                                    ___________

                                    No. 95-2386
                                    ___________

Jack Urban,                             *
                                        *
              Appellant,                *
                                        *   Appeal from the United States
     v.                                 *   District Court for the
                                        *   District of South Dakota.
United States of America;               *
Kansas Bureau of Investigation, *
                                         *
              Appellees.                 *
                                    ___________

                     Submitted:     October 6, 1995

                           Filed:   December 27, 1995
                                    ___________

Before FAGG, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                               ___________


LOKEN, Circuit Judge.


     South Dakota inmate Jack Urban appeals the district court's dismissal
of his action to enforce a Freedom of Information Act (FOIA) request.       The
court dismissed Urban's complaint, prior to service, because "[n]onexistent
records are impossible to produce."          At least some of the requested
materials almost certainly exist -- the question is whether they are in the
possession or control of the United States Department of Justice.     Because
the government has not met its burden to demonstrate that it has complied
with the statute, see Miller v. United States Dep't of State, 779 F.2d
1378, 1382-83 (8th Cir. 1985), we reverse.


     Urban took a polygraph test in February 1994 as part of a plea
agreement with the United States Attorney for the District of Kansas.       The
Kansas Bureau of Investigation (KBI) administered the
test and reported to the U.S. Attorney that the test results indicated
truthful cooperation with the government.         In July 1994, Urban informally
asked KBI for information and documents relating to the test results.                 KBI
forwarded Urban's request to the U.S. Attorney, who wrote Urban's attorney
advising "[t]he materials he requested will not be forthcoming."


      Urban then sent a FOIA letter to the U.S. Attorney requesting "the
results of my polygraph test" and "the polygrapher's resume."                   The U.S.
Attorney did not answer this or a follow-up letter but instead forwarded
the FOIA request to the Executive Office for the United States Attorneys.
That Office responded to Urban that a search of the U.S. Attorney's office
"has revealed no records."      The Department of Justice Office of Information
and Privacy rejected Urban's subsequent appeal on the ground that "appeals
can only be taken from denials of access to records which exist and can be
located in Department of Justice files."                Acting pro se, Urban then
commenced this action under FOIA, 5 U.S.C. §§ 552 et seq., which the
district   court    dismissed   as    moot,   without    requiring    service    on   the
government.


      "In FOIA cases, mootness occurs when requested documents have already
been produced."    In re Wade, 969 F.2d 241, 248 (7th Cir. 1992).               That has
not occurred in this case.      Instead, the government claims it cannot locate
the   requested    documents.       FOIA   obligates    the   government   to    produce
documents within its "possession or control."           Kissinger v. Reporters Comm.
for Freedom of the Press, 445 U.S. 136, 150-51 (1980).               When a government
agency claims that it does not possess or control a requested document, the
agency   must   show   it   fully    discharged   its    statutory     obligations     by
"conduct[ing] a search reasonably calculated to uncover all relevant
documents."     Weisberg v. United States Dep't of Justice, 705 F.2d 1344,
1351 (D.C. Cir. 1983), followed in Miller, 779 F.2d at 1382.               Thus, when
the question is whether a requested document exists, or is outside the
government's




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possession or control, an FOIA action is not moot, and dismissal prior to
service will almost never be appropriate.


     In this case, the actions of KBI strongly suggest that one or more
requested documents exist and are within the possession or control of the
U.S. Attorney for the District of Kansas.   In response to our order to show
cause, the responsible Assistant U.S. Attorney submitted an affidavit
stating that he "did not produce the requested documentation because it did
not exist in the files of the United States Attorney's office."     That is
an inadequate answer.   Urban has now spent nearly eighteen months seeking
a copy of seemingly innocuous test results.      His early requests got no
response or a cryptic brush off.    He has never been told why he is not
entitled to the documents.     And his attempt to invoke FOIA, a statute
intended to foster greater access to government records, has instead
fostered more paper shuffling and lame excuses.


     There may be a legitimate reason why Urban is not entitled to the
materials he requests, but none appears in this record.    Accordingly, the
judgment of the district court is reversed and the case is remanded for
further proceedings consistent with this opinion, including, if necessary,
an evidentiary hearing at which the responsible Assistant U.S. Attorney can
testify as to whether the Department of Justice has possession or control
of one or more of the requested documents.


     A true copy.


           Attest:


                 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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