MEMORANDUM OPINION
Plaintiff People for the Ethical Treatment of Animals, Inc. (“PETA”), a Virginia nonprofit corporation, has sued the Bureau of Indian Affairs (“BIA”). Plaintiff brings this suit under the Freedom of Informa
BACKGROUND
I. FACTUAL HISTORY
Plaintiff submitted two FOIA requests. The first request (“the August request”) was submitted on August 2, 2010, and sought information regarding three leases entered into by the Eastern Band of Cherokee Indians (“EBCI”): Santa’s Land; the Cherokee Bear Zoo and/or Barry Coggins; and Chief Saunooke Bear Park and/or Chief Saunooke Trading Post and/or Cole Klapsaddle (collectively, “the Bear leases”). (Complaint [“Compl.”] at ¶ 10; Defendant’s Memorandum of Law in Support of Motion for Summary Judgment [“Def.’s Mot.”] at 2.) Plaintiff limited the scope of the August request to documents dated from January 1, 2003, to the date of the request, August 2, 2010. (Compl. at ¶ 10.) Defendant assigned the August request FOIA Control No. BIA-2010-01249. (Id. at ¶ 11.)
Defendant houses the Bear leases in hard-copy form only, located in a file cabinet at the BIA’s Cherokee Agency office in Cherokee, North Carolina. (Def.’s Mot., Declaration of Franklin Keel [“Keel Decl.”] at ¶ 5; Defendant’s Memorandum of Points and Authorities in Support of Supplement to Motion for Summary Judgment, Reply and Opposition to Plaintiffs Cross Motion for Summary Judgment [“Def.’s Supp.”] at 2; Def.’s Supp., Declaration of Ruth McCoy [“McCoy Deck”] at ¶¶ 1, 2.) In that office, Ruth McCoy serves as a Realty Officer and supervises Gail Kuester, a Realty Specialist who maintains BIA’s lease files pertaining to EBCI lands. (Def.’s Supp., Declaration of Gail Kuester [“Kuester Deck”] at ¶¶ 1, 2, p. 4; McCoy Deck at ¶ 1.) Kuester was assigned to the August request, and searched “a spreadsheet of [EBCI] leases on the Cherokee Agency share drive,” which “does not contain copies of documents” but “contains information showing the lease number, lessor, and lessee.” (Kuester Deck at ¶¶ 3, 4.) Kuester used the information to collect data on the Bear leases and then manually searched the hard copy files in the file cabinet. (Id. at ¶ 4.) Pursuant to the August request, on September 23, 2010, defendant produced seven documents totaling 273 pages: three memoranda, one letter, one lease, and two lease supplements. (Compl. at ¶ 12, Ex. 2; Reply in Support of Defendant’s Supplement to Motion for Summary Judgment [“Def.’s Rep.”], Second Supplemental Declaration of John Harrington [“Second Harrington Deck”] at ¶ 3.)
Plaintiff submitted a second FOIA request (“the October request”) on October 12, 2010, seeking the same documents as the August request, but plaintiff removed the date restriction for the search. (Id. at ¶ 14.) Defendant assigned the October request FOIA Control No. BIA-2011-00035. (Id. at ¶ 15, 16, Ex. 5.) In response to the October request, Kuester again conducted a manual search of the files, finding no additional responsive documents that had not already been provided to plaintiff as a result of the August request. (Id.; Kuester Deck at ¶ 4.)
On December 2, 2010, plaintiff filed an administrative appeal, asserting that defendant’s search was unreasonable and inadequate. (Compl. at ¶ 20, Ex. 5.) On
Plaintiff filed the instant complaint on March 17, 2011. (Compl. at 1.) John Harrington, BIA counsel, spoke to plaintiffs counsel on April 13, 2011, seeking clarification of the types of documents plaintiff requested. (Def.’s Mot. at 2.) Plaintiffs counsel informed Harrington that a number of responsive documents could be eliminated from the search, but that plaintiff wanted any documents related to the exhibition of animals, the enforcement of laws and regulations, and contractual obligations showing that lessees were complying with laws and regulations. (Id. at 2-3.) During this phone call, Harrington admitted that defendant’s search and production up to that point had been inadequate. (Pl.’s Rep. at 4; Def.’s Rep. at 8.)
