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Judicial Watch, Inc. v. Export-Import Bank

August 9, 2000

JUDICIAL WATCH, INC. PLAINTIFF,
V.
EXPORT-IMPORT BANK, DEFENDANT.



The opinion of the court was delivered by: Royce C. Lamberth United States District Judge

MEMORANDUM OPINION

This matter comes before the Court on defendant Export-Import Bank's ("the Bank") motion for summary judgment and plaintiff Judicial Watch's cross-motion for summary judgment. For the following reasons, defendant's motion is granted in part and denied in part, and plaintiff's motion is granted in part and denied in part.

BACKGROUND

I. Facts

On May 22, 1999, Judicial Watch submitted a Freedom of Information Act ("FOIA") request to the Bank. The Bank received Judicial Watch's five-part request on May 25, 1999. Judicial Watch sought records pertaining to 1) "the application, analysis, consideration, and/or granting of export insurance for goods and services considered for exportation and/or exported to the People's Republic of China from January 20, 1993 to the present"; 2)(a) "the appointment of James Harmon and Maria Haley to the Export-Import Bank," and (b) "their contact with companies, entities, and/or persons related or doing or conducting business in any way with the People's Republic of China"; 3) "contact and/or communication by James Harmon and/or Maria Haley with the government officials and/or agents of the People's Republic of China"; 4) "contact and/or communication by James Harmon and/or Maria Haley with Tony Coehlo"; and 5) "Tony Coehlo and/or Wertheim-Schroeder." Complaint, at ¶ 5.

According to Judicial Watch, it had neither received a response to its request within twenty working days nor a statement from the Bank articulating the reason for the delay, as required by 5 U.S.C. § 552(a)(6)(A)(i) and 5 U.S.C. § 552(a)(6)(B)(i)-(iii). The Bank, however, wrote Judicial Watch on July 21, 1999, explaining that the delay resulted from Judicial Watch's lack of cooperation. Specifically, Judicial Watch had agreed during a June 4, 1999 telephone conversation to clarify the request, but never called the Bank back to do so. In addition, the Bank called Judicial Watch several more times and left messages (on June 9, 11, and 16, 1999) which were not returned. Nevertheless, Judicial Watch determined that it had exhausted its administrative remedies and filed this lawsuit on June 24, 1999, to compel disclosure.

Pursuant to the FOIA, the Bank conducted a search for responsive records and made disclosures to the plaintiff. The disclosure occurred in three phases. First, on September 2, 1999, the Bank released 335 pages of documents, either in redacted form or their entirety, responsive to parts 2 through 5 of the request. The Bank also referred 35 responsive documents to the Department of Commerce for review and direct response to Judicial Watch. Second, on September 20, 1999, the Bank released 50 pages from Director Haley's telephone logs, which were responsive to parts 2 through 5 of the request. Third, on December 15, 1999, the Bank released 16,683 pages, either in redacted form or in their entirety, responsive to part one of the request. The Bank, however, withheld seven binders of documents, totaling 2,113 pages, and 137 insurance applications that were either withdrawn or denied by the Bank.

II. The Export-Import Bank

To evaluate the legal issues in this FOIA suit, the following background information pertaining to the Bank is useful. The Bank is an agency of the United States government. Its purpose is to aid in financing and facilitating exports and the exchange of goods and services between the United States and foreign countries. 12 U.S.C. § 635(a)(1). The Bank is founded on the premise that it is in the United States' interest to "foster expansion of manufactured goods, agricultural products, and other goods and services, thereby contributing to the promotion and maintenance of high levels of employment and real income and to the increased development of the productive resources of the United States". 12 U.S.C. § 635a(b) and (c). To achieve this goal, the Bank is authorized to provide guarantees, insurance, and extensions of credit on competitive terms to United States businesses that seek to export goods and services to other countries, particularly where private financing and insurance is unavailable because of risk factors specific to the country importing those goods. Id.; see also Declaration of Joseph A. Sorbera ("Sorbera Decl."), App. A, at 2. Governance of the Bank is by a five-member Board of Directors, all of whom are appointed by the President with the approval of the U.S. Senate. 12 U.S.C. § 635a(b) and (c).

ANALYSIS

In light of this background, the Court must dispose of two legal issues. First, whether the Bank's search for responsive records was adequate. Second, whether the Bank properly withheld information from Judicial Watch and segregated non-exempt information for disclosure.

I. The Freedom of Information Act

The FOIA, 5 U.S.C. § 552 (1994 & Supp. II 1996), stipulates that any person has a right of access to federal agency records, except for those records protected from disclosure by one of nine exemptions. The purpose of the FOIA is "to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire and Rubber Co., 437 U.S. 214, 242 (1978).

