People for the Ethical Treatment of Animals, Inc. v. Bureau of Indian Affairs ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
PEOPLE FOR THE ETHICAL TREATMENT )
OF ANIMALS, INC., )
)
Plaintiff, )
)
v. ) Civil Action No. 11-555 (ESH)
)
BUREAU OF INDIAN AFFAIRS, )
)
Defendants. )
)
MEMORANDUM OPINION
Plaintiff People for the Ethical Treatment of Animals, Inc. (“PETA”), a Virginia
nonprofit corporation, has sued the Bureau of Indian Affairs (“BIA”). Plaintiff brings this suit
under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., claiming that defendant
failed to conduct a reasonable search in response to two FOIA requests made by plaintiff, and as
a result, failed to produce the requested documents until after litigation commenced. Before the
Court are defendant’s motion for summary judgment and plaintiff’s cross motion for summary
judgment. For the reasons set forth below, the Court will grant defendant’s motion and deny
plaintiff’s motion.
BACKGROUND
I. FACTUAL HISTORY
Plaintiff submitted two FOIA requests. The first request (“the August request”) was
submitted on August 2, 2010, and sought information regarding three leases entered into by the
Eastern Band of Cherokee Indians (“EBCI”): Santa’s Land; the Cherokee Bear Zoo and/or Barry
Coggins; and Chief Saunooke Bear Park and/or Chief Saunooke Trading Post and/or Cole
Klapsaddle (collectively, “the Bear leases”). (Complaint [“Compl.”] at ¶ 10; Defendant’s
Memorandum of Law in Support of Motion for Summary Judgment [“Def.’s Mot.”] at 2.)
Plaintiff limited the scope of the August request to documents dated from January 1, 2003, to the
date of the request, August 2, 2010. (Compl. at ¶ 10.) Defendant assigned the August request
FOIA Control No. BIA-2010-01249. (Id. at ¶ 11.)
Defendant houses the Bear leases in hard-copy form only, located in a file cabinet at the
BIA’s Cherokee Agency office in Cherokee, North Carolina. (Def.’s Mot., Declaration of
Franklin Keel [“Keel Decl.”] at ¶ 5; Defendant’s Memorandum of Points and Authorities in
Support of Supplement to Motion for Summary Judgment, Reply and Opposition to Plaintiff’s
Cross Motion for Summary Judgment [“Def.’s Supp.”] at 2; Def.’s Supp., Declaration of Ruth
McCoy [“McCoy Decl.”] at ¶¶ 1, 2.) In that office, Ruth McCoy serves as a Realty Officer and
supervises Gail Kuester, a Realty Specialist who maintains BIA’s lease files pertaining to EBCI
lands. (Def.’s Supp., Declaration of Gail Kuester [“Kuester Decl.”] at ¶¶ 1, 2, p. 4; McCoy Decl.
at ¶ 1.) Kuester was assigned to the August request, and searched “a spreadsheet of [EBCI]
leases on the Cherokee Agency share drive,” which “does not contain copies of documents” but
“contains information showing the lease number, lessor, and lessee.” (Kuester Decl. at ¶¶ 3, 4.)
Kuester used the information to collect data on the Bear leases and then manually searched the
hard copy files in the file cabinet. (Id. at ¶ 4.) Pursuant to the August request, on September 23,
2010, defendant produced seven documents totaling 273 pages: three memoranda, one letter, one
lease, and two lease supplements. (Compl. at ¶ 12, Ex. 2; Reply in Support of Defendant’s
Supplement to Motion for Summary Judgment [“Def.’s Rep.”], Second Supplemental
Declaration of John Harrington [“Second Harrington Decl.”] at ¶ 3.)
