Iturralde, Guillermo v. Compt Curcy ( 2003 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 9, 2002 Decided January 17, 2003
No. 01-5367
Guillermo Felipe DueNas Iturralde,
Appellant
v.
Comptroller of the Currency, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 97cv01519)
Jonathan Cohen argued the cause for appellant. With him
on the briefs were Alexander E. Eagleton and Herbert E.
Milstein.
Peter D. Blumberg, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, and R. Craig Lawrence, Assis-
tant U.S. Attorney. Heather J. Kelly, Assistant U.S. Attor-
ney, entered an appearance.
Before: Ginsburg, Chief Judge, and Rogers and Tatel,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: Guillermo Felipe DueNas Iturralde
appeals the grant of summary judgment to the State Depart-
ment on DueNas's claim that it failed to conduct an adequate
search for documents that he requested under the Freedom
of Information Act, 5 U.S.C. s 552 ("FOIA"). Because Due-
Nas did not preserve a challenge to the sufficiency of the
Department's affidavit and, in attacking the adequacy of the
Department's search, has not presented evidence that would
tend to show that a particular document was in the Depart-
ment's files, we affirm.
I.
DueNas is a retired Ecuadorean admiral who was an execu-
tive of Banco de los Andes and of Banco de los Andes
International, banks that operate in Ecuador and the Carib-
bean island of Montserrat, respectively. When he sought to
purchase a bank in the United States, his application was
rejected by the Office of the Comptroller of the Currency
because DueNas had allegedly not been truthful in revealing
that Banco de los Andes International was under investiga-
tion for money laundering. DueNas subsequently filed a
request under the FOIA for all information relating to him
and Banco de los Andes in possession of the Comptroller, the
Drug Enforcement Agency ("DEA"), and, as later clarified,
the State Department. Dissatisfied with the responses that
he received, DueNas filed suit in the United States District
Court.
After the agencies had produced additional documents, the
district court granted summary judgment, concluding that the
agencies had properly withheld certain documents under the
FOIA exemptions and that the searches for documents had
been adequate. DueNas did not appeal the grant of summary
judgment to the Comptroller and the DEA. In an unpub-
lished order, this court summarily affirmed summary judg-
ment with respect to the State Department's invocation of
various exemptions to justify withholding documents. Thus,
the only issue in this appeal is DueNas's contention that the
State Department did not conduct an adequate search for
various records.
II.
Our review of the district court's grant of summary judg-
ment is de novo. Valencia-Lucena v. United States Coast
Guard, 180 F.3d 321, 326 (D.C. Cir. 1999). At the summary
judgment stage, the agency has the burden of showing that it
complied with the FOIA, id., and in response to a challenge to
the adequacy of its search for requested records the agency
may meet its burden by providing "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 ... were searched." Id. (quoting Ogles-
by v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C.
Cir. 1990)). The plaintiff may then provide "countervailing
evidence" as to the adequacy of the agency's search. Found-
ing Church of Scientology of Washington, D.C., Inc. v. Nat'l
Sec. Agency, 610 F.2d 824, 836 (D.C. Cir. 1979). "[I]f a
review of the record raises substantial doubt, particularly in
view of 'well defined requests and positive indications of
overlooked materials,' summary judgment is inappropriate."
Valencia-Lucena, 180 F.3d at 326 (quoting Founding Church
of Scientology, 610 F.2d at 837) (citation omitted).
DueNas contends that the State Department's search was
inadequate for two reasons: First, the search was inadequate
because the Department concluded that there were no docu-
ments responsive to his FOIA request in the Bureau of
International Narcotics and Law Enforcement Affairs, even
though the Bureau had published in 1993 an International
Narcotics Strategy Report ("1993 Report") that claimed that
Banco de los Andes was involved in money laundering; Due-
Nas attached the relevant pages of the report to one of his
requests to the Department. Second, the search was inade-
quate because the Department initially delayed its search for
documents.
In addressing DueNas's contentions the court is not pre-
sented with a properly preserved challenge to the adequacy
of the State Department's affidavit. At oral argument in this
court DueNas challenged the sufficiency of the affidavit, which
stated conclusorily that the Department had informed DueNas
by letter that a search of the files of the Bureau of Interna-
tional Narcotics and Law Enforcement Affairs had been
conducted, referencing several letters to DueNas. As DueNas
pointed out in oral argument, at no point does the affidavit
state under oath that a search of the files of the Bureau of
International Narcotics and Law Enforcement Affairs was
conducted or describe the nature of that search. Whatever
deficiencies may exist in this affidavit, see Valencia-Lucena,
180 F.3d at 326; Weisberg v. United States Dep't of Justice,
627 F.2d 365, 370 (D.C. Cir. 1980), however, DueNas never
challenged the sufficiency of the affidavit in the district court.
Consequently, any challenge to the adequacy of the Depart-
ment's affidavit is not properly before this court. Nat'l Rifle
Ass'n of Am. v. FEC, 854 F.2d 1330, 1336-37 (D.C. Cir. 1988);
Tarpley v. Greene, 684 F.2d 1, 7 n.17 (D.C. Cir. 1982).
