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ROTHSCHILD v. DOE

May 1, 1998

EDWIN ROTHSCHILD, Plaintiff,
v.
DEPARTMENT OF ENERGY, Defendant.



The opinion of the court was delivered by: ROBERTSON

MEMORANDUM

 At issue in this Freedom of Information Act (FOIA) case is whether the Department of Energy (DOE) has adequately responded to plaintiff's request for documents that relate to a DOE study of regional petroleum needs in the Northeastern United States. Specifically, plaintiff questions the adequacy of DOE's search for responsive documents. Plaintiff also challenges DOE's assertion of the deliberative process privilege, asserting that DOE has waived the privilege by disclosing its deliberations to members of the petroleum industry. Because I find that DOE performed a reasonable search for the requested documents and that plaintiff has not produced evidence of DOE's disclosure of relevant materials, DOE's motion for summary judgment will be granted.

 Background

 Plaintiff submitted a request on July 9, 1997 seeking "all records - draft reports, memoranda, analyses, meeting minutes, briefing documents, e-mail messsages, etc. pertaining to a report to Congress on the costs and benefits of a regional petroleum product reserve [RPPR Study]." DOE responded by letter on September 5, 1997, stating that the RPPR Study was still under review, and that any responsive documents were therefore predecisional, deliberative documents that need not be produced. 5 U.S.C. § 552(b)(5).

 Unsatisfied with these results, plaintiff requested that DOE perform an additional search. DOE did so, and also performed an additional review of the withheld documents to determine whether any of them could be released. The additional review turned up two documents. DOE released some of the previously withheld materials, even though the RPPR Study had not yet been completed.

 Plaintiff then initiated this suit. DOE answered, produced an index of the documents withheld and the privileges claimed, see Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C.Cir. 1973), and filed the instant motion for summary judgment together with affidavits attesting to the adequacy of its search. In its motion, DOE asserts that the documents were properly withheld under the deliberative process privilege encompassed within Exemption 5 because they are: a) pre-decisional (indeed, DOE asserts, they are still pre-decisional, in that no decision has yet been made); and b) deliberative.

 Plaintiff concedes that the withheld documents are both pre-decisional and deliberative and focuses his challenge on the adequacy of the DOE search and on his assertion that the deliberative process privilege has been waived. In support of the first point, he appends 14 documents to his opposition which he believes to be responsive and within the possession of DOE but which were neither listed in DOE's Vaughn index nor released to him. In support of the second point, he appends a document memorializing a meeting about the RPPR Study between a DOE subcontractor and representatives of the petroleum industry.

 DOE replies that most of the documents appended to plaintiff's opposition are in fact non-responsive to his FOIA request. If it missed a few documents in its search, DOE argues, its affidavits still establish that the search was reasonable and adequate. As for the meeting memorandum, DOE argues, it does not reveal what, if any, privileged information was disclosed to DOE outsiders, and it does not show that the disclosures, if any, were authorized by DOE.

 Analysis

 1. Adequacy of search

 Where the adequacy of an agency's search for documents under FOIA is challenged, "the issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate. " Weisberg v. United States Department of Justice, 240 U.S. App. D.C. 339, 745 F.2d 1476, 1485 (D.C.Cir. 1984). The agency will prevail on a motion for summary judgment only where it can show that it "has conducted a reasonable search." Weisberg v. United States Department of Justice, 227 U.S. App. D.C. 253, 705 F.2d 1344, 1351 (D.C.Cir. 1983). For purposes of this showing, the agency "may rely upon affidavits..., as long as they are relatively detailed and nonconclusory and ... submitted in good faith." Id. (citations and quotations omitted). The required level of detail "sets forth the search terms and the type of search performed, and avers that all files likely to contain responsive materials (if such records exist) were searched. . . ." Oglesby v. United States Department of the Army, 287 U.S. App. D.C. 126, 920 F.2d 57, 68 (D.C.Cir. 1990).

 Plaintiff does not attack the adequacy of defendant's affidavits, resting his opposition instead upon "copies of or references to documents in the possession of [DOE] which are relevant to [plaintiff's] FOIA request but which have not been listed on [DOE's] 'Vaughn Index.'" Declaration of Edwin S. Rothschild, P 2, appended to Opp. to Mot. for Summ. Judg.

 Of the fourteen such documents plaintiff identifies as "relevant," eleven do not mention or specifically discuss the RPPR Study. See Steinberg v. United States Department of Justice, 306 U.S. App. D.C. 240, 23 F.3d 548, 552 (D.C.Cir. 1994) (if an agency's search were not limited to the specific subject of the request, "an agency ... might be forced to examine virtually every document in its files, following an interminable trail of cross-referenced documents. . . .") One more is clearly a draft version of a document that is listed in the government's Vaughn index, *fn1" and DOE correctly points out that it is under no duty to disclose documents not in its possession, and that "such drafts may not necessarily have been retained in the normal course, [so] there is no reason to believe that a third search ... would recover them." Reply Memo at 6, n.3.

 Thus, plaintiff has identified at most two responsive documents which may be in DOE's possession but were neither turned over to him nor listed in the Vaughn index. Such a showing demonstrates that the government's search was not perfect. Perfection, however, is not the standard, and the government's failure to locate two responsive documents does not defeat ...


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