2
Plaintiff submitted a second FOIA request (“the October request”) on October 12, 2010,
seeking the same documents as the August request, but plaintiff removed the date restriction for
the search. (Id. at ¶ 14.) Defendant assigned the October request FOIA Control No. BIA-2011-
00035. (Id. at ¶ 15, 16, Ex. 5.) In response to the October request, Kuester again conducted a
manual search of the files, finding no additional responsive documents that had not already been
provided to plaintiff as a result of the August request. (Id.; Kuester Decl. at ¶ 4.)
On December 2, 2010, plaintiff filed an administrative appeal, asserting that defendant’s
search was unreasonable and inadequate. (Compl. at ¶ 20, Ex. 5.) On January 14, 2011,
defendant informed plaintiff that it would have a decision on the appeal in one or two weeks.
(Id. at ¶ 23.) The record does not reflect that defendant took any further steps to resolve the
appeal.
Plaintiff filed the instant complaint on March 17, 2011. (Compl. at 1.) John Harrington,
BIA counsel, spoke to plaintiff’s counsel on April 13, 2011, seeking clarification of the types of
documents plaintiff requested. (Def.’s Mot. at 2.) Plaintiff’s counsel informed Harrington that a
number of responsive documents could be eliminated from the search, but that plaintiff wanted
any documents related to the exhibition of animals, the enforcement of laws and regulations, and
contractual obligations showing that lessees were complying with laws and regulations. (Id. at 2-
3.) During this phone call, Harrington admitted that defendant’s search and production up to that
point had been inadequate. (Pl.’s Rep. at 4; Def.’s Rep. at 8.)
In March 2011, Rebecca Smith, a Program Support Assistant at the BIA’s Branch of
Tribal Government, Eastern Region, in Nashville, Tennessee, requested that BIA employees at
the Cherokee Agency send her copies of the entire files of each of the Bear leases. (Def.’s Supp.,
Declaration of Rebecca J. Smith [“Smith Decl.”] at ¶¶ 1, 4.) She received those files on March
3
25, 2011, and then sent them electronically to Harrington. (Id. at ¶ 4.) Subsequent to several
conversations between Harrington and Smith outlining responsive and exempt documents, on
April 22, 2011, defendant produced an additional thirty-eight documents, totaling approximately
420 pages, that were responsive to the August and October requests. (Def.’s Mot. at 3;
Plaintiff’s Consolidated Memorandum of Points and Authorities in Support of Plaintiff’s Cross-
Motion for Summary Judgment and in Opposition to Defendant’s Motion for Summary
Judgment [“Pl.’s Cross Mot.”] at 9; Smith Decl. at ¶ 5; Second Harrington Decl. at ¶ 4.) Only
one of those documents, totaling six pages, was responsive to the August request but not
produced in the September 2010 disclosure (Second Harrington Decl. at ¶ 5); thus, the vast
majority (thirty-seven out of thirty-eight documents) were responsive to the October request,
which had no restrictions as to dates. Twelve of the documents contained minor redactions of
private addresses or private financial information. (Keel Decl. at ¶ 11.)
The EBCI completed an electronic database of its reservation lands in May 2011; unlike
the Cherokee Agency’s spreadsheet that contains references to files that exist in hard-copy form
only, the EBCI database houses all of EBCI’s lease documents in a searchable, electronic format.
(Def.’s Supp. at 2, 3.) The database is the sole property of the EBCI; however, the EBCI granted
access to defendant upon the database’s completion. Kuester searched the database in May
2011, after the Eastern Region in Nashville had reviewed the entire set of BIA files and produced
every responsive document in those files. (Id.) Kuester used search terms that included the lease
numbers, the lessors’ and lessees’ names, and the words “Santa’s Land,” “Cherokee Bear Zoo,”
and “Chief Saunooke’s Trading Post.” (Kuester Decl. at ¶¶ 5, 6, 7, p. 4.) She found 479 pages
of responsive documents but discovered that those documents were the same ones that had
4
already been produced by the Eastern Region office in the April 2011 disclosure. (Def.’s Supp.
at 2, 3.)
