United States District Court for the District of Columbia
ARK ALLEN, Plaintiff,
UNITED STATES SECRET SERVICE, Defendant.
The opinion of the court was delivered by: EMMET SULLIVAN, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Ark Allen, an author writing a book on the presidency
of John F. Kennedy, brings this action pursuant to the Freedom of
Information Act ("FOIA"), 5 U.S.C. § 552 et seq.. On May 27,
2000, plaintiff submitted a FOIA request to defendant the United
States Secret Service ("Service" or "agency") requesting "all
records on Judith Campbell Exner."*fn1 Compl. ¶ 4. In
response, the Service released twenty-six pages of records, some
of which were redacted, to plaintiff. Plaintiff appealed to the
Service, arguing against both the deletions in the released records and the alleged failure of the Service to conduct an
adequate FOIA search. The Service ultimately denied plaintiff's
appeal on the search issue, but did release additional material
from the originally disclosed twenty-six pages. Compl. ¶¶ 7-9.
Pending before the Court are (1) defendant's motion for summary
judgment and (2) plaintiff's motion to compel a further search
and/or discovery on the search issue. The sole issue before the
Court is whether the Service conducted an adequate search in
response to plaintiff's FOIA request.*fn2
Upon careful consideration of the motions, the responses and
replies thereto, as well as the governing statutory and case law,
and for the following reasons, it is by the Court hereby
ORDERED that defendant's motion for summary judgment is
GRANTED and plaintiff's motion to compel a further search
and/or discovery on the search issue is DENIED. II. STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56, summary
judgment should be granted only if the moving party has shown
that there are no genuine issues of material fact and that the
moving party is entitled to judgment as a matter of law. See
Fed.R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991
(D.C. Cir. 2002). In the FOIA context, the defending agency "must
prove that each document that falls within the class requested
either has been produced, is unidentifiable, or is wholly exempt
from the Act's inspection requirements" in order to prevail on
summary judgment. National Cable Television Ass'n, Inc. v.
F.C.C., 479 F.2d 183, 186 (D.C. Cir. 1973).
A. The Legal Standard Governing FOIA Searches
The Freedom of Information Act (FOIA) requires that federal
agencies release all documents requested by members of the public
unless the information contained within such documents falls
within one of nine exemptions. 5 U.S.C. § 552(a), (b); see also
Students Against Genocide v. Dep't of State, 257 F.3d 828, 833
(D.C. Cir. 2001) ("FOIA requires federal agencies to disclose,
upon request, broad classes of agency records unless the records are covered by the statute's exemptions."). When, as here, the
adequacy of the search for requested records is at issue, "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."
Oglesby v. U.S. Dept. of Army, 920 F.2d 57, 68 (D.C. Cir.
1990). As the Circuit has succinctly stated:
It is elementary that an agency responding to a FOIA
request must conduct a search reasonably calculated
to uncover all relevant documents, and, if
challenged, must demonstrate beyond material doubt
that the search was reasonable. The issue is not
whether any further documents might conceivably exist
but rather whether the government's search for
responsive documents was adequate. The adequacy of an
agency's search is measured by a standard of
reasonableness, and is dependent upon the
circumstances of the case. If, however, the record
leaves substantial doubt as to the sufficiency of the
search, summary judgment for the agency is not
Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990)
(internal quotation and footnotes omitted). An agency can
establish the reasonableness of its search "through affidavits of
responsible agency officials so long as the affidavits are
relatively detailed, nonconclusory, and submitted in good faith."
Miller v. U.S. Dept. of State, 779 F.2d 1378
, 1383 (8th Cir.
1985) (citing Goland v. Central Intelligence Agency,
607 F.2d 339, 352 (D.C. Cir. 1978)). B. The Service's Search Was Reasonable
Defendant argues that it performed an adequate search in
response to plaintiff's FOIA request, and avers it has
demonstrated the reasonableness of its search through the
declarations of Deputy Director Carlton Spriggs and Margaret M.
Mannix, Special Agent in Charge of the Capitol Hill and
Interagency Liaison and Freedom of Information and Privacy Acts
Officer. Upon review of the affidavits, the Court agrees.
