                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
_______________________________
JAMES LUTCHER NEGLEY,           :
                                :
          Plaintiff,            :
                                :
     v.                         :   Civil Action No. 03-2126 (GK)
                                :
FEDERAL BUREAU OF               :
INVESTIGATION,                  :
                                :
          Defendant.            :
_______________________________:



                        MEMORANDUM OPINION

     Plaintiff James Lutcher Negley (“Plaintiff”), brings this

action against Defendant, Federal Bureau of Investigation (“FBI” or

“Defendant”), under the Freedom of Information Act (“FOIA”), 5

U.S.C. § 552. This matter is now before the Court on Plaintiff’s

Motion for Contempt for Defendant Federal Bureau of Investigation’s

Failure to Comply with the Court’s September 24, 2009 Order [Dkt.

No. 90].

     Upon consideration of the Plaintiff’s Motion, Defendant’s

Opposition, Plaintiff’s Reply, the entire record herein, and for

the reasons discussed below, Plaintiff’s Motion for Contempt is

denied.
I.   BACKGROUND

     A. Factual Background1

     This case concerns a FOIA dispute between Negley and the FBI,

which has been ongoing for over nine years.2 On January 16, 2002,

Negley submitted a FOIA request to the FBI’s San Francisco Field

Office    (“SFFO”)   seeking    “a    copy   of   any   records      about   [him]

maintained at and by the FBI in [the San Francisco] field office.”

On January 30, 2002, the FBI informed Negley that a search of its

Central Records System did not yield any records responsive to his

request.

     On October 17, 2003, after more than a year and half of

proceedings within the FBI, Plaintiff filed this suit. Plaintiff

challenged the FBI’s compliance with FOIA and sought production of

all agency records relating to him from the SFFO. Compl. ¶¶ 1, 19

[Dkt. No. 1].

     On    August    24,   2007,     after   several    years   of    litigation

regarding   the     specifics   of    the    FBI’s   FOIA   responsibilities,

Plaintiff filed a Motion for Partial Summary Judgment [Dkt. No.

71], arguing that the FBI’s search and production of documents were



     1
       Unless otherwise noted, the facts set forth herein are drawn
from parties’ Statements of Material Facts Not in Dispute.
     2
      This Court’s September 24, 2009 Memorandum Opinion contains
a full recitation of the case’s lengthy factual background.
See Negley v. F.B.I., 658 F. Supp. 2d 50, 53-55 (D.D.C. 2009).
Therefore, this Memorandum Opinion contains only a summary of the
facts directly relevant to Plaintiff’s Motion for Contempt.

                                       -2-
inadequate as a matter of law, and failed to comply with his FOIA

request.3 Plaintiff argued that “despite his broad request ‘for any

records about him,’ and the existence of nine different sources of

searchable records, the FBI’s only pre-lawsuit search was of one

such source--the Universal Index (‘UNI’).” Negley, 658 F. Supp. 2d

at 56-57 (citations omitted). On the same day, Defendant filed a

Second      Motion   for    Summary   Judgment     on   all    claims    raised   by

Plaintiff [Dkt. No. 72].

       On    June    15,   2009,   unbeknownst     to   the     Court,    Plaintiff

submitted a separate, expansive FOIA request to Defendant, seeking

“all       records   in    the   possession   of    the       Federal    Bureau   of

Investigation relating, in any way, to James Lutcher Negley.”

Eighth Hardy Decl. ¶ 10, Apr. 22, 2010 [Dkt. No. 103-3]. Neither

party informed the Court of Plaintiff’s June 2009 request.




       3
       The Court previously granted Defendant’s Motion for Summary
Judgment [Dkt. No. 10], finding that Plaintiff’s claim was barred
by the doctrine of res judicata, and that the FBI’s search for
records was adequate. Negley v. FBI, No. 04-5348 (D.D.C. July 26,
2004)[Dkt. No. 26]. The Court of Appeals subsequently reversed and
remanded the case, concluding that application of res judicata was
in error, and that there was sufficient doubt about the adequacy of
the FBI’s search that summary judgment was not warranted. Negley v.
FBI, 169 F. App’x. 591, 593-94 (D.C. Cir. 2006). On remand, this
Court ordered Defendant to (1) conduct a search for, and produce,
certain documents; (2) provide a Vaughn Index and a detailed
affidavit explaining any redactions or withholdings; and (3) allow
Plaintiff to take depositions of FBI personnel. Scheduling Order
(Feb. 2, 2006) [Dkt. No. 31]. On January 8, 2007, Defendant’s
Motion for Reconsideration was granted as to all File Numbers
except for Sub S0-3041 (Serial 3041). Order, Jan. 8, 2007 [Dkt. No.
43].

