to this contention. By conducting three separate searches for records relating to the Kamb Study, the CDC has satisfied the required standard of reasonableness and adequacy.
After undergoing its original search, CDC released a microfilm of Kamb documents to plaintiff. Leathers Dec. P 14. Next, as a result of its agreement to perform a further search for "missing" Kamb documents, CDC again searched in response to each of nine categories of documents requested by plaintiff; for each category, the CDC either provided the relevant documents, stated that no such document existed, or stated that no such document could be located. See Letter of June 21, 1993, from Mary Mitchell Armstrong, Joint Report, Exhibit 2. Moreover, after plaintiff's counsel again requested documents related to the Kamb Study, Agency counsel once again contacted Dr. Kamb, but failed to obtain any additional information. See Letter of July 2, 1993, from Mary Mitchell Armstrong, Joint Report, Exhibit 6.
The Court finds that CDC's efforts entitle it to summary judgment regarding the adequacy of its search for the Kamb records. "In order to obtain summary judgment the agency must show that it has made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. Department of the Army, 287 U.S. App. D.C. 126, 920 F.2d 57, 68 (D.C. Cir. 1990). Oglesby ruled that genuine issues of material fact existed concerning the adequacy of a search where the Department of State only searched the record system most likely to produce responsive documents, and failed to explain in its affidavit why no other record system was likely to produce responsive documents. Id. In contrast, as the letters indicate, the CDC's multiple inquiries for the requested documents -- such as computer printouts and telephone questionnaires -- involved frequent contact with Dr. Mary Kamb herself as well as searches in her files. The plaintiff presents no affidavit or argument that the CDC acted in bad faith or executed a search that was not "reasonably calculated to uncover all relevant documents."
2. The Miller Study
With regard to the Miller Study, at issue is whether the CDC disclosed all records in response to plaintiff's January 31, 1991, FOIA request and its subsequent July 28, 1992 FOIA request (which is not at issue in this litigation).
Because the defendants adequately responded to these requests as they pertain to the Miller Study, the Court shall grant their motion for summary judgment on this issue.
The plaintiff argues that the only document it received was the draft study, and none others. Paola M.G. De Kock, the Cleary, Gottlieb attorney in charge of maintaining the FOIA records received from the CDC, swears that no other records on this subject were included in the released materials. Affidavit of Paola M.G. De Kock. According to the plaintiff, the "Philen Study makes explicit that it relied upon documents and records relating to the Miller study in order to reach its conclusions." Joint Memorandum at 8. Further, Cleary Gottlieb charges that defendants have not identified which records it released, nor at what time.
The Court concludes that the CDC's response to the plaintiff's FOIA request for records pertaining to the Miller Study was adequate. Defendants released records concerning the Miller Study in response to an appeal to the January 31, 1991 FOIA request. To the best of the knowledge of Lawrence Posey, the deputy chief in charge of collecting and compiling CDC's records concerning EMS and L-tryptophan in response to FOIA requests, "all records underlying [the Miller Study] in the possession of CDC have been produced." Declaration of Lawrence Posey ("Posey Dec.") P 5.
Significantly, there is no evidence that the plaintiff appealed the completeness of the records released. Although defendants cannot cite the date nor content of released documents, counsel for both parties admitted at the motions hearing of October 8, 1993, that they did not know of any duty to maintain such a record of disclosure. While Ms. De Kock has sworn that she did not receive the requested documents, that does not alter the reality that there is no genuine issue of material fact to indicate that defendants did not respond adequately to the FOIA request. The legal tests used in challenging a response to a FOIA request are means-based rather than result oriented, and defendants touched all the necessary bases -- they made a reasonable search for records connected with the Miller Study, and made a good-faith production of them. Regardless of whether the plaintiff in fact received the requested records, this Court emphasizes that federal district court is not the appropriate forum for an initial complaint of incompleteness.
3. The Swygert Database
The plaintiff points to four factual bases for its argument that Dr. Swygert's database exists, is identifiable and segregable, and should be disclosed: (1) that researchers used her data after Dr. Swygert completed her work; (2) that defendants recently generated a "second" Swygert database; (3) that defendants have specifically acknowledged a copy of the surveillance database that is presently in use; and (4) that CDC maintains a surveillance database which includes Dr. Swygert's dataset.
Joint Memorandum at 5-6. Furthermore, the plaintiff asserts that defendants cannot evade FOIA merely by adding more data to the database.