ANALYSIS
I. STANDARD OF REVIEW
The Court may grant a motion for summary judgment if the pleadings, the discovery and
disclosure materials on file, and any affidavits show “that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a), (c). The moving party bears the burden of demonstrating an absence of a genuine issue of
material fact in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual assertions
in the moving party’s affidavits may be accepted as true unless the opposing party submits his
own affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d
453, 456-57 (D.C. Cir. 1992).
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citations
omitted). “In a FOIA case, summary 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. U.S. 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)).
“An agency fulfills its obligations under FOIA if it can demonstrate beyond material
doubt that its search was ‘reasonably calculated to uncover all relevant documents.’” Valencia-
Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep’t of
State, 897 F.2d 540, 542 (D.C. Cir. 1990)); see also Steinberg v. U.S. Dep’t of Justice, 23 F.3d
548, 551 (D.C. Cir. 1994). “[T]he issue to be resolved is not whether there might exist any other
5
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). “The
adequacy of the search, in turn, is judged by a standard of reasonableness and depends, not
surprisingly, upon the facts of each case.” Id. Detailed descriptions of “what records were
searched, by whom, and through what process” satisfy this standard of reasonableness. See
Steinberg, 23 F.3d at 551-52. To meet its burden, the agency may submit affidavits or
declarations that explain in reasonable detail the scope and method of the agency’s search. Perry
v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In the absence of contrary evidence, such
affidavits or declarations are sufficient to demonstrate an agency’s compliance with FOIA. Id. at
127. However, if the record “leaves substantial doubt as to the sufficiency of the search,
summary judgment for the agency is not proper.” Truitt, 897 F.2d at 542.
II. THE FOIA REQUESTS
The only issue on appeal is the adequacy of defendant’s search, since plaintiff does not
contest the exemptions invoked by defendant, and while the legal conclusions are disputed, the
underlying facts are not. (See infra note 7.) Plaintiff argues that it is entitled to summary
judgment because the pre-litigation searches were inadequate. (See Pl.’s Cross Mot. at 9-17;
Pl.’s Rep. at 4-15.) Plaintiff bases its argument on the fact that it did not get the documents it
requested until after litigation commenced; thus, plaintiff reasons, the post-litigation search and
the results thereof proves the inadequacy and bad faith of defendant’s pre-litigation search. 1
1
Plaintiff, in fact, concedes that the post-litigation search was adequate. As noted by plaintiff,
“Defendant makes much of the fact that Plaintiff has not addressed . . . the reasonableness of
Defendant’s post-litigation search . . . [but] Plaintiff never challenged . . . the alleged
reasonableness of Defendant’s post-litigation search.” (Pl.’s Rep. at 1.)
6
Given the record before the Court, 2 it cannot agree with the premise of this argument or the legal
conclusions.
First, plaintiff has failed to prove that defendant’s first search, in response to the August
request, was inadequate. As defendant’s declarations show, and plaintiff does not appear to
contest, the first search, limited in time by plaintiff, found all but one responsive document that
was six pages long. (Second Harrington Decl. at ¶ 5.) The existence of this single document,
however, is immaterial to the adequacy of defendant’s search in response to the August request
because “the issue to be resolved is not whether there might exist any other documents possibly
2
The record includes the Second Supplement Declaration of John Harrington, which clarified the
extent of the agency’s production in April 2011. As is clear from this declaration, the first search
only failed to locate six pages of documents, and the expanded scope of the production thereafter
was primarily attributable to the fact that the timeframe of plaintiff’s second request was greatly
increased.
While the Court does not condone the late filing of this declaration, it will not, as
requested by plaintiff, strike the pleading. To the extent that the legal arguments are redundant
and unnecessary, they have been ignored, but the clarification of facts regarding the adequacy of
the search cannot be disregarded given the nature of plaintiff’s challenges. Moreover, in a FOIA
case, even if defendant had failed in obtaining summary judgment because of an inadequate
search, it does not necessarily follow that plaintiff prevails. Rather, the usual remedy is for the
Court to remand to the agency to expand its search or to provide more detailed declarations
regarding the scope of the search. See, e.g., Kean v. NASA, 480 F. Supp. 2d 150, 159-60 (D.D.C.
2007) (ordering NASA to coordinate with plaintiff on a plan to properly search and document its
search procedures).
For instance, courts often deny an agency’s motion for summary judgment based upon
vague or conclusory declarations and ask the agency to submit more detailed declarations. E.g.,
Schoenman v. FBI, No. 04-2202, 2009 WL 763065, at *10 (D.D.C. Mar. 19, 2009); see also
Morley v. CIA, 508 F.3d 1108, 1121 (D.C. Cir. 2007) (commanding the district court that “[o]n
remand the CIA must supplement its explanation”). In other cases, courts ask the agency to
conduct a more adequate search. E.g., Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 37 (D.C.
Cir. 1998) (remanding to the district court so it could order the agency to conduct a more
adequate search).
As the Court has shown, those cases where an agency’s motion for summary judgment
was denied based on inadequate declarations are distinguishable from the case here because, in
those cases, the agency provided vague and conclusory declarations. (See infra note 5.) That is
not the case here, but nonetheless, the explanation of the quantification of page and document
numbers in the second declaration has allowed the Court to avoid an unnecessary remand and
better enabled the Court to address some of plaintiff’s arguments.
7
responsive to the request, but rather whether the search for those documents was adequate.”
Weisberg, 745 F.2d at 1485. Regarding the August request, defendant has fulfilled its burden to
provide detailed descriptions of “what records were searched, by whom, and through what
process.” See Steinberg, 23 F.3d at 551-52. As defendant’s declarations show, the responsive
files are housed in a single file cabinet in hard-copy form only at the Cherokee Agency in North
Carolina. Gail Kuester used an Agency spreadsheet to search for responsive files, and then she
went to the files and manually searched them. Those details are clearly sufficient to show “who”
searched “what records” “through what process.” Id.Plaintiff’s argument, then, is essentially that defendant’s search in response to the
October request, where there were no date restrictions, was inadequate and in bad faith because
that search inexplicably missed thirty-seven documents totaling over 400 pages that were later
produced by defendant after litigation had commenced. Even if the October search had been
inadequate, it is well settled in this Circuit that the subsequent production of responsive
documents can remedy inadequate searches. 3 Further, that subsequent production cannot serve
as proof that the agency conducted an unreasonable search initially or acted in bad faith, for such
a rule would punish those agencies that attempted to correct past inadequate searches:
In Military Audit Project v. Casey, we “emphatically reject[ed]”
the notion that an agency’s disclosure of documents it had
previously withheld renders its affidavits suspect, and our
reasoning in that case is applicable here as well. We observed that
such a line of argument, if accepted, “would work mischief in the
3
Plaintiff’s repeated emphasis that the pre-litigation searches are the only searches material to
the adequacy determination is also legally unsupportable. (See Pl.’s Cross Mot. at 15 (arguing
that defendant “failed to identify . . . responsive documents . . . until after Plaintiff initiated
litigation”); Pl.’s Rep. at 1, 5 (“Defendant in this case falls far short of meeting its burden of
proving the reasonableness of the searches it allegedly conducted before litigation
commenced.”).) The cases cited by plaintiff in support of this proposition, McKinley v. FDIC,
756 F. Supp. 2d 105 (D.D.C. 2010), and Cuban v. SEC, 744 F. Supp. 2d 60 (D.D.C. 2010), do
not make any substantive distinction between pre- and post-litigation searches.
8
future by creating a disincentive for an agency to reappraise its
position, and when appropriate, release documents previously
withheld.” Were the court to thus “punish flexibility,” it would
“provide the motivation for intransigence”; the argument in favor
of doing so is “based on the perverse theory that a forthcoming
agency is less to be trusted in its allegations than an unyielding
agency.” It would be unreasonable to expect even the most
exhaustive search to uncover every responsive file; what is
expected of a law-abiding agency is that it admit and correct error
when error is revealed.
