Anderson v. U.S. Department of State ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
WILLIAM THADDEUS ANDERSON, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-569 (ESH)
)
U.S. DEPARTMENT OF STATE, )
)
)
Defendant. )
__________________________________________)
MEMORANDUM OPINION
Plaintiff, proceeding pro se, has brought this action against the U.S. Department of State
(“the Department”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. He seeks
to compel disclosure of a presentation that was the basis of a February 2003 speech to the United
Nations by former Secretary of State Colin Powell, as well as any communications related to that
presentation. After searching its records, the Department found no responsive documents, and
now moves for summary judgment. For the reasons stated, defendant’s motion for summary
judgment will be granted.
BACKGROUND
Plaintiff directed a FOIA request to the Department’s Office of Information Programs
and Services on February 11, 2009. (Am. Compl. ¶ 5.) The request sought access to a
presentation on “intelligence on Saddam Hussein’s regime in Iraq” that had been given by I.
Lewis Libby to Deputy Secretary of State Richard Armitage on January 25, 2003. (Id.) Plaintiff
also sought documents and communications “between the dates of January 24, 2003 and
February 3, 2003” that referred the presentation from files belonging to former Secretary of State
Colin Powell, Armitage, and Lawrence Wilkerson, the former Department Chief of Staff. (SJ
Mot., Statement of Material Facts (“SOMF”) ¶ 2.) Plaintiff requested that the Department waive
any processing fees under the “representative of the news media” exception. (Am. Compl. ¶ 5
(citing 5. U.S.C. § 552(a)(4)(A)(ii)).)
On March 26, 2009, defendant filed a complaint requesting access to the records, a
waiver of any FOIA fees, and costs. The Department responded to plaintiff’s FOIA request and
denied his request for a fee waiver on April 28, 2009, (Def. Mot. for Summ. J. [“SJ Mot.”],
Declaration of Celeste Houser-Jackson [“Houser-Jackson Decl.”], Ex. 2), and filed an answer to
the complaint on May 4, 2009. On June 30, 2009, the Department notified plaintiff that it had
searched the Central Foreign Policy Records, as well as active and “retired” records from the
Office of the Executive Secretariat, the Bureau of Near Eastern Affairs, the Bureau of
Intelligence and Research, the Bureau of International Security and Nonproliferation, and the
Office of the Coordinator for Counterterrorism. Defendant found no responsive records.
(Houser-Jackson Decl., Ex. 3.)
On July 31, 2009, defendant filed for summary judgment. Its motion included an
affidavit describing the search process from Celeste Houser-Jackson, acting director of the
Office of Information Programs and Services. (Houser-Jackson Decl. ¶ 1.) The affidavit states
that the Department began by searching the Central Foreign Policy File, which serves as a
“centralized records system” and is the Department’s “most comprehensive and authoritative
compilation of documents.” (Id. ¶ 8.) The file contains substantive documents that “establish,
discuss, or define foreign policy” or “require action or use by more than one office,” along with
memoranda of conversations and interoffice contacts. (Id.) The Department searched for all
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documents dating from January 24, 2003 to February 3, 2003, using the keyword “intelligence”
with “Saddam,” or “Hussein,” or “Iraq,” and with “Libby,” or “Powell,” or “Armitage,” or
“Wilkerson.” (Id. ¶ 9.)
