The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff People for the American Way Foundation ("PFAWF") brings this action against the Department of Justice ("DOJ") under the Freedom of Information Act ("FOIA"), seeking documents pertaining to sealed cases relating to post-9/11 immigrant detainees. Defendant has moved for summary judgment on the grounds that plaintiff's FOIA request necessitates a manual search of at least 44,000 files for documents that are: (1) not easily identifiable from its case management database, and (2) scattered across more than eighty different U.S. Attorney's Offices nationwide. According to defendant's estimates, this search would require an exorbitant amount of money and time to perform and, accordingly, amounts to an unreasonably burdensome search. Plaintiff has filed a cross-motion for summary judgment, asserting that such a search is not unreasonably burdensome, but claiming that even if it were, it is not required by the FOIA request. Specifically, plaintiff submits that the FOIA request could be adequately addressed by conducting an electronic search of the Public Access to Courts Electronic Records service ("PACER"), which would mitigate any burden. For the following reasons, the Court will deny defendant's motion and grant plaintiff's cross-motion in part and deny it in part.
PFAWF filed a FOIA request with the Executive Office for United States Attorneys ("EOUSA") and the Office of Information and Privacy ("OIP"), both components of the DOJ, on November 25, 2003. Def.'s Mem. Supp. at 2. The inquiry requested "all records that reflect, relate, or refer to any request by the government to seal the proceedings of a case in any federal court arising from or relating to the detention of a post 9/11 immigrant detainee, including, without limitation, redacted copies of any pleadings filed in support of a request to seal." Compl. ¶ 14; Def.s Mem. Supp., Ex. 1A at 1 (letter dated Nov. 25, 2003). In the alternative, PFAWF sought a full list of all cases described, "with the names of the parties redacted if required pursuant to a court order." Compl. ¶ 16; Def.'s Mem. Supp., Ex. 1A at 1 (letter dated Nov. 25, 2003). The EOUSA denied PFAWF's FOIA request before performing any search, stating that releasing the records "would result in an unwarranted invasion of personal privacy and would be in violation of the Privacy Act, 5 U.S.C. § 552a," and that the records were exempt from disclosure pursuant to sections (b)(6) and (b)(7)(c) of FOIA. Compl. ¶ 9.
PFAWF filed an administrative appeal of the DOJ's denial on February 13, 2004. Compl. ¶ 27. DOJ denied the administrative appeal in June 2004, stating that the documents were exempt as an unwarranted invasion of personal privacy under § 552 (b)(7)(c). Compl. ¶ 29. On August 23, 2004, PFAWF then filed this action, claiming that the DOJ had wrongfully withheld requested documents. Def.'s Mem. Supp. at 3; Compl. ¶ 31. In its complaint, PFAWF stated that the purpose of its request was to gather statistical data regarding the frequency with which the DOJ has sought to seal the proceedings of cases involving post-9/11 detainees. Compl. ¶ 17. The EOUSA then reopened PFAWF's FOIA request and sought statistical information of that nature in its records. Def.'s Mem. Supp. at 4. It found no responsive statistical data. Id. Because U.S. Attorneys' offices do not catalogue files based on immigrant status or whether the government has sought to seal the proceedings of the case, EOUSA concluded that a manual file search would be required to respond to PFAWF's request. Id.
On January 11, 2005, the DOJ presented PFAWF with a fee estimate of $372,799 to perform a 13,316.25 hour search of all responsive records in 88 U.S. Attorneys' Offices ("USAOs"). Def.'s Mem. Supp., Ex. 1E to Kornmeier Decl. at 1 (letter dated Jan. 11, 2005). PFAWF requested a fee waiver.*fn1 Id., Ex. 1F to Kornmeier Decl. at 1-5 (letter dated Feb. 7,2005). One month later, EOUSA informed PFAWF that the search was unreasonably burdensome and invited PFAWF to revise its request to make it more compatible with EOUSA's case management system. Id., Ex. 1G to Kornmeier Decl. at 1 (letter dated Mar. 8, 2005).
Over the next year, the parties engaged in settlement negotiations and reported their efforts to the court. Def.'s Mem. Supp. at 6. They discussed search methods that would presumably fit better with the way that the EOUSA and USAOs stored files and would allow for the identification and production of responsive records. Joint Stat. Rep. of 04/18/05. PFAWF proposed a two-pronged strategy for the search. Pl.'s Stat. Rep. in Adv. of 05/17/05 Conf. at 1-2. The first was a database search using the Legal Information Office Network System ("LIONS") to locate files dated after September 11, 2001 that were coded with specific terrorism-related identifiers and in which a material witness warrant had been issued. Id. The second was a subsequent, smaller-scale manual search of the case files culled through the LIONS search, to be performed by individual USAOs. Id.
