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Cole v. United States Dep't of Justice

September 27, 2006

JAMES COLE, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE ET AL., DEFENDANTS.



The opinion of the court was delivered by: Richard W. Roberts United States District Judge

MEMORANDUM OPINION

Plaintiff James Cole filed this suit challenging the scope and speed of the response by the Drug Enforcement Administration ("DEA") to his request for information and records under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. After producing additional documents with redactions and identifying other documents that it withheld in whole, the DEA filed a motion for summary judgment that Cole opposes. Because the DEA has complied with the requirements of the FOIA and Cole is not entitled to any more information than that which the DEA has released to him, the DEA's motion for summary judgment will be granted.

BACKGROUND

Cole is a federal prisoner serving a life sentence for drug distribution conspiracy. He asked the DEA in January 2002 for all records referencing his name and all records relating to certain law enforcement investigations. In response, the DEA produced 29 documents, parts of which were redacted. The DEA acknowledged that it had not fully searched its records, though, and demanded payment in advance before conducting any more searches or production. Refusing to grant Cole a fee waiver, the DEA suggested that he make a partial advance payment for a commensurate amount of additional searching, deferring until later a decision on complete searching at more cost. Cole made a partial payment for the express purpose of searching a particular file identified as GFAN-86-9117. Thereafter, despite multiple letters of inquiry, Cole received no additional documents or communication of any kind from the DEA until after he filed this law suit.

In response to this action, the DEA produced a second, third, and fourth set of redacted documents, and identified other documents that were withheld in their entirety. These productions included pages from a file that had earlier been identified as missing, as well as some information that the DEA had previously withheld as exempt from disclosure. All told, the DEA identified a total of 162 pages with responsive information. Half were released to Cole with redactions and half were withheld in their entirety. The DEA also produced two explanatory declarations and a summary index purporting to identify each segment of information that was withheld and to justify its non-disclosure.

Having concluded that it had produced all information to which Cole was entitled, the DEA filed a motion for summary judgment. Cole opposes the motion, arguing that the DEA has failed to show that its search was reasonably calculated to uncover all responsive documents, that the DEA's unreliable document identification and retrieval system precludes summary judgment, and that the DEA failed to provide explanations sufficient to demonstrate that it had provided Cole with all segments of non-exempt information that could be reasonably segregated from information that was exempt from disclosure.

DISCUSSION

Summary judgment is permitted only when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In a FOIA suit, an agency is entitled to summary judgment once it bears its burden of demonstrating that no material facts are in dispute and that all information that falls within the class requested either has been produced, is unidentifiable, or is exempt from disclosure. Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001); Weisberg v. Dep't of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980). To challenge such a showing, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e).

I. ADEQUACY OF THE DEA'S SEARCH

Cole argues that the DEA has not demonstrated either that its document search and retrieval system is adequate or that its search for the GFAN-86-9117 file, which was never located, was reasonable. In the face of a challenge to the adequacy of an agency's search,

the agency may meet its burden by providing 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 were searched. . . . The plaintiff may then provide countervailing evidence as to the adequacy of the agency's search. . . . If a review of the record raises substantial doubt, particularly in view of well defined requests and positive indications of overlooked materials, summary judgment is inappropriate.

Iturralde v. Comptroller of the Currency, 315 F.3d 311, 314 (D.C. Cir. 2003) (internal quotation marks and citations omitted). "[T]he adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search." Id. at 315.

[T]he standard of reasonableness which we apply to agency search procedures does not require absolute exhaustion of the files; instead, it requires a search reasonably calculated to uncover the sought materials. The fact that a document once existed does not mean that it now exists; nor does the fact that an agency created a document necessarily imply that the agency has retained it. Thus, the Department is not required by the Act to account for documents which the requestor has in some way identified if it has made a diligent search for those documents in the places in which they might be expected to be found; it is not necessary 'to create a document that does not exist in order to satisfy a [FOIA] request.'

Miller v. Dep't of State, 779 F.2d 1378, 1384-85 (8th Cir. 1986) (quoting Yeager v. DEA, 678 F.2d 315, 321 (D.C. Cir. 1982)). "There is no requirement that an agency search every record system. . . . In order to obtain summary judgment 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. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). However, "if the sufficiency of the ...


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