When an agency withholds requested information, it must demonstrate that the information is exempt from disclosure. 5 U.S.C. § 552(a)(4)(B). Accordingly, the agency submits an index to the court which must adequately describe the withheld information and explain the relevance of each exemption. Founding Church of Scientology v. Bell, 603 F.2d 945, 946 (D.C. Cir. 1979); Vaughn v. Rosen, 478 F.2d 820, 827 (D.C. Cir. 1973). Further, "[i]f a document contains exempt information, the agency must still release 'any reasonably segregable portion' after deletion of the nondisclosable portions." Oglesby v. United States Dep't of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996)(citing 5 U.S.C. § 552 (b)). To ensure that all reasonably segregable information has been disclosed to the requester, the district court is required to enter a finding on segregability. Trans-Pacific Policing Agreement v. United States Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999). Even if the issue of segregability has not been raised by the plaintiff, the district court has "an affirmative duty to consider the segregability issue sua sponte." Id.

FOIA litigation is typically adjudicated through summary judgment. Summary judgment is appropriate when the pleadings, together with any affidavits, "show that there is no genuine issue as to any material facts and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d 309, 313 (D.C. Cir. 1998).

In FOIA litigation, the standard of review in the district court is de novo, and the agency bears the burden of justifying the withholdings. 5 U.S.C. § 552 (a)(4)(B); Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989). To meet its burden of proof, the agency may submit affidavits from their officials. Hayden v. NSA, 608 F.2d 1381, 1386 (1979). The affidavits "must show, with reasonable specificity, why the documents fall within the exemption." Id. at 1387. Once a court determines that the affidavits are sufficient, no further inquiry into their veracity is required. Summary judgment is appropriate in the instant case because there are no genuine issues of material fact and the legal issues can be resolved based on the pleadings and affidavits. Although Judicial Watch argues for discovery on the adequacy of the Bank's search for responsive documents, discovery in a FOIA action is "generally inappropriate." Center for Nat'l Sec. Studies v. Office of Indep. Counsel, No. 91-1691, slip op. at 3 (D.D.C. Mar. 2, 1993). Discovery may be appropriate when the plaintiff can raise sufficient question as to the agency's good faith in processing or in its search. See, e.g., Carney v. United States Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994). Judicial Watch has not alleged, much less raised sufficient question, that the Bank acted in bad faith regarding this FOIA request. Further, Judicial Watch's allegation that Bank officials acted improperly by assisting individuals in export matters in exchange for campaign contributions is irrelevant to resolving this FOIA action.

II. Adequacy of the Search

An agency will be granted summary judgment on the adequacy of the search if it has demonstrated that it has conducted a "search reasonably calculated to uncover all relevant documents." Weisberg v. Department of Justice, 705 F.2d 1344, 1350-51 (D.C. Cir. 1983) ("Weisberg I"). Accordingly, "[t]he adequacy of the search ... is judged by a standard of reasonableness and depends, not surprisingly, on the facts of each case." Weisberg v. Department of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)("Weisberg II"). To meet its burden of proving that no genuine issue of material fact exists, "the agency may rely on reasonably detailed, nonconclusory affidavits submitted in good faith." Id. (citing Weisberg I, 705 F.2d at 1350-51).

Judicial Watch does not challenge the adequacy of the Bank's search with respect to parts 1, 2(a), 3, 4 and 5 of the request. Judicial Watch, however, argues that the Bank's search for records responsive to part (2)(b) of the request was inadequate because the Bank failed to conduct any search at all.

A. The Bank's Record Systems

The Bank maintains several record systems, both electronic and manual, for recording and storing data and documents related to transactions processed by the Bank. The Bank has five electronic record-keeping systems. The electronic systems store and track information such as the names of participants in the Bank's programs, financial information, application status, and product information. In addition, hard copy documents received by the Bank are maintained in a separate system of records and are organized by category. The Bank makes microfiche copies of these documents to use for any subsequent data retrieval.

B. The Scope of the Search

1. Part 1

Part 1 of the request sought all records pertaining to the application, analysis, consideration, and/or granting of export insurance for goods and services considered for exportation and/or exported to the People's Republic of China from January 20, 1993 to the present. The Bank's search of its electronic record systems revealed 395 files responsive to this part of the request. The Bank collected the corresponding microfiche and hired a private contractor to make hard copies of the documents, which totaled approximately 19,000 pages. The Bank also hired a temporary paralegal and two temporary clerical staff to assist the Bank's staff in reviewing the documents.

