Elliott v. United States Department of Interior ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DAMON ELLIOTT, )
)
Plaintiff, )
)
v. ) Civil Action No. 07-1548 (RJL)
)
UNITED STATES DEPARTMENT OF THE )
INTERIOR, )
)
Defendant. )
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MEMORANDUM OPINION
February~,2009
In this action brought under the Freedom ofInformation Act ("FOIA"), 5 U.S.C. § 552,
the plaintiff challenges the defendant's failure to locate records responsive to his FOIA request.
The defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure [Dkt. No. 17]. Upon consideration of the parties' submissions and the entire record,
the Court grants the defendant's motion.
I. BACKGROUND
By letter of April 19, 2007, the plaintiff requested "a copy of all documents that provide []
the National Park Service (NPS) has jurisdiction over 3696 Sellman Road Beltsville, MD 20705
to enforce laws and regulation over this location." CompI. at 2. NPS conducted a search but
located no responsive records. Defs Mot., Declaration of William Line ("Line DecI.") ~ 4.
II. LEGAL STANDARD
Summary judgment is appropriate when "the pleadings ... and any affidavits show that
there is no genuine issue as to any material fact and that the movant is entitled to judgment as a
matter oflaw." FED. R. CIV. P. 56(c). "[T]he substantive law will identify which facts are
material. Only disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986).
In a FOIA action, the Court may award summary judgment to an agency solely on the
basis of information provided in declarations when they describe "the justifications for
nondisclosure with reasonably specific detail ... and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981). Because agency declarations are accorded Ita presumption
of good faith," Long v. Us. Dep't of Justice, 450 F. Supp.2d 42,54 (D.D.C. 2006), it is
incumbent upon the plaintiff to "point to evidence sufficient to put the Agency's good faith into
doubt." Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981). "A declarant in
a FOIA case satisfies the personal knowledge requirement in Rule 56( e) if in his declaration, [he]
attests to his personal knowledge of the procedures used in handling [a FOIA] request and his
familiarity with the documents in question." Barnard v. Dep 't of Homeland Sec., 531 F. Supp.
2d 131, 138 (D.D.C. 2008) (citations and internal quotation marks omitted; brackets in original).
See Safe Card Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991) (citing Meeropol v.
Meese, 790 F.2d 942, 951 (D.C. Cir.1986)) (determining that the person in charge ofa search is
"the most appropriate person to provide a comprehensive affidavit").
The Court's jurisdiction under the FOIA depends on the improper withholding of agency
records. 5 U.S.C. § 552(a)(4)(B); McGehee v. CIA,697 F.2d 1095, 1105 (D.C. Cir. 1983).
Because an inadequate search amounts to an improper withholding under the FOIA, see Maydak
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v. u.s. Dep't. ofJustice, 254 F. Supp.2d 23, 44 (D.D.C. 2003), the Court must determine the
adequacy of the agency's search when, as here, its failure to locate responsive records is
challenged.
The agency to which a FOIA request is submitted is required "to make a good faith effort
to conduct a search for the requested records, using methods which can reasonably be expected to
produce the information requested." International Trade Overseas, Inc., 688 F. Supp. 33, 36
(D.D.C. 1988) (quoting Marrera v. Dep't ofJustice, 622 F. Supp. 51,54 (D.D.C. 1985)) (citation
omitted). In determining the adequacy of a FOIA search, the Court is guided by principles of
reasonableness. Id. (citing Weisberg v. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)).
Because the agency is the possessor of the records and is responsible for conducting the search,
the Court may rely on "[a] reasonably detailed affidavit, setting forth the search terms and the
type of search performed, and averring that all files likely to contain responsive materials (if such
records exist) were searched." Valencia-Lucena v. United States Coast Guard, 180 F .3d 321,
326 (D.C. Cir. 1999) (citing Oglesby v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C.
Cir. 1990); Kowalczyk v. Dep't of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996); Weisberg v. Dep't
ofJustice, 705 F.2d 1344,1351 (D.C. Cir. 1983)). "Once the agency has shown that its search
was reasonable, the burden shifts to [the plaintiff] to rebut [the defendant's] evidence by a
showing that the search was not conducted in good faith." Moore v. Aspin, 916 F. Supp. 32, 35
(D.D.C.1996)(citingMillerv. u.s. Dep'tofState, 779F.2d 1378,1383 (8thCir.1985)).
Summary judgment is inappropriate "if a review of the record raises substantial doubt" about the
adequacy of the search. Valencia-Lucena, 180 F.3d at 326 (citing Founding Church of
Scientology v. National Security Agency, 610 F.2d 824, 837 (D.C. Cir. 1979)).
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III. DISCUSSION
The defendant has provided evidence of an adequate search. See Line Deci. ~~ 4-5. 1
The plaintiff claims that a genuine issue is presented because a government witness testified in
August 1997 that "3696 Sellman Road is U.S. Government property." PI.'s Opp. [Dkt. No. 33]
at 2. Plaintiff has not provided a transcript of such testimony but even if true, this fact alone is
immaterial to the question of whether the defendant possessed a responsive record as covered by
the FOIA at the time of the plaintiffs request in 2007. 2 See McGehee, 697 F.2d at 1110 (an
agency is required to produce only those records in its custody and control at the time of the
FOIA request). In the absence of any evidence calling into question the defendant's
evidence of an adequate search, the Court concludes that the defendant is entitled to judgment as
a matter of law. A separate Order accompanies this Memorandum Opinion.
1 Line is the Communications, FOIA and Tourism Officer for the NPS's National Capital
Region who coordinated the search for records responsive to the plaintiffs FOIA request. Line
Decl. ~~ 2, 4. His statement is based on his "personal knowledge and/or experience and/or
personal review of plaintiffs FOIA request and/or upon information furnished to me in my
official capacity." !d. ~ 8.
2 "[R]ecord ... includes [] any information that would be an agency record subject to the
requirements of this section when maintained by an agency in any format, including an electronic
format[.]" 5. U.S.C. § 552(f). See Consumer Federation ofAmerica v. Dep't ofAgriculture, 455
F.3d 283, 287 (D.C. Cir. 2006) (observing that the FOIA does not define record per se); but cf 5
U.S.C. § 552a(a)(4) (Privacy Act defining record as "any item, collection, or grouping of
information about an individual that is maintained by an agency .... ")
4