                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
PRISON LEGAL NEWS,                   )
                                     )
                  Plaintiff,         )
                                     )
      v.                             ) Civil Action No. 05-1812 (RBW)
                                     )
HARLEY G. LAPPIN, DIRECTOR,          )
FEDERAL BUREAU OF PRISONS,           )
                                     )
                  Defendant.         )
                                     )
____________________________________)

                                MEMORANDUM OPINION

        The plaintiff, Prison Legal News, a non-profit legal journal challenges, pursuant

to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2008), the adequacy of the

search for records conducted by the defendant, the Federal Bureau of Prisons (the

"Bureau"), an agency of the United States government, which was conducted in

compliance with an order of this Court. See Memorandum Opinion & Order, June 26,

2006; see also Defendant's Response to the Court's June 26, 2006 Order. The plaintiff

also challenges the Bureau's withholding of records and information under several FOIA

disclosure exemptions. Memoranda in Support of Plaintiff's Motion for Judgment ("Pl.'s

Mem.") at 1; 5 U.S.C. § 552(b). Currently before the Court are the parties' cross-motions

for summary judgment. 1 For the reasons set forth below, this Court must grant the

plaintiff's motion and deny the Bureau's motion without prejudice.


1
        The following papers were considered by the Court in resolving the parties' cross-
motions for summary judgment: the plaintiff's Motion for Judgment; the Memoranda in Support
of Plaintiff's Motion for Judgment ("Pl.'s Mem."); the Defendant's Cross Motion for Summary
Judgment and Opposition to Plaintiff's Motion for Summary Judgment; the Memorandum of
                                                                                 (continued . . . )
                                    I. BACKGROUND

        The plaintiff is a non-profit legal journal devoted to reporting on news and

litigation concerning detention facilities. Verified Complaint for Declaratory and

Injunctive Relief to Obtain Freedom of Information Act Information ("Compl.") ¶¶ 5, 7.

On August 6, 2003, the plaintiff submitted a FOIA request to the Bureau seeking a copy

of "all documents showing all money paid by the Bureau . . . for lawsuits and claims

against it . . . between January 1, 1996 . . . and . . . July 31, 2003." Pl.’s Mem. at 1.

Specifically, the plaintiff sought "a copy of the verdict, settlement or claim in each case

showing the dollar amount paid,” Pl.’s Mem. at 1, “the plaintiff's or claimant's identity

and the identifying information" for each lawsuit or claim or attorney fee award, Compl.

¶ 8, and "a copy of the complaint or other documents describing the facts of the case," Id.

Additionally, the plaintiff requested a waiver of all fees associated with processing its

request. Id. ¶ 9.

        When the plaintiff's fee waiver request was denied by the Bureau and the

Department of Justice, the plaintiff sought relief from this Court by filing this lawsuit.

Pl.'s Mem. at 2. Thereafter, this Court awarded summary judgment to the plaintiff on its

fee waiver request and ordered the Bureau to conduct the search without costs to the

plaintiff. Order, June 26, 2006.

        The Bureau represents that it conducted a search for the records sought by the

plaintiff in several of its Washington D.C. headquarter offices, as well as in several of its

Points and Authorities in Support of Defendant's Cross Motion for Summary Judgment and
Opposition to Plaintiff's Motion for Summary Judgment ("Def.'s Mem.") and the Declaration of
Wilson J. Moorer ("Moorer Decl."); and the Defendant's Statement of Material Facts as to Which
There is No Genuine Issue and Opposition to Plaintiff's Statement of Material Facts; and the
Plaintiff's Reply and Opposition to Defendant's Cross Motion for Summary Judgment and
Opposition to Plaintiff's Motion for Judgment ("Pl.’s Reply").



                                               2
branches and its six regional offices. Def.'s Mem. at 4. In six separate releases, the

Bureau provided the plaintiff with over 10,000 pages of records responsive to its request.

Pl.'s Mem. 3-6; Def.'s Mem. at 4. The Bureau redacted information from several of the

documents pursuant to several FOIA exemptions, see Pl.'s Mem., Exhibits 1-2 through 6-

3, while producing the remainder of the documents in full. The plaintiff now challenges

the adequacy of the Bureau's search for responsive records and its utilization of the FOIA

exemptions to withhold the redacted information and other documents that it claims have

not been produced at all. Pl.'s Mem. at 1.

                                     II. ANALYSIS

A.     Adequacy of the Bureau's Search for Responsive Records

               At the summary judgment stage, the agency has the burden
               of showing that it complied with the FOIA, and in response
               to a challenge to the adequacy of its search for requested
               records the agency may meet its burden by providing "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 . . . were searched."