Defendant states that, pursuant to standard procedure, the
Service's Freedom of Information Act and Privacy Act Office
("FOI/PA Office") first searched the Secret Service's Master
Central Index ("MCI"). The MCI is "a computer database [that]
. . . provides a system of record keeping of information for
cases and subjects of record in investigative, protective, and
administrative files maintained by the Secret Service." Spriggs
Decl. ¶ 6. The database is searchable by name, and can be
cross-referenced with date of birth and social security
information. Id. The MCI search revealed that "neither `Judith
Campbell Exner' nor `Judith Campbell' were of record with the
Secret Service." Spriggs Decl. ¶ 7. The agency then searched the
internal FOI/PA database, which revealed three previous FOIA
requests for the same information from 1992 and 1999; the three files (92-0195, 92-0196, and 99-0709) were indexed under the name
Judith Eileen Katherine Exner.*fn3 Spriggs Decl. ¶ 8. The
Service then determined that the 1992 files had been destroyed
pursuant to the Service's document retention policy. Spriggs
Decl. ¶ 9. Ultimately, twenty-six pages of material were
released; this material was gathered from the located 1999 file
and the hard copies of information pertaining to prior requests
in the FOI/PA database. Spriggs Decl. ¶¶ 11-12.
Plaintiff, however, avers that there are "several major
problems" with the search. Pl.'s Mot. at 5. First, plaintiff
argues against the use of the MCI system, stating that it is
unclear how far back the MCI's indexed files date, and that
"records on Mrs. Exner created during the early 1960s when she
had a relationship with President Kennedy were indexed manually
rather than digitally." Pl.'s Mot. at 5. Second, plaintiff avers
that the Service failed to search under the name "Judy Campbell"
in addition to "Judith Campbell;" plaintiff argues that a search
under the latter name would not locate references of the former
name. Id. Finally, plaintiff argues that the Service has not
made clear whether it employed all search methods necessary to locate files that may not be indexed in the MCI. Specifically,
plaintiff states that the Service did not search the files of the
Office of Protective Research/Protective Research Section
("PRS"). As evidence of the alleged inadequacy of the search,
plaintiff notes that plaintiff's independent search of the
National Archives and Records Administration ("NARA") database
uncovered the existence of a Secret Service document from August
8, 1979. Lesar Decl. ¶ 7; Attachment B.
Each of these objections falls far short of establishing the
Agency's search as unreasonable, as the Service's affidavits
answer each objection. First, the Service states that the MCI
system does index all existing agency records from the 1960s.
Def.'s Response at 6-7; Mannix Decl. ¶ 6 ("The MCI came into
existence in April of 1980, at which time data was transferred in
four phases from paper indexes into the current computerized MCI
system.");*fn4 Attachment 1 (detailing the four-phase
transfer of paper records MCI index). Further, defendant submits
that it has searched the PRS files, as the PRS records "are
included in the records indexed in the MCI system." Def.'s
Response at 8; Mannix Decl. ¶¶ 5, 8, 9. Finally, defendant states that the
Service has now conducted a search under the name "Judy
Campbell;" this additional MCI search "indicated that `Judy
Campbell' is also not of record with the Secret Service." Mannix
Decl. ¶ 4.
In the FOIA context such underlying affidavits, absent a
showing they are conclusory or made in bad faith, are afforded a
presumption of good faith. See, e.g., Hayden v. National Sec.
Agency, 608 F.2d 1381, 1387 (1979) (agency affidavits are given
"substantial weight"); Goland v. Central Intelligence Agency,
607 F.2d 339, 352 (D.C. Cir. 1978); Judicial Watch, Inc. v. U.S.
Dept. of Health and Human Services, 27 F. Supp. 2d 240, 243
(D.D.C. 1998) (an agency's affidavits "are accorded substantial
weight by district courts in making the de novo review required
by FOIA"). Here, the Court finds no reason to doubt the veracity
of the affidavits.
