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SHORES v. F.B.I.

February 4, 2002

FRED SHORES JR., PLAINTIFF,
V.
FEDERAL BUREAU OF INVESTIGATION, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Kessler, District Judge.

    MEMORANDUM OPINION

I. FACTUAL BACKGROUND

Between November 23, 1993 and February 4, 1998, Plaintiff made four requests for documents allegedly held by Defendants. The documents at issue in this case relate to Plaintiffs request for all documents concerning himself located in the Federal Bureau of Investigation's ("FBI") Norfolk, Virginia and Myrtle Beach, South Carolina offices. See Compl. ¶¶ 5-7.

In a letter dated May 6, 1999, FBI Headquarters informed Plaintiff that, in response to his four requests,*fn1 454 pages of 699 reviewed records had been processed and would be released after Plaintiff reimbursed it for copying expenses. See id. ¶ 18. After Plaintiff paid the copying expenses, he received the 454 pages in a letter dated May 21, 1999. See id. ¶ 20.

The May 21, 1999 letter also indicated that 245 of 699 pages had been withheld pursuant to 5 U.S.C. § 552a (j)(2) and 5 U.S.C. § 552(b)(2), (b)(7)(C), (b)(7)(D), (b)(7)(E), and (b)(7)(F). See id.*fn2

In his Complaint, Plaintiff seeks unredacted copies of all documents requested from the FBI's Norfolk, Virginia and Myrtle Beach, South Carolina offices. Defendants now move for summary judgment.

II. STANDARD OF REVIEW.

A motion for summary judgment should be granted if the moving party demonstrates that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In considering whether there is a triable issue of fact, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in its favor." Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party opposing a motion for summary judgment "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Id. at 248, 106 S.Ct. 2505. Moreover, "any factual assertions in the movant's affidavits; will be accepted as being true unless [the opposing party] submits his own affidavits or other documentary evidence contradicting the assertion." Neal v. Kelly, 963 F.2d 453, 456 (D.C.Cir. 1992) (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982)); Washington Post Co. v. United States Dep't of Health and Human Services, 865 F.2d 320, 325 (D.C.Cir. 1989).

III. ANALYSIS

A. Adequacy of Search

FOIA requires an agency responding to a FOIA request to conduct a reasonable search using methods which can be reasonably expected to produce the information requested. See Campbell v. United States Dep't of Justice, 164 F.3d 20, 27 (D.C.Cir. 1998). The burden of proof is on the agency to show that its search was reasonably calculated to uncover all relevant documents. See Steinberg v. United States Dep't of Justice, 23 F.3d 548, 551 (D.C.Cir. 1994). In meeting this burden, the agency may submit affidavits or declarations that explain, in reasonable detail, the scope and method of the agency's search. "In the absence of countervailing evidence or apparent inconsistency of proof, [such affidavits] will suffice to demonstrate compliance with the obligations imposed by the FOIA." Perry v. Block, 684 F.2d 121, 127 (D.C.Cir. 1982).

To document their search, Defendants submitted the Third Declaration of Scott A. Hodes, Acting Chief of the Litigation Unit of the FBI's Freedom of Information-Privacy Acts Section. Plaintiff claims that Defendants refused to send him documents responsive to his request. However, a search is not inadequate simply because it failed to yield every document that Plaintiff seeks. See Cleary, Gottlieb, Steen & Hamilton v. Dep't of Health and Human Servs., 844 F. Supp. 770, 776, 777 n. 4 (D.C. 1993). Significantly, Plaintiff does not challenge the scope and method of Defendants' search for ...


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