The Department also searched active records maintained by the Office of the Executive
Secretariat, the Bureau of Near Eastern Affairs, the Bureau of Intelligence and Research, the
Bureau of International Security and Nonproliferation, and the Office of the Coordinator for
Counterterrorism. (Houser-Jackson Decl. ¶ 11.) The search of the Secretariat’s records used the
keywords “Powell,” “Hussein,” “Libby,” “Armitage,” “intelligence” and “Wilkerson.” (Id. ¶
12.) The search of the Near Eastern records only used the term “Armitage.” (Id. ¶ 13.) The
search of the Intelligence and Research records used the terms “Hussein, Saddam” or “Iraqi
government.” (Id. ¶ 14.) The International Security search used the keywords “intelligence,”
“presentation,” “Office of Special Plans,” “Vice President,” “Deputy,” “Armitage,” “Libby,”
“Feith,” and “Shulsky.” (Id. ¶ 15.) Defendant electronically searched the Counterterrorism files
using the terms “Libby,” “Armitage,” “Powell,” “presentation,” and “briefing,” and manually
searched Counterterrorism’s paper files on “Iraq-Terrorism.” (Id. ¶ 16.) After plaintiff filed his
brief opposing summary judgment, the Department again searched the records maintained by the
Secretariat and Near Eastern and International Security bureaus and filed a declaration by the
Department’s Information and Privacy Coordinator providing additional information. (Def.’s
Reply, Declaration of Margaret P. Grafeld [“Grafeld Decl.”] ¶¶ 1, 6.) The additional searches of
the Secretariat and International Security records used the terms “Iraq” and “Hussein,” (Id. ¶¶ 7-
8) and the search of the Near Eastern records used the keywords “presentation,” “Libby,” and
“intelligence.” (Id. ¶ 9.) Again, no responsive documents were found.
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The Department also searched “retired” files – files that have not been needed by an
office or bureau for several years – and manifests “document[ing] the contents of retired files”
from the offices whose active records it searched. (Houser-Jackson Decl. ¶¶ 17-19.) The
Houser-Jackson Declaration noted that these searches were performed by individuals “familiar”
with the subject of the request and were limited to records “falling within the time period” of the
plaintiff’s request. (Id. ¶¶ 18-19.) The Grafeld Declaration contained additional information on
the searches of the retired files. (Grafeld Decl. ¶¶ 10-14.) The Department first searched the
retired records manifest for all records from the time period specified by plaintiff. (Id. ¶ 10.)
Based on the results, defendant retrieved boxes with “potentially responsive” records. It
searched two boxes with “memorandum [sic] of” Powell’s “conversation files” from July 1, 2002
to June 30, 2003, a box of Powell’s country files (including a specific folder on Iraq), nine boxes
of Powell’s 2003 chronological files, and a box of Powell’s 2003 schedules. (Id. ¶¶ 10-11.) It
also searched two boxes of documents from Armitage’s office, including a file on Iraq and
weapons of mass destruction, and documents from Armitage’s and Wilkerson’s offices that have
yet to be recorded on a manifest. (Id. ¶ 12.) Defendant searched two boxes of files from the
Near Eastern bureau relating to Iraq political, economic, and assistance affairs, and retired
subject files, country files and chronological files from the International Security bureau. (Id. ¶¶
12-14.) None of the searches uncovered responsive records. (Id. ¶ 15.)
ANALYSIS
I. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if the pleadings and evidence on file show that there is
no genuine issue of material fact and that the moving party is entitled to judgment as a matter of
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). “In a FOIA case, summary
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judgment may be granted to the government if ‘the agency proves that it has fully discharged its
obligations under the FOIA, after the underlying facts and the inferences to be drawn from them
are construed in the light most favorable to the FOIA requester.’” Fischer v. Dep’t of Justice,
596 F. Supp. 2d 34, 42 (D.D.C. 2009) (quoting Greenberg v. U.S. Dep't of Treasury, 10 F. Supp.
2d 3, 11 (D.D.C. 1998)). The requester may challenge such a showing by “set[ting] forth
specific facts showing that there is a genuine issue for trial,” Fed. R. Civ. P. 56(e), that would
permit a reasonable jury to find in his favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1241
(D.C. Cir. 1987). Agency declarations “are afforded a presumption of good faith;” an adequate
affidavit “can be rebutted only ‘with evidence that the agency’s search was not made in good
faith.’” Defenders of Wildlife v. U.S. Dep’t of Interior, 314 F. Supp. 2d 1, 8 (D.D.C. 2005).
