Liberation Newspaper v. U.S. Department of State , 80 F. Supp. 3d 137 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LIBERATION NEWSPAPER,
Plaintiff,
Civil Action No. 13-cv-0836 (BAH)
v.
Judge Beryl A. Howell
U.S. DEPARTMENT OF STATE,
Defendant.
MEMORANDUM OPINION
The plaintiff, Liberation Newspaper, filed a request for documents with the defendant,
the Department of State, under the Freedom of Information Act (“FOIA”), 5 U.S.C. 552 et seq.
seeking records pertaining to possible payments made to journalists by the United States
government during the course of the criminal prosecution of five individuals convicted of being
Cuban intelligence agents. 1 See Compl., ECF No. 1. Pending before the Court is the
defendant’s motion to dismiss or, in the alternative, for summary judgment, ECF No. 21. For the
reasons stated below, the defendant’s motion is granted. 2
1
The defendants are known colloquially as the “Cuban 5,” see Compl. ¶ 3, and have since been returned to Cuba.
See Karen DeYoung, Obama Moves to Normalize Relations with Cuba as American is Released by Havana,
WASHINGTON POST (December 17, 2014).
2
As part of its motion, the defendant has filed a motion to dismiss the plaintiff’s request for expedited processing for
lack of subject matter jurisdiction. Under 5 U.S.C. §552(a)(6)(E)(iv), a court lacks subject matter jurisdiction “to
review an agency denial of expedited processing of a request for records after the agency has provided a complete
response to the request.” The defendant maintains that it has made a complete response to the request, and, for the
reasons stated below, the Court determines that the defendant’s response was adequate. Accordingly, the request for
expedited processing is moot and this Court no longer maintains jurisdiction to consider the claim. See Muttitt v.
Dep’t of State, 926 F. Supp. 2d 284, 296 (D.D.C. 2013) (“Once an agency has made its final determination under §
552(a)(6)(A), the timeliness of that determination is no longer a live controversy fit for judicial review.” (emphasis
in original)). The defendant’s motion to dismiss the request for expedited processing for lack of jurisdiction is
granted.
1
I. BACKGROUND
The plaintiff brought this FOIA action to obtain documents from the defendant dating
from January 1998 through December 2002 and relating to alleged contracts between the United
States government and ninety Miami journalists who covered the trial of five individuals
convicted of acting and conspiring to act as unregistered Cuban intelligence agents and for
conspiring to commit murder. 3 See Compl. ¶¶ 1-3, 33; United States v. Campa, 459 F.3d 1121(11th Cir. 2006). According to the plaintiff, these contracts could provide evidence that the
United States paid journalists to spread propaganda domestically and influence public opinion
regarding the accused’s trial. Compl. ¶¶ 4-5, 7. Specifically, the plaintiff alleges that the United
States Information Agency (“USIA”), the Broadcasting Board of Governors, and the Office of
Cuba Broadcasting engaged in “covert payments” to certain nominally independent Miami
journalists in order to influence public opinion regarding the trial. Id. ¶ 4.
To obtain information regarding these alleged payments, the plaintiff submitted FOIA
requests to the defendant, the Department of State, and to the Broadcasting Board of Governors. 4
Although the USIA was originally a separate entity from the defendant, the USIA was abolished
in 1999 and portions of the agency were subsumed by the defendant. See 22 U.S.C. § 6531. The
plaintiff requested “any and all contracts in the possession or control of the Department of State
regarding all grants, payments, purchase orders and/or obligations of funds to be transferred” to
ninety journalists during the period of January 1998 through December 2002. Compl. ¶ 32. The
plaintiff also requested expedited processing of the request, which was denied. Id. ¶ 60. Nearly
three years after the original request, and after receiving no documents from the defendant, the
plaintiff brought this action in order to obtain the requested materials. Id. ¶¶ 90–91
3
Although the plaintiff’s Complaint states that the FOIA request specified forty-four journalists, a review of the
request reveals the request to specify ninety journalists. See Ex. 1, Decl. of Sheryl L. Walter, ECF No. 17-2.
4
The request to the Broadcasting Board of Governors yielded “some responsive information.” Compl. ¶ 12.
2
The Court issued a scheduling order requiring the defendant to “complete a search
reasonably likely to yield all responsive records in its possession, custody or control” and set a
schedule for the production of discovered documents. See Minute Order (August 27, 2013).
Consistent with the Court’s Order, and as outlined in the three detailed declarations submitted by
the defendant during the course of this litigation, the defendant searched for responsive
documents. See Decl. of Sheryl L. Walter (“Walter Decl.”), ECF No. 17-1; Second Decl. of
Sheryl L. Walter (“Second Walter Decl.”), ECF No. 21-4; Decl. of John F. Hackett (“Hackett
Decl.”), ECF No. 25-1.
First, the defendant identified the sources of potentially relevant electronic and physical
records. The defendant identified records systems for the entire Department of State as well as
records systems pertaining to specific individual divisions within the Department of State. 5
Once identified, the defendant spoke with the relevant authorities within the Department of State
on how best to search their record systems. In consultation with these authorities, the defendant
searched the relevant records repositories, including some records maintained previously by the
USIA but now in the custody of the defendant. These searches and the criteria employed are laid
out in the following table:
5
After discussing the FOIA request with records officials from the Bureau of Educational and Cultural Affairs and
the Office of Acquisitions Management—two of the branches initially identified as potentially having responsive
records—the defendant determined that “it was not reasonably likely” that such branches would maintain records
related to the request. The Bureau of Education and Cultural Affairs was deemed unlikely to have responsive
materials because its mission is “to build friendly, peaceful relations between the people of the United States and the
people of other countries through academic, cultural, sports, and professional exchanges, as well as public-private
partnerships.” See Second Walter Decl. ¶¶ 6–7. Likewise, the Office of Acquisitions Management was deemed
unlikely to have responsive materials because its mission related to contracts for “supplies, equipment and services,
construction of overseas facilities, IT services and equipment, residential and office furniture, safety and security
services and equipment, and maintenance.” Id. ¶ 12. Accordingly, both systems were not searched by the
defendant. This decision is not disputed by the plaintiff.
3
Office Records System Search Criteria
USIA Retired Records Manual Search 6
Department of State Retired Record Inventory Names of 90 Journalists, 7
Management System “Miami Five,” “Cuban Five,”
“Journalist,” “Payments,”
“Contracts,” “Cuba”
Department of State Central Foreign Policy Names of 90 Journalists 8
Records (“Central File”)
Office of the Legal Adviser Legal Adviser Content Server “Contract,” “Broadcasting
and Paper Records Board,” “BBG,” “Cuba
Broadcasting,” “OCB,”
“Cuban Five”
Bureau of Western Network Drive; individual “independent journalism,”
Hemisphere Affairs email accounts; and paper “ESF,” “Economic Support
records Funds,” “EAID,” “Foreign
Assistance,” “Miami Five,”
“Cuban Five”
After conducting these searches, the defendant determined that it had completed its
search efforts and that it maintained no documents responsive to the plaintiff’s request. See
6
As discussed below, see infra part III, the USIA’s retired records contain written descriptions summarizing the
materials contained in the records. The defendant reviewed all summary descriptions for documents from the
relevant time period. See Walter Decl. ¶¶ 11–14; Hackett Decl. ¶¶ 8–9.
7
The defendant searched using the names of all ninety journalists as individual searches. The journalists were:
Raul Ferreira, Pablo Alfonso, Gail Epstein Nieves, Alfonso Chardy, Wilfredo Cancio Isla, Olga Connor, Alejandro
Armengol, Enrique Encinosa, Juan Manuel Cao, Armando Perez Roura, Ninoska Perez Castellon, Ramon Bonachea,
Lourdes D'Kendall, Diego Suarez, Alberto Hernandez, Ariel Ramos, Miguel Cossio, Carlos Alberto Montaner,
Roberto Martin Perez, Helen Aguirre Ferre, Roberto Martinez Sixto, Elio Oliva, Oscar Haza, Jose Basulto, Ramon
Saul Sanchez, Nelson Rubio, Bernadette Pardo, Eduardo Gonzalez Rubio, Humberto Cortina, Jose Alfonso Almora,
Reinaldo Aquit, Ivette Leyva, Barbara Bermudo, Agustin Acosta, Rodrigo Alonzo, Carlos Barba, Armando Alvarez
Bravo, Liz Balmaseda, Vanessa Bauzá, Guillermo Benites, Reinaldo Bragado Bretaña, Carlos Castañeda, Armando
Correa, Cynthia Corzo, Paul Crespo, Vivian Crucet, Ena Curnow, Elaine De Valle, Julio Estorino, Roberto Fabricio,
Tomás García Fuste, Lisette García García, Manny García, Mario Llerena, Marika Lynch, Javier Lyonnet, Luis
Felipe Marsans, Lydia Martin, Ramón Mestre, Ruth Montaner, Daniel Morcate, Leonel Morejón Almagro, Alberto
Múller, Olance Nogueras, Damarys Ocana, Casto Ocando, Sara Okon, Rafael Orizondo, David Ovalle, Jose Dante
Parra Herrera, Enrique Patterson, Ivonne Pérez, Sue Anne Pressley, Adam Ramírez, Gerardo Reyes, Jeanette
Rivera-Lyles, Raúl Rivero, Frances Robles, Jorge José Rodríguez, Roberto Rodríguez-Tejera, Rafael Rojas, Ian
Román, Maria Elvira Salazar, Fabiola Santiago, Agustin Tamargo, Joaquin Utset, Andrés Viglucci, Luisa Yáñez,
José Antonio Zarraluqui, Patricia Zengerle. See Ex. 1, Walter Decl.
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Although the defendant originally searched the Central File for documents containing the names of the journalists
within the same paragraph as certain subject matter search terms, following a request by the plaintiff and “out of an
abundance of caution,” the defendant modified the search to include only the names of the journalists without the
restrictive parameters. See Hackett Decl. at ¶ 6.
4
Second Status Report by Def. Pursuant to Court’s Minute Order of October 30, 2013, ECF No.
18. Accordingly, the defendant moved for summary judgment regarding the plaintiff’s FOIA
request. Following challenges to the adequacy of the defendant’s search for records, the
defendant conducted a renewed search of the records contained in the State Department’s Central
File and submitted an updated declaration describing the revised search. See Hackett Decl.
Altogether, the defendant has submitted three declarations detailing its searches in this matter: an
initial declaration submitted as a status report regarding the defendant’s progress in searching its
records, see Walter Decl.; an updated declaration filed with its motion for summary judgment
detailing the defendant’s efforts to search its records, see Second Walter Decl.; and a further
updated declaration filed with its reply briefing providing details of supplemental searches
conducted in response to criticism by the plaintiff of the initial search methodology, see Hackett
Decl.
II. LEGAL STANDARD
“In FOIA cases, ‘[s]ummary 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, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (quoting
Consumer Fed’n of Am. v. U.S. Dep’t of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006)). With
respect to the applicability of exemptions and the adequacy of an agency’s search efforts,
summary judgment may be based solely on information provided in the agency’s supporting
declarations. See, e.g., Elec. Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1, 7 (D.C. Cir.
2014); Am. Civil Liberties Union v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011);
Students Against Genocide v. U.S. Dep’t of State, 257 F.3d 828, 838 (D.C. Cir. 2001). Summary
5
judgment is properly granted against a party who, “after adequate time for discovery and upon
motion, . . . fails to make a showing sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The burden is on the moving party to demonstrate that there is
an “absence of a genuine issue of material fact” in dispute. Id. at 323.
In ruling on a motion for summary judgment, the court must draw all justifiable
inferences in favor of the nonmoving party and shall accept the nonmoving party’s evidence as
true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The court is only required to
consider the materials explicitly cited by the parties, but may on its own accord consider “other
materials in the record.” FED. R. CIV. P. 56(c)(3). For a factual dispute to be “genuine,” the
nonmoving party must establish more than “[t]he mere existence of a scintilla of evidence in
support of [its] position,” Liberty Lobby, 477 U.S. at 252, and cannot rely on “mere allegations”
or conclusory statements, Veitch v. England, 471 F.3d 124, 134 (D.C. Cir. 2006); see Greene v.
Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993);
accord FED. R. CIV. P. 56(e). Rather, the nonmoving party must present specific facts that would
enable a reasonable jury to find in its favor. See, e.g., FED. R. CIV. P. 56(c)(1). “If the evidence
is merely colorable, or is not significantly probative, summary judgment may be granted.”
Liberty Lobby, 477 U.S. at 249–50 (internal citations omitted).
III. DISCUSSION
The plaintiff challenges the adequacy of the defendant’s search on three grounds. First,
the plaintiff challenges the defendant’s search of the Central File, arguing that it should not have
used certain restrictive parameters in connection with the names of the journalists. Pl.’s Opp’n at
8. Second, the plaintiff challenges the adequacy of the search of the retired records of the USIA,
6
arguing that it is unclear from the declarations submitted what documents were searched. Id. at
9. Third, the plaintiff challenges the adequacy of the search of the files of the Office of Legal
Advisor and the Bureau of Western Hemisphere Affairs, arguing that the searches should have
employed alternative search terms. Id. at 11. As evidence of the inadequacy of the defendant’s
search, the plaintiff points to a “purchase order” in the amount of $28,000 paid to a journalist
identified in the FOIA request for “public relations services” during the relevant time period,
which the plaintiff obtained by searching the Federal Procurement Data System, a public
website. See Pl.’s Opp’n at 5, 10.
As a general matter, the plaintiff’s challenge to the adequacy of the defendant’s search
misconceives the standard for the adequacy of an agency’s search under FOIA. “[T]he 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
Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). “An agency may establish the adequacy of its
search by submitting reasonably detailed, nonconclusory affidavits describing its efforts.” Baker
& Hostetler LLP v. U.S. Dep't of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006). “Agency
affidavits are accorded a presumption of good faith, which cannot be rebutted by ‘purely
speculative claims about the existence and discoverability of other documents.’” SafeCard
Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v.
CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). Such affidavits should “denote which files were
searched,” by whom those files were searched, and reflect a “systematic approach to document
location.” Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365, 371 (D.C. Cir. 1980). “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 (if such records exist) were searched, is
7
necessary to afford a FOIA requester an opportunity to challenge the adequacy of the search and
to allow the district court to determine if the search was adequate in order to grant summary
judgment.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). “Only where “a
review of the record raises substantial doubt, particularly in view of ‘well defined requests and
positive indications of overlooked materials,’” is summary judgment inappropriate. Iturralde,
315 F.3d at 314 (quoting Valencia–Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir.
1999)). Moreover, “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.” Id. at 315 (collecting cases).
Rather, a plaintiff must “offer evidence of circumstances sufficient to overcome an adequate
agency affidavit.” Id. For instance, the plaintiff could contest that the defendant “failed to
search particular offices or files,” or “failed or refused to interview government officials . . . that
. . . might have been helpful in finding the missing documents.” Id.
The Court is satisfied, based on the three separate and detailed declarations submitted by
the defendant, that the defendant conducted an adequate search for responsive records, even
though the search yielded no responsive documents and even though the plaintiff uncovered a
seemingly responsive document during its independent search of public websites. The defendant
reviewed both hard copy and electronic documents contained in numerous databases across
multiple divisions within the State Department. Beyond the requirements placed upon the
defendant, the defendant responded to criticism from the plaintiff and revised its search
parameters to provide an even broader search for responsive documents. Although the plaintiff
has pointed to a single document discovered outside of the search process, one such document is
not “sufficient to overcome an adequate agency affidavit,” let alone the three declarations
submitted in the present case. See id. Moreover, the plaintiff points to no circumstances
8
regarding the search sufficient to overcome the presumption of good faith afforded to the
defendant’s declarations.
The plaintiff’s first challenge to the adequacy of the search—the use of certain limiting
parameters in the defendant’s search of the Central File—is now moot. In response to the
plaintiff’s objection, the defendant searched the Central File without the complained-of limiting
parameters. See Hackett Decl. ¶ 6 (“[A]s a matter of discretion and out of an abundance of
caution, the . . . analyst with knowledge of both the request and the records system conducted a
supplemental full-text search of the Central File for each of the 90 journalists’ first and last
names, without any additional delimiting terms.”). The search still yielded no results. Id.
The plaintiff’s second challenge to the adequacy of the search—the lack of detail
concerning the search of the USIA’s retired records—is without merit. The defendant’s
declarations explain in detail the process used to review the retired USIA records. The retired
records of the USIA are organized in a two-tier system. The first tier is organized by the date the
record was retired and the USIA office that originated it. The record is also assigned an
“accession number,” which corresponds to its location in the second tier of the records system.
The second tier contains the “accession number” and a detailed description of the record. After
consultation with analysts familiar with the FOIA request and the retired records system, along
with the former records manager for the USIA, the defendant manually searched all the
descriptions of the second tier records dated January 1998 to December 2002, the period of time
sought by the plaintiffs. The search yielded no results. See Walter Decl. ¶¶ 11–14; Hackett
Decl. ¶¶ 8–9. Ms. Walter’s declaration (and Mr. Hackett’s declaration subsequently) describes
in great detail how the multi-layer search was performed, who performed it, and it also avers that
9
all of the records reasonably likely to include responsive documents were searched. The
defendant’s search of the retired USIA files was reasonable.
Third, the plaintiff’s final challenge to the adequacy of the search—the omission of
certain search terms with respect to records possessed by the Office of Legal Advisor and the
Bureau of Western Hemisphere Affairs—is also without merit. The plaintiff posits that the
defendant should have used alternative search terms to yield more responsive documents. 9 Yet,
speculation as to the potential results of a different search does not necessarily undermine the
adequacy of the agency’s actual search. “[T]he issue to be resolved is not whether there might
exist any other documents possibly responsive to the request, but rather whether the search for
those documents was adequate.” Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C.
