Message
×
loading..

Aguiar v. Drug Enforcement Administration , 865 F.3d 730 ( 2017 )


Menu:
  •  United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued February 8, 2017                Decided August 4, 2017
    No. 16-5029
    STEPHEN AGUIAR,
    APPELLANT
    v.
    DRUG ENFORCEMENT ADMINISTRATION,
    APPELLEE
    Appeal from the United States District Court
    for the District of Columbia
    (No. 1:14-cv-00240-ESH)
    Masha Godina Hansford, appointed by the court, argued
    the cause as amicus curiae in support of appellant. With her on
    the briefs was Kannon K. Shanmugam.
    Johnny H. Walker III, Assistant U.S. Attorney, argued
    the cause for appellee. With him on the brief was R. Craig
    Lawrence, Assistant U.S. Attorney. Caitlin O. Trujillo,
    Assistant U.S. Attorney, entered an appearance.
    Before: GARLAND, Chief Judge, and ROGERS and
    MILLETT, Circuit Judges.
    -2-
    Opinion for the court filed by Chief Judge GARLAND.
    GARLAND, Chief Judge: After he was convicted of
    narcotics offenses, Stephen Aguiar filed several Freedom of
    Information Act requests for materials relating to his
    investigation by the Drug Enforcement Administration (DEA).
    The DEA denied two of the requests, saying that software
    Aguiar identified was not an agency record and that copies of
    administrative subpoenas he wanted could not be located. The
    district court granted the DEA’s motion for summary judgment
    as to both requests. Because the government’s declarations were
    insufficient to support summary judgment in its favor, we vacate
    the judgment and remand for further proceedings.
    I
    In 2009, the Drug Enforcement Administration joined a
    criminal investigation of a drug-trafficking ring involving
    Aguiar. During the investigation, the DEA installed a Global
    Positioning System (GPS) tracker on at least one of his cars.
    Agents used software to monitor the tracker and to visualize
    tracking data on satellite maps. Around the same time, agents
    issued administrative subpoenas seeking Aguiar’s telephone and
    financial records. The investigation ultimately led to Aguiar’s
    conviction on drug-trafficking charges, which the Second
    Circuit affirmed in December 2013. See United States v.
    Aguiar, 
    737 F.3d 251
    , 265 (2d Cir. 2013).
    While his direct appeal in the Second Circuit was pending,
    Aguiar made Freedom of Information Act (FOIA) requests
    seeking materials from the investigation. Two requests are at
    issue here.
    First, Aguiar requested “all tracking information collected
    via GPS devices attached to my vehicles,” along with “all . . .
    proprietary software associated with that information.” Letter
    from Stephen Aguiar to DEA (Aug. 19, 2013) (J.A. 102). In
    response to that request, the DEA gave Aguiar a printed copy of
    -3-
    spreadsheets listing latitude and longitude coordinates captured
    by the GPS tracker that was attached to his Subaru Impreza.
    Unsatisfied with these spreadsheets, which he found difficult to
    interpret, Aguiar renewed his request for a copy of the software
    the DEA used to visualize GPS coordinates on maps. In case the
    DEA again refused to give him the software, Aguiar asked in the
    alternative for images of the coordinates plotted onto satellite
    maps. Letter from Stephen Aguiar to U.S. Dep’t of Justice (Apr.
    1, 2014) (J.A. 139). The DEA did not provide either the
    software or the map images.
    Second, Aguiar requested four specific administrative
    subpoenas that the DEA issued during its investigation. The
    agency responded that it had already searched for them to no
