Court of Appeals Decisions
White v. DOJ, No. 12-5067, 2012 U.S. App. LEXIS 14864 (D.C. Cir. July 19, 2012) (per curiam). Holding: Affirming the district court's grant of summary judgment to EOUSA based on the adequacy of its search. The D.C. Circuit affirms the judgment of the district court granting summary judgment to EOUSA on the basis that it "satisfied its obligation under the [FOIA] . . . to search for records responsive to appellant's request." The D.C. Circuit notes that "[a]ppellee's failure to locate documents responsive to appellant's request appears to be a function of the limited information provided in appellant's request, and appellant has not demonstrated that appellee had a duty to investigate and provide additional search terms."
Steiniger v. IRS, No. 11-2103, 2012 WL 2222208 (2d Cir. June 18, 2012) (per curiam). Holding: Affirming judgment of district court and concluding that, as the magistrate judge properly found, the IRS satisfied its FOIA obligations by conducting a reasonable search for records responsive to plaintiff's request.
Cooper v. Stewart, No. 11-5061, 2011 WL 6758484 (D.C. Cir. Dec. 15, 2011) (per curiam). Holding: Affirming district court's dismissal of FOIA claims against individual defendants and its grant of summary judgment to DOJ based on the adequacy of defendant's search; and concluding that the Federal Torts Claims Act does not provide a basis for considering plaintiff's FOIA claim. The D.C. Circuit affirms the district court's grant of summary judgment to DOJ because "[a]lthough appellant argues that the search did not follow proper procedures, the declarations provided by appellees demonstrate that an adequate search was undertaken of computer files, document systems, and the records of the Assistant United States Attorney who handled the case referenced by appellant in his FOIA request."
Wadhwa v. VA, No. 11-1718, 2011 WL 4495600 (3d Cir. Sept. 29, 2011) (per curiam)(unpublished disposition). Holding: Affirming the district court's decision to grant summary judgment with respect to information redacted pursuant to Exemption 6; vacating and remanding with respect to the district court's determination regarding the adequacy of the VA's search. The Third Circuit concludes that the district court erred in granting summary judgment with respect to the adequacy of the agency's search. Rather, the Third Circuit notes that neither declaration submitted by VA "discussed the search methodology used" and therefore plaintiff "has received no assurance that the search for documents was adequate." As such, the Third Circuit vacates the district court's decision in this respect and remands for further proceedings.
Ctr. for Biological Diversity v. Office of the USTR, No. 10-35102, 2011 U.S. App. LEXIS 19197 (9th Cir. Sept. 16, 2011) (unpublished disposition). Holding: Vacating the district court's grant of summary judgment to defendant; and remanding for further proceedings. The Ninth Circuit concludes that the district court erred in finding "that the record before it demonstrated that the USTR had conducted an adequate search for records responsive to the FOIA request" where USTR began its search in June 2006, even though the program was created in April 2006. The Ninth Circuit finds that "[r]estricting the search for documents to that time period in which 'detailed discussion of implementation issues' occurred is simply not warranted by [plaintiff's] request, which asked for all records related to the implementation of the program." Accordingly, the Ninth Circuit concludes that "it is reasonably likely that records responsive to [plaintiff's] request were generated as early as April or May of 2006; by failing to search for records during that time period, therefore, the USTR did not conduct an adequate search." The Ninth Circuit also notes that "a more important point is that none of the USTR's declarations or Vaughn indices provide specific information regarding what files were searched, what search terms were used, why further searches are unlikely to produce additional records, or why additional searches are impractical." Noting that in camera review is disfavored, the Ninth Circuit holds that "[o]n remand, the USTR must supplement the record with affidavits that meet these criteria before the district court can determine whether the search was adequate."
Blackwell v. FBI, No. 10-5072, 2011 WL 2600831 (D.C. Cir. July 1, 2011) (Kavanaugh, J.). Holding: Affirming the district court's decision that the FBI properly invoked Exemptions 7(C) and 7(E) and conducted an adequate search. The D.C. Circuit rejects plaintiff's contention that "the FBI's search for responsive documents was inadequate because the Bureau did not search its databases using the names of the individuals he had specifically mentioned in his request." To the contrary, the D.C. Circuit concludes that "[b]ecause a search for records 'pertaining to' specific individuals . . . would have added only information that we have concluded is protected under Exemption 7(C), it follows that the FBI was correct in declining to search for such documents."
Campbell v. SSA, No. 10-2255, 2011 U.S. App. LEXIS 11267 (3d Cir. June 3, 2011) (per curiam). Holding: Affirming district court's grant of summary judgment to SSA based on finding that plaintiff's FOIA claim was moot. The Third Circuit concludes that "[t]he affidavits submitted with the SSA's motion for summary judgment demonstrate that the agency's search was reasonable, just as the District Court concluded." The Circuit finds that none of the exhibits submitted by plaintiff "support[ ] his contention that the SSA withheld documents from him." Moreover, the absence of certain documents in his file "do not establish, for the purposes of defeating a summary judgment motion, that the SSA's search was not reasonable or that any documents were improperly withheld."
Tunchez v. DOJ, No. 10-5228, 2011 U.S. App. LEXIS 5194 (D.C. Cir. Mar. 14, 2011) (per curiam). Holding: Granting defendants' motion for summary affirmance. The D.C. Circuit grants defendants' motion for summary affirmance and rejects plaintiff's challenges to the adequacy of the agencies' searches. "The mere fact that the agencies failed to produce documents prior to appellant filing suit does not . . . demonstrate that their searches were inadequate." In response to plaintiff's claim that records were "inadequate because the searches did not locate particular documents," the Circuit notes that a search "is not rendered unreasonable because of the failure of a search to produce particular documents, and 'mere speculation that as yet uncovered documents might exist' does not undermine the adequacy of a search."
Karantsalis v. DOJ, No. 10-10229, 2011 WL 846242 (11th Cir. Mar. 11, 2011) (per curiam). Holding: Affirming the opinion of the district court which upheld protection for "mug shots" under Exemption 7(C); the Eleventh Circuit adopts and attaches to its opinion the opinion of the district court. The district court, which was upheld by the Eleventh Circuit, concludes that the U.S. Marshals Service's (USMS's) search for responsive records was adequate where the agency's declaration "is nonconclusory, sufficiently detailed, and submitted in good faith" and where plaintiff's opposition "includes no affidavits or other affirmative evidence, [and] does nothing to rebut the evidence proffered by the [USMS]."
Wilson v. U.S. Dep't of Transp., No. 10-5295, 2010 WL 5479580 (D.C. Cir. Dec. 30, 2010) (per curiam). The D.C. Circuit grants the Department of Transportation's motion for summary affirmance where the declarations are sufficiently detailed and requester-appellant has not shown bad faith or "submitted 'countervailing evidence' to raise a 'substantial doubt' as to the adequacy of the agency's searches."
CareToLive v. FDA, No. 09-4084, 2011 WL 31416 (6th Cir. Jan. 6, 2011) (Martin, J.). The Sixth Circuit affirms the decision of the district court and concludes that the FDA's declarations establish that it has conducted an adequate search for responsive records. The affidavits "describe how the FDA determined which offices and departments to search for responsive documents and identify the specific offices, departments, and places searched." Additionally, the Sixth Circuit finds that the requester-appellant has failed to offer any evidence to rebut the FDA's showing that it conducted a good faith search and notes that "conclusory allegations that the FDA did not conduct a detailed search are insufficient to create a material question of fact precluding summary judgment."
With respect to appellant's argument that the "search was inadequate because it took nearly two years to complete yet only turned up one document," the Sixth Circuit finds that the agency's delay in processing the request did not reflect bad faith, but rather was a product of the complexity of the instant request and the FDA's backlog of other pending requests. The Sixth Circuit also concludes that the fact that on of the FDA's center's charged only forty cents for duplication costs and no search costs "is unexpected and unusual, it does not create a material question of fact regarding the adequacy of the FDA's search in light of the detailed affidavits it submitted."
The Sixth Circuit also determines that the FDA is not obligated to attempt to recover certain electronic files that had been deleted from an employee's computer, finding that "performing an invasive search for [such] documents is unnecessary in this case because the FDA maintains that other individuals were copied on these letters and it has, from these other sources, already delivered copies of these documents to [appellant] in response to its inquiry." The Sixth Circuit indicates that its decision might have been different if the request had specifically asked for records maintained on the employee's computer which were not available through alternate means. However, the Circuit also stresses that "[a]dopting [appellant's] position could potentially cripple agencies by requiring that after following their normal search procedures, they must have an information technology expert scan relevant computers and servers for additional information that might have been deleted" and that "[t]his is manifestly not what the [FOIA] intends and we decline to require it in this case."