Meeropol v. Meese, 790 F.2d 942, 953 (D.C. Cir. 1986) (quoting Military Audit Project v. Casey,
656 F.2d 724, 754 (D.C. Cir. 1981)) (citations omitted) (brackets in original); see also Ground
Saucer Watch, Inc. v. CIA, 692 F.2d 770, 772 (D.C. Cir. 1981) (“Indeed, if the release of
previously withheld materials were held to constitute evidence of present ‘bad faith,’ similar
evidence would exist in every FOIA case involving additional releases of documents after the
filing of suit.”).
Meeropol dealt with a massive FOIA request 4 made by the sons of Julius and Ethel
Rosenberg, the American couple who were executed in 1953 for espionage. 790 F.2d at 945.
After making their FOIA request on February 20, 1975, the plaintiffs filed a complaint in federal
district court on July 14, 1975, alleging that several government agencies were withholding
responsive documents. Id. at 945-46. “In the ensuing ten years [following the initiation of
litigation,] the defendant agencies, under court order, retrieved approximately 500,000 pages of
records and released approximately 200,000 of those pages” to the plaintiffs. Id. at 946.
At issue in Meeropol was the FBI’s handling of various FOIA requests. The sons
challenged the adequacy of the FBI’s search that resulted in an allegedly incomplete production
4
Plaintiffs sought “‘all of the records relating directly or indirectly to investigation and
prosecution of our parents,’” which at the time “was perhaps the most extensive FOIA request
ever made.” Meeropol, 790 F.2d at 945 (quoting Letter from Michael and Robert Meeropol to
the Office of the Deputy Attorney General (Feb. 20, 1975)).
9
of documents. Id. at 952-53. Despite the admission of all involved that “the searches conducted
by the FBI between the years 1975 and 1978 were . . . ‘inadequate,’” the Court found that the
FBI had subsequently remedied the problem by conducting an adequate search despite the
requestors’ argument that “references to [unproduced, responsive] files in [produced]
documents” proved that the FBI was still withholding responsive files. Id. at 950, 963. The
Court found that the FBI’s subsequent production of relevant documents within the files
referenced by already produced documents, inter alia, was sufficient to show that the FBI
conducted a good faith, adequate search. Id. at 953-54.
Noticeably absent from the Court’s analysis in Meeropol is any support for the
proposition that pre-litigation and post-litigation searches should be weighed differently or that
the post-litigation searches and production should be ignored in determining whether the
government has conducted an adequate search. See id. at 950-54. In fact, the Court confirmed
the adequacy of the FBI’s search despite the fact that the adequate search came several years
after the initiation of litigation. See id. at 945-46, 953-54, 963.
Similar to the FBI in Meeropol, the BIA remedied whatever inadequacies might have
existed in response to the October request by subsequently searching every single document in
every single file that could have contained responsive documents, ultimately producing thirty-
seven more documents totaling over 400 pages in April 2011. Plaintiff concedes that this post-
litigation search was adequate (see supra note 1), but still it contends that the post-litigation
search proves the inadequacy of the pre-litigation search. As noted, plaintiff’s attempt to render
defendant’s post-litigation efforts as immaterial (or as proof of bad faith) is contrary to the law in
this Circuit, which recognizes that it is immaterial that the search occurred after litigation
commenced. See Meeropol, 790 F.2d at 953.
