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Piper v. United States Dep't of Justice

December 01, 2003


The opinion of the court was delivered by: Royce C. Lamberth United States District Judge


This case comes before the Court on the motion for summary judgment of defendants United States Department of Justice (DOJ), Federal Bureau of Investigation (FBI), and Department of the Air Force, Office of Special Investigations (AFOSI), and plaintiff's response thereto. Plaintiff Harry C. Piper's cross-motion for summary judgment, defendants' response, and plaintiff's reply is also before the Court. Upon consideration of the briefing, the law, and the record in this case, the Government's motion for summary judgment will be granted, except that the Court orders document 206 and a memorandum referenced in document 309 released to plaintiff. The Court further orders defendant to locate and release to plaintiff documents 129, 130, 131, 132, 172, 312, 321, 322, 323, 324, 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 337, 339, and 340. Plaintiff's cross-motion for summary judgment is hereby granted with respect to the aforementioned documents, and denied with respect to all other asserted claims.


This case arises before the Court under the Freedom of Information Act (FOIA) 5 U.S.C. § 552. On December 22, 1997, plaintiff filed a FOIA request for all records pertaining to the 1972 kidnapping of his mother, Virginia Lewis Piper. Plaintiff plans to write a book about his mother's kidnapping and the resulting FBI investigation and DOJ prosecution of the suspected kidnappers. (Piper Decl. at 1.) Plaintiff's request was submitted to the Executive Office for United States Attorneys (EOUSA) and the FBI. There have been numerous communications between the parties since that date. Plaintiff filed his complaint on May 8, 1998. Defendant DOJ filed its first partial summary judgment motion as to plaintiff's FOIA request to EOUSA on December 15, 1998. The Court denied this motion on April 22, 1999. The last few years have brought exchanges of protective orders and partial summary judgment motions. Several issues have since been resolved, and this case enters its final stage.

The FBI has released approximately 80,000 pages of documents to plaintiff in response to his request. An agreement between the parties was reached culminating in plaintiff sampling 357 pages from the approximated 80,000. This sample, or what is commonly known as Vaughn indices in FOIA circles, contains documents that have redactions or have been completely withheld pursuant to several of the nine disclosure exemptions of FOIA. At issue in this case is the adequacy of the FBI's search and the propriety of the FBI's nondisclosure under Exemptions (7) (C), (D), and (E). Having completed its search for documents responsive to plaintiff's request, the Government moved for summary judgment on May 16, 2003. Plaintiff responded in kind with a cross-motion for summary judgment on June 16, 2003.


A. The Freedom of Information Act & the Standard of Review

The Freedom of Information Act, 5 U.S.C. § 552, as amended by the Freedom of Information Reform Act of 1986, §§ 1801-04 of Pub. L. No. 99-570, 100 Stat. 3207, 3207-48 (1986), provides citizens a statutory right of access to government information. Underlying the Act is the principle that "the public is entitled to know what its government is doing and why." Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980). It is further established that while "Congress undoubtedly sought to expand public rights of access to Government information when it enacted [FOIA]... that expansion was a finite one." Forsham v. Harris, 100 U.S. 977, 983 (1980). Accordingly, FOIA instructs government agencies to disclose agency records, unless the requested records fall within one of the Act's nine exemptions. Generally, FOIA requesters challenge agency nondisclosure by either arguing the claimed exemption has been improperly asserted, or by challenging the adequacy of the government's document search.

Summary judgment in a FOIA action is appropriate when the pleadings, together with the declarations, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); see also Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d 309, 313 (D.C. Cir. 1988) (mere conflict in affidavits not sufficient to preclude an award of summary judgment); Weisberg v. DOJ, 627 F.2d 365, 368 (D.C. Cir. 1980). FOIA matters are reviewed de novo and the nondisclosing agency bears the burden of justifying nondisclosure. 5 U.S.C. § 552(a)(4)(B); DOJ v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 755 (1989).