However, “if the sufficiency of the agency's identification or retrieval procedure is genuinely in
issue, summary judgment is not in order.” Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365, 370
(D.C. Cir. 1980).
II. ADEQUACY OF THE SEARCH
Plaintiff argues that defendant inadequately described its search and that its search was
inadequate because it failed to use certain keywords.1 (Pl.’s Opp’n at 4.) To establish that it has
conducted an adequate FOIA search, defendant must provide a “reasonably detailed” affidavit
containing “search terms and the type of search performed, and averring that all files likely to
1
Neither the Department nor plaintiff address the fee waiver issue. “Courts have consistently
confirmed that the FOIA requires exhaustion of this appeal process before an individual may
seek relief . . . .” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 61-62 (D.C. Cir. 1990). “To the
extent that the government is not raising an exhaustion-of-remedies defense with regard” to the
fee waiver, “the Court may do so sua sponte.” Hinojosa v. Dep’t of Treasury, No. 06-0215,
2006 WL 2927095, at *3 n.2 (Oct. 11, 2006). In the fee waiver context, “[e]xhaustion does not
occur until the required fees are paid or an appeal is taken from the refusal to waive fees.”
Oglesby, 920 F.2d at 66. Here, plaintiff filed his complaint prior to paying the required fee or
appealing defendant’s refusal to waive. Judicial review of his fee waiver claim is therefore
precluded at this time. Id. at 67.
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contain responsive materials . . . were searched . . . to allow the district court to determine if the
search was adequate in order to grant summary judgment.” Oglesby, 920 F.2d at 68. The
agency must demonstrate that, “viewing the facts in the light most favorable to the requester, . . .
[it] ‘has conducted a search reasonably calculated to uncover all relevant documents.’”
Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994) (quoting Weisberg, 745
F.2d at 1485).
A. Description of the Search
Plaintiff argues that the Department has inadequately described its search of its “retired”
files by failing to describe the manifests in detail and failing to explain how the records were
searched. (Pl.’s Opp’n at 6-7.) To meet its burden of showing that its search was adequate,
defendant’s affidavit must “provide necessary details,” such as “about the scope or methods of
the searches conducted,” Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 91-92
(D.D.C. 2009), although it “need not ‘set forth with meticulous documentation the details of an
epic search for the requested records,’” Friends of Blackwater v. U.S. Dep’t of Interior, 391 F.
Supp. 2d 115, 119 (D.D.C. 2005) (quoting Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1980)).
In response to plaintiff’s argument, the Department conducted additional searches of the retired
records and their manifests and submitted a second affidavit describing the search in greater
detail. (Grafeld Decl. ¶¶ 10-14.) The Grafeld Declaration describes the general criteria used; the
retired records searched, including the types of documents contained within the various boxes
examined; and the search methods used by the Department. (Id.) It lists the date range searched
and thoroughly describes the boxes found. The limited nature of the documents coupled with the
specificity of the search and the detailed description of the records examined provide sufficient
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detail about the scope and methods of the search,2 and therefore allow the Court to conclude that
defendant’s search was reasonably calculated to uncover all relevant documents. Thus, the
Department has provided sufficient information for the Court to determine that the search of the
retired files was adequate. See Oglesby, 920 F.2d at 68.
Plaintiff also challenges the Department’s description of its search of the active records,
arguing that it is insufficient because it does not explain why the terms “Iraq” and “Hussein”
were not used in certain searches. (Pl.’s Opp’n at 5-6.) This Court has found summary judgment
inappropriate where the government’s declaration “failed to document the search terms used” in
an electronic search. Aguirre v. SEC, 551 F. Supp. 2d 33, 60 (D.D.C. 2008) (citing Judicial
Watch, Inc. v. U.S. Dep’t of Justice, 185 F. Supp. 2d 54, 64 (D.D.C. 2002)); see also Friends of
Blackwater, 391 F. Supp. 2d at 120 (noting that the government’s failure to “enumerate any
specific search terms used in examining the agency's electronic files” raised doubts about the
adequacy of the search). Unlike the declaration found wanting in Aguirre, the Houser-Jackson
Declaration “describe[s] in detail how each office conducted its search.” See Aguirre, 551 F.
Supp. 2d at 61. Defendant has described the various keywords and methods it used to examine
its electronic records, has listed all of the various databases it searched, and has averred that it
searched “any and all records systems reasonably expected to contain the information sought by
2
The Department “examined the retired records manifests for records falling within the time
period specified . . . . Boxes containing potentially responsive retired records for these offices
were retrieved . . . and their contents were thoroughly examined.” (Grafeld Decl. ¶ 10.) “[A]
defendant agency is obligated to conduct a ‘reasonable’ search for responsive records using
methods which can be reasonably expected to produce the information requested by plaintiff to
the extent it exists.” Defenders of Wildlife, 314 F. Supp. 2d at 8. Manually searching the retired
records without using specific search terms could reasonably be expected to produce the
requested information given the limited scope of the request and the fact that those conducting
the search were familiar with the request. Defendant’s description of this reasonable search in its
affidavit was therefore sufficient. See Friends of Blackwater, 391 F. Supp. 2d at 120 (suggesting
that omitting search terms “alone might not be enough to invalidate an otherwise adequate
affidavit . . . .”)
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the plaintiff.” (Houser-Jackson Decl. ¶ 19.) Plaintiff does not argue that defendant proceeded in
bad faith, nor does he offer any evidence that would call defendant’s description of its search
into question. Defendant has documented its search in sufficient detail to determine that its
search was adequate, and thus it has met its burden. See Oglesby, 920 F.2d at 68.
B. Scope and Methods of the Search
Plaintiff also challenges the scope and methods of defendant’s search. Plaintiff first
argues that defendant’s choice of keywords when searching the International Security and
Executive Secretariat records was inconsistent and not reasonably calculated to uncover all
relevant documents. (Pl.’s Opp’n at 4-6.) “[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).
The Court applies a “‘reasonableness’ test to determine the ‘adequacy’ of search methodology,”
Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998), and requires a “reasonable
and systematic approach to locating the requested documents,” Center for Pub. Integrity v. FCC,
505 F. Supp. 2d 106, 116 (D.D.C. 2007). An adequate search is one that “could . . . have been
expected to produce the information requested.” See Pub. Citizen, Inc. v. Dep’t of Educ., 292 F.
Supp. 2d 1, 6-7 (D.D.C. 2003). Defendant’s first affidavit explains that it searched records from
various bureaus using keywords related to the subject of the presentation and to the personnel
involved. (Houser-Jackson Decl. ¶¶ 12-16.) Defendant’s second affidavit includes results from
additional searches of the International Security and Executive Secretariat records using the
keywords “Iraq” and “Hussein” (Grafeld Decl. ¶¶ 6-9), which are terms that had been suggested
by plaintiff. (Pl.’s Opp’n at 5-6.) Defendant’s use of terms like “Iraq,” “Hussein,”
“intelligence,” and “presentation” in searching for a presentation on intelligence about Iraq was
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reasonable and systematic and could be reasonably expected to produce the information
requested. Cf. Pub. Citizen, Inc., 292 F. Supp. 2d at 7 (finding a search inadequate where the
database was so unreliable that the agency could not reasonably expect to find the requested
information). Therefore, defendant adequately searched its records for references to the subject
and participants of the presentation and for general references to presentations. Defendant’s
search was sufficiently reasonable and systematic to satisfy its obligations under FOIA.
