 11/9/05 - Motion for Leave to File
10/15
4
Act (IGRA). Those purposes include tribal gaming revenues used as donations to charitable
organizations. Id.
The problem with this argument, however, is that the underlying focus of the multiple
investigations currently underway and the hearings conducted by the Senate is precisely within
IGRAs scope, namely the substantial contributions that tribes made to Jack Abramoff and
Michael Scanlon from gaming revenues, including donations to several 501(c)(3) organizations.
In fact, the newly discovered email attached as Exhibit A to Ms. McCoys Supplemental
Declaration discusses the millions of dollars spent on the lobbying practices of Abramoff and
Scanlon by tribes such as the Coushatta Tribe of Louisiana, dollars spent without informing
tribe members. Supp. McCoy Decl., Exhibit A. The Indian gaming scandal has been described
as a national disgrace precisely because it appears that greedy lobbyists bilked millions and
millions of casino-generated dollars out of Indian tribes, a matter squarely within the NIGCs
jurisdiction. Accordingly, one of two conclusions can be drawn, neither of which casts the
NIGC in a favorable light. Either the NIGC has failed utterly to carry out its statutory mandate
under IGRA, explaining why it has so few documents responsive to CREWsFOIA request, or
the NIGC has failed to comply with its statutory mandate under the FOIA.
The inadequacy of the NIGCs two searched is reinforced by documents the Committee
on Senate Indian Affairs recently released as part of continuing oversight hearings it has been
conducted on lobbying practices involving Indian tribes. An email from Jack Abramoff
documents that he and Scanlon certainly had the NIGC in their sights, specifically on the issue of
the Alabama Coushattas and the Tiguas, two clients who hired Abramoff to help them reopen
gaming casinos. See Email from Jack Abramoff to Michael Scanlon, November 12, 2001
8/7/2019 CREW v. NIGC: Regarding Indian Gaming Scandals: 11/9/05 - Motion for Leave to File
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4 This email is available from the Senate Committee at http://indian.senate.gov/at page
138.
5
(attached as Exhibit 1).4 Yet to date the NIGC has located only one document, found as part of
a supplemental search, that deals at all with the Coushattas, casting further doubt on the
adequacy of its searches.
2. The NIGC Has Not Demonstrated That The Two Newly
Discovered Documents Are Exempt From Disclosure.
The NIGCs attempt to justify why the two newly discovered documents are exempt,
either in whole or part, from disclosure under the FOIA suffers from the same defects as the
agencys attempt to justify its earlier withholdings. For example, the NIGC redacted from the
first document an email containing a newspaper clipping internal discussions regarding the
newspaper clipping which it claims constitute deliberate process of the NIGC and are
therefore within Exemption 5. But, as with its earlier Exemption 5 claims, the NIGC has failed
to establish what deliberative process is involved, and the role played by the documents in issue
in the course of that process. Coastal States Gas Corp. v. Dept of Energy, 617 F.2d 854, 868,
199 U.S.App.D.C. 272, 286 (D.C. Cir. 1980). Exemption 5 is not available as a blanket of
secrecy over all internal agency discussions. Instead, its purpose is to protect injury to the
quality of agency decisions. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975). Thus,
a necessary predicate to the invocation of Exemption 5 is that there be an actual agency decision-
making process underway, not merely internal ruminations. This the NIGC has failed to
establish.
The NIGCs efforts to place the second newly discovered document beyond the reach of
the FOIA are equally unavailing. The self-described inter-agency email regarding
8/7/2019 CREW v. NIGC: Regarding Indian Gaming Scandals: 11/9/05 - Motion for Leave to File
12/15
6
investigations is being withheld in full pursuant to Exemption 7(A) due to the pending law
enforcement investigations. Supp. McCoy Decl., 12. As CREW has already explained,
however, in the absence of a clear record as to precisely which investigation or investigations the
documents relate, and which specific federal law or laws are the predicate for the investigation,
the NIGC has not met its burden of proving the records were compiled for law enforcement
purposes. See Ps Opp., pp. 13-15. Nor has the NIGC identified what particular kind of record
the second document is, beyond an email regarding investigation. Supp. McCoy Decl., 12.
This is simply insufficient to carry the NIGCs burden of demonstrating interference with law
enforcement proceedings. See Ps Opp., pp. 16-20.
CONCLUSION
For the foregoing reasons, and those set forth in Plaintiffs Opposition to Defendants
Motion for Summary Judgment, Defendants motion should be denied.
Respectfully submitted,
___/s/_______________________
Anne L. Weismann
(D.C. Bar No. 298190)
Melanie Sloan
(D.C. Bar No. 434584)
Citizens for Responsibility and
Ethics in Washington
11 Dupont Circle, N.W.
Washington, D.C. 20036
Phone: (202) 588-5565
Fax: (202) 588-5020
Attorneys for Plaintiff
Dated: November 9, 2005
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