                                       -3-
     On September 24, 2009, this Court granted Plaintiff’s Motion

for Partial Summary Judgment and denied Defendant’s Second Motion

for Summary Judgment, finding that the FBI’s pre-lawsuit search for

responsive   documents   was   inadequate,   and   that   Defendant’s

production of documents was insufficient. Negley, 658 F. Supp. 2d

at 56-61. The Court ordered Defendant to:

     (1)   “produce File Number 149A-SF-106204-S-1575 in its
           entirety, along with a Vaughn Index for any
           redactions and/or withholdings and a detailed
           affidavit explaining the bases for any redactions
           and/or withholdings” within 30 days of the date of
           the Order (by October 26, 2009);

     (2)   conduct reasonable searches, “in response to
           Negley’s FOIA request, for all documents that
           relate to or reference Negley in any manner,” or
           specify with sufficient detail the search terms
           used in its previous searches of certain databases,
           within 60 days of the date of the Order (by
           November 23, 2009);4

     (3)   produce “all documents, including duplicates,
           responsive to Negley’s FOIA request,” along with a
           Vaughn   Index    for   any    redactions   and/or
           withholdings, within 90 days of the date of the
           Order (by December 23, 2009); and

     (4)   make its affiants available for three depositions,
           limited to: (A) the topics discussed in Hardy’s
           Fifth Declaration (within 30 days of the date of
           the Order); (B) the affidavit explaining any
           redactions and/or withholdings from the Vaughn
           Index for File S-1575 (within 60 days of the date
           of the Order); and (C) the affidavit explaining the


     4
      Specifically, Defendant was ordered to conduct a search of
(1) the ICM database, using relevant file numbers and dates; (2)
the ECF database that “captures at least the ‘six-way phonetic
breakdown’ of Negley’s name”; (3) the ELSUR database; (4) the Zy
database; (5) the SFFO card index; (6) FBIHQ; and (7) handwritten
notes, personal files and restricted files. Order 2-3.

                                 -4-
           searches conducted in response to Negley’s FOIA
           request, including all search terms used, and the
           bases for any redactions and/or withholdings from
           the Vaughn Index for the documents produced within
           90 days of the date of the Order (by December 23,
           2009).


Order 1-4, Sept. 24, 2009 (the “September 24, 2009 Order” or

“Order”) [Dkt. No. 90].

     In response to this Order, Defendant took the following

actions: (1) On October 22, 2009, Defendant made David M. Hardy

available for a deposition on the topics discussed in the Fifth

Hardy Declaration. (2) On October 26, 2009, Defendant released to

Plaintiff File Number 149A-SF-106204-S-1575, along with a Vaughn

Index and the Sixth Declaration of David M. Hardy, Oct. 24, 2009

[Dkt. No. 103-1], explaining the bases for Defendant’s redactions

and/or withholdings. (3) Defendant conducted the searches specified

by the Order,5 or, where appropriate, specified with sufficient

detail the search terms used in its previous searches. The details

of these searches were disclosed in the Seventh Declaration of

David M. Hardy, Dec. 23, 2009 [Dkt. No. 103-2]. (4) On December 23,

2009, Defendant produced all responsive documents6 identified in


     5
       All searches conducted after the issuance of the Court’s
Order were conducted to locate records responsive to both
Plaintiff’s 2002 and 2009 FOIA requests. Eighth Hardy Decl. ¶ 14.

     6
      The Seventh Hardy Declaration noted that some records located
from these searches were not produced to Plaintiff: (1) from the
UNI search, “administrative files related to the Plaintiff’s prior
FOIA/PA requests to other field offices and the FBI’s file related
                                                          (continued...)

                                  -5-
the above searches, along with a Vaughn Index and the Seventh Hardy

Declaration, which explained the bases for any redactions and/or

withholdings. (5) On January 28, 2010, by agreement of the parties,

Plaintiff took the deposition of Hardy on the topics discussed in

the Sixth Hardy Declaration and Seventh Hardy Declaration.

      On April 5, 2010, Plaintiff filed a Motion for Contempt for

Defendant’s Failure to Comply with the Court’s September 24, 2009

Order (“Pl.’s Mot”) [Dkt. No. 102]. On April 22, 2010, Defendant

filed its Opposition [Dkt. No. 103]. On May 3, 2010, Plaintiff

filed his Reply [Dkt. No. 104].

