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Adequacy of Declarant

Court of Appeals Decisions

Adamowicz v. IRS, Nos. 10-263 & 10-265, 2010 WL 4978494, 106 A.F.T.R. 2d 2010-7259 (2d Cir. Dec. 8, 2010) (unpublished disposition). The Second Circuit rejects plaintiffs' claims that the IRS's "declaration was based on hearsay because [the declarant] did not actually supervise the search." The Second Circuit finds that "[t]his claim is belied by the declaration, which states that [the declarant] maintained supervisory responsibility over the first FOIA request and worked directly with IRS attorneys . . . -- the two individuals identified as potentially having relevant records to compile and review responsive documents."

District Court Decisions

Inst. for Pol'y Stud. v. CIA, No. 06-960, 2012 WL 3301028 (D.D.C. Aug. 14, 2012) (Lamberth, J.). Holding: Granting, in part, defendants' motion for summary judgment on the basis that certain withholdings under Exemptions 1, 2, 3 and 7(E) were proper and that plaintiff conceded other withholdings under Exemptions 2, 3, 6, 7(C), 7(D) and 7(F), and that all reasonably segregable material was released; denying plaintiff's motion to strike portions of the declarations; and ordering CIA to conduct searches for responsive records in three different directorates which were not initially searched. The court denies plaintiff's motion "to strike portions of [defendant's] declarations for lack of personal knowledge and failure to support statements with written materials in the record." Noting that "[a] declarant is deemed to have personal knowledge if he has a general familiarity with the responsive records and procedures used to identify those records and thus is not required to independently verify the information contained in each responsive record," the court finds that the agency "declarants did have the personal knowledge required of them." Additionally, the court concludes, that despite plaintiff's arguments to the contrary, defendants adequately supported the facts set forth in the declarations.

Am. Mgmt. Servs., LLC v. Dep't of the Army, No. 11-442, 2012 U.S. Dist. LEXIS 8124 (E.D. Va. Jan. 23, 2012) (Ellis, J.). Holding: Granting, in part, Army's motion for summary judgment based on its withholdings pursuant to Exemptions 4 and 6, as well as information protected by the attorney client privilege of Exemption 5; concluding that the Army released all reasonably segregable portions of those records; and deferring, in part, Army's motion for summary judgment with respect to documents solely withheld pursuant to the deliberative process privilege, which the court will review in camera. Contrary to plaintiff's contention, the court finds that "it is apparent from [the declarant's] specific averments regarding personal knowledge, his position in the Army, his role in this matter, and the contents of declaration itself, that [the affiant] has personal knowledge of the procedures used in handling [plaintiff's] request and familiarity with the documents at issue." Furthermore, the court notes that even assuming that the declaration "were somehow found to be deficient with respect to personal knowledge, this deficiency has been cured by the Army's submission of several supplemental declarations."

Nat. Res. Def. Council, Inc. v. Wright-Patterson AFB, No. 10-3400, 2011 U.S. Dist. LEXIS 85387 (S.D.N.Y. Aug. 3, 2011) (Stein, J.). Holding: Granting defendant's motion for summary judgment based on the adequacy of its search; and denying plaintiff's limited motion for discovery. The court dismisses as "meritless" plaintiff's argument that Air Force's declarations are inadmissible "on the grounds that they are not based on personal knowledge and therefore are . . . hearsay." Rather, the court finds that the declarants who supervised the searches and the processing and were responsible for reviewing the administrative appeal associated with the FOIA request at issue "are competent to testify about the Air Force's search, and their declarations will be considered for the purpose of determining the adequacy of that search."

Int'l Counsel Bureau v. CIA, No. 09-2269, 2011 WL 1195875 (D.D.C. Mar. 31, 2011) (Bates, J.). Holding: Granting CIA's motion for partial summary judgment as to its assertion of the Glomar response on the basis of either Exemption 1 or Exemption 3. The court agrees with the CIA that its declarant is appropriate where the declaration "clearly states that as [National Clandestine Service (NCS)] Information Review Officer, he coordinates CIA support to other federal departments and agencies, rather than just NCS-specific support," he "is 'authorized to conduct classification reviews and to make original classification and declassification decisions'" and "[t]he declaration does not indicate that [his] authority or role is limited to NCS-specific documents." "More importantly, because the Court has already determined that the CIA's 'Glomar' response was appropriate under Exemptions 1 and 3, and was adequately supported by affidavit, review of the adequacy of the search is unnecessary."

Griffin v. EOUSA, No. 09-1517, 2011 WL 1211354 (D.D.C. Mar. 31, 2011) (Leon, J.). Holding: Resolving the last issue in case by granting USMS's motion for summary judgment on its claims of exemption and the adequacy of its searches. The court rejects plaintiff's argument that USMS's "supplemental declaration fails to satisfy the 'personal knowledge' requirement" of Federal Rule of Civil Procedure 56(c)(4), finding that declarant "is competent to testify to the matters at hand" where he supervised the search for and release of responsive records.

Bryant v. CIA, No. 09-940, 2010 WL 3833949 (D.D.C. Sept. 30, 2010) (Sullivan, J.). Despite plaintiff's arguments to the contrary, the court finds that as the person "responsible for supervising and coordinating FOIA requests," the CIA's declarant can be "relied upon as an individual with personal knowledge" and concludes that further discovery on this issue is not necessary.

Rosenfeld v. DOJ, No. 07-3240, 2010 WL 3448517 (N.D. Cal. Sept. 1, 2010) (Patel, J.). Litigation considerations/adequacy of declarant: The court dismisses plaintiff's contention that FBI's declarant is inadequate where the declarant supervises FOIA searches and "personally reviewed search notes, search slips, and other documentation regarding search results generated by FBI headquarters as well as the field offices in response to [plaintiff's] requests."

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