The government agreed to conduct the database search and to compile search-time estimates from individual offices, but indicated that it would not agree to carry out the manual search until the scope of the search was more clearly defined. Id. The database search of twelve terrorism-related codes produced 11,000 cases; the search of cases involving material witnesses identified just one case. Pl.'s Stat. Rep. in Adv. of 07/05/05 Conf. at 2. The government estimated that a manual search of 11,000 case files would take 6,327 hours to complete and would therefore be unreasonably burdensome. Id. In response, PFAWF suggested that the results of the LIONS search could be screened through PACER to eliminate publicly-docketed cases from the manual search. Id. For the purpose of settlement, EOUSA offered to conduct a PACER search of the 11,000 files, subject to a discussion of fees and an agreement by PFAWF formally to narrow its FOIA request accordingly. Def.'s Stat. Rep. in Adv. of 8/10/05 Conf. at 2. Subsequently, however, the parties discovered that the 11,000 files excluded certain species of sealed civil cases related to terrorism -- specifically, petitions for habeas corpus. Def.'s Stat. Rep. in Adv. of 9/14/05 Conf. at 2. A LIONS search of habeas codes yielded an additional 58,000 cases, resulting in the identification of a total of 69,000 potentially responsive files. Joint Stat. Rep. of 9/14/05 at 2. To further facilitate cooperation, PFAWF agreed to eliminate 25,000 habeas cases from the manual search, leaving the parties with 44,000 potentially-responsive files. Joint Stat. Rep. in Adv. of 01/18/06 Conf. at 1.
Thereafter, PFAWF made a formal settlement offer, requesting that the government either: (1) conduct a manual search of the 44,000 identified files and waive the associated fee, or (2) use PACER to screen the 44,000 files in order to identify those cases that either are, or are suspected of having been, sealed, followed by a manual search of a subset of those files for which PACER contained no entry in order to determine if they had in fact been sealed. Pl.'s Opp'n Ex. 10 at 2 (letter dated Nov. 16, 2005). The government declined to accept this proposal, arguing that either type of search would be unduly burdensome. Pl.'s Opp'n Ex. 11 (letter dated Jan. 17, 2006). In response, PFAWF offered to limit the universe of relevant files to a random sample of the 44,000 potentially-responsive cases, provided that the random sample would yield a statistically significant result. Id. The EOUSA rejected this proposal, too, on the basis that "[c]reating a random sampling of the 44,000 cases is not within the EOUSA's normal function and is not something that it has the ability to do easily with any degree of accuracy and confidence." Pl.'s Opp'n Ex. 13 at 1 (letter dated Feb. 16, 2006). On January 20, 2006, PFAWF submitted a new FOIA request seeking records of sealed matters "identified in the database from March 2005 to date." Def.'s Mem. Supp. at 8. Subsequently, the government requested that PFAWF voluntarily dismiss this action in light of the new FOIA request. PFAWF declined, and settlement discussions have proven unfruitful. Joint Stat. Rep. in Adv. of 02/22/06 Conf. Hence, the parties' cross-motions for summary judgment are now ripe for decision.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate if the pleadings on file, together with the 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). Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment bears the initial burden of demonstrating an absence of a genuine issue of material fact. Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). In considering whether there is a triable issue of fact, the Court must draw all reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; see also Washington Post Co. v. United States Dep't of Health and Human Servs, 865 F.2d 320, 325 (D.C. Cir. 1989). The party opposing a motion for summary judgment, however, "may not rest upon the mere allegations or denials of his pleading, but . . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248. The non-moving party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Moreover, "any factual assertions in the movant's affidavits will be accepted as  true unless [the opposing party] submits his own affidavits or other documentary evidence contradicting the assertion." Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992) (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir.1982)). The mere existence of a factual dispute by itself, however, is not enough to bar summary judgment. The party opposing the motion must show that there is a genuine issue of material fact. See Anderson, 477 U.S. at 247-48. To be material, the fact must be capable of affecting the outcome of the litigation; to be genuine, the issue must be supported by admissible evidence sufficient for a reasonable trier of fact to find in favor of the nonmoving party. See id.; Laningham v. United States Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987).
In a FOIA case, the court may award summary judgment solely on the basis of information provided by the department or agency in affidavits or declarations that describe "the documents and 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, 826-28 (D.C. Cir. 1973). Agency affidavits or declarations must be "relatively detailed and non-conclusory . . . ." SafeCard Services v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). Such affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." Id. (internal citation and quotation omitted). An agency must demonstrate that "each ...