                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


DAMON ELLIOTT,                                        )
                                                      )
                       Plaintiff,                     )
                                                      )
                       v.                             )   Civil Action No. 07-1548 (RJL)
                                                      )
UNITED STATES DEPARTMENT OF THE                       )
INTERIOR,                                             )
                                                      )
                       Defendant.                     )

                                                   ~
                                    MEMORANDUM OPINION
                                      February~,2009

        In this action brought under the Freedom ofInformation Act ("FOIA"), 5 U.S.C. § 552,

the plaintiff challenges the defendant's failure to locate records responsive to his FOIA request.

The defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil

Procedure [Dkt. No. 17]. Upon consideration of the parties' submissions and the entire record,

the Court grants the defendant's motion.

                                       I. BACKGROUND

       By letter of April 19, 2007, the plaintiff requested "a copy of all documents that provide []

the National Park Service (NPS) has jurisdiction over 3696 Sellman Road Beltsville, MD 20705

to enforce laws and regulation over this location." CompI. at 2. NPS conducted a search but

located no responsive records. Defs Mot., Declaration of William Line ("Line DecI.") ~ 4.

                                     II. LEGAL STANDARD

       Summary judgment is appropriate when "the pleadings ... and any affidavits show that

there is no genuine issue as to any material fact and that the movant is entitled to judgment as a
matter oflaw." FED. R. CIV. P. 56(c). "[T]he substantive law will identify which facts are

material. Only disputes over facts that might affect the outcome of the suit under the governing

law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or

unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986).

       In a FOIA action, the Court may award summary judgment to an agency solely on the

basis of information provided in declarations when they describe "the justifications for

nondisclosure with reasonably specific detail ... 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). Because agency declarations are accorded Ita presumption

of good faith," Long v. Us. Dep't of Justice, 450 F. Supp.2d 42,54 (D.D.C. 2006), it is

incumbent upon the plaintiff to "point to evidence sufficient to put the Agency's good faith into

doubt." Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981). "A declarant in

a FOIA case satisfies the personal knowledge requirement in Rule 56( e) if in his declaration, [he]

attests to his personal knowledge of the procedures used in handling [a FOIA] request and his

familiarity with the documents in question." Barnard v. Dep 't of Homeland Sec., 531 F. Supp.

2d 131, 138 (D.D.C. 2008) (citations and internal quotation marks omitted; brackets in original).

See Safe Card Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991) (citing Meeropol v.

Meese, 790 F.2d 942, 951 (D.C. Cir.1986)) (determining that the person in charge ofa search is

"the most appropriate person to provide a comprehensive affidavit").

       The Court's jurisdiction under the FOIA depends on the improper withholding of agency

records. 5 U.S.C. § 552(a)(4)(B); McGehee v. CIA,697 F.2d 1095, 1105 (D.C. Cir. 1983).

Because an inadequate search amounts to an improper withholding under the FOIA, see Maydak


                                                2
v.   u.s. Dep't. ofJustice, 254 F. Supp.2d 23, 44 (D.D.C. 2003), the Court must determine the
adequacy of the agency's search when, as here, its failure to locate responsive records is

challenged.

         The agency to which a FOIA request is submitted is required "to make a good faith effort

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

produce the information requested." International Trade Overseas, Inc., 688 F. Supp. 33, 36

(D.D.C. 1988) (quoting Marrera v. Dep't ofJustice, 622 F. Supp. 51,54 (D.D.C. 1985)) (citation

omitted). In determining the adequacy of a FOIA search, the Court is guided by principles of

reasonableness. Id. (citing Weisberg v. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)).

Because the agency is the possessor of the records and is responsible for conducting the search,

the Court may rely on "[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." Valencia-Lucena v. United States Coast Guard, 180 F .3d 321,

326 (D.C. Cir. 1999) (citing Oglesby v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C.

Cir. 1990); Kowalczyk v. Dep't of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996); Weisberg v. Dep't

ofJustice, 705 F.2d 1344,1351 (D.C. Cir. 1983)). "Once the agency has shown that its search

was reasonable, the burden shifts to [the plaintiff] to rebut [the defendant's] evidence by a

showing that the search was not conducted in good faith." Moore v. Aspin, 916 F. Supp. 32, 35

(D.D.C.1996)(citingMillerv.      u.s. Dep'tofState, 779F.2d 1378,1383 (8thCir.1985)).
Summary judgment is inappropriate "if a review of the record raises substantial doubt" about the

adequacy of the search. Valencia-Lucena, 180 F.3d at 326 (citing Founding Church of

Scientology v. National Security Agency, 610 F.2d 824, 837 (D.C. Cir. 1979)).




                                                 3
                                        III. DISCUSSION

       The defendant has provided evidence of an adequate search. See Line Deci. ~~ 4-5. 1

The plaintiff claims that a genuine issue is presented because a government witness testified in

August 1997 that "3696 Sellman Road is U.S. Government property." PI.'s Opp. [Dkt. No. 33]

at 2. Plaintiff has not provided a transcript of such testimony but even if true, this fact alone is

immaterial to the question of whether the defendant possessed a responsive record as covered by

the FOIA at the time of the plaintiffs request in 2007. 2 See McGehee, 697 F.2d at 1110 (an

agency is required to produce only those records in its custody and control at the time of the

FOIA request).         In the absence of any evidence calling into question the defendant's

evidence of an adequate search, the Court concludes that the defendant is entitled to judgment as

a matter of law. A separate Order accompanies this Memorandum Opinion.




       1   Line is the Communications, FOIA and Tourism Officer for the NPS's National Capital
Region who coordinated the search for records responsive to the plaintiffs FOIA request. Line
Decl. ~~ 2, 4. His statement is based on his "personal knowledge and/or experience and/or
personal review of plaintiffs FOIA request and/or upon information furnished to me in my
official capacity." !d. ~ 8.


       2  "[R]ecord ... includes [] any information that would be an agency record subject to the
requirements of this section when maintained by an agency in any format, including an electronic
format[.]" 5. U.S.C. § 552(f). See Consumer Federation ofAmerica v. Dep't ofAgriculture, 455
F.3d 283, 287 (D.C. Cir. 2006) (observing that the FOIA does not define record per se); but cf 5
U.S.C. § 552a(a)(4) (Privacy Act defining record as "any item, collection, or grouping of
information about an individual that is maintained by an agency .... ")



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