United States District Court, D. Columbia
September 12, 2005.
MICHAEL TRUPEI, Plaintiff,
FEDERAL AVIATION ADMINISTRATION, U.S. DEPARTMENT OF TRANSPORTATION, Defendants.
The opinion of the court was delivered by: EMMET SULLIVAN, District Judge
This matter brought under the Freedom of Information Act
("FOIA"), 5 U.S.C. § 552, is before the Court on defendant's
motion for summary judgment. Upon consideration of the parties'
submissions and the entire record, the Court will grant
The following facts are taken from defendant's Statement of
Material Facts Not in Genuine Issue ("Deft's Facts") and the
supporting declaration. By letter dated April 17, 2004, plaintiff
requested the oaths of office, officer affidavits, and fidelity
bonds for three named individuals "and/or other entity's
personnel connected with this matter." Deft's Facts ¶ 1. By
letter dated June 8, 2004, defendant released unredacted copies
of the requested oaths and affidavits of the individuals who are
employees of the Federal Aviation Administration ("FAA"). Id.
¶¶ 12-15. Defendant advised plaintiff that it located no records
responsive to his request for fidelity bonds. Defendant moves for
summary judgment on the ground that it conducted an adequate
search for responsive records and released them in their
entirety. II. STANDARD OF REVIEW
Summary judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any, show that 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).
Mere allegations or denials of the moving party's pleadings are
not enough to prevent issuance of summary judgment. The adverse
party's response to the summary judgment motion must "set forth
specific facts showing that there is a genuine issue for trial."
Fed.R.Civ.P. 56(e). The Court's task is not to "weigh the
evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986) (citations omitted). In
resolving a summary judgment motion, the Court draws all
reasonable inferences in favor of the non-moving party. Id.
477 U.S. at 255 (citations omitted).
In a FOIA action, the Court may award summary judgment solely
on the information provided in agency affidavits or declarations
when they describe "the justifications for nondisclosure with
reasonably specific detail, demonstrate that the information
withheld logically falls within the claimed exemption, and are
not controverted by either contrary evidence in the record nor by
evidence of agency bad faith." Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v. Rosen,
484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied, 415 U.S. 977
(1974). When, as in this case, responsive records are not
located, the agency prevails on a motion for summary judgment if
it shows "beyond material doubt ? that it has conducted a search
reasonably calculated to uncover all relevant documents."
Weisberg v. United States Dep't of Justice, 705 F.2d 1344, 1351
(D.C. Cir. 1983). Because the agency is the possessor of the records and is responsible for conducting
the search, the Court may rely on "[a] reasonably detailed
affidavit, setting forth the search terms and the type of search
performed, and averring that all files likely to contain
responsive materials (if such records exist) were searched."
Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C.
Cir. 1999) (citing Oglesby v. United States Dep't of the Army,
920 F.2d 57, 68 (D.C. Cir. 1990); Kowalczyk v. Dep't of
Justice, 73 F.3d 386, 388 (D.C. Cir. 1996); Weisberg v. Dep't
of Justice, 705 F.2d at 1351). "If the requester produces
countervailing evidence placing the sufficiency of the
identification or retrieval procedures genuinely in issue,
summary judgment is inappropriate." Spannaus v. Central
Intelligence Agency, 841 F. Supp. 14, 16 (D.D.C. 1993) (citing
Church of Scientology v. National Security Agency, 610 F.2d 824,
836 (D.C. Cir. 1979)). In determining the adequacy of a FOIA
search, the court is guided by principles of reasonableness. See
Campbell v. United States Dep't of Justice, 164 F.3d 20, 28
(D.C. Cir. 1998). An agency is required to produce only those
records in its custody and control at the time of the FOIA
request. McGehee v. Central Intelligence Agency, 697 F.2d 1095,
1110 (D.C. Cir. 1983).
The only issue pertains to defendant's search for
records.*fn1 Defendant proffers the Declaration of Robert
Stanley Wayland (Def't's Ex 1). According to Mr. Wayland, who is
a Lead Personnel Specialist in the FAA's Human Resource
Management Division, records pertaining to FAA employees and
their official duties are "maintained in the employees' official personnel folders, which are located in a secured filing
room." Id. ¶ 12. Mr. Wayland "manually searched each
[employee's] folder for records responsive to Mr. Trupei's
request." Id. ¶ 13. He located "no copies on file of `fidelity
bonds' for the three [named] employees." Id. ¶ 16. Defendant
has sufficiently demonstrated that it conducted a search
reasonably likely to locate all responsive records. The Court
therefore grants defendant's motion for summary judgment. A
separate Order accompanies this Memorandum Opinion.
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