Hidalgo v. FBI, No. 10-5219, 2010 WL 5110399 (D.C. Cir. Dec. 15, 2010) (per curiam). The D.C. Circuit grants the FBI's motion for summary affirmance where the "four declarations submitted to the district court by the appellee 'show beyond material doubt that it has conducted a search reasonably calculated to uncover all relevant documents' under the [FOIA]." The D.C. Circuit concludes that "[a]ppellant has failed to submit 'countervailing evidence' to raise a 'substantial doubt' as to the adequacy of the agency's search" or to "rebut the presumption of good faith accorded the agency's declarations." Additionally, the D.C. Circuit notes that "[a] reasonably calculated search does not require an agency to search every file where a document could possibly exist, but rather requires that the search be reasonable in light of the totality of the circumstances."
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 dismisses plaintiffs' arguments regarding the existence of other responsive records as "speculative" and finds that the allegations "are insufficient to overcome the presumption of good faith accorded the IRS's declarations." The IRS's failure to locate certain records "does not undercut the adequacy of [its] search" because "an agency need not show that its search uncovered every extant responsive document, but only that it 'was reasonably calculated to discover the requested documents.'" Additionally, despite plaintiffs' assertions that other IRS employees may maintain responsive records, the Second Circuit finds that the IRS's search of records in the possession of one of its declarants, who stated that she was the "'sole employee'" with access to the requested documents, "was 'reasonably calculated to discover the requested documents.'"
Wiesner v. FBI, No. 07-1599 (D.C. Cir. Sept. 23, 2010) (unpublished disposition). The court grants agencies' motion for summary affirmance with respect to the adequacy of the CIA's search, which was the only issue addressed by the appellant on appeal. The court concludes that "[a]ppellant's doubts about a second, more expansive search do not rebut the presumption of good faith to be accorded to the CIA's declaration."
Lasko v. DOJ, No. 10-5068, 2010 WL 3521595 (D.C. Cir. Sept. 3, 2010) (per curiam). The court finds that defendants' failure to produce records before a certain date "does not demonstrate that the searches were inadequate, because the failure of a search to produce particular documents, or 'mere speculation that as yet uncovered documents might exist,' does not undermine the adequacy of a search.'"
Zavala v. DEA, No. 09-5357, 2010 U.S. App. LEXIS 11582 (D.C. Cir. June 7, 2010) (Per curiam). The adequacy of an agency's search "depends on the methods used, not on the records revealed or not revealed" and, accordingly, is not undermined by "an agency's failure to turn up a particular document."
Batton v. Evers, No. 08-20724, 2010 WL 625988 (5th Cir. Feb. 24, 2010) (Haynes, J.). "We conclude that, based on [defendants'] declarations, the IRS has demonstrated that it performed a search reasonably calculated to yield responsive documents." Though plaintiff "asserts that other documents may exist that were not located in the search, we must decide only whether the search was adequate."
Elliott v. USDA, 596 F.3d 842 (D.C. Cir. 2010) (Tatel, J.). Plaintiff argues that the fact that defendant spent roughly two hours searching for responsive documents by itself demonstrates that the search was inadequate. However, "[t]he government's affidavits describe these searches in detail, and amicus has presented no evidence calling into question the efficacy of the search beyond speculating as to the employees' ability to thoroughly search a filing cabinet or electronic database within the indicated time period." Similarly, the court has no evidence before it to contradict USDA's declarant's assertion that the agency had put together a complete list of responsive documents it would need to search for.
Houghton v. CIA, No. 09-3936, 2010 WL 582628 (3rd Cir. Feb. 19, 2010) (per curiam) (unpublished disposition). The district court correctly concluded "that the detailed affidavit submitted in this case establishes that the CIA's search was adequate."
Moore v. FBI, No. 09-2345, 2010 U.S. App. LEXIS 3114 (7th Cir. Feb. 17, 2010) (per curiam) (unpublished disposition). "The FBI submitted a 'reasonably detailed' and 'nonconclusory' affidavit describing its [search] efforts . . . and [plaintiff] did not contest the agency's version of events." The fact that the FBI had years earlier destroyed some potentially responsive records does not invalidate its search, nor does the fact that plaintiff speculates that additional responsive records exist. Any complaint that plaintiff might have that the FBI did not initially include its Chicago Field Office in its search is mooted by the fact that plaintiff has now received records from that field office.
DelVecchio v. IRS, No. 09-12400, 2010 WL 104657 (11th Cir. Jan. 8, 2010) (per curiam) (unpublished disposition). Plaintiffs "failed to present anything more than unsupported conclusory allegations to show that the IRS conducted its search improperly or in bad faith." Indeed, "the IRS submitted an uncontradicted declaration demonstrating that it followed standard procedures in responding to [plaintiffs'] request and that it provided them with all the responsive documents that it located."
Reynolds v. United States, No. 08-0826, 2009 WL 2959868 (2d Cir. Sept. 17, 2009) (unpublished disposition) (per curiam). The court concludes that the agencies conducted a reasonable search where plaintiff "provided no evidence to contradict the various agency affidavits, which attested that each agency had conducted a review for relevant documents and either did not find relevant documents or produced all responsive documents" to him. Plaintiff's claim that agencies' affidavits contained "ambiguities" was unfounded where the "declarations unambiguously stated that their searches did not reveal any relevant documents." Similarly, plaintiff's unsupported claim that a written record of the requested items existed was not sufficient to call into question the adequacy of agencies' searches. Additionally, NARA was not required to conduct a second search for responsive records "because it had already searched its only available computerized index of over 700 boxes of documents, which did not reveal any reference to [plaintiff]."
Kishore v. DOJ, No. 09-5050, 2009 WL 2762823 (D.C. Cir. Aug. 31, 2009) (unpublished disposition) (per curiam). "The district court correctly held that the appellees satisfied their obligation under the Freedom of Information Act . . . to search for records responsive to appellant's requests." Moreover, "appellant did not provide countervailing evidence that raises a 'substantial doubt' that the appellees overlooked responsive material."
Bonaparte v. DOJ, No. 08-5381, 2009 U.S. App. LEXIS 18984 (D.C. Cir. Aug. 20, 2009) (per curiam) (unpublished disposition). The district court's ruling that defendant conducted an adequate search is affirmed. "Appellant's challenge to the adequacy of the search fails because he has not provided sufficient evidence to raise 'substantial doubt' concerning the adequacy of the search." Moreover, "the Executive Office for United States Attorneys is not obligated to search for or reacquire documents it did not retain to satisfy plaintiff's Freedom of Information Act request." It was also reasonable to limit its search to the district that was the "'likely' location [of] the requested documents."
Trentadue v. FBI, No. 08-4207, 2009 WL 1886696 (10th Cir. July 2, 2009) (Hartz, J.). The court notes that "the focal point of the judicial inquiry is the agency's search process, not the outcome of its search," and finds that the district court's order granting plaintiff's motion to depose two prisoners concerning the FBI's search for records was an abuse of discretion. "[Plaintiff] has provided no reason to doubt" the adequacy of the FBI's search. Indeed, "the FBI's declarations provide an internally consistent and uncontradicted record that it conducted an adequate search." Moreover, "there is no reason to believe that the depositions could produce evidence of the existence of unproduced responsive records." Plaintiff "has failed to show any possibility that the depositions of [the two prisoners] would produce any relevant evidence in this case." The prisoners "clearly have no knowledge regarding FBI procedures in filing and searching for records -- which are the only relevant matters in FOIA litigation challenging an agency's records search. Only present or past agency employees would have knowledge of those matters." Finally, even if the two prisoners could provide evidence as to the existence of certain FBI records, their declarations do not mention the subjects of plaintiff's requests which are at issue in this litigation.
Wright v. Potter, No. 08-4685, 2009 WL 1863387 (3d Cir. June 30, 2009) (per curiam). "[B]ecause [plaintiff] received all available information he sought, and the Postal Service conducted an adequate search, the District Court did not err in granting the Postal Service's motion for summary judgment."