Iturralde v. Comptroller of Currency, 315 F.3d 311, 313-14 (D.C. Cir. 2003) (internal

citations omitted). "A FOIA search is sufficient if the agency makes 'a good faith effort

to conduct a search for the requested records, using methods which can be reasonably

expected to produce the information requested.'" Baker & Hostetler LLP v. U.S. Dep't of

Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006) (quoting Nation Magazine v. U.S.

Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)). The affidavit must be "reasonably

detailed, [and] nonconclusory . . . [in] describing [the agency's] efforts." Baker, 473 F.3d

at 318 (citations omitted). And, "[a]gency affidavits are accorded a presumption of good

faith, which cannot be rebutted by 'purely speculative claims about the existence and




                                             3
discoverability of other documents.'" SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200

(D.C. Cir. 1991) (citation omitted).

       In response to an agency's affidavit attesting to the adequacy of its search, a

"plaintiff may . . . provide 'countervailing evidence' as to the adequacy of the agency's

search," which if it "raises substantial doubt, particularly in view of 'well defined requests

and positive indications of overlooked materials,'" may entitle the plaintiff to summary

judgment. Iturralde, 315 F.3d at 314 (internal citations omitted). However, it bears

noting that "[a]n adequate FOIA search is not determined by the results of the search or

by the information ultimately released by the agency[;] [r]ather, 'the adequacy of a FOIA

search is generally determined . . . by the appropriateness of the methods used to carry

out the search.'" James v. U.S. Customs and Border Protection, 549 F. Supp. 2d 1, 8

(D.D.C. 2008) (citing Iturralde, 315 F.3d at 315; Cleary, Gottlieb, Steen & Hamilton v.

Dep't of Health and Human Servs., 844 F. Supp. 770, 777 n. 4 (D.D.C. 1993)).

       The plaintiff contends that the affidavit submitted by the Bureau fails to

demonstrate that the search it conducted was adequate. Pl.'s Reply at 1. Specifically, the

plaintiff contends that the affiant "does not indicate that he conducted the searches

himself, or that he directly supervised the individuals who did. He cannot claim, and

does not claim, personal knowledge of the means by which the searches were conducted,

or their thoroughness." Id. at 2. The Bureau has failed to respond to this argument.

       The Bureau's sole affiant, Wilson J. Moorer, a Paralegal Specialist at the Bureau

Washington D.C. FOIA Section, represents that he is "familiar with the procedures

utilized by [the Bureau] in responding to . . . FOIA requests" but he does not outline the

search methods undertaken by the Bureau to respond to the plaintiff's FOIA request, who




                                              4
would have conducted the searches, and, as the plaintiff correctly points out, nowhere

does the affiant indicate how he is personally aware of the search procedures or that he

knows they were followed by each of the Bureau's entities tasked with responding to this

request. See Moorer Decl. at 1-11; Pl.'s Reply at 2. All of these deficiencies undermine

the sufficiency of the affidavit.

        Under Federal Rules of Civil Procedure, when a party either pursuing or

challenging summary judgment submits an affidavit as support for its position, the

"affidavit must be made on personal knowledge, [it must] set out facts that would be

admissible in evidence, and [it must] show that the affiant is competent to testify on the

matters stated." Fed. R. Civ. P. 56(e)(1). Because the Bureau bears the burden of

demonstrating that its search for records was adequate, the Court cannot presume

personal knowledge by the affiant, see Shaw v. FBI, 749 F.2d 58, 63 n.2 (D.C. Cir.

1984), and therefore cannot presume his personal knowledge of the activities of the

Bureau's regional offices. For this reason alone, little if any weight can be given to the

Bureau's affidavit concerning the adequacy of the searches conducted at the regional

offices. The Bureau must do more than offer "a 'single, conclusory affidavit,' that

generally asserts adherence to the reasonableness standard." Morley v. CIA, 508 F.3d

1108, 1122 (D.C. Cir. 2007) (citations omitted); see Nation Magazine v. U.S. Customs

Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) ("Conclusory statements that the agency has

reviewed relevant files are insufficient to support summary judgment." (citation

omitted)). Indeed, the Bureau must "'explain in reasonable detail the scope and method

of the search conducted by the agency," in order to satisfy its "burden on summary

judgment to 'prove[ ] that no substantial and material facts are in dispute and that [it] is




                                              5
entitled to judgment as a matter of law.'" Morley, 508 F.3d at 1121-22 (citations

omitted). Specifically, "[t]he affidavits must . . . set[] forth the search terms and the type

of search performed, and aver[] that all files likely to contain responsive materials (if

such records exist) were searched." Nation Magazine, 71 F.3d at 890 (citation and

quotations omitted).

          The plaintiff also contends with respect to the adequacy of the Bureau's search

that the Bureau failed to produce records responsive to its request because in some cases

the Bureau provided only docket sheets of cases that it litigated while merely referencing

"complaints, judgments and settlements" that were not produced. Pl.'s Mem. at 13. The

Bureau maintains that the plaintiff's "suspicion that [the Bureau] artificially limited the

searches to limit the responsive documents by not searching or retrieving every archived

settlement record" is "unreasonable" and unfounded because it did not have "possession

or control" over "potentially responsive records that subsequently have been destroyed."