    avail. A few months before Aguiar’s request for the four
    subpoenas, Aguiar had made several broader FOIA requests,
    including one for “any administrative subpoena” issued from the
    DEA’s Burlington, Vermont office during the investigation.
    Letter from Stephen Aguiar to DEA (Aug. 1, 2013) (J.A. 101).
    In response to those earlier requests, the DEA conducted a
    search that it said would have located the four subpoenas that
    Aguiar later specified.
    In particular, according to a declaration from the chief of
    the DEA’s FOIA unit, Katherine Myrick, Aguiar’s earlier
    requests “were construed as seeking,” among other records,
    “administrative subpoenas . . . pertaining to [Aguiar].” Decl. of
    Katherine L. Myrick at 16 (Apr. 7, 2015) (J.A. 165) (“First
    Myrick Declaration”). The declaration described how the
    agency searched one of its record systems to locate two relevant
    case files. 
    Id. at 18-19
    (J.A. 167-68). In describing the search
    within those case files, however, all the declaration said was that
    the “Burlington Resident Office was tasked with conducting a
    search of the two (2) files for all records related to [Aguiar] to
    include all investigative reports [and] administrative
    -4-
    subpoenas.” 
    Id. at 19
    (J.A. 168). The DEA did not find the four
    specific subpoenas Aguiar requested.
    In 2014, Aguiar, acting pro se, filed a FOIA complaint in
    the United States District Court for the District of Columbia,
    challenging the DEA’s failure to release the GPS mapping
    software, map images of the GPS data, the four administrative
    subpoenas, and additional materials no longer at issue. The
    DEA filed a motion for summary judgment, accompanied by
    Myrick’s declaration describing the agency’s search.
    After briefing from both sides, the district court ordered the
    DEA to file a supplemental declaration identifying the “software
    used by the DEA to create images from the GPS tracking data,
    the nature of the DEA’s license to use that software,” and any
    applicable FOIA exemption. Aguiar v. DEA, Civ. No. 14-
    02401, slip op. at 2 (July 20, 2015). The court instructed that
    the supplemental declaration should also explain whether the
    DEA’s search encompassed the four specific subpoenas Aguiar
    requested. 
    Id. In response,
    Myrick filed a supplemental
    declaration that did not address the software at all, although the
    accompanying Notice of Compliance explained that counsel for
    the DEA believed the software was licensed only for official
    purposes. See Supp. Decl. of Katherine L. Myrick (Sept. 8,
    2015) (J.A. 199) (“Second Myrick Declaration”); Notice of
    Compliance at 4 n.5 (Sept. 9, 2015). The declaration did say,
    however, that Aguiar’s request for the four subpoenas “was
    duplicative of his earlier requests,” and that the “previous
    searches would have uncovered all subpoena related
    information.” See Second Myrick Declaration at 4 (J.A. 202).
    The district court then granted summary judgment to the
    DEA on all issues except Aguiar’s request for the software. As
    to Aguiar’s alternative request for map images, the district court
    held that producing those images would require creating a new
    record, which FOIA does not compel. As to the subpoenas, the
    -5-
    court held that the DEA had discharged its FOIA obligations by
    performing an adequate search.
    Regarding the software, however, the court found that the
    record was still insufficient. Invited to supplement the record
    again, the agency submitted another declaration, this time stating
    that it had searched two DEA offices but concluded that it “was
