893 F. Supp. 2d 269
D.D.C.2012Background
- FOIA action by Callaway against EOUSA and Customs regarding audio tape records and Ron Rose Productions invoices.
- Plaintiff sought unredacted audio tapes N-113 and N-116 and related materials from Customs, later focusing on two tapes.
- Court previously granted/denied various motions; remand by D.C. Circuit for a factual dispute over tape content.
- EOUSA released tapes in the same form received from Customs; issue is whether originals existed or were redacted.
- Customs’ searches for Ron Rose Production invoices were expanded; destruction of procurement files affected records.
- Court denies plaintiff’s motion to reconsider and grants defendants’ fourth renewed summary judgment; segregability upheld.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the factual dispute over tape content requires reconsideration | Callaway argues remand scope unresolved the content of the tapes | EOUSA showed tapes released without redactions; no original tapes shown to exist | Reconsideration denied; no evidence of missing originals |
| Adequacy of Customs’ search for Ron Rose invoices | Customs failed to search all potential repositories; destruction affected records | FOIA limits to records created/retained; invoices may not exist or be in Customs’ custody | Search deemed adequate; destruction/retention schedules explained and not FOIA violation |
| Segregability and exemptions applicability | Possible additional segregable information exists | Previously found proper exemptions (2,7(C),7(D),7(E),7(F)) apply; no further records to release | All reasonably segregable information already released; exemptions upheld |
Key Cases Cited
- Kissinger v. Reporters Comm. For Freedom of the Press, 445 U.S. 136 (U.S. 1980) (agency need not provide nonexistence of records beyond what exists)
- Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83 (D.D.C. 2009) (FOIA discovery and summary judgment framework)
- Weisberg v. Dep’t of Justice, 705 F.2d 1344 (D.C. Cir. 1983) (reasonableness of agency search; deference to declarations)
- SafeCard Servs., Inc. v. Sec. & Exchange Comm’n, 926 F.2d 1197 (D.C. Cir. 1991) (good faith search presumptions; rebuttal requires more than speculation)
- Maynard v. Central Intelligence Agency, 986 F.2d 547 (1st Cir. 1993) (burden to rebut agency’s search with specific evidence)
- D.C. Cir. v. Tax Analysts, 492 U.S. 136 (U.S. 1989) (scope of FOIA query and agency’s burden on producing documents)
- Callaway v. U.S. Dep’t of the Treasury, 824 F. Supp. 2d 153 (D.D.C. 2011) (context for prior rulings on audio tapes and FOIA compliance)
- Kissinger v. Reporters Comm. For Freedom of the Press, 445 U.S. 136 (U.S. 1980) (again listed for statutory interpretation of FOIA)