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THE NATION MAGAZINE v. UNITED STATES CUSTOMS SERV.

August 23, 1996

THE NATION MAGAZINE, WASHINGTON BUREAU, AND MAX HOLLAND, Plaintiffs,
v.
UNITED STATES CUSTOMS SERVICE, Defendant.



The opinion of the court was delivered by: RICHEY

 Before the Court in the above-captioned case are the defendant's Renewed Motion for Summary Judgment and the plaintiffs' Opposition thereto. This case, on remand from the Court of Appeals for the District of Columbia Circuit, concerns the plaintiff's 1992 request pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 et seq., for records held by the United States Customs Service regarding offers from then-Presidential candidate H. Ross Perot to assist the Customs Service in its drug interdiction efforts.

 The Court of Appeals directed this Court to make findings regarding the adequacy of Customs' search and to balance the privacy and public interests implicated by the disclosure of responsive records in its investigatory files, the existence of which Customs refused to confirm or deny. Upon careful consideration of the parties' pleadings, the entire record herein, and the law applicable thereto, and for the reasons expressed below, the Court shall deny in part the defendant's Motion for Summary Judgment with regard to the adequacy of Customs' search for responsive records, and the Court shall grant in part the defendant's Motion for Summary Judgment with regard to the defendant's refusal to confirm or deny the existence of certain records in its investigatory files which would reveal whether Mr. Perot was a subject, witness, or informant in a law enforcement investigation.

 BACKGROUND

 Following is a brief description of the facts and procedural history of this case, which are set forth more fully in Nation Magazine v. Customs Service, 1994 U.S. Dist. LEXIS 20807, No. 94-808, Mem. Op. (D.D.C. July 29, 1994), and in Nation Magazine v. Customs Service, 315 U.S. App. D.C. 177, 71 F.3d 885 (D.C. Cir. 1995).

 On November 14, 1992, the plaintiffs filed a FOIA request with the Customs Service seeking documents pertaining to Mr. Perot (or persons identified as his employees, consultants, or advisors) maintained in Customs' Washington D.C. headquarters or in Customs' Miami, Florida and Houston, Texas field offices. The plaintiffs stated that they were "especially interested in documents and records that pertain to offers by Mr. Perot to assist the Customs Service in the interdiction of illegal drugs."

 Relying on Exemption 7(C) to the FOIA, Customs refused to confirm or deny the existence of any records regarding Mr. Perot in Customs' investigatory files, and Customs informed the plaintiff that it failed to locate responsive records in certain non-investigatory files searched by Customs. The plaintiffs filed their Complaint on April 12, 1994, and this Court granted summary judgment in favor of Customs by Order dated July 29, 1994, on the grounds that Customs conducted an adequate search of the non-investigatory files and that Exemption 7(C) to the FOIA permitted Customs' refusal to confirm or deny the existence of investigatory files relating to Mr. Perot or his associates. See Nation Magazine, No. 94-808, Mem. Op. (D.D.C. July 29, 1994). On appeal, the Court of Appeals reversed this Court's holdings on both the adequacy of Customs' search and the applicability of Exemption 7(C). See Nation Magazine, 71 F.3d at 896.

 The defendant filed a Renewed Motion for Summary Judgment on April 22, 1996, along with the Declaration of Marvin Amernick, Acting Chief in the Disclosure Law Branch of the Customs Service. Customs did not conduct an additional search for records. Instead, Customs described in the Amernick Declaration the system of records maintained by Customs and the search previously conducted for records responsive to the plaintiffs' FOIA request. Customs also confirmed that there are no records in its investigatory files "responsive to the Plaintiff's request for information concerning Mr. Perot's endeavor to assist Customs in its drug interdiction responsibilities," yet Customs continued its refusal to confirm or deny the existence of certain records in its investigatory files which would reveal whether Mr. Perot was a subject, witness, or informant in a law enforcement investigation.

 On May 2, 1996, the plaintiffs filed their Opposition along with the Second Supplemental Affidavit of plaintiff Maxwell Holland. The plaintiffs also noticed the deposition of Mr. Amernick. The defendant filed a Motion for Protective Order which the Court granted, by Order dated May 24, 1996, pending the Court's consideration of the defendant's Renewed Motion.

 On June 21, 1996, the plaintiffs filed the Affidavit of Frank Chadwick in further support of the plaintiffs' Opposition to the defendant's Renewed Motion for Summary Judgment. Mr. Chadwick is a former Customs employee who has stated that he authored a document responsive to the plaintiffs' request (the "Chadwick Memorandum"). The government did not locate or produce the Chadwick Memorandum pursuant to Customs' search. In his affidavit, Mr. Chadwick described Customs' recordkeeping practices and provided information which he asserts would be useful in locating the Chadwick Memorandum. Among other things, this information includes the code name for the project and the names of Customs officials who allegedly received the Memorandum.

 DISCUSSION

 I. THE COURT SHALL DENY IN PART CUSTOMS' RENEWED MOTION FOR SUMMARY JUDGMENT BECAUSE CUSTOMS HAS FAILED TO DEMONSTRATE THE ADEQUACY OF ITS SEARCH; THE COURT SHALL DIRECT CUSTOMS TO FILE AN ADDITIONAL PLEADING AND TO CONDUCT AN ADDITIONAL SEARCH.

 The Court of Appeals directed this Court to make two findings on remand regarding the adequacy of Customs' search. First, did Customs make "an adequate search of files other than its reading files?" Nation Magazine, 71 F.3d at 891. Second, did Customs present "an adequate justification for not searching the reading files which it maintains in its headquarters?" Id. Based on the Court's careful reading of the Court of Appeals' Opinion in conjunction with the Amernick declarations, Customs has failed to demonstrate that it conducted an adequate search of files other than its ...


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