Plaintiff also argues that the search of the Near Eastern records was inadequate because it
did not include the keywords “Iraq” or “Saddam Hussein” and only used the search term
“Armitage.” (Pl.’s Opp’n at 5.) Defendant’s second affidavit asserts that it did a subsequent
searched, using “Libby,” “intelligence” and “presentation,” and that using the terms “Iraq” or
“Hussein” would unreasonably burden on the agency.3 (Grafeld Decl. ¶ 9.) Because plaintiff
seeks documents relating to a presentation of intelligence on Saddam Hussein’s regime,
defendant reasonably searched for references to “intelligence,” and “presentation.” This search
was both “reasonable” and “systematic,” Center for Pub. Integrity, 505 F. Supp. 2d at 116, and
could be reasonably expected to produce the requested information. Plaintiff does not explain
why it was necessary to search for the words “Iraq” and “Hussein” in a database filled with
unrelated references to each, particularly when a search more narrowly tailored to his request had
3
“Generally, an agency need not honor a FOIA request that requires it to conduct an unduly
burdensome search.” Pub. Citizen, Inc., 292 F. Supp. 2d at 6 (citing Nation Magazine, Wash.
Bureau v. U.S. Customs Serv., 71 F.3d 885, 891-92 (D.C. Cir. 1995)). However, the Department
must “provide a sufficient explanation why a search . . . would be unreasonably burdensome;”
merely claiming that a search would be “costly and take many hours to complete” is insufficient.
Id. Defendant has stated that the Near Eastern bureau is generally responsible for U.S. relations
with Iraq. (Grafeld Decl. ¶ 9.) Thus, it explained that using the terms “Iraq” or “Hussein” would
uncover such a large volume of records that it would create an unreasonable burden and “would
not reasonably be expected to produce the records Plaintiff seeks.” (Id.) Because the
Department’s use of the terms “intelligence” and “presentation” was adequate to uncover any
documents dealing with plaintiff’s request, the Court need not consider whether the Department
has established that using the terms “Iraq” and “Hussein” would be unreasonably burdensome.
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already proven unfruitful. A search is not inadequate merely because its terms are limited. See
Defenders of Wildlife, 314 F. Supp. 2d at 10 (“An adequate search may be limited to the places
most likely to contain responsive documents.”)
The Court has “little difficulty concluding that the [Department] made a ‘good faith effort
to conduct a search for the requested records, using methods which can be reasonably expected
to produce the information requested.’” Schoenman v. FBI, 575 F. Supp. 2d 136, 151 (D.D.C.
2008) (quoting Oglesby, 920 F.2d at 68). The Department’s affidavits “describe in . . . detail
what records were searched, by whom, and through what process.” Steinberg, 23 F.3d at 551-52.
Defendant has adequately identified the keywords used in its search and has adequately
explained, in reasonable detail, how it performed the searches. See Morley v. CIA, 508 F.3d
1108, 1122 (D.C. Cir. 2007) (holding that defendant had failed to meet its burden where it had
not identified terms searched or explained how it had conducted the searches). Defendant
asserts, and plaintiff does not contest, that it has searched through all record systems reasonably
expected to contain the requested information. (Houser-Jackson Decl. ¶ 19.) Furthermore,
defendant’s second affidavit provides a detailed account of a thorough search by persons familiar
with the retired files and with plaintiff’s request. The search was targeted in scope and by date
and included manifests from the relevant time period, as well as files that had yet to be included
in a manifest. Plaintiff “has not offered evidence that would raise ‘substantial doubt’ as to the
adequacy” of the searches and has not suggested that the Department acted in bad faith.
Williams v. Dep’t of Justice, 171 F. App’x 857 (D.C. Cir. 2005). Defendant has therefore met its
burden of proving that it has “fully discharged” its obligations under FOIA. Fischer, 596 F.
Supp. 2d at 42-43.
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CONCLUSION
For the foregoing reasons, the Court finds no genuine issue of material fact presented on
defendant's satisfactory response to plaintiff's FOIA request and concludes that defendant is entitled
to judgment as a matter of law. A separate Order accompanies this Memorandum Opinion.
_______/s/______________
ELLEN SEGAL HUVELLE
United States District Judge
Date: October 14, 2009
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