The opinion of the court was delivered by: SPORKIN
This matter comes before the Court on Plaintiff's motion to compel the Federal Bureau of Investigation ("FBI") and the United States Department of Justice ("DOJ"), (collectively, the "Government"), to provide certain data and documents to him pursuant to the Freedom of Information Act (the "FOIA"), 5 U.S.C. § 552, et. seq. Plaintiff is a prisoner proceeding pro se in this matter. Plaintiff alleges that the Government has not conducted an adequate search in response to his FOIA request and challenges the exemptions to the FOIA claimed by the Government. Plaintiff also asks that the government be compelled to: (1) mail to him certain data and documents pertaining to the investigation surrounding his 1989 murder conviction; and (2) make available during the next twelve (12) months for review by an expert designated by him all of the original documents and data pertaining to certain FBI examinations related to his conviction.
On February 21, 1987, Plaintiff shot and killed Officer John Carrillo in Albuquerque, New Mexico. Officer Carrillo was wearing an operational audio tape at the time of the shooting, so the shooting was captured on tape. At trial Plaintiff admitted that he had shot the officer, but claimed that he had acted in self-defense after Officer Carrillo had drawn his pistol and raised his arm to shoot him. The FBI performed extensive analyses of the audio tape to determine the sequence of events at the time of the shooting, and provided evidence at trial. Plaintiff was convicted of the murder of Officer Carrillo on November 7, 1989 and was incarcerated.
Plaintiff originally made his FOIA request, seeking all material related to the investigation of the shooting, in a letter sent to the FBI on November 14, 1991. On December 5, 1991, the FBI acknowledged receipt of Plaintiff's request. On August 19, 1993, the FBI advised Plaintiff that 20 pages of relevant documents had been located and reviewed in response to Plaintiff's FOIA request, and that five pages of responsive material had been released to him. The released material was enclosed with the letter. At the same time, Plaintiff was provided with a detailed description of all items found by the government in this initial search. Plaintiff unsuccessfully appealed the Government's initial response to his FOIA request, seeking the 15 pages that were withheld and also the "laboratory-analyses documents prepared by the Audio-Forensic Section [of the FBI]."
Plaintiff filed his FOIA case in this court on March 21, 1994. On October 24, 1994, the Government filed a motion for summary judgment which the Court took under advisement. Soon after filing its motion, the Government completed an additional search for material responsive to the Plaintiff's FOIA request. In that additional search, the Government located more relevant FOIA material in the FBI's "bulky room" at its headquarters in Washington, D.C. On March 2, 1995, the Government sent Plaintiff 128 more pages of relevant documentation pursuant to his FOIA request, as well as an inventory of all the material related to Plaintiff in the FBI's "bulky room." Included in the inventory was a listing for three packages of 5 1/2" x 12" sheets with printouts of laboratory tests. The laboratory tests were analyses of the audio tape of Plaintiff's shooting of Officer Carrillo.
On June 15, 1995, the Court entered a stipulated order dismissing the case, without prejudice, with permission to reopen within six months of that date. Plaintiff moved to reopen the case on December 13, 1995. At a hearing on February 21, 1996, the Government agreed to make certain additional material available to Plaintiff, which he received on July 5, 1996.
The Government is prepared to meet Plaintiff's requests in part. It claims that its search efforts have been adequate under the FOIA, and that certain material remains exempt from disclosure pursuant to Exemption (b)(7)(C). Of the material that is not exempt from disclosure, the Government claims that certain of the additional laboratory-test printouts that Plaintiff seeks cannot be reproduced without damage. The Government has offered to make the additional laboratory-test printouts available for examination by Plaintiff or his designated expert at FBI Headquarters in Washington, D.C.
The issues for the Court to resolve at this time are: (1) whether the government performed an adequate search of its records in response to Plaintiff's FOIA request; (2) whether the Government's claimed exemptions from the FOIA are valid; and (3) whether the Government's proposed method of disclosing the laboratory-test printouts that Plaintiff seeks is permissible under the FOIA.
I. Adequacy of the Government's Search
Plaintiff claims that he received only five additional laboratory-test printouts on July 5, 1996. He argues that "reasonably, the FBI performed many more [tests] than merely those [they disclosed], because the FBI technicians thoroughly analyzed 'for more than 100 hours the six (6) seconds just before the first gunshot'" (emphasis in original).
It is well established that "agency affidavits enjoy a presumption of good faith that withstand purely speculative claims about the existence and discoverability of other documents." Albuquerque Publishing Co. v. United States Department of Justice, 726 F. Supp. 851, 860 (D.D.C. 1989); Ground Saucer Watch, Inc. v. Central Intelligence Agency, 224 U.S. App. D.C. 1, 692 F.2d 770, 771 (D.D.C. 1981); Goland v. Central Intelligence Agency, 197 U.S. App. D.C. 25, 607 F.2d 339, 355 (D.D.C. 1978), cert. denied, 445 U.S. 927, 63 L. Ed. 2d 759, 100 S. Ct. 1312 (1980). What is more, an agency is only required to conduct a search that is reasonably calculated to discover the requested documents. Ellis v. United States, 941 F. Supp. 1068, 1083 (D. Utah 1996). An agency is not required to search every document in the system, Oglesby, 287 U.S. App. D.C. 126, 920 F.2d 57, 68, and a search is not considered "unreasonable" simply because it fails to produce all relevant material. Meeropol v. Meese, 252 U.S. App. D.C. 381, 790 F.2d ...