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SCHRECKER v. U.S. DEPT. OF JUSTICE

August 7, 2002

ELLEN W. SCHRECKER, PLAINTIFF
V.
UNITED STATES DEPARTMENT OF JUSTICE, DEFENDANT



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

  MEMORANDUM OPINION

This matter returns to the Court on the parties' fourth set of cross-motions for summary judgment. Defendant moves for summary judgment on the adequacy of its search for ticklers and the adequacy of its attempts to determine whether individuals are alive or dead for the purpose of balancing privacy interests versus public interests pursuant to exemption 7(C). Plaintiff, on the other hand, requests discovery and a deposition of Scott Hodes to determine whether the FBI engaged in an adequate search for ticklers. Specifically, plaintiff seeks to depose Scott Hodes*fn1 and plaintiff also seeks an order instructing the FBI to engage in a more extensive search for ticklers. Based upon the parties' memoranda in support of and in opposition to these motions, the entire record herein, and the applicable law, plaintiffs motion will be denied and defendant's motions will be granted.

I. BACKGROUND

A. Factual and Procedural History

Ellen Schreker, a history professor, initiates this action under the Freedom of Information Act ("FOIA"),5 U.S.C. § 552, seeking information from the FBI regarding Gerhardt Eisler and Clinton Jencks. Both Jencks and Eisler were investigated by the Justice Department during the McCarthy era. Jencks was indicted for violating the Taft-Hartley act. He was an official within the Mine, Mill and Smelter Workers International Union in New Mexico. Eisler was a German communist who resided in the U.S. from the late 1930's to 1949. Ms. Schrecker initiated her request for information in 1988. In 1995 she filed the instant FOIA claim with this Court.

A comprehensive history of the litigation is recorded in this Court's and the Court of Appeals for the District of Columbia Circuit's ("D.C.Circuit") prior opinions. See Schrecker v. U.S. Dep't of Justice, 14 F. Supp.2d 111, 113 (D.D.C. 1998) (partially granting and partially denying plaintiffs motion for summary judgment, and denying defendant's motion for summary judgment); Schrecker v. U.S. Dep't of Justice, 74 F. Supp.2d 26, 28 (D.D.C. 1999) (granting defendant's motion for summary judgment); Schrecker v. U.S. Dep't of Justice, 254 F.3d 162, 164 (D.C.Cir. 2001) (partially reversing this Court's Nov. 29, 1999 opinion, remanding on the two issues addressed in the present opinion).

This Court granted summary judgment for the FBI in 1999. See Schrecker, 74 F. Supp.2d 26. In particular, the Court granted summary judgment on the following claims for the FBI: that the EOUSA did not need to reprocess any documents, that the FBI adequately searched for ticklers, and that the FBI had properly invoked the following FOIA exemptions: 1, 2, 3, 6, 7(C) 7(D). Id. Professorr Schrecker appealed this Court's previous decision. See Schrecker 74 F. Supp.2d at 28. On Appeal, the D.C. Circuit found that the FBI did not adequately search for ticklers and did not adequately balance the public interest versus privacy interests under exemption 7(C). See Schrecker 254 F.3d at 164. The D.C. Circuit held that the FBI must search for ticklers once their existence was established. Id. at 164-5. The FBI admitted that ticklers were created but had refused to search for them because ticklers are not indexed to the Central Records System. Id. The D.C. Circuit also instructed the FBI to confirm that it had taken or would undertake certain basic steps to demonstrate that it had adequately balanced the public interest and privacy interests implicated under 7(C). Id. at 167. The D.C. Circuit could not confirm that the FBI consulted the Social Security Death Index or any other readily available sources to determine whether individuals whose third-party information was being kept confidential under exemption 7(C) were alive or dead. Id. at 167. Thus the remaining issues in this case are the FBI's search for ticklers and exemption 7(C).

II. ARGUMENT

A. Summary Judgment and The Freedom of Information Act

The Federal Bureau of Investigation moves for summary judgment, stating that it has completely abided by the June 26 2001 decision of the D.C. Circuit with regards to searching adequately for ticklers and adequately assessing the relevant privacy interests of individuals under exemption tion 7(C). See Sehrecker v. Uuited States Dep't of Justice, 254 F.3d 162, 164 (D.C.Cir. 2001). Professor Schrecker, in contrast, contends that the FBI has not adequately searched for ticklers and that the FBI has not acceptably sought to determine the relevant privacy interests under exemption 7(C) and therefore she seeks discovery and to depose Mr. Hodes with regards to the remaining two issues.

Courts have long recognized that summary judgment is appropriate when the declarations together with the pleadings substantiate that there is no genuine issue of material fact and that the moving party as a matter of law is entitled to summary judgment. See Fed.R.Civ.P. 56(C); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). It is equally clear that, summary judgment under FOIA is only appropriate, however, when the agency seeking summary judgment engages in an adequate search for all relevant documents. See Weisbery v. Dep't of Justice, 745 F.2d 1476, 1485 (.D.C.Cir. 1984). The adequacy of an agency's search may be determined by relying upon non-conclusory, detailed agency affidavits that have been given in good faith. See Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 551 (D.C.Cir. 1994). The Court may award summary judgment relying only upon an agency's affidavits or declarations. See Blanton v. United States Dep't of Justice, 182 F. Supp.2d 81, 84 (D.D.C. 2002). The declarations and affidavits must contain sufficient detail, not be controverted by contrary evidence, and be given in good faith. Id. (citing Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir. 1981)).

B. Adequacy of Search for Ticklers

The D.C. Circuit ordered the FBI to perform an adequate search for ticklers. See Schrecker v. U.S. Dep't of Justice, 254 F.3d at 164-65. Ticklers are duplicate copies of FBI documents that may be of value to requesters because they have survived the original or they may contain unique annotations that provide information not present on the original. This Court must judge the adequacy of an agency's search on the basis of what is reasonable under the circumstances. See Steinberg, 23 F.3d at 551. An agency may use affidavits to demonstrate the adequacy of its search. Id. An agency's affidavits need not be precise but they must provide basic information on what records were searched, by whom, and in what manner. Id. at 552. A search need not be unreasonably burdensome to be considered adequate. See Nation Magazine v. U.S. Customs Service, 71 F.3d 885, 892 (D.C.Cir. 1995). "The agency must show that it made a good-faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." See Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 27 (D.C.Cir. 1998) (citing Oglesby v. U.S. Dep't of the Army, 920 F.2d 57 (D.C.Cir. 1990)). An agency can not avoid searching a records system if it believes it contains responsive documents. See Campbell, 164 F.3d at 28. Reasonableness should guide the Court's determination of whether a search was adequate under FOIA. Oglesby v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C.Cir. 1990); Weisberg 745 F.2d at 1485.

DOJ and Ms. Schrecker disagree over the adequacy of the FBI's search for ticklers pertaining to Jencks and Eisler. Compare Plaintiff's Memo. in support of Cross-motion, March 27, 2002, at ...


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