The opinion of the court was delivered by: Reggie B. Walton United States District Judge
The plaintiff in this civil case filed her Complaint pursuant to the
Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2006), asserting
that the defendant improperly withheld agency records that she
requested through the FOIA. Complaint ("Compl.") ¶ 1. Specifically,
she challenges the defendant's search for the requested documents as
"being inadequate and unreasonable." Plaintiff's Memorandum of Points
and Authorities In Opposition to Defendant's Motion for Summary
Judgment ("Pl.'s Opp'n") at 1. Currently before the Court is the
Defendant's Motion for Summary Judgment ("Def.'s Mot.").*fn1
For the following reasons, the Court grants the defendant's
The plaintiff is Carol Ahanmisi, a/k/a Carol Egwaoje, f/k/a Carol Fitzgerald. Compl. ¶ 1. The defendant is the U.S. Department of Labor. Id. On August 21, 2008, the plaintiff sent a letter to the defendant's Office of Foreign Labor Certification requesting through the FOIA "all documents [relating to] a Form ETA-750, Application for Labor Certification," filed on her behalf. Compl. ¶ 5; id., Exhibit ("Ex.") 1 at 1. The plaintiff sent a duplicate request to the defendant on September 17, 2008. Def.'s Reply at 1-2; Def.'s Mot., Ex. A.
The Form ETA-750 is an Application for Alien Employment Certification, which the Department of Labor accepts from employers "seeking to bring foreign workers into the United States." Adjibodou Decl. ¶¶ 4, 12. The plaintiff maintains that her ETA-750 was filed by her employer with the District of Columbia Department of Employment Services "on or before April 30, 2001." Pl.'s Opp'n at 1. She now requests a copy of this foreign labor certification application ("FLCA") for use in her impending immigration proceedings. Compl. ¶ 3; id., Ex. 1 at 1; Def.'s Mem. at 1.
On May 19, 2009, the defendant informed the plaintiff by letter that "the records you have requested do not presently exist," Def.'s Mot. at 2; Compl., Ex. 2 at 1, which the plaintiff characterizes as a "'no records' letter," Compl. ¶ 6. The defendant subsequently responded to the September 17, 2008 request on July 2, 2009, with another "'no records' response." Def.'s Mot., Ex. C.
The plaintiff formally administratively appealed the defendant's response through a letter dated September 30, 2009. Compl., Ex. 3. The defendant replied on July 29, 2010, by again informing the plaintiff that it found "no documents responsive to [the] request." Compl., Ex. 4 at 1. The plaintiff then brought this action on June 17, 2011, seeking an injunction compelling the defendant to produce records responsive to her FOIA request. See Generally Compl.
The defendant defends the adequacy of its search in the letter sent to the plaintiff's attorney denying the plaintiff's administrative appeal and in declarations of Renata Jones Adjibodou, the Program Manager for the Office of Foreign Labor Certification in the Employment and Training Administration agency at the Department of Labor, submitted with the defendant's summary judgment motion and its reply to the plaintiff's opposition to that motion. See Compl., Ex. 4 at 1; Adjibodou Decl.; Adjibodou Supp. Decl. In the defendant's July 29, 2010 letter, William W. Thompson, the Associate Solicitor for Management and Administrative Legal Services within the Department of Labor, represented that the Office of Foreign Labor Certification "performed a second search for this request" in two agency databases "for any references to Carol Egwaoje Ahanmisi or" her employer, "Christ Chidueme [of] Songhai Restaurant." Compl., Ex. 4 at 1. He advised the plaintiff's attorney that the search yielded "no application by Chris Chidueme, Songhai Restaurant, on behalf of Carol Egwaoje Ahanmisi" in either of the two databases. Id. The defendant has explained in the course of this litigation that the two databases searched were examined because they are "the only systems [it] use[s] to retain information regarding the type of record [the p]laintiff is seeking." Def.'s Reply at 3.
In her declaration, Ms. Adjibodou stated that the defendant's inability to find the plaintiff's FLCA in either of the two databases caused it to believe that the District of Columbia Department of Employment Services "closed the [plaintiff's] application prior to July 2004[,] or [that] the application was never filed." Adjibodou Decl. ¶ 19. And because the defendant's Records Disposition Schedule for Alien Employment Certification Files "requires the destruction of FLCA records five years after the date that a final determination is issued," the defendant further believes that the records requested by the plaintiff have been destroyed. Adjibodou Decl.
¶ 20; Def.'s Reply at 5. Ms. Adjibodou subsequently stated in her supplemental declaration that if a hard copy of the plaintiff's FLCA has not been destroyed, there is a chance it could have been transferred to the National Archives and Records Administration Federal Records Center and stored "within one of the millions of boxes in the [Federal Records Center]." Adjibodou Supp. Decl. ¶ 11. The defendant posits that "a search based on the remote possibility that . . . [the] records exist, without any evidence of their existence, would be unduly burdensome, require unreasonable use of . . . resources, and likely take many years." Id.
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact." Fed. R. Civ. P. 56(a); see Summers v. U.S. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998) (explaining the "peculiar nature of the FOIA" as it relates to summary judgment review). To prevail in a FOIA suit, "the defending agency must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements." Founding Church of Scientology of Wash., D.C., 610 F.2d 824, 837 (D.C. Cir. 1979) (quoting Nat'l Cable Television Ass'n v. F.C.C., 479 F.2d 183, 186 (D.C. Cir. 1973)).
When seeking summary judgment based on the reasonableness of its search, an agency "must show beyond material doubt . . . that it has conducted a search reasonably calculated to uncover all relevant documents." Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). Additionally, the "agency must show that it made a good faith effort to conduct a search for the requested records." Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Importantly, the "issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate." Id. (quoting Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982) (emphasis in original)). While there is no "requirement that an agency search every record system . . . , [an] agency cannot limit its search to only one record system if there are others that are likely to turn up the information requested." Oglesby, 920 F.2d at 68. Finally, summary judgment may be awarded based on information provided by the agency ...