The opinion of the court was delivered by: Richard W. Roberts United States District Judge
This matter is before the Court on defendants' Third Renewed Motion for Summary Judgment.*fn1 Having reviewed the motion, plaintiff's opposition and defendants' reply, the Court will grant the motion in part and deny it in part without prejudice.
Plaintiff brought this action pursuant to the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552, to challenge responses to requests he submitted to the Executive Office for United States Attorneys ("EOUSA") and the United States Customs Service ("Customs"), Compl. at 1, for "any and all criminal investigation and prosecution records pertaining to himself," id. at 2.*fn2
Defendants' first motion for summary judgment ("Defs.' MSJ") [Dkt. #22] was granted in part and denied in part without prejudice, Memorandum Opinion and Order, Callaway v. U.S. Dep't of Treasury, No. 04-1506 (D.D.C. Apr. 26, 2006), as was their renewed motion for summary judgment ("Defs.' Renewed MSJ") [Dkt. #46], Memorandum Opinion and Order, Callaway v. U.S. Dep't of Treasury, No. 04-1506 (D.D.C. Aug. 31, 2007). Defendants' second renewed motion for summary judgment ("Defs.' 2d Renewed MSJ") [Dkt. #61] was granted, Memorandum Opinion and Order, Callaway v. U.S. Dep't of Treasury, No. 04-1506 (D.D.C. Sept. 10, 2008), and plaintiff appealed. Notice of Appeal, Callaway v. U.S. Dep't of Treasury, No. 04-1506 (D.D.C. Oct. 29, 2008).
The United States Court of Appeals for the District of Columbia Circuit granted summary affirmance only with respect to the adequacy of the search for responsive records conducted by the EOUSA. Order, Callaway v. U.S. Dep't of the Treasury, No. 08-5480 (D.C. Cir. June 2, 2009) (per curiam). The D.C. Circuit remanded the case for resolution of four matters: (1) whether there remains a factual dispute with regard to the contents of audio tapes released by the EOUSA to plaintiff; (2) whether Customs conducted an adequate search for responsive records which may have been stored on microfiche; (3) whether any portion of the grand jury transcripts withheld by the EOUSA under Exemption 3 has entered the public domain; and (4) whether all reasonably segregable information has been released. See Memorandum, Callaway v. U.S. Dep't of the Treasury, No. 08-5480 (D.C. Cir. June 2, 2009) (per curiam) ("Cir. Mem.") at 1-2. Defendants have filed a third renewed motion for summary judgment and supporting memorandum with exhibits ("Defs.' 3d Renewed MSJ") [Dkt. #88] to address the deficiencies identified by the D.C. Circuit.*fn3 With the exception of segregability, this Court will address each matter in turn.
A. Audio Recordings N-113 and N-116
According to the D.C. Circuit, "there appears to be a factual dispute with regard to the contents of the released audio tape recordings." Cir. Mem. at 1. Although the EOUSA asserted that "it had made no redactions to a CD-ROM . . . containing the recordings," plaintiff "present[s] evidence in the form of a verified complaint, attached exhibits, and an expert witness report, which suggests the recordings were redacted." Id. The D.C. Circuit remanded this matter in part for this Court to address the factual dispute.
Among other information, plaintiff requested from the EOUSA "the unredacted tape #N-113 from Case # 95-290-CR-T-21(E)," and the "unredacted tape of N#-116 [sic]." Defs.' MSJ, First Kornmeier Decl., Ex. A (FOIA request dated May 20, 1998) at 2. The case number plaintiff provided, No. 95-290-CR-T-21(E), was that of his criminal case in the United States District Court for the Middle District of Florida, Tampa Division, and the tape numbers referred to recordings made by Customs during the investigation preceding the trial.*fn4 See Compl., Ex. Z (Contact Log) at 51 (page number designated by plaintiff).*fn5 The tapes that apparently were introduced as evidence at trial were located in "the criminal file of plaintiff" maintained by the United States Attorney's Office for the Middle District of Florida ("USAO/MDFL"), and "only one copy of each tape was found." Defs.' Reply to Pl.'s Mot. in Opp'n of Defs.' Mot. for Summ. J. ("Defs.' Reply") [Dkt. #27], Second Galban Decl. ¶ 6; see Compl., Ex. J (Letter from plaintiff to Bonnie L. Gay, FOIA/PA Unit, EOUSA, dated September 14, 1998) at 1 (identifying tape Nos. N-113 and N-116 as "government exhibits"). The trial exhibit tapes were copied, Defs.' Reply, Second Galban Decl. ¶ 6, and forwarded to the EOUSA for processing. Defs.' MSJ, First Galban Decl. ¶¶ 4-5, 11. The EOUSA released in full a CD-ROM containing four audio tapes, including the trial exhibits bearing recordings from tape Nos. N-113 and N-116. Defs.' MSJ, First Kornmeier Decl. ¶ 18 & Ex. M (Letter to plaintiff from M.A. O'Rourke, Assistant Director, Freedom of Information/Privacy Act Staff, EOUSA, dated April 4, 2005).