Lahr v. NTSB, No. 06-56717, 2009 WL 1740752 (9th Cir. June 22, 2009) (Berzon, J.). Though plaintiff claims that the documents released to him prove that additional responsive documents exist, he "presents no persuasive evidence . . . that these records now exist and either evaded discovery during the agencies' searches or were purposely and improperly withheld." Plaintiff also "presents no evidence that would undermine the district court's conclusion" that there was no bad faith on the government's part, and his "contentions are too speculative to support the conclusion that the . . . searches were inadequate. Even if [additional] documents did exist when the agencies conducted their searches, the failure to produce or identify a few isolated documents cannot by itself prove the searches inadequate."
Callaway v. U.S. Dep't of Treasury, No. 08-5480, 2009 U.S. App. LEXIS 11941 (D.C. Cir. June 2, 2009) (unpublished disposition) (per curiam). The district court should not have granted summary judgment to defendant United States Customs Service (USCS) on the adequacy of its search for records. "USCS should not have limited its search to the appellants' criminal investigative files, when the request appears to encompass additional material. . . ." Moreover, "the affidavits submitted by the USCS do not support the conclusion that the agency's search was reasonably calculated to locate all responsive records stored on microfiche."
Radcliffe v. IRS, No. 08-1513, 2009 WL 1459449 (2d Cir. May 27, 2009) (unpublished disposition) (summary order). Defendant's declarations and search for responsive documents "were adequate, if barely so.
Anderson v. DOJ, No. 07-2284, 2009 WL 1209472 (2d Cir. May 4, 2009) (per curiam). Defendant has established that its "search was reasonable and adequate." Defendant has also "explained the operation of the internal database that was used to conduct the searches." Additionally, "[plaintiff] failed to rebut the presumption that [DOJ's] affidavits were executed in good faith."
District Court Decisions
Safety Research & Strategies, Inc. v. DOT, No. 12-551, 2012 WL 5449570 (D.D.C. Nov. 8, 2012) (Huvelle, J.). Denying DOT's motion for summary judgment and holding plaintiff's motion for summary judgment in abeyance while defendant conducts an adequate search of its files and produces all responsive documents or demonstrates that its initial search was adequate. The court finds that NHTSA, a component of DOT, has not demonstrated that its search for responsive records was adequate. The court determines that while NHTSA did sufficiently explain how its second search, though it "employed the same methodology," as the initial search, was different in scope from its initial search, NHTSA did not meet its burden with regard to demonstrating "the adequacy of its search efforts because it has not provided the search terms that were used by nine of the ten custodians in identifying responsive documents."
Initially, NHTSA interpreted the request as seeking only external communications, but on remand after appeal, NHTSA also searched for internal communications regarding the recall. The court notes that "[t]his explanation is bolstered by the results of the second search: the 641 pages identified therein 'consisted mostly of internal communications between NHTSA employees concerning" the recall. However, the search was still not adequate because only one custodian sufficiently described the terms he used to search for responsive records. Without information from the other nine custodians, "the [c]ourt has no basis on which to find that the search was adequate." Additionally, the court notes that there is no support in the case law for the theory that "search terms are unnecessary where the agency does not have a central searchable database."
The court, however, rejects plaintiff's argument that NHTSA's search was also inadequate because it did not show that the "network storage drives" assigned to all custodians had been examined. One custodian, who provided the most details regarding his search, indicated that he searched his personal network drive for responsive records. The other custodians did not provide similar assurances. However, the court is satisfied that NHTSA's supplemental declaration explained that all document custodians were instructed to search "their network and personal computer drives" and determines "the [c]ourt cannot invalidate the search on this basis." The court also notes that it "cannot conclude that NHTSA was required to search all back-up tapes and archived materials in order to satisfy its search obligations. All that this Circuit has required is that an agency explain 'whether backup tapes of any potential relevance exist,' and if so, 'whether there is any practical obstacle to searching them.'" Here, NHTSA has demonstrated "that it would have been 'impossible, impractical, or futile' . . . to search" back-up hard drives and servers because they were not organized for individual document retrieval.
Finally, "[s]tanding alone, the mere fact that external communications were not uncovered in NHTSA's searches" despite evidence that communications did take place would not be sufficient to defeat summary judgment. However, the court cannot conclude that the "'methods used to carry out the search' were in fact 'appropriate'" because of the lack of detail in nine of the declarations. This "unlikely absence of any external communications [with the company subject to the recall]" in conjunction with the lack of details about the searches makes summary judgment for NHTSA inappropriate.
Hill v. DOJ, No. 11-0273, 2012 U.S. Dist. Lexis 157464 (D.D.C. Nov. 2, 2012) (Howell, J.). Holding: Granting defendant's renewed motion for summary judgment and denying plaintiff's motion for a continuance to conduct discovery. Because "plaintiff did not file an objection to Magistrate Judge['s]… [Report and Recommendation,]… [plaintiff] has waived any argument against the characterization of the FOIA request." "Since it is undisputed that defendant located and released the very information identified in the [Report and Recommendation] as improperly withheld,…the Court has no further role to perform in this case" and "the adequacy of the defendant's search is a moot issue."
ACLU of S. Cal. v. DHS, No. 11-10148, 2012 U.S. Dist. LEXIS 154893 (C.D. Cal. Oct. 25, 2012) (Wright, J.). Holding: Granting motion for summary judgment with regard to the adequacy of DHS's search and denying motion for summary judgment with regard to the adequacy of ICE's search. The court determines that DHS's search was adequate. DHS explained which component it searched for records. DHS also "describe[d] the databases searched and list[ed] the search terms used." In response to questions raised regarding its search of the Office of Policy, DHS submitted a supplemental declaration describing its search and how "at least five different officials searched both emails and shared folders using the search terms." "DHS also explained why the Office of Policy was unlikely to have responsive records regarding the other topics of the FOIA request." The court also finds that it was reasonable for DHS not to search DHS Office of the Inspector General. The court noted that "[n]one of [the] categories [set out by plaintiff in its request] concerned internal investigations of alleged DHS employee misconduct. And any general complaints of misconduct by the ICE employees involved in the enforcement action would likely be handled by ICE [Office of Professional Responsibility], not DHS OIG." Noting that "the reasonableness of an agency's decision regarding which components to search depends on a reasonable construction of the FOIA request, not upon documents never provided to the agency's FOIA office," the court concludes that DHS's searches were reasonable.
However, the court determines that ICE's searches were not sufficient. For example, for one portion of the request for records related to a specified individual, ICE's "offices used vastly different search terms and several offices neglected to use variations that were very likely to yield results." Finding that "the record raises 'substantial doubt' as to the adequacy of the search, particularly in view of positive indications of overlooked materials," the court denies ICE's motion for summary judgment.
ACLU of N.J. v. DOJ, No. 11-2553, 2012 WL 4660515 (D.N.J. Oct. 2, 2012) (Salas, J.). Holding: Granting defendants' motions for summary judgment; denying plaintiff's motions for summary judgment. The court holds that "any concerns the [plaintiff] may have had about the FBI's explanation of which offices to search are rendered moot by DOJ's submission of [a] supplemental declaration [from the FBI]," explaining how it decided which offices to search. The court also concludes that the FBI's supplemental declaration adequately describes the search procedures it used to find responsive records. In the first phase of search, the FBI "requested that personnel search 'all retrievable agency records regarding this request," including "a review of database systems as well as paper or manual files." In the second phase, the FBI had "Newark field office personnel search for and produce records created after December 16, 2008, describing the types of racial, ethnic, behavioral, and cultural information or maps collected or maintained by the field office, and how many communities the field office collected information on or created maps of." In addition, the court notes that contrary to plaintiff's argument, the FBI did search "both the Domain Management repository and all GEOINT records." Finally, the court holds that the FBI's failure "to identify 'electronic communications that [plaintiff alleges] were likely created by the FBI's Newark field office" does not mean that the FBI's search was inadequate.
Callaway v. Dep't of Treasury, No. 04-1506, 2012 U.S. Dist. LEXIS 141034 (D.D.C. Sept. 30, 2012) (Roberts, J.). Holding: Denying plaintiff's motion for reconsideration and granting defendants' motion for summary judgment. The court finds that the fact that the agency may have "destroyed invoices pertaining to Ron Rose Production's services does not render Custom's response to his FOIA request deficient." Although the plaintiff alleges that the relevant records were destroyed in violation of the FOIA, "the record shows that plaintiff's original  FOIA request to Customs does not mention Ron Rose Productions." Therefore when the relevant records were destroyed three years after their creation, "Customs would not have been on notice [at that time] that it should have been seeking invoices." In fact, the plaintiff did not make his request for the invoices until six years after the records were destroyed. Additionally, because "[t]he FOIA 'only obligates [Customs] to provide access to those [records] which it in fact has created and retained'…[i]t need not produce records maintained by another federal government agency or obtain records from any other source."