II.   STANDARD OF REVIEW

      There is “no question that courts have inherent power to

enforce   compliance   with    their    lawful    orders    through     civil

contempt.” Shillitani v. United States, 384 U.S. 364, 370 (1966);

see also SEC v. Diversified Growth Corp., 595 F. Supp. 1159, 1170

(D.D.C.1984) (to coerce obedience of a lawful order is within the

court's   civil   contempt   power).    Civil    contempt   is   a   remedial

sanction used to obtain compliance with a court order or to

compensate for damages sustained as a result of noncompliance. NLRB

v. Blevins Popcorn, Co., 659 F.2d 1173, 1184 (D.C.Cir. 1981).


(...continued)
to this litigation file”; (2) from the ECF search, five serials in
which Plaintiff’s name appeared in the text. One serial was a
litigation file concerning the SFFO, three serials were from
Plaintiff’s prior FOIA/PA requests to the Miami, Los Angeles, and
San Antonio field offices, and the fifth serial did not concern
Plaintiff. Seventh Hardy Decl. ¶ 39(b).

                                  -6-
       In order to establish that Defendant is in contempt, Plaintiff

must   demonstrate   “by   clear   and    convincing    evidence,   (1)   the

existence of a reasonably clear and unambiguous court order and (2)

a violation of that order by the defendant.” Walker v. Ctr. for

Food Safety, 667 F. Supp. 2d 133, 136 (D.D.C. 2009) (citing

Broderick v. Donaldson, 437 F.3d 1226, 1234 (D.C. Cir. 2006)). In

finding a party to be in civil contempt of a court's order, “the

intent of the recalcitrant party is irrelevant,” and the court must

only   determine   whether   its   order   has   been   violated.   Blevins

Popcorn, 659 F.2d at 1184, 1186 n. 77.

III.    ANALYSIS

       Neither party contests that the Court’s Order was reasonably

clear and unambiguous. Pl.’s Mot. 7 (“The Order’s requirements are

clear and unambiguous.”); Def.’s Opp’n 11 (“FBI has reasonably

interpreted Court’s September 24, 2009 Order and has complied in

good faith with its terms.”). The parties dispute only whether the

FBI violated the Order. Walker, 667 F. Supp. 2d at 136.

       The disagreement between Plaintiff and Defendant concerns the

scope of the September 24, 2009 Order. Plaintiff contends that the

FBI violated the Order because it chose “not to search for and/or

produce any documents after 2002, any documents outside of San

Francisco or any administrative files/information, despite being

aware of responsive documents/information.” Pl.’s Mot. 2. Defendant

responds that it limited the temporal and geographical scope of its


                                    -7-
searches because it needed only to search for records responsive to

Plaintiff’s 2002 FOIA request. Def.’s Opp’n 2. Further, the FBI

contends that it did not need to produce administrative files

unresponsive to the 2002 FOIA request. Id. The extent to which the

FBI complied with the Order therefore turns on whether the Order’s

instructions related only to the 2002 FOIA request or to documents

created more recently.

     A.   The Clear and Unambiguous Language of the Court’s
          September 24, 2009 Order Required Defendant to Produce
          Documents Responsive to Plaintiff’s 2002 FOIA Request.

     The Court’s September 24, 2009 Order required the FBI to

conduct searches and produce documents “in response to Negley’s

FOIA request.” Order 2-3. At the time the Order was issued, the

Court had notice only of Negley’s 2002 FOIA request and not of his

June 15, 2009 FOIA request. Therefore, when the Order referenced

“Negley’s FOIA request,” the Court referred only to the request

that Negley made in 2002. Id. Indeed, Plaintiff concedes that the

2009 FOIA request “is unrelated to this litigation and the Court

Order, which deals with Negley’s FOIA request that began in January

2002.” Pl.’s Reply 2. Defendant’s obligations under the Order were

to search for and produce documents “responsive to Negley’s [2002]

FOIA request.” Order 2-3.

     Plaintiff argues that the Order’s language, “for all documents

that relate to or reference Negley in any manner,” broadened the

scope of the Order beyond the temporal and geographic limitations


                               -8-
of   his    2002    FOIA        request.        Pl.’s      Reply    1;     Order     2.    The

interpretation advanced by Plaintiff, that the “Court’s Order

requir[es] production of all documents that relate to or reference

Negley in any manner,” is unconvincing for two reasons. Pl.’s Reply

1 (emphasis added).