2. Part 2(a)

This part of the request, as noted above, seeks records pertaining to the appointment of James Harmon and Maria Haley to the Bank. Staff in the Bank's Office of Human Resources gathered responsive documents housed in that office. In addition, a contract attorney in the Office of General Counsel reviewed all files in that division relating to the appointment of Chairman Harmon. On September 2, 1999, the Bank provided Judicial Watch all releasable documents responsive to this part of the request.

3. Part 2(b)

This part of the request sought all records pertaining to contacts between Mr. Harmon or Ms. Haley and "companies, entities, and/or persons related or doing or conducting business in any way with the People's Republic of China." The Bank found this portion of the request to be unreasonably broad because "almost every major corporation in the United States, many of which are Ex-Im Bank customers, has some business dealings" with China. See Def.'s Mot. for Summ. J., Ex. A, at 2. In addition, the Bank contacted Judicial Watch several times to clarify this part of the request, but Judicial Watch failed to return the Bank's telephone calls. Id. Accordingly, the Bank did not conduct any search for records responsive to part 2(b).

4. Parts 3, 4, and 5

Parts 3, 4, and 5 of the request seek records pertaining to contacts between Mr. Harmon and Ms. Haley and 1) the government of China or 2) Tony Coehlo, and all other records pertaining to Mr. Coehlo and/or Wertheim Schroder & Co. These types of records would not be located in the Bank's automated record systems, but rather in files throughout the Bank. Accordingly, the FOIA staff contacted offices and individuals that might reasonably have responsive records. The FOIA staff asked these offices and individuals to search their files, including phone logs and calendars, for responsive documents. The individuals contacted included Chairman Harmon, Director Haley, their administrative assistants, the Chief of Staff, the Vice President and Counselor to the President and Chairman, and special assistants. The offices contacted included Congressional Affairs, Communications, General Counsel and two lending divisions. Further, as agreed between the Bank and Judicial Watch on June 4, 1999, the Bank searched an electronic database for any transactions relating to Wertheim Schroder & Co., Inc. No responsive records were found.

C. Findings on Adequacy of the Search

1. Parts 1, 2(a), 3, 4 and 5

Judicial Watch did not challenge the adequacy of the Bank's search with respect to these parts of the request. For the following reasons, the Court finds that the Bank conducted an adequate search with respect to parts 1,2(a), 3, 4, and 5. First, the Bank has the burden to establish that it has conducted a search reasonably calculated to uncover all responsive records. Weisberg II, 745 F.2d at 1485. An agency can submit affidavits to establish the reasonableness of its search and thereby meet its burden. Id. The affidavits must be relatively detailed, non-conclusory and made in good faith. Id. The Bank has provided the Court with the Sorbera Declaration to demonstrate the adequacy of its search. As noted above, this declaration explains in detail how the Bank searched for records responsive to parts 1, 2(a), 3, 4 and 5 of the request. The declaration demonstrates that the searches of the electronic record-keeping systems and the hard copies of documents were thorough. In addition, the declaration explains that the FOIA staff directed specific persons and offices to search their files for responsive records.

2. Part 2(b)

Judicial Watch challenges the adequacy of the search for documents responsive to part 2(b) because the Bank did not conduct any search at all. The Bank responds that this part of the request is unreasonably broad. The Bank also argues that despite its repeated attempts to resolve this issue, Judicial Watch did not cooperate.

Although the Bank did not conduct any search with respect to part 2(b) of the request, it does not necessarily follow that the search was inadequate. FOIA requires that a request "reasonably describe" the records sought. See 5 U.S.C § 552(a)(3)(A). A description of the requested documents is adequate if it enables a professional agency employee familiar with the subject area to locate the record with a reasonable amount of effort. See H.R. Rep. No. 930876, at 6 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6271. Further, a request can be inadequate if it imposes an unreasonable burden. AFGE v. U.S. Department of Commerce, 907 F.2d 203, 209 (D.C. Cir. 1990). Accordingly,

it is the requester's responsibility to frame requests with sufficient particularity to ensure that searches are not unreasonably burdensome ... The rationale for this rule is that FOIA was not intended to reduce government agencies to full-time investigators on behalf of requesters. Therefore, agencies are not required to perform searches which are not compatible with their own document retrieval systems. Assassination Archives and Research Ctr. v. CIA, 720 F.Supp. 217, 219 (D.D.C. 1989) (internal citations omitted).

Part 2(b) of the request does not reasonably describe the records sought. It is unreasonably broad and imposes an unreasonable burden on the Bank. Not only did Judicial Watch fail to state its request with sufficient particularity, it also declined the Bank's repeated attempts clarify the request. The FOIA does not require the Bank to investigate which companies having contacts with Mr. Harmon or Ms. Haley may have had dealings with China and to locate all documents relating to ...


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