White v. DOJ, No. 11-2045, 2012 WL 4458413 (D.D.C. Sept. 26, 2012) (Leon, J.). Holding: Denying without prejudice defendants' motion to dismiss or for summary judgment. Adequacy of Affidavit: The court declines to rule on the defendants' exhaustion argument and when addressing the merits holds that defendants have not provided enough information for the court to uphold the adequacy of the search performed or the applicability of the exemptions applied. The court determines that the declaration is too "conclusory" and likewise finds "no basis to rule on the propriety of the asserted exemptions."
Skurow v. DHS, No. 11-1296, 2012 WL 4380895 (D.D.C. Sept. 26, 2012) (Sullivan, J.). Holding: Granting defendants' motion for summary judgment; denying plaintiff's cross-motion for summary judgment and determining that plaintiff is not entitled to attorney's fees. Allegations of Bad Faith: As an initial matter, the court rejects plaintiff's argument that the defendants acted in bad faith when processing his request. The court notes that "[n]one of the pleadings filed by plaintiff set forth any factual basis, other than purely speculative claims about the agencies' motives, to suggest that [the United States Transportation Security Administration (TSA)] or DHS acted in bad faith. Accordingly, plaintiff has failed to rebut the presumption of good faith. Moreover, there is nothing about the failure of an agency to produce documents promptly that would require the agency to waive otherwise properly claimed FOIA exemptions." The court notes that defendants "properly rel[ied] on a detailed, nonconclusory declaration that demonstrates the adequacy of the search." The defendants identified offices "most likely to have responsive records" and explained "in considerable detail the processes undertaken to search" and "search terms used."
Referral: The court also rejects plaintiff's arguments that the search was inadequate because of defendants' failure to search records from the United States Customs and Border Patrol (CBP) and the FBI. The court notes that the plaintiff's request was only directed to TSA. The issue of whether the request should have been referred to CBP, which like TSA is a component of DHS, is moot because defendants referred the request during the course of the litigation. The court notes that the FBI is not a component of DHS, and thus, TSA was under no obligation "to search for FBI records." Finally, the court notes that TSA was not obligated to produce records that post-dated plaintiff's request and that there was "no particular need to produce back to plaintiff documents that plaintiff or his counsel already have." As to plaintiff's references to letters written by CBP officials, the court notes that these are also not proof that the search was inadequate given that the request was made to TSA, not CBP.
Elec. Frontier Found. v. DOD, No. C 09-05460 SI, 2012 WL 4364532 (N.D. Cal. Sept. 24, 2012) (Illston, J.). Holding: Granting in part and denying in part defendants' motion for summary judgment; denying plantiff's motion for summary judgment. The court holds that the number of documents produced by ICE "does not mean ICE's search was inadequate." The court finds that the plaintiff has not shown "why the limited search conducted by [ICE's Office of Enforcement and Removal Operations] – limited to only to [its Law Enforcement Service Center] and then limited by the use of only two search terms because employees were prevented from accessing social networks for all purposes – was unreasonable." However, the court decides that ICE does need to address in a supplemental declaration whether it was reasonable for employees to search "only their own computer files, whether there are other unit or agency-wide record systems that exist that might contain responsive documents, and whether these systems were searched or not searched because it was determined that they were unlikely to contain responsive records."
Toensing v. DOJ, No. 11-1215, 2012 WL 4026099 (D.D.C. Sept. 13, 2012) (Howell, J.). Holding: Granting defendant's motion for summary judgment in part. The court grants in part defendant's motion for summary judgment with regard to the adequacy of the searches performed. The court treats the plaintiffs' failure to "challenge the adequacy of the searches performed by the Criminal Division and the FBI" as a concession that those searches were adequate. With respect to EOUSA's search, the court finds that EOUSA's search for "tapes, recordings, and transcripts of recordings" was adequate. Although an initial search based only on personal knowledge was insufficient, later searches cured this defect. EOUSA's 2012 declaration "describes how the search was performed and the fact that plaintiff's name was specifically queried." The court finds that a review of a tape log was adequate because the log "was comprehensive in that it contained 'all recordings, telephonic or otherwise, made during the course of …the investigation." Additionally, because the log did not contain responsive records, it was logical that no transcripts "are reasonably likely to be located by searching elsewhere." Finally, "the mere fact that an otherwise adequate search did not uncover such recordings does not automatically render that search inadequate." EOUSA's search for "documents reflecting intent to tape" was also adequate. The court notes that EOUSA's declaration "exhaustively describes how the multi-layer search was performed, who performed it, and what search terms were used, and it also avers that all of the paper and electronic files reasonably likely to include responsive documents were searched."
However, the court denies EOUSA's motion in part because it finds that EOUSA's search for records related to the subpoenas was inadequate. EOUSA did not search six categories of documents because they would be "categorically exempt." The court notes that "an agency's search obligations are in no way limited by whether certain documents will be classified as exempt from disclosure because an agency is obligated to perform a search 'reasonably calculated to uncover all relevant documents, not just all non-exempt relevant documents." Further, EOUSA did not offer evidence to demonstrate "why these six categories of documents would have been categorically nonresponsive."
Cooper v. DOJ, No. 99-2513, 2012 WL 3939231 (D.D.C. Sept. 11, 2012) (Walton, J.). Holding: Granting defendant's renewed motion for summary judgment in part and denying part; granting plaintiff's "motion for leave and to compel" in part. The court holds that USMS has conducted a reasonable search for records responsive to the plaintiff's request. The court finds that USMS's supplemental declaration explains that USMS "does not as a matter of practice, search for seized asset information unless the requester asks for it or there is some indication in its records that assets were seized." (emphasis in original) The court concludes that "even if the initial failure to search for seized asset information was unreasonable, the Marshals Service's supplemental declaration shows that it acted diligently in following 'clear and certain' leads after receiving additional information from [plaintiff] regarding 'a cashier's check [that] was turned over to the [Marshal's Service] for forfeiture proceedings." USMS "was engaged in an ongoing effort to locate responsive documents, conducting further searches and following reasonable leads whenever it learned of new details concerning [plaintiff's] request."
Hetzler v. Record/Info. Dissemination Section, FBI, No. 07-6399, 2012 WL 3886367 (W.D.N.Y. Sept. 6, 2012) (Telesca, J.). Holding: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment; directing defendant to re-process and re-release specific documents withheld under Exemptions 1, 6, 7(C), and 7(D). The court grants the defendants' motion for summary judgment on the adequacy of the search where the declaration "explains in detail the multiple searches conducted in order to locate" responsive documents, there is "no suggestion that the Defendants acted in bad faith in conducting the search," and plaintiff "has not challenged the adequacy of Defendant's search."
Perez-Rodriguez v. DOJ, No. 11-0556, 2012 WL 3764763 (D.D.C. Aug. 31, 2012)
(Bates, J.). Holding: Granting motion for summary judgment in favor of defendants EOUSA and SSA because plaintiff failed to exhaust his administrative remedies before filing suit; denying defendant ICE's motion for partial summary judgment because ICE's searches for responsive records were not reasonable under the circumstances. The court accepts plaintiff's argument that ICE's search for responsive records was inadequate. "The Court understands plaintiff's challenge to ICE's searches as asserting that he has requested information about himself – both" under his legal name and under his illegally obtained identity. The court concludes that "[t]he Certificate of Identity that accompanied plaintiff's FOIA request provides two names, and information about plaintiff conceivably might be located under either name." ICE "explains that plaintiff's name and alien number" were searched, but "neither specifies whether another name was used as a search term nor identifies the additional search terms used." Accordingly, ICE's search was not reasonable and the court denies its motion for partial summary judgment.
Hunt v. VA, No. 11-1210, 2012 WL 3776682 (D.D.C Aug. 27, 2012) (Leon, J.). Holding: Granting defendant's motion for summary judgment on the basis that its searches were adequate. The court finds that the defendant conducted "'a page by page review of [plaintiff's] file,'" that "'files that are likely to contain material responsive to [plaintiff's] request were searched,'" that "'[o]ver the years, requests were sent to the Records Management Center'… 'in an effort to obtain [plaintiff's] [STRs]'", and that "'a search was made of [the Veterans Health Administration's] electronic records,'… but no STRs with regard to plaintiff were found." The court determines that "[p]laintiff has not seriously challenged defendant's declarations or proffered any evidence to call into question the demonstrated reasonableness of defendant's searches or the agency's good faith," therefore, the "defendant is entitled to judgment on plaintiff's FOIA claim."
