Opinion for the Court filed by Senior Circuit Judge McGOWAN.
McGOWAN, Senior Circuit Judge:
This is Harold Weisberg's fourth—and final—appearance before this court in connection with the Freedom of Information
In 1970 Weisberg brought suit in District Court to compel the Federal Bureau of Investigation (FBI) to release spectrographic analyses of several items of evidence from the Kennedy assassination. See Weisberg v. U.S. Department of Justice, 489 F.2d 1195, 1196-97 (D.C.Cir.1973) (en banc) ["Weisberg I"], cert. denied, 416 U.S. 993, 94 S.Ct. 2405, 40 L.Ed.2d 772 (1974). The FBI claimed that it had properly denied Weisberg's request for these analyses under exemption 7 of the Freedom of Information Act ("FOIA" or "the Act"), a provision protecting investigatory files compiled for law enforcement purposes. See Act of June 5, 1967, Pub.L. No. 90-23, 81 Stat. 54, 55. Sitting en banc in 1973, this court upheld the FBI's exemption claim. Weisberg I. The following year, however, Congress amended the Act and narrowed the scope of exemption 7. Act of Nov. 21, 1974, Pub.L. No. 93-502, § 2, 88 Stat. 1561, 1563-64 (codified at 5 U.S.C. § 552(b)(7) (1976)).
In 1975, on the first day the new amendment took effect, Weisberg brought suit to speed up compliance with a renewed request, broadened to seek analyses of certain Kennedy assassination evidence by means not only of spectrographic testing but of neutron activation testing as well.
Weisberg insisted that the FBI was still withholding relevant documents, a fact he attempted to establish through interrogatories. The District Court, however, quashed the interrogatories as "oppressive," found that the government had "complied substantially"
In remanding the case, we chided Weisberg for addressing his questions only to the present custodians of the files and suggested that he attempt to question those with firsthand knowledge of the tests conducted and records generated. Id. at 311. Thus, on remand, Weisberg deposed four FBI agents involved with testing of Kennedy assassination evidence. He also received answers to interrogatories and to requests for production of documents from the Department of Justice and the Energy Research and Development Administration. Finally, nine months after our remand, Weisberg attempted to depose FBI Special Agent John W. Kilty, who had executed two affidavits before the remand claiming that his searches of FBI files revealed no documents within Weisberg's request that the agency had not already furnished. The District Court, however, found that the Kilty deposition would be "an unnecessary burden," R. 39, and awarded the government summary judgment in an opinion that discussed in detail the results of the discovery to date and concluded that the FBI had released all relevant documents still in its possession. Weisberg v. U.S. Department of Justice, 438 F.Supp. 492 (D.D.C.1977) ["Post-Weisberg-II remand"].
On the third appeal to this court, the government offered two arguments in support of the District Court's summary judgment award. First, it said that the two Kilty affidavits attested to thorough searches for all relevant documents. Second, even apart from the searches, it argued that the District Court opinion had shown that the records Weisberg said the agency had still not released either were no longer in the FBI's possession or had never been created in the first place. We found these arguments insufficient and remanded for further proceedings. Weisberg v. United States Department of Justice, 627 F.2d 365 (D.C.Cir.1980) ["Weisberg III"]. In the first place, we found the Kilty search affidavits too conclusory to justify summary judgment: they "do not denote which files were searched or by whom, do not reflect any systematic approach to document location, and do not provide information specific enough to enable Weisberg to challenge the procedures utilized." Id. at 371. We also explained that our suggestion in Weisberg II that Weisberg question those with direct knowledge of the tests conducted was not intended to limit the discovery on remand to those persons, id. at 367 n. 13, and that the Kilty deposition was therefore fully appropriate. As for the government's second claim, we held that the evidence cited by the District Court, in the absence of an adequately documented search, was insufficient to show that no material factual disputes remained concerning whether the agency had released all relevant documents.
On this last point, we found the government unable to carry its burden of showing it had provided all relevant documents with respect to three specific categories. First, Weisberg pointed out that the FBI had not given him a copy of the spectrographic plate from a test of a lead smear found on a curbstone in Dealey Plaza; the test was apparently designed to determine whether the smear might have been caused by a bullet involved in the assassination.
