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Island Film, S.A v. Department of the Treasury

June 26, 2012

ISLAND FILM, S.A., PLAINTIFF,
v.
DEPARTMENT OF THE TREASURY, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Plaintiff Island Film, S.A., brings this action against the Department of the Treasury, alleging a violation of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, arising out of Island Film's request for records relating to the Office of Foreign Assets Control ("OFAC") blocking Island Film from receiving $30,000 in Cuba. The parties have filed cross-motions for summary judgment. Although the record shows that Treasury fulfilled its obligations with respect to many of the documents that it withheld or redacted, Treasury's Vaughn*fn1 index and supporting affidavit are not sufficient to justify withholding certain correspondence from a purported confidential source or screen printouts from various databases. Nor are Treasury's justifications for withholding case tracking numbers supported by current law. Therefore, Island Film's motion for summary judgment will be denied in part, Treasury's motion for summary judgment will be granted in part and denied in part, and Treasury will be ordered to supplement its filings.

BACKGROUND

Island Film, S.A. is a company located in Havana, Cuba. The company submitted a FOIA request to OFAC regarding a $30,000 wire transfer from Australia to Island Film that OFAC blocked while the transaction was being processed by a bank in New York. OFAC began its search for records responsive to Island Film's FOIA request, but did not timely disclose any documents before Island Film filed this law suit.*fn2

While processing Island Film's FOIA request, Treasury determined that several records responsive to Island Film's request were protected from disclosure under various FOIA exemptions. After this suit was filed, Treasury produced two sets of responsive materials, parts of which were redacted. Treasury additionally provided Island Film with a Vaughn index purporting to identify each segment of information withheld and also to justify its non-disclosure, as well as an affidavit supporting the index's justifications.

Having concluded that it had produced all information to which Island Film was entitled, Treasury filed a motion for summary judgment arguing that it had fulfilled its obligations under FOIA, and that it properly withheld certain information and records responsive to Island Film's FOIA request under FOIA exemptions 2, 4, 5, 6, 7(C), 7(D), and 7(E). Treasury argued that the records sought by Island Film were exempt from disclosure because they were used solely for internal purposes, contained confidential commercial information, would not be subject to disclosure in a civil discovery context, contained personal identifying information about low-level government employees and third parties, were communications with a confidential source, and related to the sources of law enforcement investigations. In particular, the records that Treasury asserted were exempt for disclosure under FOIA exemptions 7(D) and 7(E) consisted of financial transactional details submitted to OFAC by a purported confidential source and screen printouts of various databases used by Treasury during its investigations, respectively.

Island Film in turn cross-moved for summary judgment, arguing that Treasury's Vaughn declaration was inadequate and required more specificity, particularly to allow Island Film to determine whether any portions of Treasury's claimed exempt records were segregable.

DISCUSSION

Summary judgment is appropriate when there exists 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(a); see also Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). The burden falls on the moving party to provide a sufficient factual record that demonstrates the absence of a genuine issue of material fact. See Beard v. Banks, 548 U.S. 521, 529 (2006). A court must draw all reasonable inferences from the evidentiary record in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In a FOIA suit, an agency is entitled to summary judgment if it demonstrates 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. U.S. Dep't of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980). A district court must conduct a de novo review of the record in a FOIA case, and the agency resisting disclosure bears the burden of persuasion in defending its action. 5 U.S.C. § 552(a)(4)(B); see also Long v. U.S. Dep't of Justice, 450 F. Supp. 2d 42, 53 (D.D.C. 2006).

I. ADEQUACY OF SEARCH

FOIA requires that government agencies make good faith efforts to conduct reasonable searches for all records that are responsive to FOIA requests. Baker & Hostetler LLP v. U.S. Dep't of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006). What constitutes a reasonable search will vary from case to case, Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990), but an agency must construe the scope of a request liberally. Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995). An agency must demonstrate that its good faith search effort used "'methods which can be reasonably expected to produce the information requested.'" Baker & Hostetler LLP, 473 F.3d at 318 (quoting Nation Magazine, 71 F.3d at 890). A search's adequacy is not determined by its results, but by the reasonableness of the method, Casillas v. U.S. Dep't of Justice, 672 F. Supp. 2d 45, 48 (D.D.C. 2009), since "particular documents may have been accidentally lost or destroyed, or a reasonable and thorough search may have missed them." Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). An agency is entitled to use detailed non-conclusory affidavits or declarations that are submitted in good faith to show that the search it conducted in response to a FOIA request is adequate. Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 551-52 (D.C. Cir. 1994) (stating that the affidavits or declarations must describe "what records were searched, by whom, and through what process"). Agency affidavits cannot be rebutted with mere speculation about the existence of additional responsive documents. SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991).

Treasury has provided evidence that it conducted an adequate search. The declaration of Virginia Canter, who has supervisory responsibility for processing OFAC's FOIA requests, identifies the six agency divisions to which search requests were sent, a description of what responsibilities each of the divisions had that made a search of its files reasonably likely to produce results responsive to Island Film's request, and search terms used. (Def.'s Mem., Second Decl. of Virginia R. Canter ("Canter Decl.") ¶¶ 1, 7, 27-31.) Island Film has not rebutted Canter's declaration on this issue, nor has it otherwise challenged the search's adequacy. Thus, Treasury's search was adequate.

II. WITHHOLDINGS

The FOIA requires agencies to comply with requests to make their records available to the public, unless information is exempted by clear statutory language. 5 U.S.C. §§ 552(a), (b); Oglesby v. U.S. Dep't of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996). Although there is a "strong presumption in favor of disclosure," U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991), there are nine exemptions to disclosure set forth in 5 U.S.C. § 552(b). These exemptions are to be construed as narrowly as possible to ...


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