Defendants counter that their response was reasonable, and that there is no basis to create a triable issue of fact regarding the thoroughness of their search. Defendants contend that their search for records pertaining to the Swygert Study were reasonably calculated to locate responsive records, and that the Swygert database has been sufficiently disclosed.
The plaintiff has carried its burden for summary judgment on this issue, but is only entitled to a copy of the Swygert database in electronic format. The plaintiff correctly argues that defendants must release the "second" Swygert database as it exists today. According to the defendants, the CDC has already turned over to the plaintiff the one existing database used by Dr. Swygert; all other programs have already been erased. See Leathers Dec. P 32. There is no factual question on this point.
However, there is a second "existing" Swygert database, albeit a modified version of the database already released by the defendants to the plaintiff. See Posey Dec. P 2. While the plaintiff is not entitled to receive updated materials in this context without filing additional requests, see Mandel Grunfeld & Herrick v. Customs Serv., 709 F.2d 41, 43 (11th Cir. 1983) ("Nothing in the FOIA can be construed as requiring an agency to set up a mailing list to automatically disseminate agency records or information."), the electronic database existed at the time of the original FOIA request and is responsive to it.
Apart from the electronic database, the defendants have sufficiently responded to the plaintiff's FOIA request, and need not separate out any data. Defendants' search for records was thorough and reasonable. The CDC originally released Swygert Study records on microfilm. In response to plaintiff's appeal, CDC employees searched for additional records in the division where she used to work, checked the CDC's mainframe computer, and contacted Dr. Swygert for a copy of her database. In addition, CDC's FOIA officer contacted the study's co-authors, and the study's custodian. None of the individuals that were contacted knew of any existing responsive records that had not been released. Defendants did release a database from the mainframe that was used at some point by Ms. Swygert. Therefore, according to the letters describing the agencies' efforts, the scope of the search meets the "reasonably calculated" standard articulated in Oglesby.
Not only have the defendants taken all the necessary steps in their search, but have also complied with their duty to segregate and release requested non-exempt materials. See 5 U.S.C. § 552(b) ("Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection."). Plaintiff's argument that the CDC has unlawfully failed to separate out and re-create the original Swygert database does not comport with our Circuit's guidance on this issue:
It is well settled that an agency is not required by FOIA to create a document that does not exist in order to satisfy a request. A requester is entitled only to records that an agency has in fact chosen to create and retain. Thus, although an agency is entitled to possess a record, it need not obtain or regain possession of a record in order to satisfy a FOIA request.
Yeager v. Drug Enforcement Admin., 220 U.S. App. D.C. 1, 678 F.2d 315, 321 (D.C. Cir. 1982) (citations omitted). The defendants have released the hardcopy of an identifiable database that Dr. Swygert used which is still in existence, and shall release the existing electronic one; they have no further duty.
The plaintiff reveals an apparent misunderstanding of FOIA's duty to segregate and the underlying policy behind it. Dissatisfied with the case report forms disclosed by the defendants because they "do not contain all of the data cited and used in the Swygert study," the plaintiff complains that it "cannot reconstruct the Swygert database using the case report forms." Joint Memorandum at 6. Any attempt to burden defendants with the reconstruction of a record is unfounded. While defendants were obliged to sort through and release mountains of paper, FOIA imposes no further duty to tailor additional records to plaintiff's specifications. As the Yeager court concluded after analyzing FOIA's legislative history and jurisprudence, "[a] requester must take the agency records as he finds them." Id. at 323.
B. The plaintiff may not raise the issues of completeness and intelligibility of CDC records before this Court, because the plaintiff has not appealed their unintelligibility to the CDC and therefore has failed to exhaust its administrative remedies.
The plaintiff argues that the CDC's microfiche and microfilm production of records, in response to plaintiff's requests of May 3, 1990, January 31, 1991, and April 19, 1991, is largely unintelligible. Citing instances of illegible photocopying, missing documents, and absent appendices, among other flaws, it seeks a complete set of properly indexed documents.
Without question, a FOIA respondent has a duty to release legible, complete records. See Mead Data Central, Inc. v. Department of the Air Force, 184 U.S. App. D.C. 350, 566 F.2d 242, 260 (D.C. Cir. 1977) ("The focus of the FOIA is information, not documents"); Grove v. Department of Justice, 802 F. Supp. 506, 519 (D.D.C. 1992) (a FOIA requester is "entitled to receive legible copies of documents that are responsive to his request and are not exempt"). While the Court is aware that the vast scope of the information released by the government may lead to problems of intelligibility, the Court again stresses that federal district court is not the forum for an initial assertion of non-compliance on these grounds. As our Circuit has stated:
Exhaustion of administrative remedies is generally required before filing suit in federal court so that the agency has an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision. The exhaustion requirement also allows the top managers of an agency to correct mistakes made at lower levels and thereby obviates unnecessary judicial review.
Oglesby at 61. FOIA specifically sets out an administrative appeal process subsequent to an agency's denial of a FOIA request. 5 U.S.C. § 552(a)(6)(A)(i),(ii). Caselaw requires a requester to exhaust this appeal process prior to filing a lawsuit. See Oglesby at 61; Dettmann v. Department of Justice, 256 U.S. App. D.C. 78, 802 F.2d 1472, 1477 (D.C. Cir. 1986).
Based on the affidavits submitted, there is no dispute that the CDC has made a prompt, good-faith effort to correct or replace all incomplete or unintelligible documents brought to its attention.
The plaintiff did not file an appeal with the CDC's disclosures to Plaintiff's requests of May 3 and April 19, Leathers Dec. P 24. The plaintiff did administratively appeal CDC's response to its January 31, 1991, request, but restricted its appeal to CDC's assertion of FOIA Exemption 5. Id., P 13. The plaintiff never filed an appeal (nor even informed the CDC) regarding the issues of completeness or sequence of the released documents. Id. PP 8, 24.
The statutory scheme directs the plaintiff first to appeal to the CDC before raising issues of intelligibility in this Court. See Oglesby at 65 ("We therefore interpret 5 U.S.C. §§ 552(a)(6)(A) and (C) as requiring the completion of the administrative appeal process before courts become involved, if the agency has responded to the request before suit is filed"). In addition, the facts in this case implicate the policy reasons behind the rule mandating the exhaustion of administrative remedies. As the CDC's documentation shows, expertise, uniformity, fairness and conservation of judicial resources would best be served by appealing questions of intelligibility directly to the agency that has handled over 200 FOIA requests for L-tryptophan documentation and has an institutional framework established to respond to them. Therefore, no issues of completeness or legibility are properly before this Court.
The plaintiff also argues that CDC must release documents responsive to its April 19, 1991 request in the orderly indexed and tabbed format that CDC had released to Congressmen Ted Weiss. Citing Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 771, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989), the plaintiff argues for identical documentation, as "the identity of the requesting party has no bearing on the merits of his or her FOIA request." This claim has no merit, because (1) Congressman Weiss did not receive the documents as a result of a FOIA request, but rather in his role to review the federal governments's regulation of L-tryptophan, and (2) the index disclosed to him was not a FOIA index. See Plaintiff's Memo, Exhibit D; Salisbury v. United States, 223 U.S. App. D.C. 243, 690 F.2d 966, 971 (D.C. Cir. 1982) ("The fact of disclosure of a similar type of information in a different case does not mean that the agency must make its disclosure in every case.").
C. Although the software programs created by Dr. Rossanne Philen are agency "records" under FOIA, these programs and related records prepared by Dr. Philen and her collaborators fall within the deliberative process privilege of FOIA Exemption 5, and therefore were properly withheld by the CDC.
At this stage of the litigation, the disagreement over the release of the remaining information underlying the Philen Study is purely a legal question. There is no dispute that the Philen Study is a statistical analysis of impurities in L-tryptophan associated with EMS, nor is there any dispute that the CDC continues to withhold, under FOIA Exemption 5, the following information, all of which existed on October 18, 1991, when Dr. Mason responded to plaintiff's appeal of its January 31, 1991 FOIA request: the databases and special database files created for the study, their indices, printouts of statistical results, handwritten notes, an analysis of one database and an initial draft of the manuscript. Joint Statement P 50. At issue are (1) whether the software programs created by Dr. Philen in conjunction with the Philen Study are agency "records" under FOIA; and (2) whether an initial draft of a manuscript of the study and the software programs (in the event the Court finds them to be agency "records") prepared by Dr. Philen and her collaborators in conjunction with the Philen Study were properly withheld by CDC under FOIA Exemption 5 as deliberative process records.