Def.'s Mem. at 14-15. The Court agrees with the Bureau that it does not have to turn over

documents not contained in its files. "[T]he fact that responsive documents once existed

does not mean that they remain in the [Bureau's] custody today or that the [Bureau] had a

duty under FOIA to retain the records." Wilbur v. CIA, 355 F.3d 675, 677-78 (D.C. Cir.

2004) (citing Yeager v. Drug Enforcement Admin., 678 F.2d 315, 321 (D.C. Cir. 1982)

("A requester is entitled only to records that an agency has in fact chosen to create and

retain."); Miller v. United States Dep't of State, 779 F.2d 1378, 1385 (8th Cir. 1985)

("The fact that a document once existed does not mean that it now exists; nor does the

fact that an agency created a document necessarily imply that the agency has retained

it.")).




                                               6
       Yet, while the Court agrees with the Bureau that generally an "agency's failure to

turn up a particular document, or mere speculation that as yet uncovered documents

might exist, does not undermine the determination that the agency conducted an adequate

search for the requested records," Wilbur, 355 F.3d at 678 (citations omitted); see also

Morley, 508 F.3d at 1120, the Court does not have a sufficient affidavit before it from

which it can conclude that the Bureau produced all responsive records in its possession

and control. Without such evidence, the Court must grant the plaintiff's motion regarding

the adequacy of the search. Accordingly, the Bureau must either conduct a new search of

its files for the records sought by the plaintiff to ensure that the search was adequate and

properly demonstrate that it was done so, or it must provide the Court with an affidavit

(or affidavits) from which the Court can find that the affiant has personal knowledge that

the Bureau's search procedures and the searches actually conducted were reasonably

designed to locate documents responsive to the plaintiff's request.

B.     The Bureau's Withholding of Documents Pursuant to the Several FOIA
       Exemptions

       The FOIA provides that any person may seek from a federal agency "records" so

long as the request "reasonably describes such records." 5 U.S.C. § 552(a)(3)(A). The

FOIA "reflects a general philosophy of full agency disclosure," Dep't of Defense v.

FLRA, 510 U.S. 487, 494 (1994) (internal quotations omitted), but also permits an

agency to withhold information if it falls within one of nine enumerated exemptions, 5

U.S.C. § 552(b). The exemptions reflect "Congress's recognition that the release of

certain information may harm legitimate governmental or private interests," Summers v.

Dep't of Justice, 140 F. 3d 1077, 1080 (D.C. Cir. 1998), but "[i]f an agency invokes an

exemption [to withhold a record or any information contained within that record], it bears



                                              7
the burden of establishing the applicability of the claimed exemption," Assassination

Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003). When an agency

seeking "summary judgment on the basis of . . . agency affidavits" asserts through those

affidavits that it has properly withheld documents or parts of a document pursuant to a

FOIA exemption, the agency's affidavits must "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). And, as

previously discussed, an affidavit must be made upon the affiant's "personal knowledge,

[it must] set out facts that would be admissible in evidence, and [it must] show that the

affiant is competent to testify on the matters stated." Fed. R. Civ. P. 56(e)(1).

       Because the Bureau bears the burden of demonstrating that its utilization of the

FOIA exemptions was proper, it must provide to the Court an affidavit or other form of

submission that comports with Rule 56(e)(1). In addition, if the Bureau seeks to withhold

documents or parts of documents from the plaintiff, its affidavit or other form of

submission must conform with the criteria set forth in the preceding paragraph. See

Military Audit Project, 656 F.2d at 738. That has not been accomplished here.

Accordingly, the Court must grant the plaintiff's motion and deny the Bureau's motion on

the issue of whether documents or portions of documents have properly been withheld

pursuant to the FOIA exemptions relied upon by the Bureau.




                                              8
                                  III. CONCLUSION

       For the reasons provided in this opinion, the Court must (1) grant the plaintiff's

motion for summary judgment as to the adequacy of the Bureau's search and the Bureau's

withholding of documents or parts of documents pursuant to the FOIA exemptions; (2)

deny the Bureau's cross-motion for summary judgment without prejudice, and (3) remand

this matter to the Bureau so that it may either conduct anew its searches for the records

sought by the plaintiff or submit an affidavit or alternative submission that adequately

demonstrates – consistent with this opinion – that the Bureau employed search methods

reasonably likely to discover records responsive to the plaintiff's request and which

shows that the responsive documents and parts of documents not provided to the plaintiff

have properly been withheld under the FOIA exemptions claimed by the Bureau. 2




2
       An Order consistent with the Court’s ruling accompanies this Memorandum Opinion.



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