In March 2011, Rebecca Smith, a Program Support Assistant at the BIA’s Branch of Tribal Government, Eastern Region, in Nashville, Tennessee, requested that BIA employees at the Cherokee Agency send her copies of the entire files of each of the Bear leases. (Def.’s Supp., Declaration of Rebecca J. Smith [“Smith Decl.”] at ¶¶ 1, 4.) She received those files on March 25, 2011, and then sent them electronically to Harrington. (Id. at ¶ 4.) Subsequent to several conversations between Harrington and Smith outlining responsive and exempt documents, on April 22, 2011, defendant produced an additional thirty-eight documents, totaling approximately 420 pages, that were responsive to the August and October requests. (Def.’s Mot. at 3; Plaintiffs Consolidated Memorandum of Points and Authorities in Support of Plaintiffs Cross-Motion for Summary Judgment and in Opposition to Defendant’s Motion for Summary Judgment [“Pl.’s Cross Mot.”] at 9; Smith Decl. at ¶ 5; Second Harrington Decl. at ¶ 4.) Only one of those documents, totaling six pages, was responsive to the August request but not produced in the September 2010 disclosure (Second Harrington Decl. at ¶ 5); thus, the vast majority (thirty-seven out of thirty-eight documents) were responsive to the October request, which had no restrictions as to dates. Twelve of the documents contained minor redactions of private addresses or private financial information. (Keel Decl. at ¶ 11.)
The EBCI completed an electronic database of its reservation lands in May 2011; unlike the Cherokee Agency’s spreadsheet that contains references to files that exist in hard-copy form only, the EBCI database houses all of EBCI’s lease documents in a searchable, electronic format. (Def.’s Supp. at 2, 3.) The database is the sole property of the EBCI; however, the EBCI granted access to defendant upon the database’s completion. Kuester searched the database in May 2011, after the Eastern Region in Nashville had reviewed the entire set of BIA files and produced every responsive document in those files. (Id.) Kuester used search terms that included the lease numbers, the lessors’ and lessees’ names, and the words “Santa’s Land,” “Cherokee Bear Zoo,” and “Chief Saunooke’s Trading Post.” (Kuester Decl. at ¶¶ 5, 6, 7, p. 4.) She found 479 pages of responsive documents but discovered that those documents were the same ones that had already been produced by the Eastern Region office in the April 2011 disclosure. (Def.’s Supp. at 2, 3.)
ANALYSIS
I. STANDARD OF REVIEW
The Court may grant a motion for summary judgment if the pleadings, the dis
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defenders of Wildlife v. U.S. Border Patrol,
“An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’ ”
Valencia-Lucena v. U.S. Coast Guard,
II. THE FOIA REQUESTS
The only issue on appeal is the adequacy of defendant’s search, since plaintiff does not contest the exemptions invoked by defendant, and while the legal conclusions are disputed, the underlying facts are not.
(See infra
note 7.) Plaintiff argues that it is entitled to summary judgment because the pre-litigation searches were inadequate.
(See
Pl.’s Cross Mot. at 9-17; Pl.’s Rep. at 4-15.) Plaintiff bases its argument on the fact that it did not get the documents it requested until after litigation commenced; thus, plaintiff reasons, the post-litigation search and the results thereof proves the inadequacy and bad faith of defendant’s pre-litigation search.
1
First, plaintiff has failed to prove that defendant’s first search, in response to the August request, was inadequate. As defendant’s declarations show, and plaintiff does not appear to contest, the first search, limited in time by plaintiff, found all but one responsive document that was six pages long. (Second Harrington Decl. at ¶ 5.) The existence of this single document, however, is immaterial to the adequacy of defendant’s search in response to the August request because “the issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.”