    not in possession or control of any system or software that was
    responsive to [Aguiar’s] request.” Supp. Decl. of Katherine L.
    Myrick at 3 (Nov. 10, 2015) (J.A. 223) (“Third Myrick
    Declaration”). The district court accepted this declaration as
    proving that the software “is not an agency record,” and granted
    summary judgment to the DEA on the software issue. Aguiar v.
    DEA, Civ. No. 14-02401, slip op. at 2 (Nov. 24, 2015).
    Still acting pro se, Aguiar appealed the grant of summary
    judgment. We appointed an amicus curiae to present arguments
    in support of Aguiar’s position. For purposes of this opinion,
    we will attribute to Aguiar the arguments made by the amicus
    because Aguiar filed a statement expressly joining in those
    arguments.
    II
    We review the district court’s grant of summary judgment
    de novo. See Judicial Watch, Inc. v. U.S. Secret Serv., 
    726 F.3d 208
    , 215 (D.C. Cir. 2013). A court may grant summary
    judgment only if there is “no genuine dispute as to any material
    fact and the movant is entitled to judgment as a matter of law.”
    FED. R. CIV. P. 56(a). “In FOIA cases, ‘summary judgment may
    be granted on the basis of agency affidavits if they contain
    reasonable specificity of detail rather than merely conclusory
    statements, and if they are not called into question by
    contradictory evidence in the record or by evidence of agency
    bad faith.’” Judicial 
    Watch, 726 F.3d at 215
    (quoting Consumer
    Fed’n of Am. v. Dep’t of Agric., 
    455 F.3d 283
    , 287 (D.C. Cir.
    2006)). We must draw “all justifiable inferences” in favor of the
    -6-
    non-movant, Aguiar. Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 255 (1986).
    A
    We begin with Aguiar’s request for a copy of the GPS
    mapping software that was used to track his movements and
    about which a DEA agent testified at Aguiar’s trial. The DEA
    contends that the software is not subject to disclosure under
    FOIA, which empowers district courts to order the production
    of any “agency records improperly withheld.” 5 U.S.C.
    § 552(a)(4)(B). “The burden is on the agency to demonstrate,
    not the requester to disprove, that the materials sought are not
    ‘agency records’ or have not been ‘improperly’ ‘withheld.’”
    U.S. Dep’t of Justice v. Tax Analysts, 
    492 U.S. 136
    , 142 n.3
    (1989).
    Although FOIA does not define “agency records,” the
    Supreme Court and this court have identified limits on what
    documents come within the term. It “extends only to those
    documents that an agency both (1) ‘create[s] or obtain[s],’ and
    (2) ‘control[s] . . . at the time the FOIA request [was] made.’”
    Judicial 
    Watch, 726 F.3d at 216
    (alterations and emphasis in
    original) (quoting Tax 
    Analysts, 492 U.S. at 144-45
    ). To
    determine whether a document satisfies those requirements, “we
    must ‘focus[] on a variety of factors surrounding the creation,
    possession, control, and use of the document.’” 
    Id. at 217
    (quoting Consumer 
    Fed’n, 455 F.3d at 287
    ). In particular, to
    determine “whether an agency has sufficient ‘control’ over a
    document to make it an ‘agency record,’” this court usually
    examines four factors:
    [1] the intent of the document’s creator to retain or
    relinquish control over the records; [2] the ability of
    the agency to use and dispose of the record as it sees
    fit; [3] the extent to which agency personnel have read
    or relied upon the document; and [4] the degree to
    -7-
    which the document was integrated into the agency’s
    record system or files.
    