Properly relying on the Spriggs and Mannix affidavits,
defendant makes clear that the "the MCI system is the most
inclusive and efficient means of identifying any records
containing information about individuals who may have been
mentioned on the agency's investigative, protective and
administrative files." Def.'s Response at 7. In the face of the
agency's credible assertion that all paper records are now indexed in the MCI system, plaintiff questions whether "the kind
of information being sought here was indexed" and whether "all
pre-existing Secret Service records were accessed only through
`paper indexes.'" Pl.'s Reply at 1. Quite simply, raising these
questions, without a concrete showing that there are other
indexes or records that should have been searched, or a
demonstration of actual doubt as to whether the system is
comprehensive, does not raise a reasonable doubt about the
adequacy of the search. See, e.g., Judicial Watch, Inc. v. U.S.
Dept. of Health and Human Services, 27 F. Supp. 2d 240, 244
(D.D.C. 1998) "Plaintiff's unsubstantiated suspicions . . . are
insufficient to call into question the adequacy of [the agency's]
search and the truthfulness of its affidavit . . . plaintiff
cannot rely on mere unsubstantiated allegations of bad faith and
unreasonable search procedures").*fn5 Moreover, the fact that plaintiff was able to independently
unearth one document from the National Archives and Records
Administration does not establish the inadequacy of the search.
While the agency's search must be reasonably calculated to
produce the requested information, FOIA does not impose a
requirement that every record be found; "[t]he issue is not
whether any further documents might conceivably exist but rather
whether the government's search for responsive documents was
adequate." Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982);
see also Nation Magazine, Washington Bureau v. U.S. Customs
Service, 71 F.3d 885, 892 n. 7 (D.C. Cir. 1995); Oglesby v.
U.S. Dept. of Army, 920 F.2d 57, 68 (D.C. Cir. 1990) "There is
no requirement that an agency search every record system.").
Accordingly, the fact that plaintiff discovered one document
that possibly should have been located by the Service does not
render the search process unreasonable.
The affidavits submitted here describe the search process
specifically, make clear that the agency searched for the
requested information using several names, and establish that all
records that could be searched have been indexed in the central
MCI system. A search of the comprehensive MCI system is a search
method that could be "reasonably expected to produce the
information requested." Oglesby, 920 F.2d at 68. Thus, while plaintiff may be correct that not every responsive document was
found, there is not "substantial doubt as to the sufficiency of
the search." Truitt v. Department of State, 897 F.2d 540, 542
(D.C. Cir. 1990).
C. Discovery is Not Warranted
Relying on the alleged inadequacy of the Service's search,
plaintiff argues that he should be permitted to take discovery on
questions of "whether all records are indexed, how they are
indexed . . . how far back do the records [MCI] indexes go, [and]
what exactly is a `PRS case.'" This request is denied.
It is well-settled in a FOIA action, the court must "deny
discovery when the affidavits are sufficiently detailed and
submitted in good faith. Further, discovery should be denied if
the district court determines that plaintiff merely desires
discovery as a means of finding `something that might impugn the
affidavits' submitted by the agency." Kay v. F.C.C.,
976 F. Supp. 23, 34 n. 35 (D.D.C. 1997) (quoting Founding Church of
Scientology v. NSA, 610 F.2d 824, 836-837 n. 101 (D.C. Cir.
1979)); see also SafeCard Services, Inc. v. S.E.C.,
926 F.2d 1197 (D.C. Cir. 1991). Here, the agency has submitted two
detailed affidavits describing the search methods employed, and
answering the questions posed by plaintiff. Plaintiff has not
established that the affidavits are incomplete or made in bad
faith. Accordingly, plaintiff simply has not demonstrated the need for
For the reasons set forth above, the Court finds that
defendant's search complies with FOIA requirements. Accordingly,
it is by the Court hereby
ORDERED that defendant's motion for summary judgment is
GRANTED; and it is
FURTHER ORDERED that plaintiff's motion to compel a further
search is DENIED; and it is
FURTHER ORDERED AND ADJUDGED that the Clerk shall enter final
judgement in favor of defendant and against plaintiff on all
claims; and it is
FURTHER ORDERED that the Clerk of the Court is directed to
remove this case from the active calendar of the Court.
An Appropriate Order accompanies this Memorandum Opinion.