Mermelstein v. DOJ, No. 22-816, 2023 WL 2977791 (2d Cir. Apr. 18, 2023) (per curiam)

Mermelstein v. DOJ, No. 22-816, 2023 WL 2977791 (2d Cir. Apr. 18, 2023) (per curiam)

Re:  Request for records concerning requester

Disposition:  Affirming district court’s grant of government’s motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The Court of Appeals for the Second Circuit holds that “[t]he FBI offered sufficient evidence to demonstrate that it conducted a thorough search.”  The court relates that “[the government] submitted affidavits from [the] section chief of the Record/Information Dissemination Section of the FBI, with accompanying exhibits including letters the parties had exchanged and a log of the documents that the FBI produced.”  “[The government] affirmed that the FBI had conducted a search of the Central Records System (‘CRS’), an electronic records system ‘where the FBI indexes information about individuals, organizations, and other subjects of investigative interest for future retrieval,’ using multiple search indices.”  “[The government] further affirmed that the FBI searched the manual indices located at the FBI’s headquarters and its New York and Los Angeles offices.”  “[The government] argues that the FBI’s search was inadequate because it did not include the Electronic Surveillance Indices (‘ELSUR’), a database that [the requester] contends was likely to contain additional records.”  “But [the government] asserted that ‘any responsive records/information within the ELSUR indices would be duplicative of information available within’ the CRS and explained why that was so.”  “[The requester] resists this assertion.”  “He contends that a separate search of ELSUR was necessary because the FBI, in an act of bad faith, ‘purged’ the CRS of certain electronic files relating to him that it still stores in ELSUR.”  “[The requester’s] claims of a bad faith ‘purge’ of electronic files . . . are ‘purely speculative’ and ‘cannot . . . rebut[ ]’ the presumption of good faith that attaches to [the government’s] affidavits.”
   
• Litigation Considerations, In Camera Inspection:  The Court of Appeals for the Second Circuit relates that “[the requester] contends that the District Court was obligated to perform an in camera inspection of all the withheld documents.”  “[The court] review[s] for abuse of discretion . . . and find[s] none here.”  “[The government’s] affidavit was ‘relatively detailed’ and thus sufficient to show why the FBI withheld certain documents pursuant to FOIA exemptions.”  “[The requester] did not offer any evidence to dispute the FBI’s explanations.”  “And insofar as [the requester] now insists that the District Court should perform an in camera review of the ‘unsearched record systems,’ he did not raise that issue in the District Court.”