    Id. at 217
    (quoting Tax Analysts v. U.S. Dep’t of Justice, 
    845 F.2d 1060
    , 1069 (D.C. Cir. 1988), aff’d on other grounds, 
    492 U.S. 136
    (1989)). Courts have also elaborated on the term
    “withheld,” explaining that an agency can “withhold” a record
    only if it has “possession or control” of it. Kissinger v.
    Reporters Comm. for Freedom of the Press, 
    445 U.S. 136
    , 151
    (1980); see DiBacco v. U.S. Army, 
    795 F.3d 178
    , 192 (D.C. Cir.
    2015).
    The DEA’s principal argument on appeal is that it simply
    “does not have the requested software.” DEA Br. 12. To
    establish that proposition, the DEA relies solely on the third
    declaration Katherine Myrick filed in the district court. That
    declaration states that the agency interpreted Aguiar’s request
    “as seeking software in the possession and control of DEA that
    would allow the inputting [of] longitude and latitude and display
    the information on a map.” Third Myrick Declaration 2 (J.A.
    222). The agency searched two DEA offices, the declaration
    says, and concluded that it “was not in possession or control of
    any system or software that was responsive to [Aguiar’s]
    request.” 
    Id. at 3
    (J.A. 223).
    The DEA asks us to read that statement to mean that the
    DEA searched for the software and -- as a matter of fact -- found
    nothing. But that is not what it says. It says only that the DEA
    “was not in possession or control” of any responsive software --
    which is a legal assertion, and a conclusory one at that. By
    using that legal language, the declaration appears to conclude as
    a matter of law that the software is not in the agency’s
    “possession or control,” rather than to explain as a matter of fact
    that the software was not found. Even if that is not the only
    reasonable interpretation of the declaration, we must view it in
    that light -- the one most favorable to Aguiar, the non-moving
    party -- on summary judgment. See 
    Anderson, 477 U.S. at 255
    .
    -8-
    Moreover, the DEA’s factual assertion on appeal -- [1] that
    it “does not have the requested software” -- conflicts with
    multiple statements the agency made in the district court that
    suggested familiarity with the software and its location. In those
    statements, the DEA told the court that: [2] the software is
    “licensed proprietary software,” Mem. in Supp. of Def.’s Mot.
    for Summ. J. at 28 n.8; [3] the software is “generic or
    prefabricated right out of the box and available to others in the
    open marketplace,” Reply to Pl.’s Opp. to Def.’s Mot. for
    Summ. J. at 10; [4] the DEA “is unsure whether the software is
    licensed, purchased, or used through another methodology,” but
    “upon information and belief the [DEA] believes the software is
    licensed to the DEA only for official government purposes,”
    Notice of Compliance at 4 n.5; and [5] “the DEA has identified
    many end users of GPS tracking software,” 
    id. at 6.
    Moreover,
    although Myrick’s third declaration concludes that the “DEA
    was not in possession or control of any system or software that
    was responsive to [Aguiar’s] request,” it acknowledges that [6]
    the “DEA does contract for a service that allows for viewing the
    location of a GPS tracking device[] on a geodetic map computer
    image.” Third Myrick Declaration 3 (J.A. 223).
    Asked at oral argument to reconcile these six divergent
    descriptions, DEA counsel instead tacked on a seventh:
    [7] There is a third party vendor that supplies a . . .
    complex system, seemingly involving multiple
    different types and installations of software . . . which
    has the capability of receiving data from GPS devices
    . . . . An agent at the DEA can then access those third-
    party servers, which likely have some kind of software
    on them to control and organize this data, in order to
    track those GPS devices in real time.
    Oral Arg. Recording 30:28 - 31:05.
    -9-
    Presented with these seven inconsistent descriptions, we do
    not know how to square the heptagon. It may be that DEA is
    saying it does not possess the software in the physical sense.
    But that would not necessarily end the matter because a record
    can be under an agency’s control even if not physically held by
    the agency. In Burka v. U.S. Department of Health & Human
    Services, for example, we held that, although the requested
    records were “neither created by agency employees, nor . . .
    located on agency property,” the agency had a close enough
    relationship with the records to give the agency “constructive
    control” over them. 
    87 F.3d 508
    , 515 (D.C. Cir. 1996); see also
    Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 
    827 F.3d 145
    , 150 (D.C. Cir. 2016) (holding that emails, although
    stored on a private organization’s server, could nonetheless be
    “agency records” if the agency retained “possession and
    control”).
    Or it may be that the DEA is saying the converse: that it
    does not legally control the records even though they are
    physically located on the agency’s premises. In Kissinger v.
    Reporters Committee for Freedom of the Press, for example,
    although notes Henry Kissinger made at the White House were
    stored in his office at the State Department, the Supreme Court
    held that they “were not in the control of the State Department
    at any time” and so were never State Department “agency
    
