Heily v. United States Department of Commerce

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DANIEL E. HEILY, 
Plaintiff-Appellant,
v.
UNITED STATES DEPARTMENT OF
COMMERCE,
Defendant-Appellee,
and
JOHNNIE FRAZIER, Inspector General;
HECTOR BENITEZ; DONALD EVANS, as  No. 03-1309
an individual and Secretary of
Commerce; BRENDA DOLAN,
Departmental Freedom of
Information Officer; BARBARA S.
FREDERICKS, Assistant General
Counsel for Administration; BRIAN
DIGIACOMO; AZALEA NUNNALLY,
Office of Inspector General,
Defendants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(CA-02-415-A)
Submitted: June 12, 2003
Decided: July 3, 2003
Before WIDENER and NIEMEYER, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
2 HEILY v. UNITED STATES DEPARTMENT OF COMMERCE
Affirmed by unpublished per curiam opinion.
COUNSEL
Daniel E. Heily, Appellant Pro Se. Francis Patrick King, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Daniel E. Heily brought this action against the Department of
Commerce ("DOC") challenging its withholding of certain documents
pursuant to his request under the Freedom of Information Act
("FOIA"), 5 U.S.C. § 552 (2000). The district court granted the
DOC’s motion for summary judgment, and Heily appeals. We affirm.
On review of a district court’s grant of summary judgment in favor
of the government in a FOIA action, we must determine de novo
whether, after taking the evidence in the light most favorable to the
nonmovant, there remains any genuine issue of material fact and
whether the government is entitled to summary judgment as a matter
of law. See Ethyl Corp. v. United States Envtl. Prot. Agency, 25 F.3d
1241, 1246 (4th Cir. 1994).
Heily argues that: (1) the district court erred by granting summary
judgment in favor of the DOC because triable issues of fact remain
at issue; (2) the DOC was permitted to paralyze discovery; (3) the
scope of discovery was limited in conflict with FOIA; and (4) the dis-
trict court issued inappropriate protective orders. For the reasons that
follow, we find that Heily’s arguments fail.
HEILY v. UNITED STATES DEPARTMENT OF COMMERCE 3
FOIA requires federal agencies to disclose agency records unless
they may be withheld pursuant to one of nine enumerated exemptions
listed in § 552(b). A defendant agency has the burden of establishing
the adequacy of its search and that any identifiable document has
either been produced or is subject to withholding under an exemption.
See Carney v. United States Dep’t of Justice, 19 F.3d 807, 812 (2d
Cir. 1994). This burden may be met through affidavits explaining the
manner in which the search was conducted. See id. An agency’s affi-
davits must be relatively detailed and nonconclusory in order to sup-
port a FOIA exemption. See Simmons v. United States Dep’t of
Justice, 796 F.2d 708 (4th Cir. 1986); see also National Parks & Con-
servation Ass’n v. Kleppe, 547 F.2d 673, 680 (D.C. Cir. 1976) (hold-
ing that conclusory and generalized allegations are unacceptable as
means of sustaining the burden of nondisclosure). The court is enti-
tled to accept the credibility of such affidavits, so long as it has no
reason to question the good faith of the agency. See Bowers v. United
States Dep’t of Justice, 930 F.2d 350, 357 (4th Cir. 1991); see also
Carney, 19 F.3d at 812 (holding that such affidavits are accorded a
presumption of good faith). To prevail over this presumption, a
requestor must demonstrate a material issue by producing evidence,
through affidavits or other appropriate means, contradicting the ade-
quacy of the search or suggesting bad faith. See Miller v. United
States Dep’t of State, 779 F.2d 1378, 1384 (8th Cir. 1985). When
deciding whether these burdens have been met, the district court must
consider everything in the light most favorable to the nonmoving
party.
In the present case, the district court did not err by granting the
DOC’s motion for summary judgment as to Heily’s FOIA requests.
The DOC provided an affidavit from Brenda Dolon, the Departmental
Freedom of Information Officer, listing the documents sought by
Heily, a description of the search conducted by the DOC, the docu-
ments released to Heily, and an extensive explanation of the reasons
certain documents were withheld. A Vaughn* index prepared by the
DOC also was attached to the affidavit. We find that the affidavit pro-
duced by the DOC outlines its more than adequate search for respon-
sive documents, and outlines, in detail, its reasons for withholding
certain documents or portions thereof. Thus, the DOC met its burden
*See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).
4 HEILY v. UNITED STATES DEPARTMENT OF COMMERCE
of showing that it performed an adequate search and that any identifi-
able document was either produced or was subject to withholding
under an exemption. See Carney, 19 F.3d at 812.
Moreover, Heily fails to provide any evidence to rebut the affida-
vit. Although he seems to believe that there are other documents that
he is entitled to, this belief, standing alone, is inadequate to withstand
a motion for summary judgment. See Marks v. United States, 578
F.2d 261, 264 (9th Cir. 1978) (stating that conclusory allegation that
files must exist without further support does not raise genuine issue
for trial); Fed. R. Civ. P. 56(e) (requiring that affidavits in opposition
to motions for summary judgment be based on first-hand knowledge).
Thus, we find that the district court did not err by granting summary
judgment in favor of the DOC.
We also disagree with Heily’s arguments that the DOC was
allowed to paralyze discovery, and that the scope of discovery was
limited in conflict with FOIA. It is well-established that discovery
may be greatly restricted in FOIA cases. See Simmons, 796 F.2d at
712 (holding that district court has discretion to limit discovery in
FOIA cases and to enter summary judgment on basis of agency affi-
davits in proper case). When the courts have permitted discovery in
FOIA cases, it generally is limited to the scope of the agency’s search
and its indexing and classification procedures. See Weisberg v. United
States Dep’t of Justice, 627 F.2d 365, 371 (D.C. Cir. 1980); see also
Public Citizen Health Research Group v. Food & Drug Admin., 997
F. Supp. 56, 72 (D.D.C. 1998) (holding that discovery is limited to
investigating the scope of agency’s search for responsive documents,
the agency’s indexing, and the like).
In the present case, after the stay on discovery was lifted, discovery
was limited to any factual disputes challenging the adequacy of the
agency’s search for documents and the adequacy of the index pre-
pared by the agency describing its reasons for withholding any docu-
ments, in accordance with the district court’s adoption of the DOC’s
discovery plan. Notwithstanding these limitations, the DOC
responded to Heily’s interrogatories within the time set by the district
court. Also, the DOC attempted to resolve the disputes surrounding
production of several DOC employees for deposition. Thus, we find
no evidence to substantiate Heily’s contention that the DOC para-
HEILY v. UNITED STATES DEPARTMENT OF COMMERCE 5
lyzed discovery. Instead, the record reveals that it acted properly
within the rules of discovery and the specific boundaries set by the
district court.
Lastly, Heily argues that the district court issued inappropriate pro-
tective orders. We find that this argument also fails. Although the dis-
trict court authorized up to three non-party witness depositions, the
district court entered protective orders preventing the depositions of
three DOC employees. Heily argues that these employees have
knowledge relating to his claim and should, therefore, be allowed to
be deposed. Even assuming that these individuals do have relevant
information, the record reveals that Heily sought to depose them
regarding the deliberative process, attorney-client privileged commu-
nications, and attorney work product. Thus, because these are all
areas that are specifically exempted from disclosure under FOIA, we
find that the district court’s protective orders preventing such deposi-
tions are appropriate.
Accordingly, we affirm the district court’s grant of summary judg-
ment in favor of the DOC. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED