REGGIE B. WALTON, United Stated District Court.
The plaintiff, Peter DeSilva, filed this civil case against the defendant, the United States Department of Housing and Urban Development ("HUD"), alleging violations of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2012). See Complaint ("Compl.") ¶¶ 1, 5-9. Currently before the Court are the Defendant's Motion for Summary Judgment ("Def.'s Mot.") and the Plaintiff's Motion to Request Defendant to Supplement the Document Release ("Pl.'s Mot."). Upon careful consideration of the parties' submissions,
The following facts are undisputed.
The plaintiff appealed the denial of his FOIA request to the HUD Office of Regional Counsel on October 5, 2011. Id. ¶ 4. Subsequently, "[o]n October 27, 2011, the [Office of Regional Counsel], the component responsible for coordinating HUD's response to [the] [p]laintiff's FOIA appeal, sent electronic mailings to relevant components of HUD,"
A few months thereafter, on March 7, 2012, the plaintiff filed this action against the defendant. Id. ¶ 9. "On or about December 13, 2012, HUD sent [the] [p]laintiff an executed copy of the Monitoring Review Letter, which was also sent to the [District of Columbia] Department of Housing and Community Development." Id. ¶ 10 (citing Def.'s Facts, Exs. 7 (December 13, 2012 letter from HUD to Michael D. Rose ("Monitoring Review Letter")), 13 (Declaration of Lawrence E. McDermott ("McDermott Decl."))). "In or about December 2012 and January 2013, four senior HUD employees were identified who had oversight and involvement in the Skyland Shopping Center Project," and these employees performed searches for responsive records, which were subsequently provided to the plaintiff. Id. ¶¶ 11-12; see Pl.'s Facts ¶¶ 3-4 (disputing the adequacy and reasonableness of the search). In releasing records to the plaintiff, the defendant "withheld, in full, [fifty-four] pages of responsive material pursuant to FOIA exemptions (b)(4) and (b)(5)." Def.'s Facts ¶ 13 (citing 5 U.S.C. § 552(b)(4)-(5); Def.'s Mot., Ex. 12 (Vaughn Index); Def.'s Mot., Ex. 13 (McDermott Decl.) ¶ 14). The defendant now moves for summary judgment, and the plaintiff moves for an order requiring the defendant to supplement its document release. Both motions are opposed.
A court reviews an agency's response to a FOIA request de novo, 5 U.S.C. § 552(a)(4)(B), and "FOIA cases typically and appropriately are decided on motions for summary judgment," ViroPharma Inc. v. HHS, 839 F.Supp.2d 184, 189 (D.D.C.2012) (citations omitted). Courts will grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). More specifically, in a FOIA action to compel production of agency records, the agency "is entitled to summary judgment if no material facts are in dispute and if it demonstrates `that each document that falls within the class requested either has been produced... or is wholly exempt from the [FOIA's] inspection requirements.'" Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 833 (D.C.Cir.2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir.1978)). "To successfully challenge an agency's showing that it complied with the FOIA, the plaintiff must come forward with `specific facts' demonstrating that there is a genuine issue with respect to whether the agency has improperly withheld extant agency records." Span v. DOJ, 696 F.Supp.2d 113, 119 (D.D.C.2010) (quoting DOJ v. Tax Analysts, 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989)).
Summary judgment in a FOIA case may be based solely on information
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981); see Beltranena v. Clinton, 770 F.Supp.2d 175, 181-82 (D.D.C.2011). In determining whether the defendant agency has met its burden in support of non-production, "the underlying facts are viewed in the light most favorable to the [FOIA] requester." Weisberg v. DOJ, 705 F.2d 1344, 1350 (D.C.Cir.1983).
