to request number 4 asking for memoranda, notes or correspondence relating to the bid responsiveness of offers under IFB Quito 86-007.
Request Number 1 - Abstract of Offers
Plaintiff attaches copies of the Abstract of Offers to Plaintiff's Opposition. Defendant represents that these are the best available copies. Reply to Plaintiff's Opposition to Defendant's Cross-Motion for Summary Judgment ("Defendant's Reply") para. 1. Furthermore, defendant represents that plaintiff's counsel is welcome to view personally the copies of that document at AID. The Court has reviewed the copies. While the Abstracts are copies of handwritten documents, the Court is of the opinion that the copies are not "indecipherable" as plaintiff claims. As such, the Court will accept defendant's representations that this is the best available copy and enter summary judgment in favor of defendant as to request number 1.
Request Number 2 - Copies of Bids Submitted by Various Bidders
Initially, the Court notes that it agrees with defendant's characterization of plaintiff's claim that defendant has left unanswered the issue of the existence of "original" bids, as compared with the "copies", as a "quibble with semantics." In fact, the Court looks at plaintiff's arguments with great disfavor.
The substantive issue is whether defendant conducted an adequate search of its records in an attempt to respond to plaintiff's FOIA request number 2. In conducting the search for documents, "all that is required is that the agency 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." Marrera v. United States Department of Justice, 622 F. Supp. 51, 54 (D.D.C. 1985); see Meeropol v. Meese, 252 U.S. App. D.C. 381, 790 F.2d 942, 952-53 (D.C.Cir. 1986) ("search is not unreasonable simply because it fails to produce all relevant material"); Weisberg v. United States Department of Justice, 240 U.S. App. D.C. 339, 745 F.2d 1476, 1485 (D.C. Cir. 1984) ("issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate "). In determining the adequacy of a search, the Court is guided by principles of reasonableness. Weisberg, 745 F.2d at 1485.
In the present case, defendant submits the declaration of Jerome Patterson in which he recounts the extensive search conducted by AID in attempts to find information responsive to plaintiff's request number 2. Declaration of Jerome Patterson paras. 4, 5. Because the contract in question was to be performed in Quito, Equador, the agency determined that copies of the bids submitted might be located there. Id. P 4. The Quito office conducted a five hour search of its files which did not uncover any responsive documents. Id.; Defendant's Cross-Motion, Exh. E. Defendant also conducted a search of its former office in Lima, Peru, and did not find any information. Declaration of Jerome Patterson para. 4. Furthermore, defendant contacted, in New Delhi, India, Mr. Michael Snyder, the former contract officer, concerning his recollection of the location of the bid documents. Declaration of Jerome Patterson para. 4; Defendant's Cross-Motion, Exh. F. Mr. Snyder did not have a recollection of the location of the bids. Declaration of Jerome Patterson para. 4; Defendant's Cross-Motion, Exh. G. Finally, defendant conducted a search of AID's Office of Procurement, Latin America and Caribbean Overseas Division, as well as AID's Office of General Counsel, where no documents responsive to plaintiff's request were uncovered. Declaration of Jerome Patterson paras. 4, 5; Defendant's Cross-Motion, Exh. H.
Plaintiff's memoranda fail to present any evidence challenging the adequacy of the above actions. Based upon the material submitted by defendant, the Court finds that defendant clearly conducted a good faith search for the information in request number 2. The Court agrees with the Eighth Circuit that
the fact that a document once existed does not mean that it now exists; nor does that fact that an agency created a document necessarily imply that the agency has retained it. Thus, the [agency] is not required [under FOIA] to account for documents which the requester has in some way identified if it has made a diligent search for those documents in the places in which they might be expected to be found.
Miller v. United States Department of State, 779 F.2d 1378, 1385 (8th Cir. 1985).
The Court notes in passing that plaintiff's suggestion that FOIA requires defendant to retrieve copies of the bids from the bidders themselves, Plaintiff's Memorandum paras. 6, 9, is legally wrong. See Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 150-55, 63 L. Ed. 2d 267, 100 S. Ct. 960 (1980) (Court rejects suggestion that FOIA requires agency to retrieve documents that are no longer with agency).
In view of the foregoing discussion, the Court determines that defendant conducted an adequate search for documents in its possession and responsive to request number 2.
Request No. 3 - Intra-Agency Correspondence and Notes Regarding Plaintiff's Administrative Claim
The Court need not address this request because plaintiff concedes that the attorney notes on plaintiff's information claim are not releasable. Plaintiff's Memorandum para. 5.
Request No. 4 - Copies of Memorandum, Notes or Correspondence Relating to the Matter of Bid Responsiveness or Completeness for Award Purposes under IFB Quito 86-007
Of 51 pages responsive to requests numbers 1, 3-5, defendant released 22 pages and withheld 29 pages of handwritten attorney notes relating to plaintiff's contract reformation claim pursuant to the attorney work-product privilege incoporated into FOIA Exemption 5. Declaration of Jerome Patterson paras. 5, 7-9. As such, defendant states that plaintiff's claim that AID has not released the material responsive to request number 4 is wrong. Rather, defendant maintains that there is nothing remaining to be released. Declaration of Jerome Patterson paras. 5, 7-9. The Court finds that defendant has demonstrated satisfactorily that it has released all the information in its possession responsive to plaintiff's request number 4.
In consideration of the parties' cross-motions for summary judgment, the entire record of this case, and for the foregoing reasons the Court determines that no issues of fact concerning the adequacy of defendant's response to plaintiff's FOIA request exist such that reasonable minds could differ. As such, the Court will enter summary judgment for defendant and dismiss this case. An order in accordance with this decision accompanies this memorandum opinion.
ORDER - July 1, 1988, Filed
In consideration of the cross-motions for summary judgment, the oppositions thereto, the entire record of the case, and for the reasons stated in the memorandum opinion accompanying this order, it is this 30th day of June, 1988,
ORDERED that defendant's motion for summary judgment is granted thereby denying plaintiff's motion and the case shall be dismissed.