search address the techniques or procedures utilized by the agency in attempting to locate responsive documents. See Defendant's Reply at 4-5. The mere fact that other responsive documents may exist is not the proper focus for judicial review of the adequacy of the agency's search. As the Defendant points out, the Plaintiff has "failed even to suggest how the FBI should have searched differently." Id. at 5. Accordingly, the Court finds that the agency's affidavits are sufficient to meet the Defendant's burden of proof with respect to this issue since the fact that the documents released reference other documents not produced does not preclude a finding that the search was reasonable under the circumstances of this case.
The Court further notes that the Plaintiff also makes two other claims with respect to the adequacy of the search, neither of which alters the Court's determination that the agency conducted a reasonable, good faith search in response to Mr. Canning's request.
First, the Plaintiff contends that "there are gaping periods of time in which no records have been produced." See Plaintiff's Opposition at 28. In support of this contention, the Plaintiff cites the Cheminade Declaration which argues that "no documents have been released which are dated in 1974 concerning me [Cheminade]."
The Plaintiff can hardly expect the Court to be surprised by this fact since the FOIA request submitted by Mr. Canning specifically asked the agency to search "for records from 1980 to the present." See Complaint, Exhibit A. As such, the agency's "failure" to produce documents dating back to 1974 clearly casts no doubt on the agency's credibility in asserting that it performed a good faith search.
Nor is the Court skeptical of the fact that the "last document in the 1983-84 series released to Mr. Canning is dated October 17, 1985." See Cheminade Declaration at P 23. Although Mr. Cheminade may find it "quite incredulous that all of a sudden the FBI stopped its investigation," the Court has no reason to doubt the agency's good faith or the adequacy of its search on the sole basis of Mr. Cheminade's belief that, because he continued to engage in certain political activities, the FBI must have continued to maintain records pertaining to him. Indeed, in light of Plaintiff's other allegations which suggest that the FBI may have been "rethinking" the nature and objectives of certain matters pertaining to Cheminade, the Court notes that Plaintiff's own papers may provide a plausible explanation for this alleged "gap" in the existence of records after a certain date.
Finally, the Plaintiff's last contention with respect to the adequacy of the search is that Documents 24 and 30 refer to photographs which were not provided to the Plaintiff. Mr. Canning thus argues that either a search must be conducted to locate them or the Defendant must demonstrate why they were withheld. Upon examination of the documents in question, the Court again finds no basis to question the adequacy of the Defendant's search. The mere fact that these photographs were not released is not a sufficient basis upon which to find that the agency did not conduct a good faith, reasonable search for records pertaining to Cheminade. The Court is uncertain as to how the agency maintains photographs and the fact that they were not released to the Plaintiff does not call into question the adequacy of the FBI's entire search, especially in light of the fact that Mr. Canning's request never specifically mentioned photographs.
In short, the Court finds that, under the circumstances of this case, the agency has sustained its burden of proof in demonstrating the adequacy of its search. The Turner affidavit indicates that the FBI's Central Records System and General Indices were searched. Moreover, the Plaintiff's specific request that the ELSUR indices be searched was also honored by the Defendant. See Complaint, Exhibit A. The Plaintiff has raised no objections to the Defendant's search method nor proposed any alternatives to the FBI's search and the Court is thus satisfied with the representations made in the Turner Declaration as to the reasonableness of the Defendant's search. As explained above, the mere fact that the documents produced reference other documents that Plaintiff may be interested in, does not, by itself, call into question the adequacy of the Defendant's method. The Defendant is therefore entitled to summary judgment on this issue.
IV. THE MOTION FOR AN ORDER REINSTATING COUNT II OF THE COMPLAINT AND MARY JANE FREEMAN AS CO-PLAINTIFF MUST BE DENIED BECAUSE THE COURT FINDS NO BASIS UPON WHICH TO RECONSIDER THE DECISION OF JUDGE GESELL WITH RESPECT TO THIS ISSUE.
Finally, the Defendant also argues that Count II of the Complaint, concerning Mary Jane Freeman's FOIA request to the Department of State, be reinstated and that Ms. Freeman be reinstated as Co-Plaintiff. The Defendant has opposed this Motion.
As the Court has already noted, Judge Gesell dismissed Count II of the Complaint by Order dated July 15, 1992, after finding that the State Department had prevailed upon its Motion for Summary Judgment. At issue with respect to Ms. Freeman's claim was the adequacy of the State Department's search, as only a single document was located and released in response to her request for information concerning Mr. Cheminade. Upon consideration of this issue, Judge Gesell found that the Defendant had "met its burden and clearly established . . . that it has concluded a reasonable and adequate search." See Order of July 15, 1992.
The Court is now asked to reconsider this issue on the grounds that the recently released documents attached to Exhibit A of the Turner Declaration demonstrate "beyond reasonable doubt that the U.S. State Department has more than the one record it located after suit was filed in this case." See Plaintiff's Opposition at 29.
Again, however, the Court must agree with the Defendant that there is no reason for this Court to reconsider Judge Gesell's determination that the State Department conducted an adequate search. The mere fact that the records released to Mr. Canning indicate that the State Department may have failed to locate certain documents potentially responsive to Ms. Freeman's request is not a sufficient basis upon which to question the adequacy of the agency's search. The agency's obligation is to conduct a reasonable search and Judge Gesell determined that this obligation was met by the Department of State. Plaintiff's ability to produce evidence of isolated records that were not located by the State Department may indicate that the State Department's search was not "perfect" but this does not constitute sufficient evidence of an inadequate search and does not justify reconsideration of Judge Gesell's determination. As such, the Plaintiff's Motion to Reinstate Count II of the Complaint and to Reinstate Mary Jane Freeman as Co-Plaintiff must be denied.
After careful consideration of the parties' submissions, the applicable law, and the entire record herein, and for all of the foregoing reasons, the Court finds that the Defendant's Motion for Summary Judgment must be granted, and that the Defendant's Motion for Leave to File a Classified In Camera Declaration and the Motion for an Order Reinstating Count II of the Complaint and Mary Jane Freeman as Co-Plaintiff must both be denied. The Court shall thus issue an Order of even date herewith consistent with the foregoing Memorandum Opinion.
MARCH 31, 1994
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
Upon consideration of the submissions of the parties in the above-captioned case, the applicable law, the entire record herein, and for all of the reasons articulated in this Court's Memorandum Opinion issued of even date herewith, it is, by the Court, this 31st day of March, 1994,
ORDERED that the Defendant's Motion for Summary Judgment shall be, and hereby is, GRANTED; and it is
FURTHER ORDERED that the Defendant's Motion for Leave to File a Classified In Camera Declaration shall be, and hereby is, DENIED; and it is
FURTHER ORDERED that the Motion to Reinstate Count II of the Complaint and Mary Jane Freeman as Co-Plaintiff shall be, and hereby is, DENIED; and it is
FURTHER ORDERED that the above-captioned case shall be, and hereby is, DISMISSED from the dockets of this Court; and it is
FURTHER ORDERED that any and all other pending motions shall be, and hereby are, rendered and declared MOOT.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE