                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 25 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

FRED J. SCHOEFFLER,                             No.    18-16371

                Plaintiff-Appellant,            D.C. No. 2:17-cv-00055-GMS

 v.
                                                MEMORANDUM*
UNITED STATES DEPARTMENT OF
AGRICULTURE,

                Defendant-Appellee.

                  Appeal from the United States District Court
                           for the District of Arizona
                 G. Murray Snow, Chief District Judge, Presiding

                      Argued and Submitted February 7, 2020
                                Phoenix, Arizona

Before: TASHIMA, HURWITZ, and MILLER, Circuit Judges.

      Fred Schoeffler appeals from a summary judgment in favor of the United

States Department of Agriculture in Schoeffler’s action under the Freedom of

Information Act, 5 U.S.C. § 552. We have jurisdiction under 28 U.S.C. § 1291 and

review the grant of summary judgment de novo. Animal Legal Def. Fund v. U.S.

Food & Drug Admin., 836 F.3d 987, 990 (9th Cir. 2016) (en banc) (per curiam).


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We affirm.

       1.     The district court correctly found no genuine dispute of fact material

to whether the Department’s search for records was adequate with respect to

Request 4325-F. The statute requires an agency to “conduct[] a ‘search reasonably

calculated to uncover all relevant documents.’” Zemansky v. EPA, 767 F.2d 569,

571 (9th Cir. 1985) (quoting Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476,

1485 (D.C. Cir. 1984)). “In demonstrating the adequacy of the search, the agency

may rely upon reasonably detailed, nonconclusory affidavits submitted in good

faith.” Id.

       The Department’s declarations showed that the agency conducted an

adequate search. Harald Fuller-Bennett, an information specialist for the United

States Forest Service, stated that a colleague contacted the San Dimas Technology

Development Center—which Schoeffler concedes was the office most likely to

hold responsive documents—and that the relevant personnel at San Dimas

reviewed a Dropbox link containing certain files and “found that it included all of

its responsive records.” Another Service information specialist, Marie Derobertis,

testified similarly about searches in another office. We see no difference between

these searches and others whose adequacy we have upheld. See Zemansky, 767

F.2d at 572; Hamdan v. U.S. Dep’t of Justice, 797 F.3d 759, 771–72 (9th Cir.

2015).


                                          2
      We reject Schoeffler’s three other challenges. First, while non-expert

witnesses ordinarily may testify only as to matters within their personal

knowledge, an agency’s declarations in FOIA cases are exempt from that “personal

knowledge requirement.” Garris v. FBI, 937 F.3d 1284, 1292–93 (9th Cir. 2019);

see also Lane v. U.S. Dep’t of Interior, 523 F.3d 1128, 1135 (9th Cir. 2008).

      Second, even if the additional declarations the Department introduced on

reply were improper, Schoeffler waived his challenge to them by not objecting

below. See Dutta v. State Farm Mut. Auto. Ins. Co., 895 F.3d 1166, 1172 (9th Cir.

2018).

      Third, Schoeffler’s evidence of the Department’s possession of responsive

documents is not dispositive or necessarily material to the legally determinative

question: “whether the search for those documents was adequate.” Lahr v. Nat’l

Transp. Safety Bd., 569 F.3d 964, 973 (9th Cir. 2009) (quoting Zemansky, 767 F.3d

at 571). Even if the Department once held the recordings and transcripts Schoeffler

seeks, there is no genuine dispute of fact material to the adequacy of the

Department’s search.

      2.     We also affirm the grant of summary judgment as to Request 5736-F.

At oral argument, Schoeffler conceded that his merits arguments as to Request

5736-F are identical to his arguments as to Request 4325-F. We therefore assume

without deciding that Schoeffler exhausted Request 5736-F, and we reject


                                          3
Schoeffler’s arguments on the merits for the reasons stated above. See Yagman v.

Pompeo, 868 F.3d 1075, 1083–84 (9th Cir. 2017).

      3.     The district court did not abuse its discretion by denying Schoeffler’s

requests to take discovery. See Lane, 523 F.3d at 1134. The evidence does not

support Schoeffler’s assertion that the Department’s declarations were submitted in

bad faith. For example, viewing the evidence in the light most favorable to

Schoeffler, a 2013 email demonstrates that certain Service officials sought to

protect firefighter helmet video from immediate public release, but that video is not

within the class of responsive audio recordings and transcripts that Schoeffler

contends the government improperly withheld. We see no abuse of discretion in

the district court’s determination that discovery was unwarranted.

      Schoeffler’s motions to supplement the record (Dkt. No. 9) and to take

judicial notice (Dkt. No. 32) are DENIED.

      AFFIRMED.




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