Our most recent remand led to significant activity in the District Court. On July 24, 1980, Weisberg requested the production of a wide variety of documents relevant to the agency's search and to its general record-keeping policy, amounting to approximately 7,000 pages. R. 58 (plaintiff's document request); R. 65 (opposition to plaintiff's motion to compel). At least in part on account of Weisberg's poor health, the District Court ordered copies of the documents provided free of charge and not simply made available for inspection at the FBI. R. 69. On December 24, 1980, Weisberg moved to compel release of "all spectrographic plates of any item spectrographically tested" in connection with the Kennedy assassination investigation, R. 67, plates he had been offered at his initial meeting with the FBI in March 1975. The FBI provided copies as requested,
On April 6, 1981, Weisberg served interrogatories on the Justice Department, which the latter answered on May 7, 1981. R. 72, 75. On May 26, 1981, over a year after the remand in Weisberg III, Weisberg noticed the deposition of Special Agent Kilty and scheduled it to take place at Weisberg's house in Frederick, Maryland. R. 76. Kilty objected because Frederick was more than forty miles from the place Kilty was served. See Fed.R.Civ.P. 45(d)(2). Although the District Court found that Kilty would normally be "perfectly entitled not to show up," it ruled that the deposition could take place in Frederick. Transcript of June 5, 1981, Hearing at 2, 16. At that time, Weisberg's attorney stated that he would like to depose Weisberg, id. at 12 (a request he later dropped and one that he had made and dropped before, see Post-Weisberg-II remand, 438 F.Supp. at 495 n. 2), and that "the whole matter would then be before the Court."
After the Kilty deposition, therefore, discovery was at long last complete. On September 8, 1981, the Justice Department moved for summary judgment, R. 89, and Weisberg filed a motion for an order requiring the FBI to make a more thorough search and to conduct certain new tests if the search failed to uncover specified records, R. 88. Weisberg opposed the motion for summary judgment on October 9, 1981. R. 93. Finally, on November 18, 1981, the District Court granted summary judgment for the defendants and denied Weisberg's motion. App. 521.
On appeal Weisberg makes three main contentions: (1) the FBI has not conducted a search sufficiently thorough to uncover all relevant documents; (2) the agency's representations that it has conducted such a search cannot be trusted because it has exhibited bad faith in its handling of Weisberg's requests and in its handling of the Kennedy investigation generally; and (3) the FBI should be required to perform certain new tests if it does not locate the results of tests supposedly conducted earlier. Although the mass of Weisberg's subsidiary arguments and the vast reams of his supporting documents call for a reasonably extended discussion,
The standard governing a grant of summary judgment in favor of an agency's claim that it has fully discharged its disclosure obligations under FOIA is well-established. As we mentioned in Weisberg III, the agency bears the burden of showing that there is no genuine issue of material fact, even when the underlying facts are viewed in the light most favorable to the requester. Weisberg III, 627 F.2d at 368
Before we consider the first of Weisberg's claims that the District Court's summary judgment award failed to satisfy these requirements — his attack on the thoroughness of Kilty's searches — it will be helpful to put into perspective the current relevance of Weisberg's allegations that the FBI created specific documents it has not released. At the time of Weisberg III, the FBI had not documented to our satisfaction that it had taken all reasonable steps to find materials responsive to Weisberg's request. Therefore, to avert summary judgment Weisberg merely had to offer some reason to think the FBI might find a responsive document if it made the effort to conduct a thorough search. Or to put it another way, in the absence of a fully-documented, adequate search, the only way the agency could have justified the grant of summary judgment would have been to show beyond any material doubt that the documents Weisberg had isolated either (1) were in fact never created, or (2) had somehow been disposed of prior to Weisberg's request. It was clear to us that the District Court's theories about the fate of the spectrographic plate and the neutron activation printouts, and the nonexistence of the "Stombaugh report," were not conclusive enough to satisfy this burden in the absence of evidence that the FBI really tried to locate them, so we remanded for further discovery.
The tables turn, however, if the FBI can provide otherwise convincing evidence that it has conducted a thorough search. It then no longer needs to rely on these theories — that the plate might have been discarded, that Stombaugh might never have examined the President's shirt — to show its compliance with the Act, for its documentation of a thorough search is enough by itself. Of course, evidence that relevant records have not been released may shed light on whether the agency's search was indeed adequate; our next task will be to clarify what Weisberg now claims the FBI has still not located, so we can ensure that the agency's search was especially geared to recover at least those documents. And there may be times when an agency's inability to retrieve documents known or thought to be in its files is inherently unbelievable.