    records.” 445 U.S. at 157
    ; cf. Goland v. CIA, 
    607 F.2d 339
    ,
    346-47 (D.C. Cir. 1978) (holding that an “agency’s possession
    of a document, standing alone,” does not “dictate[] that it is an
    ‘agency record,’” and instead courts must evaluate “whether
    under all the facts of the case” it has come within the agency’s
    control).
    As an alternative to its contention on appeal that it does not
    have the requested software, the DEA argues that the record
    contains sufficient facts to establish, as a legal matter, that it did
    not “obtain[]” and does not “control[]” the software. Judicial
    -10-
    
    Watch, 726 F.3d at 216
    . The DEA bears the burden of proving
    either proposition, see Tax 
    Analysts, 492 U.S. at 142
    n.3, and
    must do so beyond material factual dispute, see FED. R. CIV. P.
    56(a).
    The DEA cannot satisfy that burden for the same reason
    discussed above: these are fact-intensive inquiries, yet the
    record is at once devoid of actual evidence about the software
    and replete with inconsistent descriptions of it. The DEA does
    not explain where the software is located, what arrangement it
    has with the software’s creator, how it uses the software, and
    why those circumstances amount to something short of
    obtaining and controlling the software. At best, the agency asks
    the court to speculate about “the likelihood that the software
    described by” a DEA agent at Aguiar’s trial “need not have been
    ‘obtained’ to be used by the DEA.” But it acknowledges that the
    record “does not speak directly to” the legal factors governing
    control. DEA Br. 17-18.
    At bottom, we simply do not know enough about the
    software to credit either of the DEA’s arguments: that it does
    not have the software, or that it did not “obtain” and does not
    “control” the software in a way that satisfies the legal definition
    of an “agency record.” The district court repeatedly invited the
    DEA to shed light on these questions by supplementing the
    record. Because the agency declined those invitations, material
    questions of fact remain. As a consequence, the DEA is not
    entitled to summary judgment on this issue.
    B
    Aguiar also contends that, if he is not entitled to a copy of
    the software, then he should at least receive the GPS tracking
    data visualized “as images plotted on a map.” Amicus Br. 19.
    The DEA, which has already given him that data as coordinates
    in a spreadsheet, protests that creating maps would constitute
    creating new agency records, which FOIA does not require. See
    -11-
    Yeager v. DEA, 
    678 F.2d 315
    , 321 (D.C. Cir. 1982). Aguiar
    responds that FOIA entitles him to the agency record in his
    preferred format, see 5 U.S.C. § 552(a)(3)(B), and that maps are
    merely another format of the GPS tracking data.
    Aguiar presents this argument as a “fallback position,”
    Amicus Br. 32, with respect to his request for a copy of the GPS
    mapping software. Because we vacate the district court’s grant
    of summary judgment on that request and remand for further
    proceedings, it remains possible that Aguiar will prevail in
    seeking the software. Accordingly, reaching Aguiar’s fallback
    request today would be premature. If the district court again
    enters judgment against Aguiar, he can bring another appeal.
    C
    The remaining FOIA request at issue is for four
    administrative subpoenas, which the DEA searched for but did
    not find. Contending that its search was adequate to discharge
    its FOIA obligations, the DEA sought and the district court
    granted summary judgment. We vacate and remand for further
    proceedings on this issue as well.
    The agency is entitled to summary judgment only if it
    “show[s] beyond material doubt that it has conducted a search
    reasonably calculated to uncover all relevant documents.”
    Morley v. CIA, 
    508 F.3d 1108
    , 1114 (D.C. Cir. 2007) (quoting
    Weisberg v. U.S. Dep’t of Justice, 
    705 F.2d 1344
    , 1351 (D.C.
    Cir. 1983)). To meet that burden, the agency may submit, and
    we may rely on, “reasonably detailed affidavit[s], 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.” 
    DiBacco, 795 F.3d at 188
    (quoting Valencia-Lucena v. U.S. Coast Guard, 
    180 F.3d 321
    ,
    326 (D.C. Cir. 1999)). But “if a review of the record raises
    substantial doubt, particularly in view of well defined requests
    and positive indications of overlooked materials,” then we must
    -12-
    deny summary judgment. 
    Id. (quoting Valencia-Lucena,
    180
    F.3d at 326).
    Here, the DEA’s declarations described its search in the
    following way. The DEA construed Aguiar’s request to include
    “all criminal investigative records, including administrative
    subpoenas, pertaining to or referencing [Aguiar] by name.”
    Second Myrick Declaration 2 (J.A. 200). The agency believed
    that “[a]ny administrative subpoena maintained by DEA was
    reasonably likely to be found in an investigative case file
    maintained in the DEA Investigative Reporting and Filing
    System (IRFS),” 
    id., and that
    “no other record systems are
    reasonably likely to contain” the subpoenas, First Myrick
    Declaration 17 (J.A. 166). The agency identified two relevant
    investigative case files in IRFS, using Aguiar’s biographical
    details and an agency database. First Myrick Declaration 18
    (J.A. 167). Then, “[t]he Burlington Resident Office was tasked
    with conducting a search of [those] files for all records related
    to [Aguiar] to include all . . . administrative subpoenas.” 
    Id. at 19
    (J.A. 168). This search turned up several subpoenas, but not
    the four Aguiar specifically requested.
    1. The DEA’s declarations explain how it found the two
    case files, but not how it searched within those files. All they
    say is that one DEA office “was tasked with conducting a
    search” of the files for subpoenas. 
    Id. That is
    little different
    than the affidavit we encountered in DeBrew v. Atwood, which
    described only the agency employees to whom the search “was
    assigned,” “why they were chosen,” and what they found. 
    792 F.3d 118
    , 122 (D.C. Cir. 2015). That description, we held, was
    “not sufficiently detailed to support a summary judgment
    because it does not disclose the search terms . . . and the type of
    search performed.” Id.; see Weisberg v. U.S. Dep’t of Justice,
    
