The opinion of the court was delivered by: Lamberth, District Judge.
This Freedom of Information Act case is before the Court on defendant's
motion to dismiss or, in the alternative, for summary judgment. In its
motion, defendant Environmental Protection Agency ("EPA") asserts that it
located no records responsive to plaintiff's request. In a FOIA case, the
Court may award summary judgment solely on the basis of information
provided in affidavits or declarations when the affidavits or declarations
describe "the documents and the justifications for nondisclosure with
reasonably specific detail, demonstrate that the information withheld
logically falls within the claimed exemption, and are not controverted by
either contrary evidence in the record nor by evidence of agency bad
faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.
In support of defendant's motion, the agency offers the declaration of
Stephanie Kercheval, the FOIA Officer for EPA Region 10 in Seattle,
Washington. In order to be entitled to summary judgment for its "no
records" response, defendant must establish that it located no records
responsive to plaintiff's request after a reasonable search using
"methods reasonably expected to produce the information requested."
Oglesby v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C.Cir.
1990). The declaration need not "set forth with meticulous documentation
the details of an epic search for the requested records," Perry v.
Block, 684 F.2d 121, 127 (D.C.Cir. 1982), but must show "that the search
method was reasonably calculated to uncover all relevant documents."
Weisberg v. United States Dep't of Justice, 745 F.2d 1476, 1485
Plaintiff requested a specific toxic waste manifest allegedly issued by
the EPA in 1991. He has provided a date on which hazardous waste was
transported from the site (December 22-23, 1991), a precise location on
Ede Road in Linn County, Oregon, the name of the company that transported
the hazardous waste (Chemical Waste Management of the Northwest), and the
waste generator's EPA identification number. Defendant states that the
Office of Environmental Cleanup and the Office of Waste and Chemical
Management for EPA Region 10 each conducted a search and found no records
responsive to plaintiff's request. See Declaration of Stephanie Kercheval
("Kercheval Decl."), ¶¶ 12, 15. This is precisely the type of
description that the Court of Appeals has described as "conclusory and
unilluminating" and therefore unacceptable. Steinberg v. United States
Dep't of Justice, 23 F.3d 548, 552 (D.C.Cir. 1994).
The EPA does not explain why responsive records would likely be located
only in the offices to which plaintiff's FOIA request was assigned and
none others. Moreover, the agency does not identify which records were
searched in the two offices and what terms or methods were used in
conducting those searches.*fn1 See Steinberg v. United States Dep't of
Justice, 23 F.3d 548, 552 (D.C.Cir. 1994) (description of search
inadequate where it fails "to describe in any detail what records were
searched, by whom, and through what process"). Because plaintiff is
searching for a specific toxic waste manifest, defendant must, at a
minimum, explain its procedure for issuing and retaining such manifests
and what reasonable methods it used to locate the one requested by
plaintiff Accordingly, defendant's motion must be denied.
Accordingly, it is hereby
ORDERED that defendant's motion to dismiss or, in the alternative, for
summary judgment [#13] is DENIED; and it is
FURTHER ORDERED that defendant shall file a renewed motion for summary
judgment no later than November 30, 2000.