The opinion of the court was delivered by: Gladys Kessler United States District Judge
In this Freedom of Information Act ("FOIA") case, 5 U.S.C. § 552, the Defendants have filed a renewed motion for summary judgment and the Plaintiff has filed an opposition and cross-motion for summary judgment. Because the Defendants have each demonstrated that they conducted reasonable searches in light of the information requested, the Defendants' renewed motion for summary judgment will be granted and the Plaintiff's cross-motion will be denied. Plaintiff has also moved for reimbursement of his litigation costs, which Defendants have opposed. Because the Plaintiff is not eligible for reimbursement, his motion will be denied.
Between December 2002 and June 2003, Plaintiff Willie Jefferson filed multiple and various FOIA requests with the Department of Justice's Office of Inspector General ("OIG"), the Bureau of Prisons ("BOP"), and the Federal Bureau of Investigation ("FBI"). Not satisfied with the responses, he filed this action. In the course of this litigation, documents were produced and the Defendants each filed a declaration in support of their combined motion for summary judgment. In a memorandum opinion issued November 7, 2006 [Dkt. #38], 2006 WL 3208666, the Court denied summary judgment to all three Defendants, finding that each declaration was insufficient to provide the required evidentiary basis for concluding that the search it had conducted was reasonable and adequate.*fn1
The Defendants have now filed a renewed motion for summary judgment, supported by three additional declarations, one from each Defendant. The Plaintiff has opposed the motion for summary judgment, raising seven specific issues that he contends demonstrate that the searches were not adequate. With their reply, Defendants filed two more agency declarations responding to the specific issues Plaintiff had raised with respect to the BOP and OIG.
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 the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); 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. 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." Id. 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 being 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 only issue remaining for disposition of this case is whether the agencies' searches were reasonable. To show that its search was reasonable, the agency must demonstrate that when "viewing the facts in the light most favorable to the requester, . . . [it] 'has conducted a search reasonably calculated to uncover all relevant documents." ' Steinberg v. United States Dep't of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994) (quoting Weisberg v. United States Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail and in a non-conclusory fashion the scope and method of the agency's search. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency's compliance with FOIA. Id. at 127. 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); see also Campbell v. United States Dep't of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998). A search need not be exhaustive. Miller v United States Dep't of State, 779 F.2d 1378, 1383 (8th Cir. 1985). Furthermore, the adequacy of a search is not determined by its results, but by the method of the search itself, Weisberg, 745 F.2d at 1485, and a court is guided in this determination by principles of reasonableness, Oglesby, 920 F.2d at 68. An agency's failure to find a particular document does not undermine the determination that the search was adequate. Wilber v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004); Nation Magazine, Washington Bureau v. United States Customs Serv., 71 F.3d 885, 892 n.7 (D.C. Cir. 1995).
Plaintiff points to four discrete faults with the BOP's search. First, he argues that the fact that the BOP's search did not produce records regarding an investigation of Grady Turner that resulted in a 14-day suspension demonstrates that the search was inadequate. (Pl.'s Opp'n & CrossMot. for Summ. J. ("Opp'n" at 3). Plaintiff's reliance on the results of a search to assess its adequacy is misplaced. Weisberg, 745 F.2d at 1485. There could be several possible reasons other than an inadequate search for why particular records are not located. The records may never have existed, may have been destroyed, or may have been misplaced. In this instance, Plaintiff's source of information about an investigation resulting in a 14-day suspension is derived from an unreliable source; the speaker was later convicted of making false statements. In any case, it is well-established that the test of a search is its reasonableness, not whether records believed to have existed at some point in time are in fact located. Id. Here, the BOP has filed a declaration stating that the database it searched by Grady Turner's name is the "only data system used to log in and track official investigations" and "would include any/all information regarding the location of investigative files concerning staff members." (Decl. of Wilson Moorer, July 11, 2008 ("Moorer Decl.") ¶¶ 8-10.) No other BOP database would contain documents or records responsive to the Plaintiff's FOIA request regarding Turner. (Id.) The only file that was located was referred to the OIG for processing in connection with this litigation.
In a similar vein, the Plaintiff also concludes that the fact that the search did not produce records from a source he expected, namely, the Special Investigative Supervisor's Manual, is evidence of an inadequate search. (Opp'n at 4.) The BOP's declaration explains why Plaintiff's suspicion is without foundation. The Special Investigative Supervisor's Manual merely referred to two pages of responsive documents that were in fact identified as responsive and released. (Moorer Decl. ¶ 13.)
The Plaintiff disagrees with the BOP's position that a notice published in the Federal Register on August 29, 1995, is not a BOP record. (Opp'n at 3.) However, while such a notice could be maintained by the agency, even the Plaintiff has pointed out that the BOP is free to dispose as it sees fit of the notice published in the Federal Register, and to govern its own record system. (See Opp'n at 4 n.1, citing 5 U.S.C. § 553).) In this case, the Federal Register notice that ...