JAMES E. BOASBERG, District Judge.
In November 2011, Plaintiff American Chemistry Council submitted a Freedom of Information Act request to a division of the Department of Health and Human Services, seeking records pertaining to a federally funded study about the potential health effects of exposure to formaldehyde. Dissatisfied with HHS's response to its request, Plaintiff then brought this suit, which Defendants — HHS and three of its component agencies — subsequently moved to dismiss. In February 2013, the Court granted that motion in part, but held that it was premature to rule on the adequacy of Defendants' search before they had submitted supporting declarations detailing their efforts. Having now done so, Defendants move for summary judgment on this issue. Because the Court finds Defendants' efforts adequate, it will grant the Motion and enter judgment in their favor.
As the Court has previously set forth the facts of the underlying FOIA dispute in a prior decision, Am. Chemistry Council, Inc. v. United States Dep't of Health and Human Serv., 922 F.Supp.2d 56 (D.D.C.2013), it will limit its discussion of the facts here to those that directly relate to this Motion.
In its November 7, 2011, request, ACC sought the following documents related to a 2010 research paper in the Journal of Cancer, Epidemiology, Biomarkers & Prevention, primarily authored by Luopoing Zhang:
Plaintiffs request was forwarded from the NIH FOIA Officer to the National Institute of Environmental Health Sciences (NIEHS), one of NIH's 27 Institutes and Centers, which had awarded the specific grants identified in Plaintiffs request. See Mot., Declaration of Carol Maloney, ¶ 5. This was done because "[e]ach IC maintains the grant records for the grants it awards. Accordingly, NIEHS was the only IC in NIH that would maintain the grant files for the two referenced grants." Id. "The NIEHS FOIA Coordinator referred the request to the Division of Extramural Research and Training (DERT) within NIEHS, which maintained the grant files for the two grants mentioned in the request, because Zhang is an extramural (outside) researcher who is not employed by NIH." Id., ¶ 7.
The Maloney Declaration further explains how the NIEHS grant files are maintained, who can access those files, and how they were searched in response to Plaintiff's request. See id. Additionally, it confirms that there "are no other files... which would contain data produced by a grant." Id. As a result of the search outlined in the Maloney Declaration, Defendant identified 108 pages of responsive records and provided them to Plaintiff. See id., ¶¶ 8-9. These documents were responsive to sub-items 1(a)-(d) and 3(a)-(b) of ACC's request; no records were found to be responsive to sub-items 2(a)-(g). See id., ¶ 8.
On January 4, 2012, Plaintiff filed an administrative appeal challenging the adequacy of this search on two grounds: (1) only NIEHS files had been searched, and (2) responsive records were identified only with respect to one of the two grant applications. See id., ¶ 10. Upon receiving the appeal, the NIH FOIA officer determined that the files of the National Cancer Institute should also have been searched and, accordingly, sent the request there to be processed. See id., ¶ 11. That search, described in the declaration of Alyssa Voss, NCI's FOIA Coordinator, produced an additional 32 pages, "consisting of the Chinese-language questionnaires that were administered to the study subjects," which are "responsive to sub-item 2(a) of the request." See Voss Decl., ¶ 11. The NCI search also located data that was "responsive to sub-item 2(c) of the request, which sought records identifying the specific factory at which each study subject was employed"; however, the agency withheld these records under Exemption 6 because they were "the names of the two specific factories where each study subject was employed." Id. Defendants also reviewed records related to the second grant application (P42ES004705) and ultimately determined that documents related to this grant were not responsive because they pertained to benzene exposures, rather than the formaldehyde research that was the subject of the Zhang publication. See id., ¶ 12. Defendants' response to Plaintiffs appeal is set forth in their five-page August 13, 2012, Decision. See Maloney Decl., Exh. 4.
Approximately a month before Defendants issued their decision regarding ACC's appeal, Plaintiff filed this suit, asserting
In a subsequent status conference, the parties agreed that the only outstanding issue was the adequacy of the search, and the Court set a briefing schedule on this one remaining issue, which was memorialized in a Minute Order following that conference. See February 27, 2013, Minute Order ("Defendants shall file their Motion for Summary Judgment on the adequacy of the search on or before April 9, 2013.") (emphasis added). Defendants then filed this Motion on April 25 (after being granted an extension), claiming that they had conducted a reasonable search in response to Plaintiffs request and had produced all responsive documents. See Mot. at 11-16. ACC contests the Motion, arguing that Defendants failed to demonstrate that their search was adequate, and Plaintiff also separately challenges for the first time specific withholdings. See Opp. at 7-17. Yet ACC never previously objected to these withholdings and even agreed at the status hearing that the sole remaining issue was the adequacy of the search. See Mot., Exh. A (Transcript of Feb. 27, 2013, Status Conference) at 3-8. Any such objection is thus forfeited, and the Court need not address it further. The only issue to resolve, consequently, is the adequacy of the search.
Summary judgment may be granted 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." Fed.R.Civ.P. 56(a). A genuine issue of material fact is one that would change the outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."). In the event of conflicting evidence on a material issue, the Court is to construe the conflicting evidence in the light most favorable to the non-moving party. See Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C.Cir.2006). Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C.Cir.1992).
FOIA cases typically and appropriately are decided on motions for summary judgment. Defenders of Wildlife v. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C.2009); Bigwood v. U.S. Agency for Int'l Dev., 484 F.Supp.2d 68, 73 (D.D.C.2007). In FOIA
Congress enacted FOIA in order to "pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (citation omitted). "The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." John Doe Agency v. John Doe Corp., 493 U.S. 146, 152, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989) (citation omitted). The statute provides that "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules ... shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order the production of records that an agency improperly withholds. See 5 U.S.C. § 552(a)(3); Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989).
"Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary and capricious, the FOIA expressly places the burden `on the agency to sustain its action' and directs the district courts to `determine the matter de novo.'" Reporters Comm., 489 U.S. at 755, 109 S.Ct. 1468 (quoting 5 U.S.C. § 552(a)(4)(B)). "At all times, courts must bear in mind that FOIA mandates a `strong presumption in favor of disclosure'...." Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C.Cir.2002) (quoting Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991)).
As discussed above, the only issue before the Court is whether Defendants' search for documents was reasonable and adequate. "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. Coast Guard, 180 F.3d 321, 325 (D.C.Cir.1999) (quoting Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C.Cir.1990)); see also Steinberg v. Dep't of Justice, 23 F.3d 548, 551 (D.C.Cir.1994). "[T]he 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 v. Dep't of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984) (emphasis in original).
The adequacy of an agency's search for documents requested under FOIA "is judged by a standard of reasonableness
Attached to their Motion, Defendants have submitted the Declarations of Carol Maloney, FOIA Officer for the Public Health Service at HHS, and Alyssa Voss, the FOIA Coordinator in the Office of the Director in the Division of Cancer Epidemiology and Genetics, National Cancer Institute, National Institutes of Health at HHS, which, inter alia, explain in detail the steps that Defendants took to search for responsive records, including:
See id., ¶¶ 11-12; see also Maloney Decl., ¶ 12.
ACC contends that the above-detailed search was inadequate for a single narrow reason: it failed to search the files of the study's co-authors, which would likely contain additional responsive records. See Opp. at 6. In support of this assertion, Plaintiff has submitted the declaration of Robinan Gentry, a Ph.D in Toxicology whose work includes "the critical review and synthesis of scientific publications, as well as the study data underlying these publications," but who was not involved in the Zhang publication and has no personal knowledge of how Defendants maintain their records. See Opp., Declaration of Robinan Gentry, ¶ 2. The Gentry Declaration identifies a number of categories of responsive documents that she believes likely exist, but were not produced. See id., ¶¶ 12-15. These documents include, among other things:
See id., ¶13(d). Such records, Gentry explains, "frequently are maintained exclusively by individual scientists, and not in the NCI's central database or record system. Thus, a search of the individual co-authors' files would not necessarily have been `duplicative' of the search of the central database." See id., ¶ 15. ACC thus maintains that additional responsive records would have been located if Defendants had searched the files of the 11 individual scientists, and not just the central records system. See Opp. at 7.
While Gentry may have beliefs regarding how some documents are maintained at NCI, she has no basis to opine on the particulars of this case. See Boyd v. Exec. Office for United States Attorneys, 741 F.Supp.2d 150, 155 (D.D.C.2010) (rejecting speculation as to adequacy of search where plaintiff's declarant had no personal knowledge of existence of responsive records or agency's methods of recordkeeping); Brophy v. United States Dep't of Defense, No. 05-360, 2006 WL 571901, at *7 n. 4 (D.D.C. March 8, 2006) (rejecting plaintiff's "speculative theories" that rest on declarant who has no personal knowledge regarding agency's maintenance of electronic files).
In any event, Defendants persuasively explain that "the Agency had no reason to separately search files of individual NCI co-authors because such a search would have produced duplicative records." Reply at 2. This is so, because
Voss Decl., ¶ 10.
This is thus not a case where the agency has failed to consider a particular source; instead, in her detailed, good-faith declaration, Voss addressed whether the co-authors would have responsive documents and determined that they did not. The Court will not second-guess these assurances. At bottom, where an agency has determined that a search of an alternate source would be duplicative of a search that has already been conducted, there is no genuine issue of fact as to the adequacy of the search. See Spannaus v. CIA, 841 F.Supp. 14, 18 (D.D.C.1993).
The Court, therefore, finds summary judgment proper on the adequacy of the search.
For the foregoing reasons, the Court will issue a contemporaneous Order granting Defendants' Motion.