     First, the phrase “in response to Negley’s FOIA request”

preceeded    and     limited          the    command,      “Defendant         must   conduct

reasonable searches . . . for all documents that relate to or

reference Negley in any manner.” Order 2. As noted above, the Order

could not have been referring to Plaintiff’s expansive 2009 FOIA

request, as the Court had not been given notice of this request by

either party at the time that it issued the Order. The Court could

hardly order the FBI to comply with a FOIA request that the Court

did not even know about.

     Second,       even    if       the     Court    had   intended      to     expand    upon

Plaintiff’s 2002 FOIA request to include “all documents that relate

to or reference Negley in any manner,” this expansive language

applied    only    to     the       provision       in   the   Order     that    related    to

searches.    Order        2.    A    separate       provision      in    the    Order     gave

instructions to the FBI as relating to the production of documents.

Order 3. The production provision of the Order only addressed

documents that were, in no uncertain terms, “responsive to Negley’s

[2002] FOIA request.” Order 3. With regard to production, the Order

only required Defendant to produce documents that were directly


                                              -9-
responsive to Negley’s 2002 FOIA request, which were limited to

those “maintained at and by the FBI [SFFO].” Compl. Ex. A.

     Consequently, the reasonably clear and unambiguous language of

the Court’s Order limited Defendant’s searches and production of

documents to those that were specified in Plaintiff’s 2002 FOIA

request, which asked for documents “maintained at and by the FBI

[SFFO],” and which existed at the time of Plaintiff’s 2002 request.

Compl. Ex. A.

     B.     Defendant Did Not Violate the Court’s September 24, 2009
            Order.

     Plaintiff argues that Defendant should be held in contempt

because it “chose not to search for and/or produce any documents

after    2002,   any   documents   outside    of    San   Francisco,    or   any

administrative files/information, despite being aware of responsive

documents/information.”7 Pl.’s Mot. 2. Defendant responds that “in

compliance with the Court’s Order directing the FBI to conduct

searches    in    response   to    Negley’s        FOIA   request,     the   FBI

appropriately searched for and released records about [Plaintiff]

maintained at and by the FBI in [the San Francisco] field office.”

Def.’s Opp’n 13 (internal quotation omitted). As explained above,

Defendant’s legal obligation was only to search for and produce




     7
      In fact, the FBI did not impose any geographical restrictions
on its searches in response to the September 24, 2009 Order. Hardy
Dep. 18:6-14, Jan. 28, 2010 [Dkt. No. 103-4].

                                    -10-
specific documents identified in the Order and documents responsive

to Plaintiff’s 2002 FOIA request.

      In complying with a FOIA request, an agency is not required to

search for records which are beyond the scope of the original

request. See Williams v. Ashcroft, 30 F. App’x 5, 6 (D.C. Cir.

2002) (holding that the Bureau of Prisons was “not required to

search for or provide tape recordings . . . because [appellant] did

not   include   these    materials   in     his    initial    FOIA    request”);

Kowalczyk v. Dep’t. of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996)

(“[The agency] is not obliged to look beyond the four corners of

the request for leads to the location of responsive documents.”).

Moreover, FOIA “does not require agencies to create or retain

documents; it only obligates them to provide access to those which

it in fact has created or retained.” Kissinger v. Reporters Comm.

for Freedom of the Press, 445 U.S. 136, 152 (1980); see also

Schoenman v. FBI, No. 04-2202, 2009 WL 763065, at *18 (D.D.C. Mar.

19, 2009) (holding that the plaintiff was not entitled to documents

that were “created during the course of searching for records

responsive to Plaintiff’s FOIA/PA Request”). In sum, an agency does

not   violate   its     FOIA   obligations        if   it   fails    to   produce

administrative documents which have been created as a direct result

of responding to the request itself.

      As Plaintiff concedes, Defendant searched for those documents

related to him which were generated until the time of the 2002 FOIA


                                     -11-
request and were located in the San Francisco Field Office.8 Pl.’s

Mot. 7-9. That is, Defendant searched for documents “in response to

Negley’s FOIA request.” Order 2-3. Defendant’s assumption that

Plaintiff’s 2002 request was limited to documents in existence at

the time of his request and within the scope of the request was

eminently reasonable. See Jefferson v. Bureau of Prisons, 578 F.

Supp. 2d 55, 60 (D.D.C. 2008) (holding that it was “reasonable in

this instance for the agency to conclude that the information

requested would have pre-dated, not post-dated the FOIA request”);

see also Kowalczyk, 73 F.3d at 388 (“A reasonable effort to satisfy

[Plaintiff’s initial] request does not entail an obligation to

search anew based upon a subsequent clarification.”).