10
Plaintiff’s contention that defendant’s post-litigation search and April 2011 production
are proof of bad faith is also misguided. 5 (See Pl.’s Cross Mot. at 16.) Absent evidence to the
contrary, the Court must presume good faith on the part of the agency and its declarants. Ground
Saucer Watch, 692 F.2d at 771. Because plaintiff relies solely on an argument that cannot be
used to prove bad faith (i.e., that subsequent production proves earlier bad faith), see Meeropol,
790 F.2d at 953, plaintiff has not provided any evidence to overcome the presumption of good
faith. 6 Defendant’s May 2011 search of the EBCI’s electronic database further undercuts
5
Plaintiff’s use of Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 28-29 (D.C. Cir. 1998), to
support this proposition is misplaced. (See Pl.’s Cross Mot. at 16.) In Campbell, the Court
found an FBI search inadequate because its scope was too narrow; the FBI had evidence that
other databases contained responsive documents but refused to search them. Campbell, 164
F.3d at 68. Here, the BIA searched every single responsive file in the only location that
contained responsive files (i.e., the entire lease files for all three Bear leases), producing all
responsive documents. (Def.’s Mot. at 3; Smith Decl. at ¶¶ 1, 4, 5.) Thus, unlike Campbell,
plaintiff has not pointed to any other filing systems with potentially responsive documents that
should have been searched.
Likewise, plaintiff’s other cases are easily distinguished. Valencia-Lucena v. U.S. Coast
Guard is similar to Campbell; the agency’s search was inadequate because it refused to search a
known location with responsive documents. 180 F.3d at 326-37. Founding Church of
Scientology of Wash., D.C., Inc. v. NSA, 610 F.2d 824 (D.C. Cir. 1979), hinges on the
inadequacy of the agency’s single, undetailed declaration. Id. at 837. Defenders of Wildlife v.
U.S. Dep’t of Interior undermines plaintiff’s assertion because the agency’s search was found
adequate even though a reference in another document suggested that additional responsive
documents might exist. 314 F. Supp. 2d at 10. Kean v. NASA relates to the inadequacy and lack
of detail in the agency’s declarations. 480 F. Supp. 2d at 157. Finally, in Friends of Blackwater
v. U.S. Dep’t of the Interior, 391 F. Supp. 2d 115 (D.D.C. 2005), this Court held a Fish and
Wildlife Service (“FWS”) search inadequate when production from other agencies produced
documents created by FWS that the FWS itself failed to produce in response to the FOIA
request. Id. at 120-21. None of those circumstances is present here.
6
Likewise, despite its exhaustive efforts to undermine defendant’s declarants, plaintiff has failed
to provide any evidence to overcome the presumption of good faith. (Pl.’s Rep. at 9-10, 12-15.)
As the Circuit reasoned in Perry v. Block,
[None of the existing precedent] demands in every FOIA case that
the affidavits of the responding agency set forth with meticulous
documentation the details of an epic search for the requested
records. Rather, in the absence of countervailing evidence or
apparent inconsistency of proof, affidavits that explain in
11
plaintiff’s contention that defendant acted in bad faith. Even though defendant conducted a
detailed search of every responsive file, and albeit belatedly, produced every responsive
document in those files, defendant went further and searched a database that was not government
property to be sure that it had uncovered all relevant files. Indeed, the Court notes that this might
go above and beyond what is required of an agency under FOIA, because the search “need not be
perfect” and “[i]t would be unreasonable to expect even the most exhaustive search to uncover
every responsive file.” Meeropol, 790 F.2d at 953, 956. At any rate, it certainly undercuts any
argument of bad faith.
In response, plaintiff points to Nkihtaqmikon v. Bureau of Indian Affairs, 672 F. Supp. 2d
154 (D. Me. 2009), to argue that the BIA has a track record of failing to properly respond to
FOIA requests. (Pl.’s Rep. at 6.) Although the Court is troubled by BIA’s lack of effort to
adjudicate PETA’s administrative appeal before the commencement of litigation, neither what
happened in Nkihtaqmikon nor BIA’s apparently dilatory response to the administrative appeal is
relevant to the legal issues in this case. In addition to this Court’s finding that BIA fulfilled its
duty to conduct an adequate search, Nkihtaqmikon is easily distinguishable. First, the Maine
reasonable detail the scope and method of the search conducted by
the agency will suffice to demonstrate compliance with the
obligations imposed by the FOIA.
