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


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  •                            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
    

Document Info

Docket Number: Civil Action No. 2011-0555

Judges: Judge Ellen S. Huvelle

Filed Date: 8/3/2011

Precedential Status: Precedential

Modified Date: 10/30/2014

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Marc Truitt v. Department of State , 897 F.2d 540 ( 1990 )

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Michele Steinberg v. United States Department of Justice , 23 F.3d 548 ( 1994 )

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