Court of Appeals Decisions

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Wadhwa v. VA, No. 11-1718, 2011 WL 4495600 (3d Cir. Sept. 29, 2011) (per curiam)(unpublished disposition).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 LEXIS 19197 (9th Cir. Sept.16, 2011) (unpublished disposition).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

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.'"