People for the Ethical Treatment of Animals, Inc. v. Bureau of Indian Affairs
800 F. Supp. 2d 173
D.D.C.2011Background
- PETA sues BIA under FOIA alleging inadequate search for Bear leases responsive documents.
- Two FOIA requests: August 2, 2010 scope Jan 1, 2003 to Aug 2, 2010; October 12, 2010 same scope but with no date restriction.
- Bear leases located in hard-copy files at Cherokee Agency, NC; search by Gail Kuester using an agency spreadsheet and manual file review.
- September 23, 2010 production: seven documents (273 pages).
- Administrative appeal filed Dec 2, 2010; after litigation, March-April 2011 expanded production of 38 documents (≈420 pages).
- May 2011, EBCI electronic database searched; 479 pages found that overlapped with prior production.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the initial search for August 2010 adequate? | Search was inadequate pre-litigation. | Search descriptions show records located and reviewed; adequate. | Yes; August search was adequate. |
| Does post-litigation production undermine pre-litigation search adequacy? | Post-litigation production proves bad faith and inadequacy. | Post-litigation production can cure earlier inadequacies and does not prove bad faith. | Post-litigation production does not undermine adequacy; searches deemed reasonable. |
| Should post-litigation searches be weighed to find bad faith? | Post-litigation search shows bad faith in initial search. | Meeropol permits correction; post-litigation search supports good faith. | No; post-litigation searches can remedy deficiencies and do not establish bad faith. |
| Is the agency entitled to summary judgment given FOIA standards for reasonable searches? | agency failed to conduct a reasonable search. | Declarations detail scope and method; searches reasonable. | Defendant granted summary judgment; plaintiff's cross-motion denied. |
Key Cases Cited
- Meeropol v. Meese, 790 F.2d 942 (D.C. Cir. 1986) (post-disclosure corrections can cure earlier inadequacies)
- Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476 (D.C. Cir. 1984) (adequacy of search is judged by reasonableness, not exhaustiveness)
- Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321 (D.C. Cir. 1999) (agency must show reasonably calculated search to uncover relevant documents)
- Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981) (relevance of later releases; not punitive to agency for initial search)
- Meeropol (quoted), 790 F.2d 942 (D.C. Cir. 1986) (post-litigation production can remedy inadequate searches)
- Perry v. Block, 684 F.2d 121 (D.C. Cir. 1982) (affidavits may be sufficient to show compliance with FOIA)
- Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770 (D.C. Cir. 1981) (presumption of good faith in agency declarations)