Cir. 1984) (emphasis in original); see also Hornbostel v. U.S. Dep’t of the Interior, 305 F. Supp.
2d 21, 28 (D.D.C. 2003) (stating that “[t]he focus of the adequacy inquiry is not on the results”
of the search). “There is no bright-line rule requiring agencies to use the search terms proposed”
by a plaintiff. Physicians for Human Rights v. U.S. Dep’t of Def., 675 F. Supp. 2d 149, 164
(D.D.C. 2009). Defendants have discretion in crafting a list of search terms that “they believe[]
to be reasonably tailored to uncover documents responsive to the FOIA request.” Id. Where the
search terms are reasonably calculated to lead to responsive documents, the Court should not
“micro manage” the agency’s search. See Johnson v. Executive Office for U.S. Attorneys, 310
F.3d 771, 776 (D.C. Cir. 2002) (“FOIA, requiring as it does both systemic and case-specific
9
In addition to the electronic searches, the defendant reviewed all paper records in the possession of the relevant
divisions of the Office of the Legal Advisor and the Bureau of Western Hemisphere Affairs and reasonably likely to
contain responsive records. See Second Walter Decl. at ¶¶ 10, 15. One of the files for the Office of Legal Adviser
containing potentially relevant paper documents was labeled “Cuban Five,” further underscoring the reasonableness
of the defendant’s search terms in the present case. See id.10
exercises of discretion and administrative judgment and expertise, is hardly an area in which the
courts should attempt to micro manage the executive branch.”).
The search terms in the instant case were reasonably calculated to lead to responsive
documents. After discussions with State Department officers familiar with and, in one case,
responsible for records management, the defendant crafted a list of search terms reasonably
designed to lead to the information requested. Although the defendant used different search
terms for different databases, this discrepancy does not undermine the conclusion that the search
was reasonable given that the search terms were used after consultation with employees familiar
with the databases and were reasonably designed to yield responsive information. See, e.g., Am.
Fed'n of Gov’t Emps., Local 812 v. Broad. Bd. of Governors, 711 F. Supp. 2d 139, 151 (D.D.C.
2010) (“Plaintiffs’ argument that the search was inadequate because different officials used
different terms when searching their own files is also unpersuasive.”); Judicial Watch, Inc. v.
U.S. Dep’t of Hous. & Urban Dev., 20 F. Supp. 3d 247, 254 (D.D.C. 2014) (“Though some
agencies may choose to search for responsive documents in a centralized fashion using
consistent search terms and techniques across various departments, nothing in FOIA's text or the
relevant case law requires an agency to do so.”). The search terms concerned the relevant
subject matter and were designed to uncover all responsive records. See Hackett Decl. at ¶ 13
(“The [Office of Legal Advisor] staff concluded that the aforementioned keywords were
reasonably tailored to uncover all responsive records within the electronic records systems they
were searching.”); ¶ 16 (“The [Bureau of Western Hemisphere Affairs] staff concluded that the
aforementioned keywords were reasonably tailored to uncover all responsive records within the
electronic records systems they were searching.”). These efforts amply demonstrate the
adequacy of the search conducted here. This defendant’s conclusion is entitled to “a
11
presumption of good faith,” which the plaintiff’s “purely speculative claims about the existence
and discoverability of other documents” has not overcome. See SafeCard Servs., 926 F.2d at
1200 (internal quotations omitted); Hodge v. FBI, 703 F.3d 575, 580 (D.C. Cir. 2013). Where
the agency’s search terms are reasonable, the Court will not second guess the agency regarding
whether other search terms might have been superior.
In short, the Court is satisfied, based on the three detailed submissions by the defendant,
that the defendant conducted an adequate search for responsive records, despite the fact that the
search yielded no documents.
IV. CONCLUSION
For the reasons stated, the Court concludes that “there is no genuine dispute as to any
material fact,” FED. R. CIV. P. 56(a), regarding the adequacy of the defendant’s search for
responsive records in response to the plaintiff’s FOIA request. Accordingly, the defendant’s
motion for summary judgment is granted.
An appropriate Order accompanies this Memorandum Opinion.
Date: February 19, 2015
Digitally signed by Hon. Beryl A. Howell
DN: cn=Hon. Beryl A. Howell, o=U.S.
District Court for the District of Columbia,
ou=United States District Court Judge,
email=Howell_Chambers@dcd.uscourts.g
ov, c=US
Date: 2015.02.19 19:00:11 -05'00'
__________________________
BERYL A. HOWELL
United States District Judge
12