Since our remand in Weisberg III, the government has given Weisberg one of the three sets of materials Weisberg claims the agency should still furnish him: the computer printouts containing data from the irradiation of specimens Q3 and Q15 for neutron activation analysis. Weisberg makes a feeble claim that the government's failure to provide these materials at the outset is circumstantial evidence that the agency's initial search was inadequate. See Goland v. CIA, 607 F.2d at 370 (per curiam on motion to vacate and petition for rehearing) ("[T]he discovery of additional documents is more probative that the search was not thorough than if no other documents were found to exist."). The claim is feeble because it became clear on the last remand that Kilty located these computer printouts and showed them to Weisberg at their very first meeting in March 1975. Weisberg's response was that he "did not want these items." App. 138 (Kilty deposition). Kilty explained: "With regard to the computer tapes and notebooks with data in them, these were shown to [Weisberg] in a folder ... and he said something about the fact that I can't make heads nor tails out of those things; I don't want those things." Id. Weisberg does not deny this fact, so the timing of the agency's release of the printouts has nothing to do with the adequacy of the search, but only with the late date at which Weisberg indicated he might be interested in them.
Thus, only two of the three sets of items discussed in Weisberg III are still in controversy, and it is primarily on these that Weisberg rests his claim that unreleased documents are still in FBI files. When we consider the details of the FBI's searches,
Having now clarified the items Weisberg claims the FBI should still be able to find, we proceed to consider Weisberg's major contentions: (1) that the FBI's searches were inadequate, (2) that the FBI has responded to Weisberg's request in bad faith, and (3) that the FBI should be ordered to conduct certain new tests on Kennedy assassination evidence.
Since our last remand there have been two developments concerning the FBI's efforts to locate relevant documents. First, Kilty has conducted yet another search, bringing the total number to at least three, two in 1975 and the most recent one in 1981. Second, Weisberg deposed Kilty at length about the searches he conducted. This deposition provides a detailed explanation of the extent of Kilty's searches, going far beyond the two 1975 affidavits we found on our last remand to be conclusory and incomplete. We find that the Kilty deposition demonstrates that the FBI's searches have been more than adequate and that there is no longer any material doubt that the agency has taken all reasonable steps to locate the documents Weisberg seeks.
Kilty first attempted to recall the specifics of his searches in 1975. He testified that he "talked to a number of Agents — anyone who had any familiarity with this case at all —" and asked them to give him any materials they had concerning the case.
In his 1981 search, Kilty says he looked in every place where documents of the kind Weisberg sought could be found. App. 140. Kilty relied not only on his own knowledge of where the lab stored certain items; he announced at a meeting of laboratory unit chiefs that he was conducting the search and asked about where "anything associated with the Kennedy Assassination case" might be located. Id. Kilty endeavored to find "anything we had that had any connection
With regard to the curbstone plate, Kilty affirmed that he consulted three spectrographic examiners to determine where Kennedy plates might be. App. 106-07. In his 1981 discussion with the unit chiefs, he called special attention to the missing plate. App. 140. Despite his search of all places where the plate or accompanying notes might be kept, Kilty says he found nothing he did not furnish. App. 129. Kilty also testified that he found no notes produced by Stombaugh concerning an examination of the President's shirt, App. 131, even though he looked for "anything that was produced by Stombaugh that could be related to" the overlap of holes in that shirt and though he looked through "all the documents produced by Stombaugh." App. 134.
Taking a different tack from the one we followed in Weisberg III, Weisberg does not fault these representations for being vague or conclusory. Instead, he directly challenges the adequacy of the search described, his main objection being that Kilty did not search the Dallas field office but only FBI headquarters in Washington. Kilty confirmed that, as the office of origin in the Kennedy case, the Dallas office received final lab reports on specimens it had forwarded to Washington for testing.
What Weisberg is unable to show by a direct attack on the search itself he attempts to show indirectly by extensive allegations that the FBI has treated his request in bad faith. This history of bad faith, Weisberg says, renders suspect the agency's representations about the thoroughness of its search and makes necessary a full trial to establish whether the agency has indeed discharged its FOIA obligations in full. We find nothing in Weisberg's allegations, however, to suggest that the agency has been anything less than forthright and cooperative in its handling of Weisberg's request. Indeed, although there is some evidence to suggest that the agency balked at some of Weisberg's earliest inquiries, once Congress amended FOIA in 1974 and Weisberg submitted his present request, the FBI has in many instances been unquestionably generous in its efforts to assist Weisberg's investigation. It should be remembered, for example, that Weisberg showed no interest in the raw materials of lab examinations, and indeed explicitly said he did not want them, until the Attorney General offered to have the FBI supply him with materials he had not requested but might nonetheless find useful. See supra p. 1347. It is therefore somewhat ironic that Weisberg's objections that he has not received certain raw materials have since formed the mainstay of his efforts to avert summary judgment and prolong discovery. Moreover, much of this discovery, which the agency has patiently endured, has borne only the slightest relation to whether the FBI has failed to release pertinent documents and more closely resembled a private inquiry into the findings of the Warren Commission. In any event, Weisberg's attacks on the agency's good faith, though voluminous, are entirely unpersuasive. We consider his major contentions in turn.