Hooker v. HHS, No. 11-1276, 2012 WL 3574061 (D.D.C. Aug. 21, 2012) (Jackson, J.). Holding: Denying, in part, defendants' motion for summary judgment as to the adequacy of its search for certain correspondence and ordering the release of additional segregable material withheld under Exemption 6; granting, in part, defendants motion for summary judgment as to adequacy of their search for certain other documents, and their withholdings under Exemptions 5 and 6; treating as conceded withholdings and redactions of four articles under the Copyright Act of 1976, where plaintiff failed to challenge them; and concluding defendants' properly released all reasonably segregable non-exempt information that was withheld pursuant to Exemption. The court concludes that defendants have provided insufficient detail with respect to their searches for written correspondence concerning two Danish studies on the connection between vaccines and autism. The court finds that "[a]lthough the declaration identifies the offices to which the request was forwarded, it fails to explain either why those offices were the reasonably likely locations of the records sought or describe with specificity the search methodology used, including what records were searched, by whom, and using what process or search terms." The court then orders "defendants to amend or supplement their declarations with additional detail – including a description of the search methods employed by CDC, the names and roles of the individuals who performed the searches, and a list of the search terms used – so that the Court can determine whether defendants have met their obligations under FOIA." However, the court determines that CDC conducted an adequate search with respect to emails held by a National Immunization Program employee. The court concludes that "defendants' affidavits adequately explain why no emails were located from [the employee]" and finds that "[p]laintiff's challenge that more emails should be available is based only on speculation." Furthermore, the court finds that "[b]y conducting multiple searches for emails responsive to plaintiff's request and submitting a declaration addressing the existence of an email archival system or central server [which preserved records for only a two-week period], . . . defendants have demonstrated that their search was reasonably calculated to uncover all relevant documents."
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. With regard to plaintiff's claim that the CIA impermissibly limited the date range of its search, the court finds that although the declarations contained an error concerning a search date, this typo does not demonstrate that defendant violated the FOIA. Rather, the court finds that defendant's submissions "signed under oath, show good faith on the part of defendant that the search was performed correctly." Similarly, the court rejects plaintiff's allegation that defendant improperly "limit[ed] its search to records located in a search on behalf of a previous requestor and another FOIA reference number." The court determines that "plaintiff failed to show any evidence [on this point], other than the initial typos" in the Vaughn Index, which defendant subsequently corrected. However, the court rejects defendant's argument that it was not required to search three directorates "'because the files most likely to have information responsive to the request [contained in two of the offices] would be exempt under 50 U.S.C. §431'" and the other directorate "would not likely have [responsive] information." To the contrary, the court finds that it "will evaluate the search's reasonableness based on what it knows at the conclusion of the search, rather than on the agency's speculation at the initiation of the search." As such, the court concludes that the CIA's "failure to search the remaining three [agency] directorates while admitting that they would likely contain records responsive to plaintiff's [request] does not rise to the level of an adequate search." The court then "orders defendant to perform plaintiff's requested search in the three directorates that defendant failed to search and denies defendant summary judgment on this point."
Moore v. FBI, No. 11-1067, 2012 WL 3264566 (D.D.C. Aug. 13, 2012) (Kollar-Kotelly, J.). Holding: Dismissing complaint against the Executive Office of the President under Federal Rule of Civil Procedure 12(b)(6); granting, as conceded, the Criminal Division and U.S. Parole Commission's motions for summary judgment; and granting FBI and CIA's motions for summary judgment based on the adequacy of their searches and the CIA's assertion of the Glomar response in conjunction with Exemptions 1 and 3; and granting BOP and EOUSA's motions for summary judgment on the basis that plaintiff failed to exhaust his administrative remedies. The court concludes that the FBI's search, which yielded no additional responsive records beyond those already provided to plaintiff in response to an earlier request, was adequate. The court concludes that the FBI "has provided a thorough description of the filing systems that were searched and the search methods employed" and finds that "[p]laintiff has not proffered any evidence to call into question the reasonableness of the FBI's search." Additionally, the court holds that the CIA conducted a reasonable search for records regarding any "'open and acknowledged association with [plaintiff and] the agency'" where its declarations provide adequate detail as to its search that "plaintiff has not seriously contested."
Houghton v. U.S. Dep't of State, No. 11-869, 2012 WL 3132702 (D.D.C. Aug. 2, 2012) (Jackson, J.). Holding: Granting the portion of the State Department's motion for summary judgment as it relates to the adequacy of its search. The court concludes that the State Department's search for responsive records was adequate where it now clarified that a certain CPAC member did not possess an agency email account and that any of her emails "'would have been captured in the earlier searches'" for responsive records. The court finds that this explanation "negates any 'substantial doubt' about the adequacy of the search that might have been raised by plaintiff's argument that State failed to address why it did not search emails sent or received by [the committee member]."
Hall v. CIA, No. 04-814, 2012 WL 3143839 (D.D.C. Aug. 3, 2012) (Lamberth, J.). Holding: Granting, in part, CIA's renewed motion for summary judgment on the basis that its searches for certain responsive records were adequate, that certain withholdings under Exemptions 1, 3, 5 and 6 were proper, and that it released all reasonably segregable material; ordering CIA to conduct searches for other records; concluding that CIA must take affirmative steps with respect to certain referred records; ordering release of certain information withheld under Exemption 6; determining DOD must further justify certain Exemption 3 withholdings; and denying plaintiffs' requests for discovery and for in camera review. The court grants in part and denies in part the CIA's motion for summary judgment as to the adequacy of its search for responsive records. Unreasonably burdensome: Regarding plaintiffs' request for documents concerning alleged Vietnam War POW/MIAs, the court rejects the CIA's argument that a search simply using the 1,711 names proffered by plaintiffs without additional identifying information would be "an 'unreasonable burden.'" In searching its Automatic Declassification and Release Environment system, the agency "is not asked to determine the responsiveness of [the document by] name alone [rather] if the record is regarding an individual as a POW or MIA, it is responsive." Moreover, although the CIA claims that "it may be impossible to determine [responsiveness] for some documents," the court finds that defendant "offers no estimates of the percentage of documents for which responsiveness would be 'impossible.'" As to its search of archived records, the court concludes that the CIA "fails to provide . . . an estimate of how many man-hours are necessary to fulfill the search."
As to the agency's search for POW/MIAs in Laos, the court determines that the CIA's statement that "the offices that were searched 'were the only offices within the [Director of CIA] likely to contain [responsive] information'" "meets the test." Further, the court finds that defendant's search with respect to this portion of plaintiffs' request was adequate "[b]ecause the CIA submitted declarations explaining in reasonable detail the scope and method of the agency's search, and explained in adequate detail that all systems likely to contain responsive records were searched." However, with respect to another item of plaintiffs' request, the court denies defendants' motion for summary judgment finding that "only searching the databases 'most likely' to contain responsive documents does not satisfy FOIA, as it may preclude record systems that are less likely than others to contain responsive documents, yet may still likely contain them."
The court determines that the CIA's search for records regarding plaintiffs' previous FOIA requests to the agency was adequate, noting that "[t]he Agency searched for the documents using [plaintiff's] name and case number, searched all systems likely to contain responsive records, named the supervisor of the search, and provided the Court with an explanation as to why other systems would only contain duplicate responsive records." With regard to plaintiffs' claim that the agency should have used additional search terms which appeared in some of the released records, the court holds that "[w]ith 'several thousand pages of records' released by the CIA, a showing that each newly suggested term existed in a single document is not enough to find the CIA's search inadequate without further explanation as to why these terms in particular would uncover responsive documents that the previous search did not." However, the court finds that "[w]here specific records, photographs, or attachments are referenced in CIA documents, it is no longer 'mere speculation' that the files exist," and holds that the agency "cannot demonstrate beyond material doubt that its search was 'reasonably calculated to uncover all relevant documents' until those missing responsive documents are searched for." Conversely, the court finds that the agency is not required to search for records that plaintiffs speculate should have been created, concluding "[t]here is no indication that any of these records were actually created, only that there may have been an intention at one point to create documents."
