Behrens v. United States Attorney, 222 F. Supp. 3d 45

Plaintiff Bryan C. Behrens submitted a FOIA request (to EOUSA in Aug. 2013) seeking a court order purportedly authorizing the U.S. Attorney’s Office for the District of Nebraska to commence criminal proceedings against him.
Plaintiff asserted a July 28, 2008 civil-court order by Judge Laurie Smith Camp required leave of that court before any criminal proceedings could be brought, and he sought proof the USAO obtained such leave.
EOUSA initially responded that the USAO-Nebraska located no responsive records; the USAO filed successive summary-judgment motions asserting searches had produced no responsive documents.
The court denied the first two motions because the agency failed to provide adequate, supporting declarations and initially limited searches to civil case files rather than also searching criminal case files.
Following the court’s directions, USAO-Nebraska personnel searched both the civil case files and the criminal case file (USAO No. 2008R00023 / D. Neb. No. 8:09CR129) for any order granting leave to prosecute and found none.
Plaintiff challenged the adequacy of the search and argued USAO had knowledge of the civil proceedings and should have located or produced the order; the court held the agency’s declarations showed a reasonable search and granted summary judgment for the defendant.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Adequacy of agency FOIA search	Behrens contends USAO-Nebraska failed to locate/produce the court order and did not conduct a complete search of criminal files	EOUSA/USAO produced sworn declarations explaining searches of both civil and criminal case files and reported no responsive records found	Court held the agency’s search was reasonably calculated to locate responsive records and thus adequate; summary judgment for defendant
Need for additional declarations/admissions	Behrens sought an AUSA declaration admitting USAO violated Judge Smith Camp’s order or stating AUSA did not seek prior approval	Defendant said FOIA requires a good-faith search, not admissions or collateral attack on criminal proceedings; declarations from custodians describing the search suffice	Court held FOIA does not require an admission or additional AUSA declaration; agency declarations are entitled to presumption of good faith

Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83 (D.D.C. 2009) (summary-judgment procedure appropriate in FOIA litigation)
Brestle v. Lappin, 950 F. Supp. 2d 174 (D.D.C. 2013) (agency entitled to summary judgment where declarations explain scope and method of search)
Perry v. Block, 684 F.2d 121 (D.C. Cir. 1982) (agency may rely on affidavits to describe search effort)
Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504 (D.C. Cir. 2011) (agency must demonstrate search was reasonably calculated to uncover relevant documents)
Meeropol v. Meese, 790 F.2d 942 (D.C. Cir. 1986) (search need not be perfect; adequacy judged by reasonableness)
Nation Magazine v. U.S. Customs Serv., 71 F.3d 885 (D.C. Cir. 1995) (agency must make good-faith effort using methods reasonably expected to produce requested records)
Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57 (D.C. Cir. 1990) (adequacy of search measured by methods used, not by results)
Iturralde v. Comptroller of Currency, 315 F.3d 311 (D.C. Cir. 2003) (failure to find one document does not alone render search inadequate)
Boyd v. Criminal Div. of U.S. Dep’t of Justice, 475 F.3d 381 (D.C. Cir. 2007) (same)
Mobley v. CIA, 806 F.3d 568 (D.C. Cir. 2015) (agency affidavits are entitled to a presumption of good faith)
Judicial Watch, Inc. v. U.S. Dep’t of Health & Human Servs., 27 F. Supp. 2d 240 (D.D.C. 1998) (speculation about agency motives insufficient to defeat summary judgment on adequacy of FOIA search)