BERYL A. HOWELL, United States District Judge.
The plaintiff, Liberation Newspaper, filed a request for documents with the defendant, the Department of State, under the Freedom of Information Act ("FOIA"), 5 U.S.C. 552 et seq. seeking records pertaining to possible payments made to journalists by the United States government during the course of the criminal prosecution of five individuals convicted of being Cuban intelligence agents.
The plaintiff brought this FOIA action to obtain documents from the defendant dating from January 1998 through December 2002 and relating to alleged contracts between the United States government and ninety Miami journalists who covered the trial of five individuals convicted of acting and conspiring to act as unregistered Cuban intelligence agents and for conspiring to commit murder.
To obtain information regarding these alleged payments, the plaintiff submitted FOIA requests to the defendant, the Department of State, and to the Broadcasting Board of Governors.
The Court issued a scheduling order requiring the defendant to "complete a search reasonably likely to yield all responsive records in its possession, custody or control" and set a schedule for the production of discovered documents. See Minute Order (August 27, 2013). Consistent with the Court's Order, and as out-lined in the three detailed declarations submitted by the defendant during the course of this litigation, the defendant searched for responsive documents. See Decl. of Sheryl L. Walter ("Walter Decl."), ECF No. 17-1; Second Decl. of Sheryl L. Walter ("Second Walter Decl."), ECF No. 21-4; Decl. of John F. Hackett ("Hackett Decl."), ECF No. 25-1.
First, the defendant identified the sources of potentially relevant electronic and physical records. The defendant identified records systems for the entire Department of State as well as records systems pertaining to specific individual divisions within the Department of State.
Office Records System Search CriteriaUSIA Retired Records Manual Search 6Department of State Retired Record Inventory Names of 90 Journalists, 7Management System "Miami Five," "Cuban Five," "Journalist," "Payments," "Contracts," "Cuba" Department of State Central Foreign Policy Names of 90 Journalists 8Records ("Central File") Office of the Legal Adviser Legal Adviser Content Server "Contract," "Broadcasting and Paper Records Board," "BBG," "Cuba Broadcasting," "OCB," "Cuban Five" Bureau of Western Network Drive; individual "independent journalism," Hemisphere Affairs email accounts; and paper "ESF," "Economic Support records Funds," "EAID," "Foreign Assistance," "Miami Five," "Cuban Five"
[Editor's Note: The preceding image contains the references for footnotes
After conducting these searches, the defendant determined that it had completed
II. LEGAL STANDARD
"In FOIA cases, `[s]ummary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.'" Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C.Cir.2013) (quoting Consumer Fed'n of Am. v. U.S. Dep't of Agric., 455 F.3d 283, 287 (D.C.Cir.2006)). With respect to the applicability of exemptions and the adequacy of an agency's search efforts, summary judgment may be based solely on information provided in the agency's supporting declarations. See, e.g., Elec. Frontier Found. v. U.S. Dep't of Justice, 739 F.3d 1, 7 (D.C.Cir.2014); Am. Civil Liberties Union v. U.S. Dep't of Def., 628 F.3d 612, 619 (D.C.Cir.2011); Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 838 (D.C.Cir.2001). Summary judgment is properly granted against a party who, "after adequate time for discovery and upon motion, . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden is on the moving party to demonstrate that there is an "absence of a genuine issue of material fact" in dispute. Id. at 323, 106 S.Ct. 2548.
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in favor of the nonmoving party and shall accept the nonmoving party's evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court is only required to consider the materials explicitly cited by the parties, but may on its own accord consider "other materials in the record." FED. R. CIV. P. 56(c)(3). For a factual dispute to be "genuine," the nonmoving party must establish more than "[t]he mere existence of a scintilla of evidence in support of [its] position," Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505, and cannot rely on "mere allegations" or conclusory statements, Veitch v. England, 471 F.3d 124, 134 (D.C.Cir.2006); see Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999); Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir. 1993); accord FED. R. CIV. P. 56(e). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. See, e.g., FED. R. CIV. P. 56(c)(1). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."
The plaintiff challenges the adequacy of the defendant's search on three grounds. First, the plaintiff challenges the defendant's search of the Central File, arguing that it should not have used certain restrictive parameters in connection with the names of the journalists. Pl.'s Opp'n at 8. Second, the plaintiff challenges the adequacy of the search of the retired records of the USIA, arguing that it is unclear from the declarations submitted what documents were searched. Id. at 9. Third, the plaintiff challenges the adequacy of the search of the files of the Office of Legal Advisor and the Bureau of Western Hemisphere Affairs, arguing that the searches should have employed alternative search terms. Id. at 11. As evidence of the inadequacy of the defendant's search, the plaintiff points to a "purchase order" in the amount of $28,000 paid to a journalist identified in the FOIA request for "public relations services" during the relevant time period, which the plaintiff obtained by searching the Federal Procurement Data System, a public website. See Pl.'s Opp'n at 5, 10.
As a general matter, the plaintiff's challenge to the adequacy of the defendant's search misconceives the standard for the adequacy of an agency's search under FOIA. "[T]he 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 Currency, 315 F.3d 311, 315 (D.C.Cir. 2003). "An agency may establish the adequacy of its search by submitting reasonably detailed, nonconclusory affidavits describing its efforts." Baker & Hostetler LLP v. U.S. Dep't of Commerce, 473 F.3d 312, 318 (D.C.Cir.2006). "Agency affidavits are accorded a presumption of good faith, which cannot be rebutted by `purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C.Cir.1981)). Such affidavits should "denote which files were searched," by whom those files were searched, and reflect a "systematic approach to document location." Weisberg v. U.S. Dep't of Justice, 627 F.2d 365, 371 (D.C.Cir.1980). "A reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched, is necessary to afford a FOIA requester an opportunity to challenge the adequacy of the search and to allow the district court to determine if the search was adequate in order to grant summary judgment." Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C.Cir.1990). "Only where "a review of the record raises substantial doubt, particularly in view of `well defined requests and positive indications of overlooked materials,'" is summary judgment inappropriate. Iturralde, 315 F.3d at 314 (quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C.Cir.1999)). Moreover, "it is long settled that the failure of an agency to turn up one specific document in its search does not alone render a search inadequate." Id. at 315 (collecting cases). Rather, a plaintiff must "offer evidence of circumstances sufficient to overcome an adequate agency affidavit." Id. For instance, the plaintiff could contest that the defendant "failed to search particular offices or files," or "failed or refused to interview government officials . . . that . . . might have been helpful in finding the missing documents." Id.
The Court is satisfied, based on the three separate and detailed declarations
The plaintiff's first challenge to the adequacy of the search—the use of certain limiting parameters in the defendant's search of the Central File—is now moot. In response to the plaintiff's objection, the defendant searched the Central File without the complained-of limiting parameters. See Hackett Decl. ¶ 6 ("[A]s a matter of discretion and out of an abundance of caution, the . . . analyst with knowledge of both the request and the records system conducted a supplemental full-text search of the Central File for each of the 90 journalists' first and last names, without any additional delimiting terms."). The search still yielded no results. Id.
The plaintiff's second challenge to the adequacy of the search—the lack of detail concerning the search of the USIA's retired records—is without merit. The defendant's declarations explain in detail the process used to review the retired USIA records. The retired records of the USIA are organized in a two-tier system. The first tier is organized by the date the record was retired and the USIA office that originated it. The record is also assigned an "accession number," which corresponds to its location in the second tier of the records system. The second tier contains the "accession number" and a detailed description of the record. After consultation with analysts familiar with the FOIA request and the retired records system, along with the former records manager for the USIA, the defendant manually searched all the descriptions of the second tier records dated January 1998 to December 2002, the period of time sought by the plaintiffs. The search yielded no results. See Walter Decl. ¶¶ 11-14; Hackett Decl. ¶¶ 8-9. Ms. Walter's declaration (and Mr. Hackett's declaration subsequently) describes in great detail how the multi-layer search was performed, who performed it, and it also avers that all of the records reasonably likely to include responsive documents were searched. The defendant's search of the retired USIA files was reasonable.
Third, the plaintiff's final challenge to the adequacy of the search—the omission of certain search terms with respect to records possessed by the Office of Legal Advisor and the Bureau of Western Hemisphere Affairs—is also without merit. The plaintiff posits that the defendant should have used alternative search terms to yield more responsive documents.
The search terms in the instant case were reasonably calculated to lead to responsive documents. After discussions with State Department officers familiar with and, in one case, responsible for records management, the defendant crafted a list of search terms reasonably designed to lead to the information requested. Although the defendant used different search terms for different databases, this discrepancy does not undermine the conclusion that the search was reasonable given that the search terms were used after consultation with employees familiar with the databases and were reasonably designed to yield responsive information. See, e.g., Am. Fed'n of Gov't Emps., Local 812 v. Broad. Bd. of Governors, 711 F.Supp.2d 139, 151 (D.D.C.2010) ("Plaintiffs' argument that the search was inadequate because different officials used different terms when searching their own files is also unpersuasive."); Judicial Watch, Inc. v. U.S. Dep't of Hous. & Urban Dev., 20 F.Supp.3d 247, 254 (D.D.C.2014) ("Though some agencies may choose to search for responsive documents in a centralized fashion using consistent search terms and techniques across various departments, nothing in FOIA's text or the relevant case law requires an agency to do so."). The search terms concerned the relevant subject matter and were designed to uncover all responsive records. See Hackett Decl. at ¶ 13 ("The [Office of Legal Advisor] staff concluded that the aforementioned keywords were reasonably tailored to uncover all responsive records within the electronic records systems they were searching."); ¶ 16 ("The [Bureau of Western Hemisphere Affairs] staff concluded that the aforementioned keywords were reasonably tailored to uncover all responsive records within the electronic records systems they were searching."). These efforts amply demonstrate the adequacy of the search conducted here. This defendant's conclusion is entitled to "a presumption of good faith," which the plaintiff's "purely speculative claims about the existence and discoverability of other documents" has not overcome. See SafeCard Servs., 926 F.2d at 1200 (internal quotations omitted); Hodge v. FBI, 703 F.3d 575, 580 (D.C.Cir.2013). Where the agency's search terms are reasonable, the Court will not second guess the agency
In short, the Court is satisfied, based on the three detailed submissions by the defendant, that the defendant conducted an adequate search for responsive records, despite the fact that the search yielded no documents.
For the reasons stated, the Court concludes that "there is no genuine dispute as to any material fact," FED. R. CIV. P. 56(a), regarding the adequacy of the defendant's search for responsive records in response to the plaintiff's FOIA request. Accordingly, the defendant's motion for summary judgment is granted.
An appropriate Order accompanies this Memorandum Opinion.