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Blanton v. United States Dept. of Justice

January 29, 2002

THOMAS EDWIN BLANTON, JR., PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE, DEFENDANT.



The opinion of the court was delivered by: Paul L. Friedman United States District Judge

OPINION

Before the Court are defendant's motion for summary judgment and plaintiff's motion to enforce the Court's order of August 30, 1999. This case concerns a number of requests made by Thomas Edwin Blanton, Jr. to the United States Department of Justice and the Federal Bureau of Investigation for the disclosure of records concerning himself and his father under the Freedom of Information Act, 5 U.S.C. § 552, et seq. Upon consideration of the arguments of the parties, the Court grants defendant's motion for summary judgment and denies plaintiff's motion to enforce.

I. BACKGROUND

In the early 1960's, the government began to investigate Thomas Edwin Blanton, Jr. in connection with the September 15, 1963 bombing of the Sixteenth Street Baptist Church in Birmingham, Alabama in which four African American girls were killed. Last year, Mr. Blanton stood trial and was convicted of four counts of first degree murder for his role in the bombing. Plaintiff initiated this Freedom of Information Act request to obtain documents kept by the Department of Justice pertaining to the government's investigation of him. The facts of Mr. Blanton's FOIA action and the details of his FOIA request were summarized in the Court's August 30, 1999 Opinion and do not need to be repeated here. See Blanton v. United States Dep't of Justice, 63 F. Supp.2d 35, 39-40 (D.D.C. 1999).

After the Court issued its August 30, 1999 Opinion and Order, plaintiff moved for partial reconsideration. On June 2, 2000, the Court denied plaintiff's motion for partial reconsideration in part and granted it in part, concluding that except for plaintiff's contention that defendant should have searched its "tickler" files and electronic surveillance ("ELSUR") index for responsive documents, plaintiff's motion duplicated the arguments already fully considered and rejected by the Court and did not provide any basis for the Court to reconsider its ruling. See Order of July 2, 2000. *fn1 With respect to the ticklers and the ELSUR index, defendant acknowledged that it was required to search these records and submitted a declaration describing the search it had conducted of these files, and justifying the nondisclosure and redaction of some responsive documents. In the order granting in part and denying in part the motion for partial reconsideration, the Court indicated that it would treat defendant's opposition to the motion as a motion for summary judgment on the issue of the search for responsive ticklers and responsive ELSUR files. The motion now has been fully briefed.

II. DISCUSSION

A. Adequacy of the Search for Tickler Files

Before it can obtain summary judgment in a FOIA case, an agency "must show, viewing the facts in the light most favorable to the requester, that . . . [it] 'has conducted a search reasonably calculated to uncover all relevant documents.'" Steinberg v. United States Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg v. United States Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1985)). In determining the adequacy of a FOIA search, the Court is guided by principles of reasonableness. See Oglesby v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990); Int'l Trade Overseas, Inc. v. Agency for Int'l Development, 688 F. Supp. 33, 36 (D.D.C. 1988). While there is no requirement that an agency search every record system, Truitt v. United States Dep't of State, 897 F.2d 540, 542 (D.D.C. 1990), or that a search be perfect, Meeropol v. Meese, 790 F.2d 942, 955-56 (D.C. Cir. 1996), the agency must conduct a good faith, reasonable search of those systems of records likely to possess the requested information. See Campbell v. United States Dep't of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998).

The Court may award summary judgment solely on the basis of information provided by the agency 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. 1981); see also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). Agency affidavits or declarations must be "relatively detailed and non-conclusory . . . ." SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C.Cir. 1981)). Such affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents.'" SafeCard Services, Inc. v. SEC, 926 F.2d at 1200. While the affidavits or declarations submitted by the agency 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), they must "describe what records were searched, by whom, and through what processes," Steinberg v. United States Dep't of Justice, 23 F.3d at 552, and must show "that the search was reasonably calculated to uncover all relevant documents." Weisberg v. United States Dep't of Justice, 705 F.2d 1344, 1350-51 (D.C. Cir. 1983); see Campbell v. United States Dep't of Justice, 164 F.3d at 27.

Defendant contends that the search it conducted for responsive ticklers was adequate and reasonably calculated to uncover responsive documents. It explains that ticklers are not indexed on the FBI's Central Records System or any other system of records maintained by the FBI; it therefore could not conduct a search of FBI indices. See Supp. Mot. at 2, Hodes Decl. ¶¶ 4, 7. Mr. Hodes explains that according to the FBI's document retention policy at the time the investigation of Mr. Blanton began, ticklers created during the course of the investigation typically would have been retained by FBI agents for only a short period of time, making it unlikely that these records still would be in the FBI's files. See Hodes Decl. ¶ 5. Defendant therefore contacted the case agents currently assigned to the investigation in the Birmingham Field Office and the Hate Crimes Unit at FBI Headquarters to see if any of these agents possessed or were aware of the existence of these records. See Supp. Mot., Second Declaration of Scott A. Hodes ("Second Hodes Decl.") ¶ 5. In his declaration, Mr. Hodes explains that if ticklers responsive to plaintiff's request still exist, they would most likely be kept by agents in these offices and not at any other unit within FBI Headquarters or any other FBI field office. See id. Mr. Hodes represents that the agents he contacted indicated that they did not possess or know where these files might be located, if they still exist. See id.

Plaintiff contends that defendant's search was inadequate because there is a high probability that some of these tickler files still exist, and defendant's search should have uncovered some of these records. *fn2 He argues that defendant cannot conclude that these files no longer exist simply because of the official retention policy for ticklers, as case agents were permitted to retain these documents if they wished to do so and some ticklers therefore might be found in FBI files. Plaintiff's primary argument is that defendant's search was inadequate because none of the FBI agents who originally were assigned to this investigation and have since retired were contacted to determine whether they have these files or knew where these files might be located. Mr. Blanton argues that it is reasonable to require the agency to contact former employees who may have knowledge about the location of records responsive to a FOIA request, especially because defendant acknowledges that contacting these agents is the only systematic way of searching for these files in this case. See Supp. Mot. at 4-5.

On the basis of the declarations submitted, the Court concludes that defendant's search was reasonable. Even if plaintiff is correct in asserting that some ticklers still might exist somewhere in the FBI's files, defendant has explained that the case agents currently assigned to the investigation are the only individuals likely to possess or to know of these documents. Defendant represents that it inquired of these agents whether they had these files, and they indicated that they did not have or know of the whereabouts of any such records. Because tickler files are not indexed, there is no way to determine whether these records may still exist in another location short of a search of all FBI files -- a step clearly not required by the FOIA.

With respect to plaintiff's argument that defendant should have contacted the retired FBI agents who originally worked on this case, the Court concludes that the FOIA does not impose an obligation on defendant to contact former employees to determine whether they know of the whereabouts of records that might be responsive to a FOIA request. Indeed, the case cited by plaintiff in support of his argument actually supports the opposite proposition. See Valencia-Lucena v. United States Coast Guard, 180 F.3d 321, 328 (D.C. Cir. 1999). In Valencia-Lucena, the court held that defendant's search was inadequate because it did not contact the lieutenant who was still employed by the Coast Guard to determine whether he knew where the logbook sought by plaintiff was located. Id. The court held that the Coast Guard was required to contact the lieutenant, reasoning that:

Absent any indication that an inquiry of Lieutenant Nesel would be fruitless, either because he is no longer in the Coast Guard or because the storage of the logbook was controlled by other persons or by ...


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