The defendant argues that summary judgment is appropriate because it "conducted an adequate and reasonable search for responsive materials to [the] [p]laintiff's request." Def.'s Mem. at 6. The defendant argues also that it properly withheld fifty-four responsive documents pursuant to exemptions (b)(4) and (b)(5), see id. at 6-11, properly "invoked [e]xemption (b)(6) to protect names, home addresses, telephone numbers, and other personal information of individuals involved in the Skyland Shopping Center Project," see id. at 13, and that "it has established—with reasonable specificity—that all reasonably segregable, non-exempt information has been released to [the] [p]laintiff," id. at 14. The plaintiff contests neither the applicability of the exemptions nor the defendant's segregability determinations, and the Court thus deems these matters conceded,
When a FOIA requester challenges the adequacy of an agency's search for responsive records, "the agency must show, viewing the facts in the light most favorable to the requester . . . that it has conducted a `search reasonably calculated to uncover all relevant documents.'" Steinberg v. DOJ, 23 F.3d 548, 551 (D.C.Cir.1994) (quoting Weisberg v. U.S. Dept. of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984)). "The question is not `whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.'" Id. (emphasis in original). Thus, "the failure of an agency to turn up one specific document in its search does not alone render a search inadequate," for "the adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search." Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C.Cir.2003) (citation omitted); see also Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C.Cir.1986)
"A FOIA search is sufficient if the agency makes `a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.'" Baker & Hostetler LLP v. U.S. Dep't of Commerce, 473 F.3d 312, 318 (D.C.Cir.2006) (quoting Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C.Cir.1995)). Although "[t]here is no requirement that an agency search every record system . . ., the agency cannot limit its search to only one record system if there are others that are likely to turn up the information requested." Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C.Cir.1990); see also Campbell v. DOJ, 164 F.3d 20, 28 (D.C.Cir.1998). To establish the adequacy of the search, the "agency may rely upon reasonably detailed, nonconclusory affidavits submitted in good faith," Steinberg, 23 F.3d at 551, that "set[] forth the search terms and type of search performed, and aver[] that all files likely to contain responsive materials . . . were searched," Iturralde, 315 F.3d at 313-14 (citations and internal quotation marks omitted). "Agency affidavits are accorded a presumption of good faith," which "cannot be rebutted by `purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc., 926 F.2d at 1200 (citation omitted).
Here, the defendant initially offered several declarations concerning the searches carried out by "senior HUD officials, who had oversight and/or involvement in the Skyland Shopping Center Project." Def.'s Mem. at 6; see also Def.'s Facts, Exs. 5 (Declaration of Michael D. Rose); 8 (Declaration of Michael Szupper); 9 (Declaration of Stanley Gimont); 10 (Declaration of Frances Bush). The defendant also offered another declaration which states that an attorney-advisor at HUD, Lawrence McDermott, "coordinated a thorough and exhaustive search for documents in response to . . . [the plaintiff's] FOIA request." Def.'s Mot., Ex. 13 (McDermott Decl.) ¶ 12. The plaintiff challenges the sufficiency of these declarations, arguing that they are "[t]hey do not describe search terms and the type of search performed" and "the statements of the four HUD employees that they searched their documents, records, and emails does not provide detail about the type of search performed or the files and record systems searched." Pl.'s Opp'n at 17-18.
In response to the plaintiff's challenges, the defendant provided a supplemental declaration, which sets forth the search terms used, namely "`Skyland' `Skyland Shopping Center' and `Mittleman.'"
Another member of this Court has relied on supplemental declarations submitted with an agency's reply memorandum to cure deficiencies in previously submitted declarations where, as here, the "[p]laintiff filed no motion for leave to file a surreply challenging [the] defendant's supplemental declarations." See Judicial Watch, Inc. v. FDA, 514 F.Supp.2d 84, 89 n. 1 (D.D.C. 2007); see also Vest v. Dep't of Air Force, 793 F.Supp.2d 103, 121 (D.D.C.2011) (considering supplemental declaration submitted with reply memorandum in making adequacy determination). Because the McDermott declarations, when considered together, address the likely location of responsive records, the search terms used, where the searches were conducted, Def.'s Reply, Ex. 1 (McDermott Suppl. Decl.) ¶¶ 5-11, and aver that a "thorough and exhaustive search for documents," was conducted, Def.'s Mot., Ex. 13 (McDermott Decl.) ¶ 12, the Court finds that the defendant has sufficiently established that its search for responsive records was adequate.
The plaintiff next challenges the sufficiency of the declarations on the ground that they do not provide a time frame for the searches. Pl.'s Mem. at 18-19. However, agency declarations need not "set forth with meticulous documentation the details of an epic search for the requested records," Perry v. Block, 684 F.2d 121, 127 (D.C.Cir.1982), but merely must "set[] forth the search terms and type of search performed, and aver[] that all files likely to contain responsive materials. . . were searched," Oglesby, 920 F.2d at 68. As the Court has already found, the defendant has sufficiently provided the required information.