Soghoian v. DOJ, No. 11-1080, 2012 WL 3090309 (D.D.C. July 31, 2012) (Jackson, J.). Holding: Granting defendants' motion for summary judgment on the basis that they properly withheld certain information pursuant to Exemptions 5 and 7(E), released all reasonably segregable non-exempt information, and plaintiff conceded the adequacy of DOJ's search. "In light of the representations in DOJ's declarations as well as the fact that plaintiff was properly notified [of his obligation to contradict any assertions contained in defendant's motion] but did not challenge the adequacy of the search, the Court is satisfied that DOJ has established that it conducted an adequate search for responsive documents."
Nat'l Day Laborer Organizing Network v. U.S. Immigr. & Customs Enforcement Agency, No. 10-3488, 2012 WL 2878130 (S.D.N.Y. July 13, 2012) (Scheindlin,J.). Holding: Granting defendants' motion for summary judgment with respect to DOJ's Office of Legal Counsel (OLC) and the Executive Office for Immigration Review (EOIR); and granting, in part and denying in part, defendants' motions for summary judgment regarding ICE, the FBI and DHS; ordering parties to design and execute a small number of targeted searches; and directing defendants to document the results of those searches. As to plaintiff's contention that defendants improperly excluded the files of certain custodians who were likely to possess responsive records from their searches, the court reviews the efforts of ICE, the FBI, DHS and DOJ to search various locations. Based on its review, the court concludes that defendants' have not met their burden of establishing that it was reasonable not to search the offices of: ICE's Homeland Security Investigations; ICE's Office of State, Local, and Tribal Coordination; the FBI Director's Office; the Privacy and Civil Liberties Unit of the FBI's Office of General Counsel; the FBI's Interoperability Initiatives Unit; DHS's Office of General Counsel; and DHS's Homeland Security Advisory Council. In most instances, the court concluded that defendants failed to adequately address or counter evidence that tended to show that these offices might maintain responsive records. The court also orders ICE to "inform plaintiffs about the extent to which contractors were included in the searches, and, if plaintiffs are dissatisfied, submit to the Court a supplemental declaration." The court notes that the FBI's OGC's National Security Law Branch "has the option of either conducting and fully documenting a new search or submitting a declaration from a supervising attorney stating that, based on her personal knowledge, it is not reasonable to believe that the office has [certain responsive] documents . . . and that no search is therefore required under FOIA."
However, the court determines that defendants' searches of or explanations as to why they did not search ICE's Deputy Director's office; ICE's Privacy Office; the FBI's Science and Technology Branch and Office of Law Enforcement Coordination; DHS Secretary Napolitano's office; DHS's U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT); OLC; and EOIR were all adequate. With respect to ICE's Privacy Office, the court concludes that the Privacy Officer's "presence at one meeting [about Secure Communities] . . is not sufficiently probative of the existence of records in the office's control so as to render unreasonable the government's determination that the Privacy Office was not likely to have responsive records." As to the search of Secretary Napolitano's office, the court rejects plaintiff's arguments that a search of all "'documents sent to or from the Secretary are not likely to encompass all the documents the Secretary possessed or created.'" Rather, the court finds that such a search "examined a universe of documents reasonably calculated to uncover all responsive documents." The court also determines that "DHS acted reasonably in not searching records of the [Chief Information Officer for US-VISIT], whom it determined would not likely have responsive records" and likewise for records maintained by that office's Deputy Director. With respect to OLC's search, the court finds that it "was reasonably designed to uncover all responsive documents and was thus adequate." Although OLC did not use certain search terms, the court finds that it "is extremely unlikely" that the search terms that were used would have failed to capture responsive final opinions by the office. Additionally, the court notes that "the discussions with long-time supervising attorneys wisely helped guide the search," and concludes that plaintiff's contention that "these attorneys' memories were faulty is unsupported." Lastly, the court finds that "the query of every attorney in the office was comprehensive" and while "the FOIA officer should have followed up with the attorneys who did not respond to the email query" concerning the request, "in light of the totality of steps that it took to search for responsive documents (and that fact that none of them revealed that its attorneys had worked on Secure Communities), the OLC's search was adequate."
The court then examines other searches conducted by the FBI, DHS and ICE, finding that "[i]t is impossible to evaluate the adequacy of an electronic search for records without knowing what search terms have been used." Further, the court opines that "[t]here is a 'need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or keywords to be used to produce emails or other electronically stored information.'" The court adds that "beyond the use of keyword search, parties can (and frequently should) rely on latent semantic indexing, statistical probability models, and machine learning tools to find responsive documents." "Aware of the limitations of keyword searching and in the absence of evidence showing the efficacy of the terms used, [the court finds that] it is impossible for [it] to assess the adequacy of most of the keyword searches used by defendants" in this litigation. The court holds that the "the government will not be able to establish the adequacy of its FOIA searches if it does not record and report the search terms that it used, how it combined them, and whether it searched for the full text of documents." In light of its prior findings, the court determines that "[s]imple keyword searching is often not enough." In this case, the court finds that "[r]ather than fully revisit old searches, the parties will need to work cooperatively to design and execute a small number of new, targeted searches." Additionally, the "[c]ustodians who should have searched their records but did not will need to conduct complete searches." Further, the court determines that "a sample of the custodians who conducted searches, but failed to provide the Court with any details about those searches will also need to conduct new, fully-documented searches; so will a smaller sample of the custodians who listed the search terms that they used but provided no evidence about the efficacy of those terms." The court directs the parties to "agree on search terms and protocols – and, if necessary, testing to evaluate and refine those terms."
Brown v. FBI, No. 10-1292, 2012 WL 2786292 (D.D.C. July 10, 2012) (Lamberth, J.). Holding: Denying defendant's motion to dismiss; but granting defendant's motion for summary judgment on the basis that it conducted an adequate search, and properly withheld certain information pursuant to Exemptions 3, 7(C), 7(D) and 7(E); and denying plaintiff's motion for sanctions as well as his motion to supplement his motion for sanctions. The court determines that the FBI conducted an adequate search for records responsive to plaintiff's request where its declarations describe the "scope and method" of the searches. The court notes that "[a]gency affidavits are not rebuttable by purely speculative allegations" and "[b]ecause plaintiff's pleading simply states that defendant has 'unlawfully refused and/or withheld records,' the Court has no difficulty finding that defendants search was adequate." Moreover, "[w]hile it did not yield disclosure of the exact documents plaintiff insists should be disclosed, defendant's declarations demonstrate that its searches were reasonably calculated to recover all documents."
Houghton v. U.S. Dep't of State, No. 11-869, 2012 WL 2855868 (D.D.C. July 12, 2012) (Jackson,J.). Holding: Granting, in part, the State Department's motion for summary judgment on the basis that it properly asserted Exemption 3 to withhold two responsive transcripts in full; but ordering the agency to provide additional details with respect to its search. The court holds that the State Department's search was insufficient where it failed to explain whether the committee member, who was a subject of the request, possessed an agency email account and did not address whether such an account would contain responsive records. Based on the filings, the court finds some indication that this advisor to the committee "may have been treated as an employee of State in some ways, so the Court cannot rule out the possibility that she might have held a State Department email account." Further, the court notes that based on the current record it "cannot infer from State's declarations that [this committee member's] emails are not agency records." Accordingly, the court requires the State Department to submit "an additional brief explaining whether [this individual] utilized a State Department email account at any point during the relevant time period, and if so: (1) setting out a schedule for searching the email account and producing either the responsive documents or a Vaughn index asserting FOIA exemptions, or (2) explaining why FOIA does not require it to search the email files in this case."
Mullen v. U.S. Army Crim. Investigation Command, No. 10-262, 2012 U.S. Dist. LEXIS 93977 (E.D. Va. July 6, 2012) (Cacheris, J.). Holding: Granting defendant's motion for summary judgment on the basis that its searches were adequate and concluding, without detailed discussion, that defendant's withholdings under Exemptions 3, 4, 5, 6, 7(C), 7(D) and 7(F) were proper; determining that in camera review is not necessary; and denying plaintiff's motion for attorney fees. The court determines that defendant's "search was reasonable, as it was conducted in a manner designed to identify all responsive documents" where its declaration "detailed the searches for this particular FOIA request and included the specific search terms" and "describe[ed] the Army's FOIA program and [U.S. Army Criminal Investigation Command's] FOIA procedures."