On June 23, 1975, Kilty executed an affidavit clarifying that only emission spectroscopy was used on a small set of specimens including Q15; "NAA was not used in examining" those items.
Weisberg mounts a second attack on Kilty's veracity in an effort to show the agency's bad faith. Kilty testified that, in both his 1975 and 1981 searches, he looked for responsive documents in file cabinets located in the FBI laboratory. See supra pp. 1356-1357. Weisberg claims that the admission that the FBI lab has "files" shows that Kilty lied, not in this case, but in a Weisberg FOIA suit for materials on the assassination of Martin Luther King, in which Weisberg says Kilty denied that the FBI
Weisberg's third attack on the FBI's good faith is that the agency attempted in 1980 to revoke the general fee waiver it granted Weisberg in 1978 to enable him to receive without charge all Kennedy assassination materials it released thereafter. After our last remand, Weisberg requested the production of documents totaling over 7,000 pages, many of which the government said it had given Weisberg before. R. 65. The agency said it thought Weisberg had gone too far, and that it would make the documents available but would not copy them free of charge. Id. Weisberg responded by limiting his request to documents he had not previously been given. R. 66. Once the request was so limited, the District Court ordered the Justice Department to provide those materials for free in the interest of "the just, speedy, and inexpensive termination of this long pending action." R. 69.
Nothing in the government's belief that Weisberg was abusing his fee waiver strikes us as evidence of its bad faith. It was certainly reasonable for the government to insist that it not pay to copy documents it had given Weisberg before. And though the government did not volunteer to reinstate the fee waiver once Weisberg narrowed his request to exclude those documents Weisberg already had, its brief attempt to exert some restraint on Weisberg's discovery efforts is certainly understandable: we have already stated our view that Weisberg in many instances exceeded the scope of reasonable discovery. See supra p. 1358. It is beside the point whether, as Weisberg asserts, the FBI provided some of these same documents to other litigants free of charge. The government could reasonably have thought Weisberg was abusing the fee waiver in ways that other litigants presumably were not, so its attempt to treat Weisberg differently was, if not unquestionably laudatory, entirely understandable.
Weisberg's fourth allegation of bad faith is directed not to the FBI's handling of his FOIA request but more generally to its handling of the Kennedy investigation. He charges that the FBI willfully concealed a relevant fact from the Warren Commission and that this past concealment creates a present motive for the agency to withhold the spectrographic plate from the examination of a lead smear on a Dealey Plaza curbstone. We find that Weisberg's theory is simply too attenuated and unsubstantiated to raise a genuine issue of material fact concerning the FBI's compliance with its FOIA obligations. Weisberg points to the affidavit of a bystander at the assassination who noticed a "mark" in the sidewalk near where he was standing, R. 47 (affidavit of James T. Tague ¶ 5), described in his interview with the FBI as a "chip," id. (Tague affidavit exhibit C). When the bystander returned to the spot some six months later, it did not appear to him that the mark was still present. Id. (Tague affidavit exhibit I at 69). An FBI agent who viewed the curbstone in August 1964 also said that no "mark or nick" was visible. App. 415 (Aug. 5, 1964, memorandum). Closer examination
The first link in Weisberg's chain of argument is that, because the "chip" was less visible six months after the bystander first observed it (so much so that by August 1964 it could be called no more than a "mark" or a "smear"), it must have been patched before the FBI removed the curbstone for testing. Weisberg does not discuss the possibility that a small chip on a public sidewalk might be subject to some erosion over a six-month period. Moreover, he does not explain whether he thinks the lead smear adorned a patch consisting of some other material or whether the lead smear was the patch.
Weisberg's fifth allegation of the agency's bad faith relies on a document that Weisberg says he first discovered on January 12, 1982, when the FBI filed it in separate litigation, and that he therefore could not present to the District Court before it granted summary judgment on November 18, 1981.
