Ursprungligen postat av
heheho
Del 2:
A. Standard of Review.
The standard governing a grant of summary judgment in favor of an agency that claims it has fully discharged its FOIA disclosure obligations is well established. As we explained in Weisberg v. Dep't. of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984), the agency must show, viewing the facts in the light most favorable to the requester, that there is no genuine issue of material fact. To meet this burden, "the agency must demonstrate that it has conducted a 'search reasonably calculated to uncover all relevant documents.' " Id. The question is not
whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate. The adequacy of the search, in turn, is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case. In demonstrating the adequacy of the search, the agency may rely upon reasonably detailed, nonconclusory affidavits submitted in good faith.
Id. (internal citations omitted). We review the issue de novo on the district court record. Id.
B. The Boston U.S. Attorney's Office Search.
The Department concedes that "the district court did not specifically address the search for records of the United States Attorney's Office in Boston." Appellee's Br. at 6. Nevertheless, it urges us to uphold the adequacy of the search based on the record before us. We decline and remand the issue to the district court. Although we do not decide the adequacy of the search, Ms. Steinberg raises two issues that warrant the district court's attention on remand.
First, the Wood Declaration, on which the Department based its motion for summary judgment as to the EOUSA, is so general as to raise a serious doubt whether the Boston USA's Office conducted a reasonably thorough search of its records. While the document describes in general how the EOUSA processed appellant's FOIA request, it fails to describe in any detail what records were searched, by whom, and through what process. See Weisberg v. Dep't. of Justice, 627 F.2d 365, 371 (D.C. Cir. 1980) (agency affidavits that "do not denote which files were searched, or by whom, do not reflect any systematic approach to document location, and do not provide information specific enough to enable [the requester] to challenge the procedures utilized" are insufficient to support summary judgment).
Pressed at oral argument for a description of the mechanics of the search, counsel for the Department pointed primarily to the conclusory and unilluminating sentence, "EOUSA contacted the [Boston] United States Attorney's Office and was informed that no records responsive to the request had been located." Wood Decl. at 2. In addition, counsel suggested that the Wood Declaration's description of an interview with AUSA John Markham provided further evidence of an adequate search. Markham, who had participated in a prior criminal investigation of LaRouche, informed EOUSA that the Boston USA's Office had provided copies of source material to Swedish authorities, and that it did not retain copies in its files. According to Markham, the originals were returned to the FBI, which later released them to the Commonwealth of Virginia for use in state prosecutions involving the LaRouche organization. While the Wood Declaration describes Markham's recollections with particularity, we leave it for the district court to decide whether they are an adequate substitute for a search.
Second, Steinberg presented affidavits to the district court that may raise issues of material fact regarding the existence of documents that are responsive to her request. For example, the affidavit of John Russell, a Senior Assistant Attorney General for the Commonwealth of Virginia, states that some, but not all, of the LaRouche case file materials were returned to Virginia by the Boston USA's Office. In addition, appellant submitted a response to an interrogatory in another civil case involving LaRouche in which a member of the Boston USA's Office indicated that no original records, only copies, were transferred to Virginia. None of this, of course, establishes the existence of any relevant documents, and "mere speculation that as yet uncovered documents may exist does not undermine the finding that the agency conducted a reasonable search." SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991). At the least, however, the evidence presented appears to contradict assertions in the Wood Declaration and, therefore, warrants an explicit finding on the part of the district court as to the adequacy of the search of the Boston USA's Office.
C. The FBI Search.
1. Adequacy. The declaration of Steven Auerswald describes how the FBI conducted its search. Notably more detailed than the Wood Declaration, it describes with particularity the files that were searched, the manner in which they were searched, and the results of the search. Based on this affidavit, the district court concluded that "the record discloses an informed, detailed search of likely sources.... There is no doubt about completeness." Memorandum at 3. Appellant nonetheless complains that the FBI failed to examine nineteen documents and six files that were cross-referenced in several of the disclosed documents.
We are not persuaded by appellant's argument. As the district court noted, the FBI was involved in several ongoing investigations of the LaRouche organization. It should therefore come as no surprise that other LaRouche documents and files were cross-referenced in the documents that were produced. But mere reference to other files does not establish the existence of documents that are relevant to appellant's FOIA request. If that were the case, an agency responding to FOIA requests might be forced to examine virtually every document in its files, following an interminable trail of cross-referenced documents like a chain letter winding its way through the mail. As FOIA clearly does not impose this burden upon federal agencies, we uphold the district court's grant of summary judgment to the government on the adequacy of the FBI's search.
2. Exemption 1--Classified Material. The FBI withheld portions of three documents pursuant to FOIA exemption 1, which allows an agency to withhold records "specifically authorized under criteria established under an Executive order to be kept secret in the interest of national defense or foreign policy and ... are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b) (1). Appellant claims that the district court had no way of assessing the appropriateness of the FBI's reliance on this exemption because the court did not examine unredacted copies of the documents, and because the Department's Vaughn index described the documents only by number and date.
We uphold the application of exemption 1. Appellant is mistaken that the district court did not examine unredacted copies of the three documents. See Memorandum at 1 ("the court has conducted an in camera inspection of the full text of the documents released to plaintiff in redacted form"). As the three documents subject to exemption 1 were among the eighteen documents released by the FBI, we must assume that the district court examined them. In addition, the Hurst Declaration provides a full and fair explanation for the invocation of exemption 1 as to each of the three documents.
For the foregoing reasons, we remand this case to the district court to reassess the adequacy of the Boston United States Attorney's Office's response to appellant's FOIA request in light of the issues we have raised today, and we now accept the Department's invitation to remand the issue of its reliance on FOIA exemption 7(D) for further consideration under the standard announced in Dep't. of Justice v. Landano, --- U.S. ----, 113 S. Ct. 2014, 124 L. Ed. 2d 84 (1993). In all other respects, the district court's ruling is affirmed.
So ordered.