To satisfy the attendant burden, agencies may rely on the declarations of their officials. See Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990); Goland v. CIA, 607 F.2d 339,352 (D.C. Cir. 1978). These declarations are accorded a presumption of expertise, Pharm. Mfr. Ass'n v. Weinberger, 411 F. Supp. 576, 578 (D.D.C. 1976), provided the affidavits are clear, specific, and adequately detailed, setting forth the reasons for non-disclosure in a factual and non-conclusory manner; they must also be submitted in good faith. See Hayden v. NSA, 608 F.2d 1381, 1387 (D.C. Cir. 1979). Upon a finding the affidavits are sufficient, the court need not conduct further inquiry into their veracity. Id. Accordingly, a plaintiff must proffer proper evidence to support a claim that an exemption has been improperly asserted in order to have a triable issue of material fact that will preclude awarding summary judgment to the defendant. See Bennett v. Spear, 520 U.S. 154, 168 (1997).

Agencies declining to produce requested documents must demonstrate that the claimed exemption applies. 5 U.S.C. § 552(a)(4)(B). To demonstrate the validity of the claimed exemption, agencies are required to submit Vaughn indices that adequately describe the withheld information and explain how specific exemptions apply. Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). All reasonably segregable portions must be disclosed once the exempt portions have been redacted. Oglesby v. U.S. Dep't of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996). Additionally, the court is required to consider segregability issues even when the parties have not specifically raised such claims. Trans-Pacific Policing Agreement v. U. S. Customs Serv., 177 F. 3d 1022, 1027 (D.C. Cir. 1999).

Challenges to agency searches are guided by a reasonableness standard. Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984). To be entitled to summary judgment, an agency need only show "that it has conducted a 'search reasonably calculated to uncover all relevant documents.'" Id. (citation omitted). The court's inquiry is concerned with whether the search itself, and not the results of that search, was adequate. Id. Adequacy is judged by a reasonableness standard and is contingent upon the facts of each case. Id. Agencies may demonstrate the adequacy of their search by submitting "reasonably detailed, nonconclusory affidavits submitted in good faith." Id. Affidavits including search methods, locations of specific files searched, descriptions of searches of all files likely to contain responsive documents, and names of agency personnel conducting the search are considered sufficient. Id. at 1348.

B. Adequacy of Search

Plaintiff challenges the adequacy of the search undertaken by the FBI for documents responsive to his December 1997 request. He argues the FBI destroyed evidence in its possession. He seeks leave to depose FBI and DOJ personnel suggesting this will lead to information concerning evidence destruction and the location of documents that have not been produced in this case. (Pl.'s Opp'n Mem. at 9, 13.) He further argues that missing records and gaps in serialization of documents provided to him make summary judgment for defendants on this issue improper. In pursuit of these missing documents, plaintiff claims, based on second hand information from James Lesar, Esq., that the FBI maintains additional abstracts of each record it receives and places these abstracts in a file index card format. These files would constitute a second and third set of records to check for missing content. (Pl.'s Opp'n Mem. at 14-5.)

1. Destroyed Documents

The Government responds to plaintiff's first assertion with the use of colorful adjectives but then provides an actual answer. Defendants argues that plaintiff's request to depose Government personal on the destruction of documents is immaterial as to whether the FBI met its burden. It is also beyond the scope of FOIA. (Defs.' Reply Pl.'s Opp'n Mem. at 2, n.1.) The Government provides no justification for this assertion; however, there is controlling authority to support it. In Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 151 -52, (1980), the Supreme Court asserted that "FOIA is only directed at requiring agencies to disclose those 'agency records' for which they have chosen to retain possession or control." The Court goes on to conclude that "[t]he Act does not obligate agencies to create or retain documents; it only obligates them to provide access to those which it in fact has created and retained." Id. That the Government once possessed responsive documents yet no longer does at the time of the FOIA request does not preclude summary judgment in the Government's favor. FOIA does not impose a document retention requirement on government agencies. Green v. Nat'l Archives & Records Admin., 992 F. Supp. 811, 818 (E.D. Va. 1998). Even where the Government was obligated to retain a document and failed to do so, "that failure would create neither responsibility under FOIA to reconstruct those documents nor liability for the lapse." Folstad v. Bd. of Governors of the Fed. Reserve Sys., 1999 U.S. Dist. LEXIS 17852, at *4 (W.D. ...

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