Court of Appeals held that Customs must "describe its recordkeeping system in sufficient detail to permit [the Court] to identify what subject matter files, other than those in the Privacy Act System of Records, might hold responsive information regarding Perot's offers to help Customs with its drug interdiction efforts." Id. at 891. Customs stated that it searched "all . . . subject matter records" located in the field offices at issue, Amernick Decl. P 28; however, Customs failed to make such a statement with respect to any subject matter files which may exist at Customs' headquarters. The Court cannot rule as to the adequacy of Customs' search until Customs informs the Court and the plaintiffs whether subject matter files exist at headquarters and, if so, whether such files have been searched for responsive records. If Customs has not searched all subject matter files at headquarters, Customs should either conduct such a search or should identify the subject matter files that exist and justify its reason for not searching those files.
Customs must also address whether any other files exist outside of the Privacy Act System of Records and the reading"chron" files. If such files do exist, Customs must explain whether such files have been searched and, if not, Customs must justify not doing so.
The Amernick declarations do not clearly establish what, if any, files exist outside of the Privacy Act System of Records and the reading files.
Moreover, based on Customs' and the plaintiffs' affidavits and declarations, it is apparent that certain "personal" copies of documents may exist in Customs' files.
The government argues, incorrectly, that personal copies of documents cannot be subject to the FOIA. To the extent that the records were generated by an agency subject to the FOIA in the course of that agency's business purpose, and the records are in the custody of Customs, then they are "agency records" which are subject to the FOIA. See Bureau of Nat'l Affairs v. Department of Justice, 239 U.S. App. D.C. 331, 742 F.2d 1484, 1492 (D.C. Cir. 1984).
Finally, a review and comparison of the Chadwick declaration and the First and Second Amernick Declarations indicates that Customs may not have conducted the reasonable inquiry necessary to locate the documents at issue. The plaintiffs have requested records relating to an alleged proposal or project that took place approximately fifteen years ago. A reasonable and good faith search for such documents necessitates that Customs make an inquiry of a Customs employee who would have been in a position at the time of the alleged project to have knowledge of such a project, or who would have been involved with such a project, so that Customs might perform a fruitful search -- especially in light of Customs' alleged difficulties in searching its files without specific internal referencing information. Of course, the reasonableness of Customs' search must be assessed on a case-by-case basis, and the effectiveness of a search will almost always be related to the specificity of the FOIA request itself.
Here, the plaintiffs did reference a critical document in their request -- the Chadwick Memorandum -- and a reasonable search would necessarily require searching files relating to Mr. Chadwick which were created during the period he authored the alleged Memorandum, as well as conducting at least a minimal good faith inquiry
of a Customs employee who may have worked with or supervised Mr. Chadwick to determine the possible location of files relating to Mr. Chadwick or the drug interdiction project discussed in the FOIA request. Based on the Amernick declarations, the Court is not convinced that Customs conducted such an inquiry.
Although the Court is not yet convinced that Customs has conducted an adequate search, based on the declarations filed to date, the Court will provide Customs with a final opportunity to fully describe its records systems prior to permitting any discovery by the plaintiffs. In doing so, Customs shall fully describe all of its records, including both the Privacy Act System of Records and those records outside the Privacy Act System of Records, maintained at its headquarters, the Miami and Houston field offices, and the Federal Records Center in Houston. Customs shall explicitly describe which records were searched, and Customs shall justify the failure to search all others.
B. Customs Has Failed To Demonstrate That A Search Of The Reading Files For The Chadwick Memorandum Would Be Unduly Burdensome.
As a justification for not searching its reading files, Customs has maintained that the files are not indexed and are merely a collection of correspondence organized only by date. The Court of Appeals directed this Court, on remand, to "order Customs to search its reading files for [the Chadwick Memorandum] if it cannot provide sufficient explanation as to why such a search would be unreasonably burdensome." Nation Magazine, 71 F.3d at 892. Customs has presented evidence that such files are "neither indexed nor cross indexed," yet that alone does not demonstrate that a search of the chronological reading files at Customs' headquarters
for the 1981 Chadwick memorandum would be too burdensome.
In fact, the Court of Appeals Opinion clearly assumed that the reading files are organized only by date. Accordingly, the Court shall Order Customs to search the 1981 reading files at Customs headquarters for the Chadwick memorandum.
II. PURSUANT TO EXEMPTION 7(C) TO THE FOIA, CUSTOMS IS ENTITLED TO JUDGMENT AS A MATTER OF LAW WITH RESPECT TO ITS REFUSAL TO CONFIRM OR DENY THE EXISTENCE OF RECORDS WHICH REFLECT WHETHER MR. PEROT WAS A SUBJECT, WITNESS, OR INFORMANT IN A LAW ENFORCEMENT INVESTIGATION.
Based on Exemption 7(C) to the FOIA, which permits an agency to withhold "investigatory records compiled for law enforcement purposes," this Court upheld Customs' initial refusal to confirm or deny the existence of any documents in its investigatory files relating to Mr. Perot. The Court of Appeals reversed, holding that "such a blanket exemption would reach far more broadly than is necessary to protect the identities of individuals mentioned in law enforcement files, it would be contrary to FOIA's overall purpose of disclosure, and thus is not a permissible reading of Exemption 7(C)." The Court of Appeals noted that the disclosure of records relating to Mr. Perot's alleged offers to assist in drug interdiction, offers which Mr. Perot has publicly confirmed, do not implicate the same privacy concerns that typically arise when an individual is the subject of a law enforcement investigation. Therefore, because of the unique circumstances in this case, and because the privacy concerns that drive Exemption 7(C) may not be present with respect to every record in Customs' investigatory files regarding Mr. Perot, the Court of Appeals rejected Customs' Glomar response
and directed this Court to balance the interests implicated by disclosure.
After the Court of Appeals issued its Opinion, Customs changed its position and informed the plaintiffs and the Court "that there are no records in [Customs' investigatory files] responsive to the Plaintiff's request for information concerning Mr. Perot's endeavor to assist Customs in its drug interdiction responsibilities." Amernick Decl. P 20. In doing so, Customs narrowed its Glomar response to cover only those records which indicate whether Mr. Perot was a subject, witness, or informant in a law enforcement investigation." Id. The Court of Appeals' Opinion in this case supports Customs' use of this more limited Glomar response:
Of course, Customs is also free to articulate a revised categorical rule regarding disclosure of law enforcement records if it can identify more narrowly tailored circumstances under which the balance of privacy and public interest characteristically tips in the direction of exemption . . . We agree with the agency and the district court that, to the extent any information contained in 7(C) investigatory files would reveal the identities of individuals who are subjects, witnesses, or informants in law enforcement investigations, those portions of responsive records are categorically exempt from disclosure under [ SafeCard Services, Inc. v. SEC, 288 U.S. App. D.C. 324, 926 F.2d 1197 (D.C. Cir. 1991)]."