Weisberg,
Plaintiffs argument, then, is essentially that defendant’s search in response to the October request, where there were no date restrictions, was inadequate and in bad faith because that search
In Military Audit Project v. Casey, we “emphatically rejected]” the notion that an agency’s disclosure of documents it had previously withheld renders its affidavits suspect, and our reasoning in that case is applicable here as well. We observed that such a line of argument, if accepted, “would work mischief in the future by creating a disincentive for an agency to reappraise its position, and when appropriate, release documents previously withheld.” Were the court to thus “punish flexibility,” it would “provide the motivation for intransigence”; the argument in favor of doing so is “based on the perverse theory that a forthcoming agency is less to be trusted in its allegations than an unyielding agency.” It would be unreasonable to expect even the most exhaustive search to uncover every responsive file; what is expected of a law-abiding agency is that it admit and correct error when error is revealed.
Meeropol v. Meese,
Meeropol
dealt with a massive FOIA request
4
made by the sons of Julius and Ethel Rosenberg, the American couple who were executed in 1953 for espionage.
At issue in
Meeropol
was the FBI’s handling of various FOIA requests. The sons challenged the adequacy of the FBI’s
Noticeably absent from the Court’s analysis in Meeropol is any support for the proposition that pre-litigation and post-litigation searches should be weighed differently or that the post-litigation searches and production should be ignored in determining whether the government has conducted an adequate search. See id. at 950-54. In fact, the Court confirmed the adequacy of the FBI’s search despite the fact that the adequate search came several years after the initiation of litigation. See id. at 945-46, 953-54, 963.
Similar to the FBI in
Meeropol,
the BIA remedied whatever inadequacies might have existed in response to the October request by subsequently searching
every single document
in
every single file
that could have contained responsive documents, ultimately producing thirty-seven more documents totaling over 400 pages in April 2011. Plaintiff concedes that this post-litigation search was adequate
(see supra
note 1), but still it contends that the post-litigation search proves the inadequacy of the pre-litigation search. As noted, plaintiffs attempt to render defendant’s post-litigation efforts as immaterial (or as proof of bad faith) is contrary to the law in this Circuit, which recognizes that it is immaterial that the search occurred after litigation commenced.
See Meeropol,
Plaintiffs contention that defendant’s post-litigation search and April 2011 production are proof of bad faith is also misguided.
5
(See
Pl.’s Cross Mot. at 16.)
In response, plaintiff points to
Nkihtaqmikon v. Bureau of Indian Affairs, 672
F.Supp.2d 154 (D.Me.2009), to argue that the BIA has a track record of failing to properly respond to FOIA requests. (Pl.’s Rep. at 6.) Although the Court is troubled by BIA’s lack of effort to adjudicate PETA’s administrative appeal before the commencement of litigation, neither what happened in
Nkihtaqmikon
nor BIA’s apparently dilatory response to the administrative appeal is relevant to the legal issues in this case. In addition to this Court’s finding that BIA fulfilled its duty to conduct an adequate search,
Nkihtaqmikon
is easily distinguishable. First, the Maine court ultimately found that the BIA’s search was inadequate because it was not reasonably calculated to uncover all relevant documents; in fact, the BIA had conducted a series of inadequate electronic searches over a four-year period that led to “dribbling disclosure,” never attempting to comprehensively correct its past inadequate disclosure. 672 F.Supp.2d
Finally, plaintiff contends that defendant’s reply to its cross motion did not controvert the Statement of Facts included with the cross motion, and thereby violated Local Civil Rule 7(h)(1), thus entitling it to summary judgment. (Pl.’s Rep. at 2.) Assuming that plaintiffs arguments regarding LCvR 7(h)(1) are correct, the Court would have to treat each of plaintiffs uncontroverted facts as true; however, each “fact” is either immaterial to the adjudication of this case or constitutes a conclusion of law. 7
CONCLUSION
For the above reasons, defendant’s motion for summary judgment is granted, and plaintiffs cross motion for summary judgment is denied. Further, plaintiffs motion to strike defendant’s July 18, 2011 pleading is denied. A separate order accompanies this Memorandum Opinion.