    627 F.2d 365
    , 370 & n.49 (D.C. Cir. 1980) (holding that an
    affidavit that “merely states the fact that [an employee] searched
    and expresses his conclusion that the files contain nothing
    -13-
    [responsive]” “gives no detail as to the scope of the examination
    and thus is insufficient as a matter of law”); see also 
    Morley, 508 F.3d at 1122
    (holding that an affidavit that “merely
    identifies the [agency components] that were responsible for
    finding responsive documents without identifying the terms
    searched or explaining how the search was conducted in each
    component” could not justify summary judgment (internal
    quotation marks and citation omitted)).
    On appeal, the DEA suggests that there was little more it
    could have said about the search of the case files: “[T]here was
    no further ‘methodology’ to undertake other than to go through
    those files and see if any records therein were responsive.”
    DEA Br. 27. The implication of this statement is that the files
    consisted of physical documents, each of which the Burlington
    Resident Office examined manually to see if it was a subpoena.
    The existing declarations do not describe the search in that way,
    but if that is so, it would of course resolve the matter, and the
    agency can say so in a new declaration filed with the district
    court. If the files were not susceptible to a manual search of
    every page, however, and particularly if they were electronic,
    then more will need to be said about the manner of the search.
    2. The DEA’s declarations were also inadequate in another
    respect: while they explain how the agency found the two case
    files, they do not explain why the only reasonable place to look
    for the subpoenas was in case files maintained in the IRFS
    system. Although Myrick states that “no other record systems
    are reasonably likely to contain” the subpoenas, she does not say
    why. First Myrick Declaration 17 (J.A. 166). Yet, an agency
    must not only “explain in its affidavit that no other record
    system was likely to produce responsive documents”; it must
    also “show, with reasonable detail,” that the agency’s approach
    “was reasonably calculated to uncover all relevant documents.”
    Oglesby v. U.S. Dep’t of the Army, 
    920 F.2d 57
    , 68 (D.C. Cir.
    1990).
    -14-
    To be sure, the degree of detail required depends on the
    case, and “the adequacy of a FOIA search is generally
    determined not by the fruits of the search, but by the
    appropriateness of the methods used to carry out the search.”
    Iturralde v. Comptroller of the Currency, 
    315 F.3d 311
    , 315
    (D.C. Cir. 2003). Hence, “the failure of an agency to turn up
    one specific document in its search does not alone render a
    search inadequate.” 
    Id. But in
    some cases, failure to find a
    record that once existed, coupled with a conclusory affidavit
    about the methodology of the search, can weaken the agency’s
    claim for summary judgment. See Weisberg v. U.S. Dep’t of
    Justice, 
    627 F.2d 365
    , 370-71 (D.C. Cir. 1980).
    In this case, the search failed to turn up four subpoenas that
    Aguiar specifically requested. There is no dispute that they once
    existed: Aguiar’s declaration states that he saw copies of all
    four subpoenas in 2010, during discovery in his criminal trial,
    and that he also saw that they had been issued by a DEA agent.
    Declaration of Stephen Aguiar 1-2 (May 4, 2015) (J.A. 192-93).
    Not only must we accept that declaration as true in this
    summary-judgment posture, but a DEA agent testified at
    Aguiar’s trial that the subpoenas had been issued. Trial Tr. 68
    (Aug. 4, 2010) (J.A. 9). Moreover, there are grounds to believe
    that the DEA still had the subpoenas near the time Aguiar made
    his FOIA request. At that time, Aguiar’s case was still ongoing:
    the Second Circuit did not resolve his direct appeal until
    December 2013, several months after the DEA conducted its
    search in August 2013.
    Under these circumstances, which include “well defined
    requests and positive indications of overlooked materials,”
    