Plaintiff objected to this response because the EOUSA "only released copies of the redacted forms of the tapes . . . with contents of the conversations missing." Concise Statement of Genuine Issues [Dkt. #25] at 2.*fn6 He requested "the entire tape recordings, not the cut versions." Id. (emphasis in original). According to plaintiff, "the recordings were altered from their original form," Compl. at 35, and defendants committed misconduct by withholding the unredacted recordings, id. at 36. In support of his argument, plaintiff submitted the report of Roger W. Shuy, a Professor of Linguistics at Georgetown University, to establish that the tapes (and transcripts prepared therefrom) were flawed in that they did not contain the entire conversations. See generally Compl., Ex. CC (Linguistic Analysis of Tape Recordings Involving Henry Callaway in the Case of USA v. Henry Callaway, Criminal Case No. 95-290-Cr-T-21(E), Middle District of Florida, Tampa Division, dated August 3, 2001).
The EOUSA's declarant reiterates that the agency released unredacted versions of the tapes it found in its files, and explains any alterations to the original recordings as follows:
An investigative agency prepares physical evidence such as tapes for use at trial. Whatever modifications an investigative agency may make to prepare the evidence for trial have already been made prior to giving it to an Assistant United States Attorney to present at trial. The tapes that the [USAO/MDFL] had in its possession were the ones that . . . [Customs] . . . had prepared for the criminal trial of [plaintiff]. Any modifications . . ., such as shortening of the tapes[,] had already been made prior to the criminal trial. In response to [plaintiff's] FOIA request long after the criminal trial, EOUSA requested the tapes from the USAO/MDFL . . . [and the] EOUSA then simply released the tapes on April 4, 2005, in the exact form it had them making no redactions.
Defs.' 3d Renewed MSJ, Fourth Kornmeier Decl. ¶ 5.*fn7 Plaintiff considers it a "foregone conclusion that the audio tapes were infact [sic] altered and/or redacted during the time period of plaintiff's criminal investigation and prosecution," Mem. of P. & A. in Opp'n of Defs.' Third Renewed Mot. for Summ. J. ("Pl.'s Opp'n") [Dkt. #93] at 5, and he is well aware that any redaction or alteration of the tapes "pre-dates the release of the audio tapes by EOUSA," id. at 20; see Defs.' 3d Renewed MSJ, Fourth Kornmeier Decl. ¶¶ 6-7.
"The Court's authority is limited to the release of non-exempt agency records in existence at the time the agency receives the FOIA request." Anderson v. U.S. Dep't of Justice, 518 F. Supp. 2d 1, 10 (D.D.C. 2007); see also Rothschild v. Dep't of Energy, 6 F. Supp. 2d 38, 40 (D.D.C. 1998) (concluding that plaintiff who identified two responsive documents which may have been in the agency's possession but were not released merely "demonstrates that the government's search was not perfect," however "[p]erfection . . . is not the standard"). Even if the EOUSA once had the unredacted tapes in its possession, it is not now obligated to create them, see, e.g., Schoenmann v. Fed. Bureau of Investigation, 573 F. Supp. 2d 119, 140 (D.D.C. 2008), or to retrieve them, see Wilbur v. Cent. Intelligence Agency, 355 F.3d 675, 678 (D.C. Cir. 2004) ("[T]he fact that responsive documents once existed does not mean that they remain in the CIA's custody today or that the CIA had a duty under FOIA to retain the records."); SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1201 (D.C. Cir. 1991) ("If the agency is no longer in possession of the document, for a reason that is not itself suspect, then the agency is not improperly withholding that document . . . .").
The EOUSA demonstrates that it fulfilled its obligations under the FOIA. The EOUSA's search for records responsive to plaintiff's FOIA request has been deemed adequate and reasonable under the circumstances, Order, Callaway v. U.S. Dep't of the Treasury, No. 08-5480 (D.C. Cir. June 2, 2009), and the only tapes located were those the USAO/MDFL received from Customs, see Def.'s 3d Renewed MSJ, Fourth Kornmeier Decl. ¶ 5. The EOUSA "released to [plaintiff] exactly what he requested," Reply, Fifth Kornmeier Decl. ¶ 8, namely, copies of the recordings in the EOUSA's possession without further redaction. Nothing in the record establishes that the EOUSA is "withholding the original versions of audio tapes N-113 & N-116," or that the EOUSA has failed to conduct a search for the tapes, or that the EOUSA's failure to produce them constitutes "an illegal withholding under the FOIA." Pl.'s Opp'n at 5.
B. Customs' Search for Responsive Records
The D.C. Circuit found that Customs "should not have limited its search to [plaintiff's] criminal investigative files, when his request appears to encompass additional material, which may not be located in a criminal investigative file." Cir. Mem. at 1. Further, Customs' supporting affidavits "do not support the conclusion that [its] search was reasonably calculated to locate all responsive records stored in microfiche." Id. Customs' submissions do not indicate "that the [Investigations Records System] database includes all microfiche files, or whether there are separate search mechanisms for paper and microfiche files." Id. at 3. It is useful at this point to review plaintiff's FOIA request and Customs' response.
1. Plaintiff's April 1, 2004 FOIA Request*fn8
On April 1, 2004, plaintiff requested from Customs the ...