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October 13, 1998

JUDICIAL WATCH, Inc., Plaintiff,

The opinion of the court was delivered by: LAMBERTH


 This case comes before the Court on defendant's motion for summary judgment. Upon consideration of the motion and accompanying affidavit, plaintiff's opposition thereto, and defendant's reply, as well as in camera review of a portion of the withheld materials, defendant's motion will be GRANTED and plaintiff's action will be DISMISSED with prejudice.


 On July 7, 1997, plaintiff submitted to the Department of Health and Human Services (HHS) a request under the Freedom of Information Act (FOIA) for any and all documents relating to the adoption, interpretation, or implementation of legislation concerning abstinence education enacted as section 912 of the Personal Responsibility and Work Reconciliation Act of 1996, codified at section 510 of Title V of the Social Security Act. On July 8, 1997, HHS forwarded the request to the office of General Counsel (OGC) and the Assistant Secretary for Planning and Education (ASPE), with a request that those two groups conduct searches for responsive documents. On the advice of ASPE staff, the request was also forwarded to the Health Resources and Services Administration (HRSA), a major operating division of HHS. On September 5, 1997, HHS responded to plaintiff's FOIA request by releasing 1,746 pages of documents from OGC, ASPE, and HRSA. HHS also informed plaintiff that it was withholding all or portions of 270 pages under FOIA Exemption 5, portions of 68 pages under FOIA Exemption 6, and 38 pages under FOIA Exemption 2. HHS subsequently released the 38 pages initially withheld under Exemption 2 and one document initially withheld under Exemption 5. Plaintiff did not pursue any administrative appeal of HHS's September 5, 1997 response, but filed suit on that same day.

 On October 22, 1997, HHS received a second, identical FOIA request from the plaintiff. Copies of the request were again sent to OGC, ASPE, and HRSA with instructions to provide any new responsive documents. This second request was also forwarded to the HHS Office of the Inspector General (OIG) and to the Office of the Assistant Secretary for Legislation (ASL). Both OIG and ASL reported that they had found no responsive documents, and OGC indicated that it had found no responsive documents not reported after the initial search. ASPE and HRSA, however, together produced another large volume of documents. On February 11, 1998, HHS released to plaintiff approximately 4,146 pages of responsive documents and withheld 285 pages in their entirety and portions of a number of otherwise released pages under Exemptions 4, 5, and 6. Plaintiff filed suit challenging defendant's response to the second request on November 11, 1997, before HHS released the second set of responsive documents.

 At the Court's suggestion, plaintiff filed an amended complaint in its first action on May 27, 1998, including its objections to both searches. The second action was then voluntarily dismissed. HHS filed a motion for summary judgment on June 26, 1998, with an attached affidavit and Vaughn index. Plaintiff opposed the motion for summary judgment and requested a stay of the Court's consideration of the motion and an opportunity to conduct discovery. Plaintiff did not include a Rule 56 affidavit with its opposition to defendant's motion.

 On October 5, 1998, at the request of the Court, HHS submitted for in camera review all responsive documents withheld pursuant to FOIA Exemption 5.

 After consideration of the various motions and oppositions thereto, as well as the in camera inspection of the Exemption 5 materials, plaintiff's request for a stay and discovery will be denied and defendant's motion for summary judgment will be granted.


 Under Federal Rule of Civil Procedure 56, summary judgment shall be entered if it is shown that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. Proc. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The moving party bears the burden of persuasion, although a party opposing a properly supported motion may not rely solely on the allegations set forth in its pleadings but must instead, "by affidavits or [other evidentiary showing], set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. Proc. 56(e); Celotex, 477 U.S. at 324-25.

 Rule 56 governs summary judgment in FOIA cases, although with one special consideration. FOIA places upon the agency the burden of proving that it has a proper basis for withholding responsive documents. See 5 U.S.C. § 552(a)(4)(B); e.g., United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989). Consequently, in support of a motion for summary judgment where responsive documents have been withheld pursuant to any of the FOIA Exemptions, the moving agency must show not only that the plaintiff has failed to raise a genuine issue of material fact as to the adequacy of the search, but also that the agency is entitled to judgment as a matter of law upholding its invocation of the statutory exemption.

 In response to this special aspect of summary judgment in the FOIA context, agencies regularly submit affidavits, including so-called Vaughn indeces, in support of their motions for summary judgment against FOIA plaintiffs. See United States Dep't of Justice, Freedom of Information Act Guide 485-98 (Sept. 1997 ed.); Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (1973). The Court of Appeals addressed the sufficiency of such affidavits in Hayden v. National Sec. Agency, 197 U.S. App. D.C. 224, 608 F.2d 1381, 1387 (1979):

The affidavits must show, with reasonable specificity, why the documents fall within the exemption. The affidavits will not suffice if the agency's claims are conclusory, merely reciting statutory standards, or if they are too vague or sweeping. If the affidavits provide specific information sufficient to place the documents within the exemption category, if this information is not contradicted in the record, and if there is no evidence in the record of agency bad faith, then summary judgment is appropriate without in camera review of the documents. The sufficiency of the affidavits is not undermined by a mere allegation of bad faith, nor by past agency misconduct in other unrelated cases. Unless the affidavits are deficient in one of the above ways, the court need inquire no further into their veracity.

 Id. (footnotes omitted). Likewise, plaintiff cannot rely on unsupported inferences that other documents must have been created. See Safecard Servs., Inc. v. Security & Exchange Comm., 288 U.S. App. D.C. 324, 926 F.2d 1197, 1200 (D.C. Cir. 1991); Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 10 (D.D.C. 1995). In sum, an agency's affidavits (including the Vaughn index) are accorded substantial weight by district courts in making the de novo review required by FOIA. See, e.g., Lesar v. Department of Justice, 204 U.S. App. D.C. 200, 636 F.2d 472, 481 (D.C. Cir. 1980); Judicial Watch, 880 F. Supp. at 10.

 I. Adequacy of HHS's Search

 Plaintiff claims that, for political reasons, "HHS has likely failed to conduct an adequate search for documents." Pl.'s Opp. Summ. Judg. at 4 (emphasis added). Plaintiff offers as examples of documents "apparently omitted" from HHS's FOIA responses recordings or transcripts of communications with state officials (which are, according to plaintiff, "almost always recorded or transcribed"), correspondence with the Association for Child and Maternal Health, and other categories of documents. The Court is well aware of the information imbalances between an agency and a FOIA requester, but, even viewed in the most favorable light, these near-allegations are inadequate as a basis to deny summary judgment. See Hayden, 608 F.2d at 1387; Safeard Servs., 926 F.2d at 1200.

 Plaintiff's underlying rationale for alleging that HHS failed to conduct a thorough search, however, does give the Court at least temporary pause. Plaintiff's argument is that, "based on prior conduct, the Clinton Administration cannot be believed in matters which are politically charged, and therefore, HHS' affidavit cannot be taken at face value . . ." Pl.'s Opp. Summ. Judg. at 4. Insofar as plaintiff is referring to the conduct of other agencies within the current administration in other unrelated FOIA cases, the case law rejects such considerations as a basis for questioning an agency's search, see, e.g., Hayden, 608 F.2d at 1387, and the imputation of bad faith from one agency of the Executive Branch to another, particularly with regard to unrelated matters, does not comport with a ...

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