United States District Court, District of Columbia
October 20, 2000
ROBERT DAVIDSON, PLAINTIFF,
ENVIRONMENTAL PROTECTION AGENCY, DEFENDANT.
The opinion of the court was delivered by: Lamberth, District Judge.
MEMORANDUM AND ORDER
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.
By denying defendant's motion, the Court only finds that defendant has
to establish by affidavit or declaration that it conducted an adequate
search for responsive records. In fact, defendant may have conducted an
adequate search and needs only to better explain its search methodology
and parameters to establish that its search was adequate. Alternatively,
defendant may not have conducted an adequate search and must take
whatever steps are necessary to perform an adequate search and produce
any responsive records it may find. In either event, defendant will be
required to file a renewed motion for summary judgment with sufficiently
detailed supporting affidavits or declarations. If defendant fails to
establish that it has conducted an adequate search on its renewed motion
for summary judgment, the Court will consider whether appointment of
counsel will be necessary to depose agency officials on the adequacy of
its search. Consequently, the Court will not decide whether plaintiff has
"substantially prevailed" for purposes of being awarded costs and any
attorney fees that may need to be incurred in the future.
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.