                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                            OCT 7 1998
                 UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                 TENTH CIRCUIT                                Clerk




 BARBARA SCHWARZ,

          Plaintiff-Appellant,
                                                       No. 98-4070
 v.
                                                 (D.C. No. 97-CV-816-K)
                                                         (Utah)
 NATIONAL ARCHIVES &
 RECORDS ADMINISTRATION,

          Defendant-Appellee.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BRORBY and BRISCOE, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is

therefore ordered submitted without oral argument.


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Barbara Schwarz filed this action against the National Archives and

Records Administration (NARA) and the Information Security Oversight Office

(ISOO) under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking

all records concerning herself, her husband, Mark Rathbun, and a number of other

individuals. The district court granted summary judgment for defendants. We

affirm.

      Ms. Schwarz’s FOIA requests for information were received by the director

of the ISOO, Steven Garfinkel. The ISOO searched its files and Mr. Garfinkel

reported to Ms. Schwarz that the only records found pertaining to her requests

were the correspondence from her concerning those requests. Ms. Schwarz asked

that Mr. Garfinkel provide an affidavit from the individuals who conducted the

search and Mr. Garfinkel refused.

      Ms. Schwarz appeared pro se in the district court, alleging that the ISOO

did not respond to her requests in a timely manner, that the ISOO lied when it

stated it had no other records responding to her requests, and that the ISOO acted

in bad faith. In response, Mr. Garfinkel provided an affidavit detailing the

ISOO’s search. The district court acknowledged that Mr. Garfinkel’s affidavit

was not entirely clear on the time periods during which the ISOO searched, but

the court construed the affidavit as meaning that “all relevant time periods were

searched.” Rec., vol. I, doc. 28. The district court granted defendants’ motion


                                         -2-
for summary judgment. Ms. Schwarz argues on appeal that Mr. Garfinkel’s

affidavit was inadequate to show a reasonable search was conducted; that she

should be awarded attorney’s fees; that the district court judge was biased; and

that the federal government was plotting a conspiracy against her.

      On appeal from summary judgment, we view the record in the light most

favorable to the FOIA requester. Miller v. United States Dep’t of State, 779 F.2d

1378, 1382 (8th Cir. 1985). In two cases involving our same Ms. Schwarz, we

held that summary judgment is available to an FOIA defendant when the agency

offers adequate affidavits establishing that it has complied with its FOIA

obligations. Schwarz v. Federal Bureau of Investigation, No. 98-4036, 1998 WL

667643, at *1 (10th Cir. Sept. 17, 1995); Schwarz v. Interpol, Nos. 94-4111, 94-

4142, 1995 WL 94664, at *1 (10th Cir. Feb. 28, 1995) (citing Miller, 779 F.2d at

1382-83). To prove the reasonableness of its search, the agency affidavits must

be “relatively detailed, nonconclusory and submitted in good faith.” Miller, 779

F.2d at 1383. The defendant agency needs to demonstrate only that it performed

a document 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).

The burden then shifts to the nonmoving party who must provide either evidence

to contradict the moving party or evidence of bad faith. Schwarz v. Interpol,

1995 WL 94664 at *1. Unsupported allegations are not enough to satisfy this


                                         -3-
burden. Id.

      In the present case, the ISOO offered Mr. Garfinkel’s affidavit that the

ISOO conducted a reasonable search of its files and found no other records

relevant to Ms. Schwarz’s requests. Mr. Garfinkel’s affidavit declared that a

thorough search of all the records at the ISOO had been conducted and included a

detailed listing of the files searched. Aplee. Supp. App. at 6-8. The burden then

shifted to Ms. Schwarz to contradict the ISOO’s evidence. Ms. Schwarz offered

as evidence the facts that the ISOO could not find any other records responsive to

her requests and that Mr. Garfinkel’s affidavit did not specifically cite to her

designated time frame. These facts are not sufficient to contradict the

reasonableness of the ISOO’s search. Nor are they sufficient to prove bad faith.

An agency cannot be required to produce records when none exist. Miller, 779

F.2d at 1384-85. The district court found Mr. Garfinkel’s affidavit sufficient to

cover a search of all time periods, and we believe this is a reasonable construction

of the affidavit. The record contains no reason to doubt that the extensive files

searched constituted a reasonable, if not exhaustive, attempt to uncover relevant

documents. We have carefully reviewed the record on appeal and Ms. Schwarz’s

brief, and we conclude that the district court did not err in granting summary

judgment for defendants.

      We also conclude that the district court did not abuse its discretion in


                                          -4-
requiring each party to bear its own costs. Reasonable attorney’s fees and other

litigation costs under the FOIA are awarded to the prevailing complainant. 5

U.S.C. § 552(a)(4)(E); see also Miller, 779 F.2d at 1389. Ms. Schwarz is thus not

eligible for costs or fees. 1

       Summary judgment is AFFIRMED.

                                      ENTERED FOR THE COURT


                                      Stephanie K. Seymour
                                      Chief Judge




       1
        We note that Ms. Schwarz has failed to allege any factual basis to support
her charges of district court bias or governmental conspiracy, and we therefore
reject these claims summarily.

                                        -5-
