Keerut Singh v. Faa ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 4 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEERUT SINGH, No. 18-35303
Plaintiff-Appellant, D.C. No. 2:17-cv-00822-RAJ
v.
MEMORANDUM*
FEDERAL AVIATION
ADMINISTRATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Submitted October 31, 2019**
Before: FARRIS, O'SCANNLAIN, and TROTT, Circuit Judges.
Keerut Singh appeals from the district court’s grant of summary judgment in
favor of the Federal Aviation Administration (FAA). The facts are known to the
parties, so we do not repeat them here.
I
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Singh claims that the district court did not properly interpret his request for
“[a]ny and all records of aircraft[] flown in Snohomish County, WA over address
13910 12th Dr SE Mill Creek, WA 98012 and surrounding neighborhoods . . . .”
According to Singh, the FAA should have liberally interpreted his request as asking
for records of aircraft flying throughout all of Snohomish County, WA—not just
over or near his residential address and the surrounding neighborhoods.
The Freedom of Information Act (FOIA), 5 U.S.C. § 552, requires agencies
to interpret requests liberally in favor of disclosure. Yagman v. Pompeo, 868 F.3d
1075, 1080 (9th Cir. 2017). However, even under the most liberal reading, the text
of Singh’s FOIA request plainly does not support Singh’s preferred interpretation.
II
Singh argues that the FAA violated FOIA because it did not conduct a
physical search of its records. But Singh misunderstands the requirements of FOIA.
After receiving a FOIA request, an agency must perform a reasonable search. 5
U.S.C. § 552(a)(3)(C); Hamdan v. U.S. Dep’t of Justice, 797 F.3d 759, 770 (9th Cir.
2015). An agency can establish that it conducted a reasonable search through
“reasonably detailed, nonconclusory affidavits submitted in good faith.” Zemansky
v. U.S. 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)).
Here, the FAA submitted affidavits from three employees explaining in detail
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the agency’s response to Singh’s request. The FAA narrowed its search down to the
facility that was most likely to have responsive records. It then concluded that no
FAA records were likely be responsive to the request because, as a categorical
matter, the FAA typically did not collect information regarding an aircraft’s location
in relation to a residential address or neighborhood. At this point, the FAA
reasonably ended its search because any additional efforts to look for relevant
information would have likely proven futile. Expecting the FAA to take additional
steps—such as individually examining each document maintained at the facility—
would be unreasonable. Thus, the FAA established that it conducted a reasonable
search in response to Singh’s request.
According to Singh, the affidavits demonstrate that the FAA acted in bad faith
because the FAA acknowledges that its records contain geographic information,
such as flight routes. Singh alleges the FAA could have used this geographic data to
piece together information that was responsive to Singh’s request. However, FOIA
does not require agencies to create new records. Kissinger v. Reporters Comm. for
Freedom of the Press, 445 U.S. 136, 152 (1980). Even if the FAA could, as a
technical matter, do what Singh is asking, it would have to review its records and
create a new document, which is beyond what FOIA mandates.
III
The FAA properly interpreted Singh’s FOIA request, and it conducted a
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reasonable search for responsive records. Therefore, the district court did not err in
granting summary judgment in favor of the FAA.
AFFIRMED.
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