684 F.2d at 127 (emphasis added). Indeed, the presumption of good faith is bolstered by the fact
that each of the declarants whom plaintiff attacks possesses direct, personal knowledge of the
searches. Franklin Keel is the Regional Director of the Eastern Region of the BIA in Nashville,
Tennessee, and his official duties include management over the Cherokee Agency office where
the files of the Bear leases are housed, as well as, the region’s FOIA manager, Rebecca Smith.
(Keel Decl. at ¶¶ 1, 2.) Gail Kuester, the individual who actually conducted the manual searches
in response to the August and October requests, describes in detail how she conducted those
searches, from using the spreadsheet to her manual search of the hard-copy files. (Kuester Decl.
at ¶ 4.) Ruth McCoy is a BIA Realty Officer in the very office that houses the lease documents
and is Gail Kuester’s supervisor. (McCoy Decl. at ¶ 1; Kuester Decl. at 4.) Finally, having read
these documents, the Court cannot agree with plaintiff’s characterization of these declarations as
“conclusory.”
12
court ultimately found that the BIA’s search was inadequate because it was not reasonably
calculated to uncover all relevant documents; in fact, the BIA had conducted a series of
inadequate electronic searches over a four-year period that led to “dribbling disclosure,” never
attempting to comprehensively correct its past inadequate disclosure. 672 F. Supp. 2d at 168-70.
Second, BIA did not file responsive pleadings in that case, offering no reason why it had taken
so long to disclose responsive documents or why its search was reasonable. Id. at 169. In this
case, BIA’s disclosure was not “dribbling”; on the contrary, defendant’s agents reviewed the
entire files for the three Bear leases requested by plaintiff and produced everything in those files
in April 2011. In addition, BIA has fulfilled its obligation to describe its searches, filing three
pleadings and several declarations of agency employees that explain in detail how the searches
were conducted, and arguing why those searches were reasonable. The fact that the agency has
been unable to explain why its second search was not fruitful does not detract from the Court’s
conclusions nor does it permit the argument that defendant has engaged in a pattern or practice of
not conducting adequate searches. See Payne Enters., Inc. v. U.S., 837 F.2d 486, 491 (D.C. Cir.
1988) (“So long as an agency's refusal to supply information evidences a policy or practice of
delayed disclosure or some other failure to abide by the terms of the FOIA, and not merely
isolated mistakes by agency officials, a party’s challenge to the policy or practice cannot be
mooted by the release of the specific documents that prompted the suit.” (footnote omitted)
(emphasis added)).
Finally, plaintiff contends that defendant’s reply to its cross motion did not controvert the
Statement of Facts included with the cross motion, and thereby violated Local Civil Rule 7(h)(1),
thus entitling it to summary judgment. (Pl.’s Rep. at 2.) Assuming that plaintiff’s arguments
regarding LCvR 7(h)(1) are correct, the Court would have to treat each of plaintiff’s
13
uncontroverted facts as true; however, each “fact” is either immaterial to the adjudication of this
case or constitutes a conclusion of law. 7
CONCLUSION
For the above reasons, defendant’s motion for summary judgment is granted, and
plaintiff’s cross motion for summary judgment is denied. Further, plaintiff’s motion to strike
defendant’s July 18, 2011 pleading is denied. A separate order accompanies this Memorandum
Opinion.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: August 3, 2011
7
As shown by the analysis above, plaintiff’s conceded “facts” that defendant failed to produce
all responsive documents and that the search was untimely (i.e., it occurred after litigation
commenced) are immaterial. (See Pl.’s Rep. at 2.) Further, concessions that include phrases like
“was inadequate as a matter of law” (see id. at 3-4), are not “facts” that the Court need consider.
Finally, plaintiff’s contention that John Harrington, BIA counsel, conceded the inadequacy of the
search in a telephone call is immaterial both because it is a conclusion of law and because the
alleged concession occurred before the April 2011 production.
14