McRae v. DOJ, No. 09-2052, 2012 WL 2428281 (D.D.C. June 27, 2012) (Leon, J.). Holding: Denying without prejudice defendants' motion for summary judgment on the basis that it failed to discuss EOUSA's search for responsive records or EOUSA's justification for withholding certain information under Exemption 7(C), and where it did not supply information sufficient to support ATF's claim of Exemption 7(D); granting defendants' motion for summary judgment as to the adequacy of ATF's search and its claims of Exemptions 3, 7(C) and 7(E). The court concludes that ATF conducted a reasonable search where its declarations describe the systems of records and methods used in conducting a search for documents responsive to plaintiff's requests. The court finds that plaintiff failed to meet his burden to rebut the agency's showing of a good faith search and rejects his contention that "ATF's inability to locate information" related to his conviction indicates bad faith on the part of the agency. Rather, the court finds that "[p]laintiff's level of satisfaction with the materials released, . . . does not determine the adequacy of the ATF's search." Moreover, the court concludes that "'the fact that responsive documents once existed does not mean that they remain in the [ATF's] custody today or that the [ATF] had a duty under FOIA to retain the records.'" As to plaintiff's argument that ATF should have retained copies of local law enforcement records, the court determines that "[t]he ATF is not required to maintain the Charlotte-Mecklenburg Police Department's records, even if they pertained to a matter under investigation by the ATF."
Zander v. DOJ, No. 10-2000, 2012 WL 2336244 (D.D.C. June 20, 2012) (Bates,J.). Holding: Accepting the magistrate's recommendation regarding the adequacy of BOP's search as well as the judge's determination that portions of plaintiff's FOIA requests should be denied based on his failure to exhaust administrative remedies; rejecting plaintiff's objection regarding provision of a Vaughn Index; rejecting magistrate's recommendation regarding disclosure of a video, and concluding that BOP properly withheld it under Exemption 7(F); and accepting, with one modification, magistrate's determination that certain documents which the judge reviewed in camera should be disclosed. The court accepts the magistrate's finding that BOP conducted an adequate search, noting that the fact that "BOP failed to turn up a limited number of responsive documents in its search does not show the search was inadequate." Moreover, "'purely speculative claims about the existence and discoverability of other documents' 'cannot overcome the presumption of good faith accorded agency affidavits representing a thorough search.'"
Espino v. DOJ, No. 11-1436, 2012 WL 2335930 (D.D.C. June 20, 2012) (Huvelle,J.). Holding: Granting defendants' motion for summary judgment on the basis that they conducted adequate searches for responsive records, their withholdings under Exemption 7(C) were appropriate, and they released all reasonably segregable nonexempt information. The court holds that defendants' searches for records were reasonable where EOUSA and the FBI's declarations were sufficiently detailed as to the searches they conducted and DOJ's Office of Violence Against Women (OVW) explained its "decision not to search for records [based on the fact that] it does not maintain records relating to prosecutions." The court rejects plaintiff's contention that the searches were inadequate because they failed to uncover certain records. Rather, the court notes that "'[m]ere speculation that as yet uncovered documents may exist does not undermine the finding that the agency conducted a reasonable search for them.'" The court also notes that the FBI's failure to produce certain records "until after litigation commenced... does not render the search inadequate."
Brillhart v. FBI, No. 11-893, 2012 WL 2308638 (D.D.C. June 19, 2012) (Bates,J.). Holding: Granting defendant's motion for summary judgment on the basis that plaintiff failed to challenge, and therefore conceded, the FBI's redactions pursuant to Exemptions 3, 6, 7(C), and 7(E), and concluding that it conducted a reasonable search for responsive records. The court finds that the FBI conducted an adequate search for records where its declarant "has sufficiently described the Central Records System, the agency's search of that filing system, which yielded responsive records" and its successful search for the requested computer disk. The court determines that neither of the unauthenticated exhibits proffered by plaintiff to support his claim that the search was deficient "even if ultimately admissible under Rule 56(c), is sufficient to defeat defendant's well-documented motion for summary judgment." As to the portion of plaintiff's request for records contained on a certain computer disc, the court finds that "[s]ince the released records were located in the very file that plaintiff had identified as containing them, . . . plaintiff has failed to create a genuine factual dispute about the adequacy of the FBI's reasonably calculated search for records responsive to his 'well-defined request.'"
Simbaqueba v. DOD, No. 11-62, 2012 WL 2133597 (S.D. Ohio June 11, 2012) (Smith,J.). Holding: Denying plaintiff's motion for reconsideration where plaintiff has failed to establish that there is clear error of law with respect to the court's determination that DOD's withholdings under Exemption 7(A) were proper and that its searches were adequate; denying plaintiff's motion for discovery where there is no evidence of bad faith and the court has determined that DOD's searches were adequate; and denying as moot his motion to clarify the court's order.
Ancient Coin Collectors Guild v. U.S. Dep't of State, No. 07-2074, 2012 WL 2103213 (D.D.C. June 11, 2012) (Leon,J.). Holding: Granting defendant's renewed motion for summary judgment on the basis that it properly asserted Exemption 3 for series of e-mails, and conducted a search that was reasonably calculated to uncover all responsive e-mail records. The court concludes that the State Department conducted a reasonable search for all responsive e-mail records. The court notes that on remand, the D.C.Circuit ordered the district court "to determine: ' whether backup tapes of any potential relevance exist;  if so whether their responsive material is reasonably likely to add to that already delivered; and  if these questions are answered affirmatively, whether there is any practical obstacle to searching them.'" On remand, the court concludes that "although other archival and backup systems do exist, attempting additional searches would not only be unlikely to result in additional responsive material, but would be costly and inconvenient to the State Department." Based on the agency declarations which explain that "[a]ny e-mail communication deleted more than six months prior to the time of FOIA request search would not be retrievable," the court determines that "a renewed search for responsive e-mails in the system would reveal no additional communications not previously uncovered in the initial FOIA searches, . . . and, therefore, is unwarranted." Additionally, the court notes that "State persuasively argues that, even if the electronic backup system did contain additional responsive documents, conducting further searches would be inconvenient and futile" because that system "was not designed to retain documents in an easily searchable form, therefore, any search efforts would 'significantly interfere' with the functioning of State's entire information system."
Nicholls v. OPM, No. 11-1654, 2012 WL 1921396 (D.D.C. May 29, 2012) (Boasberg,J.). Holding: Denying, in part, defendant's motion for summary judgment as to adequacy of its search for records in a given division and insofar as it construed plaintiff's request for certain records too narrowly; and denying, in part, plaintiff's motion for summary judgment as to her challenge to OPM's search premised on her contention that the agency should have searched beyond a certain database for responsive written or typed records. The court concludes that OPM did not adequately address plaintiff's argument that, based on her conversation with an agency official, its Federal Investigative Services (FIS) division, might maintain responsive records. The court finds that "[d]efendant's failure to refute Plaintiff's argument that it should have checked with FIS precludes summary judgment on this issue" and orders OPM to conduct a search of that division and "inform Plaintiff of its result before moving again for summary judgment." However, the court rejects plaintiff's claim that "OPM should have searched beyond [its database containing government-wide workforce information] for written or typed records." The court finds that plaintiff "has no basis to believe that responsive materials exist in such records," particularly in light of the fact that "Plaintiff is seeking aggregate data about types of governmental action – i.e., the sort of information contained in databases – rather than individual records themselves." Moreover, the court finds that "[e]specially in light of [the agency declarant's] explicit statement that he went so far as to consult the agency's expert on how OPM processes personnel actions – the individual who, quite literally, wrote the book on the topic – 'to ensure that [he] was not overlooking any other repository or method by which OPM could potentially identify or produce responsive records' . . . the agency's representation that the aggregate information Plaintiff seeks does not exist is credible." Accordingly, "Plaintiff's conjecture that aggregate information might be located in non-electronic records does not undermine the agency's position."