The plaintiff also contends that the defendant did not explain why it identified four specific senior HUD employees as the appropriate individuals to conduct records searches in response to the plaintiff's FOIA request. Pl.'s Opp'n at 18. He notes that other individuals' names appear on emails produced by the defendant and asks why those individuals were not required to search for records. Id. However, one of the declarations reasonably explains that the four senior employees identified were officials "who had oversight of and involvement in the Skyland Shopping Center." Def.'s Mot., Ex. 13 (McDermott Decl.) ¶ 12. The defendant also explains that "the [additional] individuals that [the] [p]laintiff names are HUD employees in the subordinate chain of command . . . under Director Stanley Gimont," one of the four senior HUD employees whom the defendant initially identified. Def.'s Reply at 5 (citing Def.'s Reply, Ex. 1 (McDermott Supp. Decl.) ¶¶ 8-10). The defendant further explains that these additional individuals "have only drafts of the monitoring review letter, which was provided to [the] [p]laintiff, and duplicative emails, which were also provided to [the] [p]laintiff." Id. at 5-6 (citing Def.'s Reply, Ex. 1 (McDermott Supp. Decl.) ¶¶ 8-10). Despite these explanations, the defendant performed additional searches, which produced only records duplicative of those already provided to the plaintiff. Def.'s Reply, Ex. 1 (McDermott Supp. Decl.) ¶¶ 9-11. These duplicates were provided to the plaintiff in a subsequent July 30, 2013 production. Def.'s Reply, Ex. 1 (McDermott Supp. Decl.) ¶¶ 9-10.
Finally, the plaintiff argues that additional records exist, stating that
Pl.'s Opp'n at 19-20. He broadly asserts further that "there are numerous appraisal guidelines and regulations concerning use of federal funds to acquire property" and that "[i]n light of the extensive and lengthy involvement of HUD with the Skyland project, it seems unlikely that there are no other documents." Id. at 20-21. These conclusory and speculative assertions are insufficient. To overcome a motion for summary judgment, a plaintiff must provide more than "[m]ere speculation that as yet uncovered documents may exist." SafeCard Servs., Inc., 926 F.2d at 1201. Here, the plaintiff in one breath questions the scope of HUD's involvement with the Skyland project, see, e.g., Pl.'s Opp'n at 20 ("[D]oes HUD monitor whether the Skyland project met the national objective to benefit low and moderate income persons?"), and in the next insists that HUD's involvement was so substantial that the agency must have additional documents, id. at 21. The defendant's supplemental declaration flatly dispels the notion that HUD was as involved with the Skyland project as the plaintiff suggests:
See Def.'s Reply, Ex. 1 (McDermott Supp. Decl.) ¶ 4 (emphasis added). In other words, while the records that the plaintiff seeks might exist, they are not in the defendant's possession. The Court is thus not persuaded that there exists a "substantial doubt" about the adequacy of the defendant's search. See Iturralde, 315 F.3d at 314 (citation omitted).
Because the plaintiff merely speculates about the existence of additional records, he has failed to overcome the presumption of good faith accorded to the defendant's declarations. Moreover, because the defendant's initial declarations and supplemental declaration set forth the information required, the Court is satisfied that the defendant's search was reasonable and adequate, and therefore grants the defendant's motion for summary judgment.
The plaintiff requests that the Court order the defendant to supplement its document production. Pl.'s Mot. at 1. Specifically, the plaintiff alleges that the December 13, 2012 Monitoring Review Letter, which the defendant released to the plaintiff along with other responsive documents on February 8, 2013, Def.'s Facts ¶ 10 (citing Def.'s Mot., Ex. 7 (Monitoring Review Letter)), "described a number of documents that were to be submitted to HUD by certain deadlines" that were "roughly [within] the same time frame of" the Letter, Pl.'s Mot. at 3.
For records to be considered "agency records" subject to the FOIA, "an agency must either create or obtain the requested materials," and "must be in control of the requested materials at the time
The Court concludes that the defendant conducted its searches in a manner that was reasonable calculated to uncover all responsive records, and that the plaintiff has failed to present sufficient evidence to rebut the defendant's presumption of good faith. Further, the defendant has provided an affidavit indicating that it did not have control of the additional documents that the plaintiff seeks at the time that he made his FOIA request. Accordingly, the Court grants the defendant's motion for summary judgment and denies the plaintiff's motion for the defendant to supplement its documents release.