Notes
. Plaintiff, in fact, concedes that the post-litigation search was adequate. As noted by plaintiff, “Defendant makes much of the fact that Plaintiff has not addressed ... the rea
. The record includes the Second Supplement Declaration of John Harrington, which clarified the extent of the agency's production in April 2011. As is clear from this declaration, the first search only failed to locate six pages of documents, and the expanded scope of the production thereafter was primarily attributable to the fact that the timeframe of plaintiff's second request was greatly increased.
While the Court does not condone the late filing of this declaration, it will not, as requested by plaintiff, strike the pleading. To the extent that the legal arguments are redundant and unnecessary, they have been ignored, but the clarification of facts regarding the adequacy of the search cannot be disregarded given the nature of plaintiff’s challenges. Moreover, in a FOIA case, even if defendant had failed in obtaining summary judgment because of an inadequate search, it does not necessarily follow that plaintiff prevails. Rather, the usual remedy is for the Court to remand to the agency to expand its search or to provide more detailed declarations regarding the scope of the search.
See, e.g., Kean v. NASA,
For instance, courts often deny an agency's motion for summary judgment based upon vague or conclusory declarations and ask the agency to submit more detailed declarations. E.g.,
Schoenman v. FBI,
No. 04-2202,
As the Court has shown, those cases where an agency’s motion for summary judgment was denied based on inadequate declarations are distinguishable from the case here because, in those cases, the agency provided vague and conclusory declarations. (See infra note 5.) That is not the case here, but nonetheless, the explanation of the quantification of page and document numbers in the second declaration has allowed the Court to avoid an unnecessary remand and better enabled the Court to address some of plaintiff’s arguments.
. Plaintiff's repeated emphasis that the prelitigation searches are the only searches material to the adequacy determination is also legally unsupportable.
(See
Pl.'s Cross Mot. at 15 (arguing that defendant "failed to identify ... responsive documents ... until after Plaintiff initiated litigation''); Pl.’s Rep. at 1, 5 ("Defendant in this case falls far short of meeting its burden of proving the reasonableness of the searches it allegedly conducted before litigation commenced.”).) The cases cited by plaintiff in support of this proposition,
McKinley v. FDIC,
. Plaintiffs sought “ ‘all of the records relating directly or indirectly to investigation and prosecution of our parents,’ ” which at the time "was perhaps the most extensive FOIA request ever made.”
Meeropol,
. Plaintiff's use of
Campbell v. U.S. Dep’t of Justice,
Likewise, plaintiff's other cases are easily distinguished.
Valencia-Lucena v. U.S. Coast Guard
is similar to
Campbell;
the agency’s search was inadequate because it refused to search a known location with responsive documents.
. Likewise, despite its exhaustive efforts to undermine defendant’s declarants, plaintiff has failed to provide any evidence to overcome the presumption of good faith. (Pl.'s Rep. at 9-10, 12-15.) As the Circuit reasoned in Perry v. Block,
[None of the existing precedent] demands in every FOIA case that the affidavits of the responding agency set forth with meticulous documentation the details of an epic search for the requested records. Rather, in the absence of countervailing evidence or apparent inconsistency of proof, affidavits that explain in reasonable detail the scope and method of the search conducted by the agency will suffice to demonstrate compliance with the obligations imposed by the FOIA.
. As shown by the analysis above, plaintiffs conceded "facts” that defendant failed to produce all responsive documents and that the search was untimely (i.e., it occurred after litigation commenced) are immaterial. (See Pl.'s Rep. at 2.) Further, concessions that include phrases like "was inadequate as a matter of law” (see id. at 3-4), are not “facts” that the Court need consider. Finally, plaintiff's contention that John Harrington, BIA counsel, conceded the inadequacy of the search in a telephone call is immaterial both because it is a conclusion of law and because the alleged concession occurred before the April 2011 production.