Int'l Counsel Bureau v. DOD, No. 08-1063, 2012 WL 1865413 (D.D.C. May 23, 2012) (Bates,J.). Holding: Granting, in part, DOD's motion for summary judgment with respect to one audio recording for which it claimed Exemption 1 and which plaintiff did not dispute, as well as the adequacy of its search for certain videos; denying, in part, defendant's motion for summary judgment as it pertains to videos for which it asserted Exemption 2 as the basis for withholding in full, and directing DOD to produce a representative sample of those videos for in camera review in order to assess its other exemption claims; and denying both parties' motions for summary judgment as to the issue of segregability and the remaining exemption claims. The court denies, without prejudice, DOD's motion for summary judgment as to the adequacy of its search insofar as it concerns a particular named individual. The court concludes that "[b]ecause the Department has not provided a satisfactory response to [plaintiff's] contention that it should have searched for records using an alternate spelling of [a detainee's] name that [plaintiff] discovered from the Department's own records, the Department shall conduct an additional search of USCENTCOM files with respect to the alias" provided. However, the court grants DOD's motion for summary judgment as it concerns the search for certain videos. Given DOD's explanations that the requested videos are only retrieved via a particular search method and "already would have been produced," "[t]he Court concludes that the Department is not obligated to conduct a specific search for the four [forced cell extraction] videos [alleged by plaintiff to be missing], nor does its failure to uncover those four additional videos render the original search inadequate."
Ahanmisi v. U.S. Dep't of Labor, No. 11-1118, 2012 WL 1592668 (D.D.C. May 7, 2012) (Walton,J.). Holding: Granting defendant's motion for summary judgment on the basis that it conducted an adequate search for responsive records. The court holds that defendant's "affidavits are satisfactorily 'detailed and non-conclusory'" where they "detailed the databases searched, . . . the search terms used, . . . and provided an explanation for why the requested documents were not located" and there is no evidence of bad faith. The court notes that "plaintiff's challenge to the search is partly based on the fact that the defendant's search would 'impliedly [take] a few minutes' and is thus unreasonable and inadequate." However, the court finds that "the reasonableness of a search depends less on the time it takes to conduct the search and more on the thoroughness with which it was conducted." Here, the court finds that defendant's search of "the only two databases in which the responsive records could be found satisfies the agency's burden that its search be 'reasonably calculated to uncover all relevant documents.'" "Moreover, the results of a search are not determinative of whether the search was adequate." As to plaintiff's contention that the search was inadequate because the agency failed to use one of the search terms mentioned in her request, the court concludes that although the use of the suggested term "may have added to the completeness of the search, its absence from the list of search terms does not undermine the 'reasonableness' of the search, especially in light of the unique, identifying terms already used and the specific record the plaintiff was trying to discover." The court observes that "[s]o long as an agency satisfies the standard of reasonableness, 'a court need not quibble over every perceived inadequacy in an agency's response, however slight.'" Lastly, the court finds that defendant "was not compelled to search for a hard copy of the document in the Federal Records Center in the absence of any reasonable likelihood that it would be found there."
Kim v. U.S. Dep't of the Interior, No. 10-1552, 2012 WL 1587215 (D.D.C. May 7, 2012) (Walton,J.). Holding: Granting defendant's motion for summary judgment on the basis that it conducted an adequate search for responsive records; determining that defendant properly asserted Exemption6 where plaintiff agreed to the redactions of individuals' birth dates and there was no public interest asserted; and concluding that destruction of certain records prior to the FOIA request did not evidence bad faith and do not merit any remedial action by the court. The court holds that "defendant[,] having produced to plaintiff the documents available to it at the time of the request, has satisfied its burden of establishing the good faith and reasonableness of its search." Finding persuasive defendant's argument that "plaintiff's request was very narrow and specific," the court finds that the agency's destruction of responsive census in-take forms prior to plaintiff's request was not as plaintiff alleged, "'an enormous change in circumstances that somehow alter[ed] the nature of the express terms of [her] FOIA request'" thereby requiring it to search beyond the office specified in her request. The court notes that "'[i]t is well established that an agency's duty under [the] FOIA is limited by the FOIA request' and an 'agency is not obligated to look beyond the four corners of the request in searching for or releasing records.'" The court also finds that plaintiff's "allegations that the defendant should have documents responsive to the request do not rise above the level of speculation and therefore are insufficient to overcome the presumption of good faith afforded to the government's declarations."
Judicial Watch, Inc. v. DHS, No. 04-907, 2012 WL 1495127 (D.D.C. Apr. 30, 2012) (Walton,J.). Holding: Declining to deny DHS's motion for summary judgment on the basis that it failed to file a statement of material facts as required by the court's local rules where its memorandum in support cites to the facts in the agency's declarations and the deficiency was remedied by a subsequent filing; declining to disregard DHS's "corrected" brief which contained more than "typographical and formatting" revisions where plaintiff had an opportunity to respond to any substantive changes it contained; disregarding one of DHS's declarations which plaintiff contested on the basis that it was not under oath or submitted under penalty of perjury and defendant did not rebut that claim; denying, in part and without prejudice, DHS's renewed motion for summary judgment to the extent that it failed to adequately describe its searches for responsive records and ordering DHS to submit supplemental declarations on this point; rejecting plaintiff's challenges to DHS's searches that were premised on alleged inconsistent and erroneous statements by the agency; and ordering DHS to conduct a new search for certain statistical records, to provide a supplemental declaration with regard to the search, and to produce any responsive documents to plaintiff. The court concludes that DHS's submissions demonstrate that it conducted a reasonable search of some of its offices, "but that other descriptions are insufficient for the agency to meet its burden at the summary judgment stage." The court determines that for certain offices, DHS "fail[ed] to explain who conducted the search, how it was conducted, or what search terms the office used." In contrast, the court finds that, for other offices, DHS's descriptions were "sufficiently detailed" because they discussed "who conducted the searches, the form and location of the files searched, how the searches were conducted, the specific search terms utilized, and whether responsive records were discovered." The court orders DHS to provide supplemental declarations to clarify this point.
However, the court finds "unconvincing" plaintiff's challenge to the adequacy of DHS's searches based on "alleged inconsistent and erroneous statements" by DHS. With respect to conflicting details contained in the agency's declaration, the court finds that "the internal inconsistency appears to be the result of an oversight rather than an attempt to mislead [plaintiff] or the Court, and thus does not evince bad faith nor constitute countervailing evidence raising substantial doubts as to the adequacy of the agency's search." Similarly, the court finds that DHS's failure to identify six pages produced in the course of litigation as duplicates is an "inconsequential error [that] does not remotely suggest bad faith or an inadequate search on the agency's part." As to plaintiff's claim concerning "missing documents," the court finds that this "speculative argument . . . is improperly directed not at search methods but at search results." The court determines that "[b]ecause [DHS's] declaration [explaining that certain records never existed or could not be located through reasonable search] is 'accorded a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents,' . . . [plaintiff's] position on this point must be rejected." Further, the court finds that plaintiff's "claims that additional documents relating to the survey must exist are 'hypothetical assertions' that are 'insufficient to raise a material question of fact with respect to the adequacy of the agency's search.'" With respect to plaintiff's claim that DHS has failed to provide certain responsive statistics that it indicated it would produce in the course of litigation, the court orders DHS to conduct an additional search for those documents, to file a supplemental declaration on this issue, and to "produce forthwith to [plaintiff] any records within its possession that it has already identified as responsive to the foregoing FOIA request." The court denies plaintiff's request that "DHS be ordered to search the four component offices of Customs that declined to conduct searches in response to" a search memorandum from a DHS official in connection with this lawsuit, "[b]ecause the FOIA does not obligate agencies to undertake fishing expeditions in offices that are not reasonably likely to possess responsive records."
Nance v. FBI, No. 08-1643, 2012 WL 628370 (D.D.C. Feb. 28, 2012) (Roberts,J.). Holding: Dismissing plaintiff's claims to the extent that he failed to demonstrate the he exhausted his administrative remedies with respect to certain requests; and granting the FBI's motion for summary judgment on the grounds that it conducted an adequate search for responsive records. The court concludes that the FBI conducted an adequate search where it "provid[ed] a detailed account of the scope of [its] investigation by explaining the methods of [its] search, the search terms used, the indices searched, and additional efforts that went into the search, such as communication with and review of files from the Richmond field office." The court rejects plaintiff's contention that "the FBI's pre-suit searches failed to meet the standard required for an adequate search," concluding that "the timing of a search is irrelevant, so long as an adequate search has been conducted and all redactions from responsive documents are justified." With respect to plaintiff's argument that "the FBI's searches were inadequate because the FBI misplaced the negative control tests and results" that he requested, the court notes that "[t]he adequacy of a search . . . 'is not determined by its results, but by the method of the search itself[,]' and '[a]n agency's failure to find a particular document does not necessarily indicate that its search was inadequate.'"