The opinion of the court was delivered by: Gladys Kessler United States District Judge
Plaintiff, James Lutcher Negley ("Plaintiff"), brings this action against Defendant, Federal Bureau of Investigation ("FBI" or "Defendant"), under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiff challenges the adequacy of Defendant's search for documents responsive to his FOIA request.
This matter is now before the Court on Plaintiff's Motion for Partial Summary Judgment [Dkt. No. 71] and Defendant's Second Motion for Summary Judgment [Dkt. No. 72]. Upon consideration of the Motions, Oppositions, Replies, the entire record herein, and for the reasons stated below, Plaintiff's Motion for Partial Summary Judgment is granted and Defendant's Second Motion for Summary Judgment is denied.
A. Factual Background*fn1
On January 16, 2002, Plaintiff submitted a FOIA request to the FBI's San Francisco Field Office ("SFFO") seeking "a copy of any records about [him] maintained at and by the FBI in [the San Francisco] field office." On January 30, 2002, Plaintiff was informed that a search of the indices to the Central Records System ("CRS") yielded no responsive records.
Negley appealed this no-record response to the Department of Justice's Office of Information and Privacy ("OIP"), and provided the FBI with additional information to focus its search efforts. Specifically, Negley informed Defendant that his earlier request to another FBI field office in Sacramento yielded a document that referred to File Number 149A-SF-106204.*fn2 Additionally, on April 23, 2002, two months after he filed his appeal of the FBI's January 30, 2002, decision, Plaintiff sent a fax to the FBI "amend[ing] his 1/16/2002 FOIA request" to include File Number 149A-SF-106204-Sub S-1575. The SFFO again informed Negley that no records were located other than those already produced to him by the Sacramento Office.
Plaintiff appealed. In response, Defendant expanded its search to include cross-references that contained Plaintiff's name. The search yielded 47 documents from File Number 149A-SF-106204-SUB S0-3041 ("Serial 3041" or "Sub S0-3041"). Defendant produced 37 of those 47 pages, with 12 of the 37 pages appearing in redacted form. The FBI explained that the documents produced from Serial 3041 were duplicative of the documents produced by the Sacramento office.
In that same response to Negley's appeal, the FBI also explained that the file identified by Negley in his fax--File Number 149A-SF-106204-Sub S-1575 ("Sub S-1575")--was not the same record as the one he had received from the Sacramento office. The FBI did not produce Sub S-1575, because it deemed the file to be "not responsive to plaintiff's FOIA request for records concerning himself." 1st Hardy Decl. at ¶ 13. However, during a deposition in March of 2007, Assistant Special Agent-in-Charge Holly ("ASAC Holly") testified that he believed the Sacramento file marked with "149A-SF-106204-Sub S-1575" did indeed refer to a file related to Negley. Dep. of Clifford C. Holly, Mar. 12, 2007 ("Holly Dep."), at 115-16; 144-46 (Ex. 7 to Pl.'s Mot. for Partial Summ. J. ("Pl.'s Mot.")). Negley maintains that his April 23, 2002, amended request to the FBI did not include any limiting language about whether or not Sub S-1575 pertained to him. He requested "this file no. as well as any others." Compl., Ex. D. He later explained that he wanted the file "regardless of whether or not that file is about [him]." Supplemental Decl. of James Lutcher Negley, Feb. 8, 2007 ("Negley Decl."), at ¶ 3 (Ex. 2 to Pl.'s Mot.)
Sub S-1575 has still not yet been produced to Negley. However, over the course of the litigation, the FBI has managed to meet a number of Plaintiff's demands. See Reply in Support of Pl.'s Mot. ("Pl.'s Reply") at 3 ("Negley already has obtained significant relief through this lawsuit.") In response to a January 8, 2007, Order from this Court to produce Serial 3041 in its entirety, Order (Jan. 8, 2007) [Dkt. No. 43], the FBI located two additional documents after conducting a search of files sent to FBI Headquarters by the SFFO, Third Declaration of David M. Hardy, Feb. 15, 2007 ("3rd Hardy Decl."), at ¶ 17. Then, after initally refusing to produce seven additional pages from Serial 3041 that it claimed duplicated an earlier production from Sacramento, the FBI finally made them available to Plaintiff. Fifth Declaration of David M. Hardy, Oct. 8, 2007 ("5th Hardy Decl."), at ¶ 17.
Further, the FBI produced documents from File Number 149A-SF-106204-S0-3865 ("Serial 3865"), which it maintains were entirely duplicative of records produced from Serial 3041. Id. at ¶ 18. The FBI has also conducted searches of several additional document repositories, expanding on its initial search of a single database.
This more expansive search turned up a reference to yet another main file, 65-21102. Hardy reported that this file was destroyed "in accordance with applicable destruction schedules" in 1998. 5th Hardy Decl. at ¶ 11. The additional searches also yielded responsive documents that were eventually turned over to Negley. Id. at ¶¶ 6-19
Plaintiff nevertheless maintains that the FBI's pre-lawsuit search of only one file system was inadequate. He contends that its belated searches of other file systems were deficient as well.
On October 17, 2003, Plaintiff filed this suit to challenge the FBI's actions under FOIA, seeking the complete production of agency records concerning him from the SFFO. The Court granted Defendant's Motion for Summary Judgment on July 26, 2004, finding that Plaintiff's action was barred by the doctrine of res judicata because the 47 pages, as identified by the SFFO, were identical to those documents at issue in a prior action before a district court in Texas. Negley v. Federal Bureau of Investigation, No. 04-5348 (D.D.C. July 26, 2004) [Dkt. No. 26]. Further, Hardy's First Declaration, dated January 9, 2004, was found to be sufficient to demonstrate the adequacy of the FBI's search. Id. Plaintiff appealed.
On January 17, 2006, the Court of Appeals reversed and remanded this case for further proceedings. Negley v. Federal Bureau of Investigation, 169 F. App'x 591 (D.C. Cir. 2006) [Dkt. No. 28]. The Court of Appeals concluded that application of res judicata was in error because while the SFFO made available duplicates of the same 47 pages of documents that the Sacramento office had previously made available, the FBI conceded that the SFFO records were not absolutely identical to those involved in the prior proceedings, at least with regard to internal administrative markings. Id. at 593-94. Therefore, the lawsuit aimed at obtaining records stored in the Sacramento office as of October 7, 1999, did not involve the same "nucleus of facts" as a lawsuit aimed at obtaining records stored in the SFFO as of January 16, 2002. Id.
In addition, the Court of Appeals found that "in [its] assessment, the record, including the correspondence between [Plaintiff] and the FBI, raised sufficient doubt about the scope of the FBI's search to preclude summary judgment." Id. at 595. Although Plaintiff had requested information about Sub S-1575 in his amended FOIA request, the Court of Appeals noted that subsequent correspondence between the parties does not refer precisely to that file. Instead there are references to various file numbers, and "[n]owhere does the FBI clarify whether any of these various file references are synonymous, and more important, whether it actually searched Sub S-1575 as Plaintiff explicitly requested." Id. In the absence of clarification ...