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