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TWIST v. ASHCROFT

United States District Court for the District of Columbia


August 2, 2004.

CHARLES RUSSELL TWIST, Plaintiff,
v.
JOHN ASHCROFT, Attorney General, Defendant.

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

ORDER

ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

ORDERED that the report and recommendation submitted to this court on June 22, 2004, by Magistrate Judge Facciola and the findings made therein are HEREBY ADOPTED in total GRANTING the defendant's motion for summary judgment. The court notes that the plaintiff's legal argument in his objections to the Magistrate Judge's Reports and Recommendations, as opposed to his ad hominem attacks, were duly considered by the Magistrate Judge, as they are repetitious of the plaintiff's opposition to the defendant's motion for summary judgment. Nevertheless, in addition to adopting the report and recommendation as this court's opinion, the court furthers its opinion as follows.

  As Magistrate Judge Facciola clearly presented in his Report and Recommendation on June 22, 2004, the plaintiff, to avoid summary judgment, must establish that the Vaughn index is "insufficient to permit the court to ascertain whether the FOIA exemptions have been properly claimed." Report and Recommendation on Def.'s Mot. for Summ. J. ("Report and Recommendation") at 3. In the plaintiff's objections to the report and recommendation and opposition to the plaintiff's motion for summary judgment, he attempts to avoid summary judgment by demonstrating the defendant's bad faith in failing to produce OPR reports. Specifically, the plaintiff alleges the existence of "periodic status reports" from the OPR, which are not listed in the Vaughn index, nor exempt from production. Pl.'s Opp'n to Report and Recommendation ("Pl.'s Opp'n to Rep.") at 3-4; Pl.'s Opp'n to Mot. for Summ. J. ("Pl.'s Opp'n") at 20.

  The plaintiff's assertions alone do not establish that the Vaughn index is insufficient because of the defendant's bad faith. SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991); see also Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). The court recognizes that while an agency's affidavits are presumed to be in good faith, a plaintiff can rebut this presumption with evidence of bad faith. Id. But such evidence cannot be comprised of "purely speculative claims about the existence and discoverability of other documents." SafeCard Servs., Inc., 926 F.2d at 1200 (citing Ground Saucer Watch, Inc., 692 F.2d at 771).

  Perusal of the Vaughn index, the court record, and the defendant's "Shaheen Memorandum" attachment, Pl.'s Opp'n to Rep. Ex. 1; Pl.'s Opp'n at 20, sheds no light on the existence of these documents. This court cannot embark on a time-consuming and costly goose chase in pursuit of phantom reports. The plaintiff bears the burden to show the existence of these documents; he failed to meet this burden. Albuquerque Pub. Co. v. United States Dep't of Justice, 726 F. Supp. 851, 860 (D.D.C. 1989). Accordingly, the court grants the defendant's motion for summary judgment.

 

SO ORDERED.
20040802

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