As the defendants note, the question of whether a computer program is considered to be an "agency record" under FOIA is unresolved in the courts. The plaintiff asserts that the software programs are "records" under the APA, 5 U.S.C. § 552(a)(4(B), and that the plaintiff is shirking its duty to disclose by withholding information because it is stored in electronic form. The plaintiff points to a recommendation to agencies subject to FOIA made by the Administrative Conference of the United States, which stated that "in interpreting the Freedom of Information Act, agencies should recognize that 'record' includes information maintained in electronic form." 1 C.F.R. § 305.8-10, at 227. For the purposes of complying with FOIA's mandate to segregate information stored on computers, our Circuit has ruled that FOIA does not distinguish "between records maintained in manual and computer storage systems." Yeager v Drug Enforcement Admin., 220 U.S. App. D.C. 1, 678 F.2d 315, 321 (D.C. Cir. 1982).
The defendants claim that the software are not records, relying on the statements of the program's creator that each program is merely a list of instructions for a computer to manipulate a database. Declaration of Rossanne M. Philen, M.D. ("Philen Dec.") P 8. Defendants cite general case law to assert the general proposition that a "record" is a medium to record and preserve information. See, e.g., Di Viaio v. Kelley, 571 F.2d 538, 542 (10th Cir. 1978) (defining a record as "that which is written or transcribed to perpetuate knowledge or events"). Reasoning that the sequence of instructions in dispute, as software, is distinguishable from the underlying and separable sets of data, the defendants arrive at the conclusion that the computer program is not an agency record.
In light of FOIA's well-known purpose to encourage access, the applicable caselaw, and specific facts before it, the Court concludes that these programs are records for the purposes of this litigation. Recognizing that Congress has not defined agency records under FOIA, the Supreme Court has looked to the Records Disposal Act as influential to judicial interpretation, and noted that it includes "machine readable materials . . . regardless of physical form or characteristics." Forsham v. Harris, 445 U.S. 169, 183, 63 L. Ed. 2d 293, 100 S. Ct. 977 (U.S. 1980) (quoting the Disposal of Records Act, 44 U.S.C. § 3301). HHS's own regulations provide that agency records include "magnetic tapes, cards or discs." 45 C.F.R. § 5.5.
More importantly, the computer software is an agency record under the common-sense definition in Divaio, which the defendants endorsed. Unlike generic word processing or prefabricated software, Dr. Philen's programs are uniquely suited to its underlying database. As a consequence of this tailoring, the software's design and ability to manipulate the data reflect the Philen Study. These programs preserve information and "perpetuate knowledge" that are responsive to plaintiff's FOIA request because of their relation to the Philen Study.
Next, the Court looks to whether the computer software programs and draft manuscript should be exempt from mandatory disclosure under the deliberative process privilege. The standard for this privilege is well-established in this Circuit. To qualify under this exemption, information must be both "predecisional" and "deliberative." This exemptions covers work-product which indicates the author's personal opinion rather than the agency's. Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854 at 866-69 (D.C. Cir. 1980); see Jordan v. Department of Justice, 192 U.S. App. D.C. 144, 591 F.2d 753, 772 (declaring that the deliberative process privilege "attaches to all inter- and intra-agency communications that are part of the deliberative process preceding the adoption and promulgation of an agency policy").
Although there is no touchstone in applying this privilege, opinion is generally protected, in contrast to factual information. See Environmental Protection Agency v. Mink, 410 U.S. 73, 87-91, 35 L. Ed. 2d 119, 93 S. Ct. 827 (1973). However, this distinction between fact and opinion may not be conclusive, as "the disclosure of even purely factual material may so expose the deliberative process within an agency" to warrant the application of the privilege to that material. Mead Data Central, Inc. v. Department of Air Force, 184 U.S. App. D.C. 350, 566 F.2d 242, 256 (D.C. Cir. 1977). This privilege furthers three policy bases, in that it (1) promotes broad consideration of alternatives and improves the quality of decisions; (2) prevents premature disclosure of ongoing discussions that might confuse the public; and (3) protects the integrity of the decision-making process, by making sure officials are judged on what they decide, not what they consider. Jordan at 772-73.
The Court concludes that under the deliberative process privilege, the CDC properly withheld the draft of the manuscript prepared by Dr. Philen for review by her collaborators. This draft is pre-decisional inherently, and deliberative because it was created for the candid review and discussion among Dr. Philen and her research colleagues. Further, because the final manuscript was published, releasing the draft manuscript would not disclose any new data. From a policy perspective, as outlined in Jordan, supra, the disclosure of such draft documents would undercut the openness of decision-making embodied by Exemption 5.
The Court also concludes that the computer software programs are also privileged under this exemption. Dr Philen's work involved frequent evaluation and analysis of her data:
The process of epidemiological study involves continuous changes in the selection and examination of data. . . .