In this document, the so-called "Shea memorandum," the director of the Justice Department's Office of Privacy and Information Appeals, in opposing a withdrawal of a fee waiver for Weisberg's administrative FOIA requests, expresses concern that the FBI had interpreted too narrowly the scope of Weisberg's administrative request for documents relevant to the Martin Luther King assassination. Shea contends that Weisberg's administrative request, as opposed to his lawsuit, was for any documents related to any aspect of the King assassination or investigation, but that the agency failed to look in files that, though not organized by subject matter in the King section, might still contain documents that are "related" to the King assassination. Obviously, the central point of the Shea memorandum is not directly relevant to the request underlying the present lawsuit, and indeed, even the District Court adjudicating the lawsuit to enforce a request for King documents found the Shea memorandum unpersuasive:
Weisberg v. U.S. Department of Justice, C.A. No. 75-1996 (D.D.C. June 22, 1982) (memorandum opinion denying motion to amend orders of Dec. 1, 1981, & Jan. 5, 1982) (reprinted in Appellees' Supplemental Brief, exhibit A), cross appeals docketed, Nos. 82-1229 & 82-1274 (D.C.Cir. Mar. 4, 1982, & Mar. 12, 1982) (appeal from Dec. 1, 1981, & Jan. 5, 1982, orders). Although Shea does assert that some documents that are "factually, logically and historically relevant to the King and Kennedy cases" might not have been located, Reply Brief for Plaintiff-Appellant, Addendum 7, at 2, it is apparent that the remark in no way concerns the Kennedy request underlying the present suit, which is not for any materials generally related to the assassination, but for specified scientific tests. Locating particular scientific tests from an investigation is obviously a more straightforward task than locating documents "related" to an investigation in some broad sense. All told, therefore, we cannot say that the Shea memorandum, by itself or in conjunction with the other attacks Weisberg has made, casts sufficient doubt on the believability of the government's representations to create a genuine issue of material fact about whether the government has carried its burden of showing full compliance with Weisberg's request.
Having disposed of Weisberg's attacks on the agency's search and on its good
As for the first tests Weisberg seeks, nothing in the record even suggests they were ever conducted. He seeks to have the FBI perform "[w]hatever tests are needed" to determine whether the Dealey Plaza curbstone was patched. R. 88 (memorandum of points and authorities at 14). Although the FBI once conducted a spectrographic examination of a lead smear on that curbstone, Weisberg has not shown that this test was relevant to whether the curbstone was patched; its apparent purpose was to determine whether the metal deposit could have been left by a bullet. Indeed, Weisberg himself alludes to Kilty's testimony that x-ray fluorescence would be the appropriate method for determining whether the sidewalk was patched, id.; see App. 110-11 (Kilty deposition), yet there is no evidence that the FBI ever performed such a test. As for the second test he seeks, Weisberg has apparently already received the results of such an examination, though they are contained in a report by Frazier, not Stombaugh. See supra note 11. A recreation of any test Stombaugh might have conducted would still not be the "Stombaugh report," and we fail to see what purpose would be served by ordering the FBI to conduct a test to generate information Weisberg has already received. Moreover, the FBI's most recent search has cast serious doubt on whether Stombaugh ever performed such a test, and if he did, Weisberg has raised no suspicion that the agency disposed of the results under circumstances that would warrant the extraordinary relief Weisberg seeks.
This court has bent over backwards to ensure that Weisberg have a reasonable
It is so ordered.
Weisberg initially directed his 1975 request to the FBI and to the Energy Research and Development Administration (ERDA), the successor agency to the Atomic Energy Commission (AEC). The AEC granted the FBI access to a nuclear reactor as necessary for the latter's neutron activation analysis. The AEC, however, did not retain results of tests conducted at its facilities, so ERDA no longer figures in this litigation. See Record ("R.") 29-30 (ERDA responses to request for production of documents and to interrogatories); Weisberg v. U.S. Department of Justice, 438 F.Supp. 492, 493 n. 1 (D.D.C.1977).