    DiBacco, 795 F.3d at 188
    (quoting 
    Valencia-Lucena, 180 F.3d at 326
    ), the DEA’s declarations are too sparse to assure the court
    on summary judgment that the search was reasonable. On
    remand, the agency will need to file a new declaration
    explaining why the record system that it queried to produce the
    -15-
    two files was the only one likely to contain the subpoenas. And
    if the two were paper files, it will need to explain why it was
    unlikely that there were additional files, particularly electronic
    files, that could contain the subpoenas.
    ***
    In sum, we conclude that the existing declarations were
    insufficient to explain: (1) why the search within the two case
    files that the IRFS record system identified was reasonably
    calculated to find the subpoenas, and (2) why the DEA thought
    it reasonably likely that the requested subpoenas would only be
    found in case files maintained in IRFS. For these reasons,
    summary judgment for the agency on Aguiar’s request for the
    administrative subpoenas was unwarranted on the current
    record.1
    1
    Aguiar also suggests that the DEA’s search was insufficient
    because the agency failed to contact the agent who originally issued
    the subpoenas for further leads regarding their location. Had Aguiar
    made that suggestion to the agency or to the district court, our analysis
    might be different. But Aguiar never did so, either in his
    correspondence with the DEA or in his filings in the district court.
    Under these circumstances, the agency “is not obliged to look beyond
    the four corners of the request for leads.” Kowalczyk v. Dep’t of
    Justice, 
    73 F.3d 386
    , 389 (D.C. Cir. 1996); cf. Valencia-Lucena v.
    U.S. Coast Guard, 
    180 F.3d 321
    , 325, 327-28 (D.C. Cir. 1999)
    (finding a search inadequate because the agency failed to contact an
    employee who was “a likely source for information about what
    happened to” a missing document and who was named in the FOIA
    request).
    -16-
    III
    Because the DEA has not met its summary-judgment
    burden on either of the two FOIA requests that are before us on
    this appeal, we vacate the judgment and remand for further
    proceedings consistent with this opinion.
    So ordered.
    

Document Info

Docket Number: 16-5029

Citation Numbers: 865 F.3d 730, 2017 WL 3318758, 2017 U.S. App. LEXIS 14344

Judges: Garland, Rogers, Millett

Filed Date: 8/4/2017

Precedential Status: Precedential

Modified Date: 11/5/2024

Authorities (14)

Kissinger v. Reporters Committee for Freedom of the Press , 100 S. Ct. 960 ( 1980 )

Carl Oglesby v. The United States Department of the Army , 920 F.2d 57 ( 1990 )

Valencia-Lucena v. United States Coast Guard , 180 F.3d 321 ( 1999 )

Matthew G. Yeager v. Drug Enforcement Administration , 678 F.2d 315 ( 1982 )

Consum Fed Amer v. AGRI , 455 F.3d 283 ( 2006 )

Anderson v. Liberty Lobby, Inc. , 106 S. Ct. 2505 ( 1986 )

robert-a-burka-v-united-states-department-of-health-and-human-services , 87 F.3d 508 ( 1996 )

Harold Weisberg v. United States Department of Justice , 627 F.2d 365 ( 1980 )

GUILLERMO FELIPE DUEÑAS ITURRALDE v. COMPTROLLER OF THE ... , 315 F.3d 311 ( 2003 )

Chester Kowalczyk v. Department of Justice , 73 F.3d 386 ( 1996 )

Susan D. Goland and Patricia B. Skidmore v. Central ... , 607 F.2d 339 ( 1978 )

Morley v. Central Intelligence Agency , 508 F.3d 1108 ( 2007 )

Tax Analysts v. United States Department of Justice , 845 F.2d 1060 ( 1988 )

United States Department of Justice v. Tax Analysts , 109 S. Ct. 2841 ( 1989 )

View All Authorities »