United States District Court for the District of Columbia
August 2, 2004.
CHARLES RUSSELL TWIST, Plaintiff,
JOHN ASHCROFT, Attorney General, Defendant.
The opinion of the court was delivered by: RICARDO URBINA, District Judge
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
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
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