It is also worth noting that it was the District Court, not the government, which speculated that the printouts might have been discarded because they were "duplicative" of the data contained in the worksheets the FBI had already provided. See Post-Weisberg-II remand, 438 F.Supp. at 503 (citing Gallagher deposition). Agent Gallagher, who conducted the tests, testified that the FBI "[p]robably" still had the printouts, "unless they were judged to be worthless and not kept." Gallagher Deposition at 92. He never said he discarded them or that he looked for them. When Weisberg belatedly indicated that he wanted copies of the printouts after all, the District Court used Gallagher's testimony as evidence that those particular printouts had been discarded, an inference we found insufficiently established to survive summary judgment. The government, however, had no chance to discuss the printouts before the District Court made its finding and never represented that it did not have them. Indeed, on appeal it brought to our attention the fact that it had in its possession "continuous, folded tapes — similar to stenographic tapes — containing NAA raw data, that this material was shown to both appellant and his counsel by Kilty in early 1975, and that appellant said then that he did not want copies of this material." Brief for Appellees at 21 n. 17, Weisberg III. But because it waited to search that large collection of documents until it was obliged to do so, it could not tell us definitively at the time of Weisberg III whether the Q3 and Q15 printouts were among them.
App. 104 (emphasis added). Thus, the answer was given to an explicitly hypothetical question at variance with Kilty's understanding of the facts.
Weisberg's complaint sought to force compliance with the requests contained in two letters. See R. 1 (complaint ¶¶ 6, 10). First was a letter of September 19, 1974, to the AEC requesting final reports of "any" tests that agency conducted in connection with the Kennedy assassination. R. 1 (exhibit D). The AEC, however, apparently did no more than provide facilities to enable the FBI to perform neutron activation analysis. See supra note 1. Second was a letter of November 27, 1974, to the Justice Department requesting final reports from spectrographic and neutron activation analyses. App. 342. The complaint refers to this letter as a request for spectrographic analysis and "other scientific tests conducted for the Warren Commission." R. 1 (complaint ¶ 6). The letter makes clear that the request was not for any scientific testing in addition to spectrographic analysis, but only for additional tests of a specific type, neutron activation analysis. Weisberg's January 15, 1975, letter appealing the "denial" of his request refers to a letter of December 6, 1974, in which Weisberg supposedly requested scientific tests in addition to spectrographic and neutron activation analysis. R. 1 (exhibit B). No December 6, 1974, letter appears in the record, however, and it is evident that Weisberg was simply exaggerating the scope of his November 27 request, which he mistakenly thought was dated December 6, the date the FBI director said he received the November 27 request. See R. 1 (exhibit A); App. 153.
At the March 14, 1975, meeting held after Weisberg initiated suit, he expanded his request to include raw data, but apparently continued to express interest only in spectrographic and neutron activation analysis. An FBI internal memorandum dated March 24, 1975, lists what Weisberg requested at the meeting. The only requests not explicitly limited to spectrographic or neutron activation analysis were requests for (1) "available material relating to examination of the windshield of the President's automobile [e.g., Q15], and examination regarding metal fragments from the President's automobile [e.g., Q3]," and (2) "laboratory examination data" concerning testing of the curbstone. App. 348. Subsequent discussion of these items has been limited to spectrographic and neutron activation analyses. Moreover, Weisberg's affidavit filed June 3, 1975, says he sought at the March 14 meeting to examine "all the spectrographic and neutron activation materials and select which documents I wanted copied." R. 12 (Weisberg affidavit ¶ 23).
As the litigation progressed, however, Weisberg became more casual and expansive in describing his request. Although the specific items he claimed he had not been furnished were usually limited to spectrographic or neutron activation analysis (with occasional mention of microscopic analysis), he began to say his request was for all reports or data on all items of evidence "scientific[ally]" tested in connection with the assassination. See Transcript of May 2, 1975, Hearing at 4; R. 12 (Weisberg affidavit ¶ 16). After our remand in Weisberg II, when Frazier mentioned that Stombaugh might have examined the holes in the President's shirt, Weisberg objected that he had not received any such report, R. 47 (opposition at 10), though the examination was not by spectrographic or neutron activation analysis. The District Court dismissed this fact not by saying the document fell outside the request, but by explaining why no such document existed. Post-Weisberg-II remand, 438 F.Supp. at 502-03. Thereafter, the government was willing to treat the "Stombaugh report" as falling within Weisberg's request, though it insisted it could not locate any such document. We therefore had no reason to do otherwise in Weisberg III.
The Stombaugh report is not Weisberg's only attempt to avert a grant of summary judgment by pointing to documents he has not received and falsely implying that they were within the scope of his original request. For instance, after the District Court awarded judgment following our remand in Weisberg II, Weisberg moved for reconsideration and claimed — for the first time, as far as we can tell — that he not only wanted copies of certain tests but all copies of those tests. R. 50 (Weisberg affidavit ¶ 18). This enabled him to claim that the FBI must search not only its Washington headquarters but its Dallas field office, to unearth extra copies that might be kept there.