United States District Court, District of Columbia
P. MEHTA UNITED STATES DISTRICT JUDGE
matter is before the court on the parties' Cross-Motions
for Summary Judgment. See Def.'s Mot. for Summ.
J., ECF No. 26 [hereinafter Def.'s Mot]; Pls.'
Opp'n to Def.'s Mot. for Summ. J. and Cross-Motion
for Summ. J, ECF No. 27 [hereinafter Pls.' Opp'n].
September 2014, Plaintiffs-Judicial Watch, Inc., and Sharyl
Attkisson-submitted to the Federal Bureau of Investigation
(FBI) a joint request under the Freedom of Information Act
(FOIA) and the Privacy Act, seeking information and records
pertaining to Attkisson. Compl., ECF No. 1, ¶ 6;
Def.'s Stmt. of Facts in Support of Mot. for Summ. J.,
ECF No. 26 [hereinafter Def.'s Stmt.], at 4-5.
Plaintiffs' request, which was subsequently narrowed,
sought “any and all [FBI] records concerning, regarding
or relating to Sharyl Attkisson” and records
specifically pertaining to her involvement in two particular
FBI investigations. Def.'s Stmt. at 5-6. On December 16,
2014, the FBI released records responsive to Plaintiffs'
FOIA request-six redacted pages that the FBI previously had
produced to Attkisson in response to a previous FOIA request.
Id. at 6. Five months later, on May 14, 2015, the
FBI released one additional responsive, unredacted, page.
the FBI had released those responsive records, on November
19, 2014, Plaintiffs filed suit in this court alleging that
Defendant was unlawfully withholding records in violation of
FOIA, 5 U.S.C. § 552 et. seq., and the Privacy
Act, 5 U.S.C. § 552a. See Compl. On August 21,
2015, Defendant filed its Motion for Summary Judgment, in
which it argued that it had conducted a reasonable and
adequate search for the requested records and had produced
all responsive and nonexempt documents under both FOIA and
the Privacy Act. See generally Def.'s Mot. On
September 21, 2015, Plaintiffs filed a consolidated
Opposition to Defendant's Motion for Summary Judgment and
Cross-Motion for Summary Judgment, claiming that the FBI had
failed to conduct a reasonable and adequate search for
records because it: (1) had failed to conduct its search
using phonetic alternatives to Attkisson's name, and (2)
had failed to uncover during its search responsive documents
that Plaintiffs believe should be in the FBI's
possession. See generally Pls.' Opp'n. The
parties' cross-motions are now ripe for consideration.
shall grant summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). To make this determination, the court
must “view the facts and draw reasonable inferences in
the light most favorable to the [non-moving] party.”
Scott v. Harris, 550 U.S. 372, 378 (2007) (citations
and internal quotations omitted). A dispute is
“genuine” only if a reasonable fact-finder could
find for the nonmoving party, and a fact is
“material” only if it is capable of affecting the
outcome of litigation. Anderson v. Liberty Lobby,
477 U.S. 242, 248 (1986). A non- material factual dispute
must not prevent the court from granting summary judgment.
See id. at 248-50.
FOIA cases are appropriately decided on motions for summary
judgment. See Defenders of Wildlife v. U.S. Border
Patrol, 623 F.Supp.2d 83, 87 (D.D.C.2009). A court may
award summary judgment in a FOIA case by relying on the
information included in the agency's affidavits or
declarations if they are “relatively detailed and
non-conclusory, ” SafeCard Servs., Inc. v.
SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citations and
internal quotations omitted), and describe “the
documents and the justifications for nondisclosure with
reasonably specific detail, demonstrate that the information
withheld logically falls within the claimed exemption, and
are not controverted by either contrary evidence in the
record nor by evidence of agency bad faith, ”
Military Audit Project v. Casey, 656 F.2d 724, 738
(D.C. Cir. 1981).
offer only one argument in response to Defendant's Motion
for Summary Judgment: that Defendant's search for
responsive records was inadequate. Pls.' Opp'n at 3-9.
Plaintiffs make two contentions to support that claim: (1)
the FBI failed to use phonetic alternatives to
Attkisson's name, as well as her date of birth and social
security number, in its electronic records search,
id. at 4-8; and, (2) the search failed to uncover
responsive documents that Attkisson, based on her past
experiences, believes should be in the FBI's possession,
thus demonstrating the inadequacy of the search, id.
at 8-9. The court finds both arguments unpersuasive.
first argument is unsupported by the facts-which, in fairness
to Plaintiffs, fully came to light only after Defendant's
declarant, David Hardy, supplemented his initial declaration.
In his second declaration, Hardy attested that the FBI did in
fact use phonetic alternatives during the records search:
“The phonetic search of the [Central Records System
“CRS”] automated indices systematically broke
down common spelling variations of the names
‘Sharyl' or “Attkisson, ' making it
unnecessary for [the FBI] personnel to predict the possible
spelling variations of Plaintiff's names.”
Def.'s Reply, Ex. 2, Second Decl. of David M. Hardy, ECF
No 31-2 [hereinafter Second Hardy Decl.], ¶ 9. In
addition, as Hardy further explained, the FBI did not in this
case need to resort to Attkisson's date of birth or
social security number to conduct its search. According to
Hardy, a requestor's date of birth and social security
number becomes relevant only to distinguish among the
“‘hits' returned from the phonetic name
breakdowns to identify records that actually pertain to the
requester and not another individual indexed within the vast
CRS.” Id. ¶ 10. Because a phonetic name
search in this case only yielded a small number of records,
the court finds that it was reasonable for the FBI not to
rely on the requestor's date of birth and social security
number to identify responsive material.
remaining argument-that Defendant's search was inadequate
because it did not uncover documents Attkisson believes must
exist-is similarly unconvincing. “The adequacy of a
FOIA search is generally determined not by the fruits of the
search, but by the appropriateness of the methods used to
carry out the search.” Iturralde v. Comptroller of
the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (citing
Steinberg v. DOJ, 23 F.3d 548, 551 (D.C. Cir.
1994)). Simply put, Defendant has met its evidentiary burden
under FOIA by presenting the affidavits of David Hardy,
see Hardy Decl.; Second Hardy Decl., which
illustrate in “relatively detailed and
non-conclusory” terms that the FBI's search was
both reasonable and adequate. SafeCard Servs., Inc.
926 F.2d at 1200. That is all that is required under FOIA.
Id. Hardy's affidavits are afforded “a
presumption of good faith, which cannot be rebutted by purely
speculative claims, ” id. (internal quotations
omitted), such as Plaintiffs' contention that certain
records should exist, Pls.' Opp'n at 8-9.
Such an argument “amounts to nothing more than mere
speculation . . . [and] is not enough to undermine the
determination that the agency conducted an adequate search
for the requested records.” Morley v. CIA, 508
F.3d 1108, 1120 (D.C. Cir. 2007) (citations and internal
quotations omitted); see also Ancient Coin Collectors
Guild v. U.S. Dep't of State, 641 F.3d 504, 514
(D.C. Cir. 2011) (holding that, although it was
“unexpected” that the agency's search turned
up only a few emails, that fact alone does not render the
foregoing reasons, the court grants Defendant's Motion
for Summary Judgment and denies Plaintiffs' Motion for
Summary Judgment. A ...