Aguiar v. DEA, 865 F.3d 730 (D.C. Cir. 2017) (Garland, C. J.)

Aguiar v. DEA, 865 F.3d 730 (D.C. Cir. 2017) (Garland, C. J.)

Re:  Request for records concerning requester's criminal case, including GPS mapping software and four administrative subpoenas

Disposition:  Vacating and remanding district court's grant of government's motion for summary judgment

• Litigation Considerations, Vaughn Index/Declaration:  The Court of Appeals for the District of Columbia Circuit holds that "[it] simply do[es] not know enough about the [requested] software to credit either of the DEA's arguments: that it does not have the software, or that it did not 'obtain' and does not 'control' the software in a way that satisfies the legal definition of an 'agency record.'"  The court explains that "[t]he DEA asks [the court] to read [its] statement [that "it 'was not in possession or control of any system or software that was responsive to [the requester's] request'"] to mean that the DEA searched for the software and – as a matter of fact – found nothing."  "But that is not what [DEA's statement] says."  "It says only that the DEA 'was not in possession or control' of any responsive software – which is a legal assertion, and a conclusory one at that."  "By using that legal language, the declaration appears to conclude as a matter of law that the software is not in the agency's 'possession or control,' rather than to explain as a matter of fact that the software was not found."  "Even if that is not the only reasonable interpretation of the declaration, [the court] must view it in that light – the one most favorable to [the requester], the non-moving party – on summary judgment."  "Moreover, the DEA'’s factual assertion on appeal – [1] that it 'does not have the requested software' – conflicts with multiple statements the agency made in the district court that suggested familiarity with the software and its location."
   
• Litigation Considerations, Adequacy of Search:  The Court of Appeals for the District of Columbia Circuit holds that, "[u]nder these circumstances, which include 'well defined requests and positive indications of overlooked materials,' . . . the DEA's declarations are too sparse to assure the court on summary judgment that the search was reasonable."  Regarding a request for four administrative subpoenas, the court notes that "[t]here is no dispute that they once existed."  The court then finds that "[t]he DEA's declarations explain how it found . . . two case files [which likely would have contained the responsive records], but not how it searched within those files."  The court finds that, "[t]o be sure, the degree of detail required depends on the case, and 'the adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search.'"  "Hence, 'the failure of an agency to turn up one specific document in its search does not alone render a search inadequate.'"  "But in some cases, failure to find a record that once existed, coupled with a conclusory affidavit about the methodology of the search, can weaken the agency's claim for summary judgment."