Moreover, DueNas's briefs on appeal state only that the
affidavit was conclusory, without further argumentation or
further elaboration; this is the type of "asserted but unana-
lyzed" contention that is insufficient to preserve the issue on
appeal even if he had raised it in the district court. See SEC
v. Banner Fund Int'l, 211 F.3d 602, 613 (D.C. Cir. 2000)
(quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir.
1983)). We therefore treat the affidavit as sufficient. Again,
the only question on appeal is whether DueNas has provided
sufficient evidence to raise "substantial doubt" concerning the
adequacy of the Department's search. See Valencia-Lucena,
180 F.3d at 326.
DueNas maintains that the State Department initially de-
nied that it had any responsive documents in its files, and
that this denial (later proven false) shows that the Depart-
ment's search was inadequate. However, the record reveals
that the Department's first response to DueNas's FOIA re-
quest was to send a form letter advising DueNas to seek the
materials from the Comptroller and the DEA. Apparently
the Department read his FOIA request only to seek records
from the Comptroller and the DEA, a reasonable conclusion
given DueNas's initial letter to the State Department; only
later did he clarify to the Department that he was also asking
it to search its own records. Once DueNas responded by
letter with a more specific request, referring to the 1993
Report, the Department began its search. In these circum-
stances we conclude that there is no evidence of bad faith by
the Department, particularly in view of the fact that initial
delays in responding to a FOIA request are rarely, if ever,
grounds for discrediting later affidavits by the agency. See,
e.g., Meeropol v. Meese, 790 F.2d 942, 952 (D.C. Cir. 1986);
Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 772 (D.C.
Cir. 1981).
DueNas maintains further that the inadequacy of the search
is obvious in light of the fact that the Department failed to
find the 1993 Report referring to one of DueNas's banks as
being involved in money laundering. DueNas characterizes
this fact as a "positive indication[ ] of overlooked materials"
under Valencia-Lucena, especially since in correspondence
with the Department he mentioned the 1993 Report in seek-
ing associated documents. Arguably, such a "well defined
request" would make a court wary of summary judgment for
the government. Valencia-Lucena, 180 F.3d at 326. But it
is long settled that the failure of an agency to turn up one
specific document in its search does not alone render a search
inadequate. See Nation Magazine v. United States Customs
Serv., 71 F.3d 885, 892 n.7 (D.C. Cir. 1995); Meeropol, 790
F.2d at 952-54; see also Maynard v. CIA, 986 F.2d 547, 564
(1st Cir. 1993); Miller v. United States Dep't of State, 779
F.2d 1378, 1384-85 (8th Cir. 1986). Rather, 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. Steinberg v. Dep't of Justice, 23 F.3d
548, 551 (D.C. Cir. 1994). After all, particular documents
may have been accidentally lost or destroyed, or a reasonable
and thorough search may have missed them. Miller, 779
F.2d at 1384-85; see also Goland v. CIA, 607 F.2d 339, 353
(D.C. Cir. 1978).
In certain circumstances, a court may place significant
weight on the fact that a records search failed to turn up a
particular document in analyzing the adequacy of a records
search. See Krikorian v. Dep't of State, 984 F.2d 461, 468
(D.C. Cir. 1993). However, DueNas fails to offer evidence of
circumstances sufficient to overcome an adequate agency
affidavit. DueNas does not maintain that the Department
failed to search particular offices or files where the document
might well have been found. See Valencia-Lucena, 180 F.3d
at 327; Krikorian, 984 F.2d at 468. Neither does he main-
tain that the Department failed or refused to interview gov-
ernment officials for whom there was strong evidence that
they might have been helpful in finding the missing docu-
ments. See Valencia-Lucena, 180 F.3d at 327-28. Nor does
he maintain that the Department ignored indications in docu-
ments found in its initial search that there were additional
responsive documents elsewhere. See Campbell v. United
States Dep't of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998). In
addition, DueNas does not point to evidence that would indi-
cate that at the time the Department searched its files there
was reason to believe that the 1993 Report was in those files.
Thus, this case is unlike Oglesby v. United States Dep't of the
Army, 79 F.3d 1172, 1185 (D.C. Cir. 1996), where there was
evidence in a published book that the agency had produced
records in response to a FOIA request by another individual,
or Founding Church of Scientology, 610 F.2d at 834, where
the court relied on the distribution of responsive documents
by the agency to other agencies. Further, in those cases, the
adequacy of the agency affidavits was at issue and the
affidavits were determined to be inadequate for purposes of
summary judgment. See Oglesby, 79 F.3d at 1185; Founding
Church of Scientology, 610 F.2d at 834-37. In short, "[m]ere
speculation that as yet uncovered documents may exist does
not undermine the finding that the agency conducted a rea-
sonable search for them." Safecard Servs., Inc. v. SEC, 926
F.2d 1197, 1201 (D.C. Cir. 1991); see also Meeropol, 790 F.2d
at 953-54.
Accordingly, we affirm the grant of summary judgment to
the Department.