141 F. Supp. 3d 46
D.D.C.2015Background
- Plaintiff Jesse J. Dean requested from the DEA a "cooperating individual agreement" he signed in 1991; prosecutors had used such a record at his trial.
- Earlier, the court denied the DEA’s motion to neither confirm nor deny existence because the record had been used at trial and ordered the DEA to search.
- DEA submitted a detailed declaration by Jeffrey Green (Confidential Source Unit chief) describing searches of the Confidential Source System Concord (CSSC), field office safes, archived inventories, the National Records Center, and a headquarters archived file.
- Searches (May–Aug 2014) at the relevant field office, the Miami Field Division, the National Records Center, and a hand search of the archived HQ file produced no responsive record.
- Dean argued the search was inadequate because the DEA did not contact certain prosecutors and agents who had used or handled the agreement at trial; DEA replied it need not contact other agencies and that identified DEA employees had no demonstrated nexus to the missing file.
- The court found the search methods reasonable and adequate and granted summary judgment for defendants; Plaintiff’s request for costs was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of DEA search under FOIA | Dean: The agreement existed and was used at trial, so failure to locate it suggests inadequate search; DEA should have interviewed specific prosecutors/agents. | DEA: Conducted reasonable, detailed searches of CSSC, field safes, archives, and HQ files; not required to contact other agencies or non-employees; no close nexus shown to identified agents. | Search was adequate; summary judgment for defendants. |
| Duty to contact personnel outside agency | Dean: DEA should have sought records from prosecutors and non-DEA agents who used the file at trial. | DEA: FOIA does not obligate an agency to contact other agencies or individuals outside its control for documents it no longer possesses. | No duty to contact personnel outside DEA; failure to do so does not render search inadequate. |
| Duty to contact specific DEA agents | Dean: DEA should have queried DEA agents who interacted with him and handled evidence. | DEA: Plaintiff failed to show a close nexus or strong evidence tying those agents to the missing agreement; some individuals no longer employed and thus inquiries would be fruitless. | No requirement to contact the named DEA agents absent stronger evidence of a nexus; search remains adequate. |
| Effect of prior existence of document | Dean: Because the document was used at trial, it must exist and DEA’s inability to find it is not credible. | DEA: Existence at one time does not mean it still exists; adequacy focuses on search methods, not certainty of results. | Courts evaluate search adequacy by methods used; failure to find a document does not alone make search inadequate. |
Key Cases Cited
- Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344 (D.C. Cir. 1983) (agency bears burden to show search was reasonably calculated to uncover relevant records)
- Oglesby v. U.S. Dep’t of Army, 920 F.2d 57 (D.C. Cir. 1990) (affidavit describing search terms and locations supports summary judgment on adequacy)
- SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) (agency affidavits entitled to presumption of good faith)
- Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321 (D.C. Cir. 1999) (agency may need to question specific individuals with undisputed connection to missing records)
- Iturralde v. Comptroller of Currency, 315 F.3d 311 (D.C. Cir. 2003) (adequacy judged by methods used, not by fruits of search)
- Miller v. U.S. Dep’t of State, 779 F.2d 1378 (8th Cir. 1985) (document’s prior existence does not guarantee retention)