     Plaintiff relies on Public Citizen v. Dep’t of State, 275 F.3d

634, 643 (D.C. Cir. 2002), for his claim that the FBI’s decision

not to produce documents created after 2002 was unreasonable. Pl.’s

Mot. 7-8. Plaintiff’s reliance is misplaced. Public Citizen held

only that the “reflexive application of the date-of-request cut-off

policy to all FOIA requests is unreasonable” and emphasized that

“nothing in this opinion precludes . . . [a] federal agency from

attempting a more compelling justification for imposing a date-of-

request cut-off on a particular FOIA request.” 274 F.3d at 642, 644



     8
       Defendant points out that the FBI’s cut-off date was
actually the date of its initial search in response to Plaintiff’s
2002 request, and not the date of the request itself. Def.’s Opp’n
14; Hardy Dep. 15:20-16:5.

                               -12-
(emphasis in original); see Jefferson, 578 F. Supp. 2d at 60

(“Public Citizen reiterates the second rule of McGehee, rejecting

a proposition that a cut-off date tied to the date of request is

per se reasonable regardless of the circumstances or nature of the

request.”). Here, it was reasonable for the FBI to use a cut-off

date of April 2002, when it was aware that it would also have to

respond to Plaintiff’s broader 2009 FOIA request. Def.’s Opp’n 15;

see also Jefferson, 578 F. Supp. 2d at 60 (“the proper question

here is whether the cut-off date used was reasonable in light of

the specific request Plaintiff made.”).

     With respect to production of documents, the FBI produced to

Plaintiff all documents responsive to the 2002 FOIA request. The

“only records discovered that had not previously been released to

Plaintiff   were   ‘administrative’    type   files   that   were   deemed

unresponsive to Plaintiff’s 2002 FOIA request in that they were

created in the process of responding to his request and/or related

to field offices other than San Francisco.”9 Def.’s Opp’n 2.

Specifically, the documents that were not produced to Plaintiff

included: (1) “administrative files related to the Plaintiff’s

prior FOIA/PA requests to other field offices and the FBI’s file


     9
       Defendant states that “in the course of responding to
Plaintiff’s 2009 FOIA request, the FBI asked the Plaintiff on two
occasions whether he wished to receive [administrative type]
records . . . and Plaintiff twice refused to provide any response
whatsoever.” Def.’s Opp’n 3. Defendant “is currently collecting
them for processing and release” anyhow. Id.; Eighth Hardy Decl. ¶
22.

                                -13-
related to this litigation file,” which were all created post-2002;

(2) a Sacramento field office file; and (3) five serials in which

Plaintiff’s name appeared in the text. Seventh Hardy Decl. ¶ 39;

Def.’s Opp’n 7. Three of the five serials were from Plaintiff’s

prior FOIA/PA requests made to the Miami, Los Angeles, and San

Antonio field offices, and thus were not files maintained at or by

the FBI SFFO. Seventh Hardy Decl. ¶ 39(b). The fourth serial was

found not to concern Plaintiff. Id.; Hardy Dep. 104:21-107:1. The

fifth serial, while it was created by the SFFO, was a litigation

file that was created as a result of the Plaintiff’s litigation in

this matter. Seventh Hardy Decl. ¶ 39(b); Hardy Dep. 104:5-20.

      Defendant correctly argues that none of these files or serials

were responsive to Plaintiff’s 2002 FOIA request, either because

they were not maintained at or by the SFFO, or because they were

created after, and as a direct result of, Plaintiff’s 2002 request.

The   “administrative”    or   “190”   files   are   “generated    when   [a

requestor] make[s] a FOIA request, and then the subsequent releases

are in it and correspondence is in it for the request.” Hardy Dep.

21:1-12. The “litigation” or “197” files are “record[s] [that are]

generated during the course of a civil litigation.” Hardy Dep.

37:8-18. The FBI did not produce these records because they were

deemed unresponsive to Plaintiff’s 2002 FOIA request. Schoenman,

2009 WL   763065,   at   *18   (plaintiff not entitled      to    documents




                                  -14-
“created during the course of searching for records responsive to

Plaintiff’s FOIA/PA Request”).

      Because Defendant searched for and produced all documents

responsive to Plaintiff’s 2002 FOIA request and required by the

September 24, 2009 Order, Defendant has not violated this Court’s

reasonably clear and unambiguous Order.

IV.   CONCLUSION

      For the foregoing reasons, Plaintiff’s Motion for Contempt is

denied.




                                           /s/
March 1, 2011                           Gladys Kessler
                                        U.S. District Court Judge


Copies to: Attorneys of record via ECF.




                                 -15-
