Opinion
No. 08-5480.
Filed On: June 2, 2009.
BEFORE: Rogers, Garland, and Kavanaugh, Circuit Judges.
ORDER
Upon consideration of the motion for summary affirmance, the order to show cause filed on April 10, 2009, and the response thereto; and the motion for appointment of counsel, it is
ORDERED that the order to show cause be discharged. It is
FURTHER ORDERED that the motion for appointment of counsel be denied. It is
FURTHER ORDERED that the motion for summary affirmance be granted with respect to the adequacy of the search conducted by the Executive Office of the United States Attorney ("EOUSA"). As to this aspect of the appeal, the merits of the parties' positions are so clear as to warrant summary action.See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam). The district court correctly held that the EOUSA satisfied its obligation under the Freedom of Information Act, 5 U.S.C. § 552, to search for records responsive to appellant's requests. See Oglesby v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). It is
FURTHER ORDERED, for the reasons set forth in the memorandum accompanying this order, that the case be remanded for further proceedings with respect to the remainder of appellant's claims raised in this appeal.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing. See Fed.R.App.P. 41(b); D.C. Cir. Rule 41.
MEMORANDUM
This is an action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, by Henry Callaway, a prisoner, who seeks information pertaining to his criminal investigation and trial. Callaway has raised a number of issues on appeal, several of which necessitate a remand for further proceedings.
First, Callaway asked the Department of Justice's Executive Office of the United States Attorney ("EOUSA") to provide unredacted copies of two audio tape recordings. Although the EOUSA released the tape recordings, there appears to be a factual dispute with regard to the contents of the released audio tape recordings, which on the basis of the current record, could not be resolved by summary judgment. The district court relied on an assertion by the EOUSA that it had made no redactions to a CDROM released to Callaway containing the recordings. Callaway presented evidence in the form of his verified complaint, attached exhibits, and an expert witness report, which suggest the recordings were redacted. The district court did not address this conflicting evidence. Based on the existence of this factual dispute, summary judgment was inappropriate.
In addition, summary judgment was not appropriate with regard to the adequacy of the search conducted by the United States Customs Service ("USCS"). The USCS should not have limited its search to the appellant's criminal investigative files, when the request appears to encompass additional material, which may not be located in a criminal investigative file. See Nation Magazine v. United States Customs Service, 71 F.3d 885, 890 (D.C. Cir. 1995) (although a requester must "reasonably describe" the records sought, an agency has a duty to construe a FOIA request liberally).
Further, the affidavits submitted by the USCS do not support the conclusion that the agency's search was reasonably calculated to locate all responsive records stored on microfiche. The USCS cited the third declaration of Marshall Fields, which states simply that "The IRS [Investigation Records System] is a system of records that is maintained in both hardcopy files and on microfiche." Third Decl. of Marshall Fields ¶ 9. There is no indication in the declaration or elsewhere that the IRS database includes all microfiche files, or whether there are separate search mechanisms for paper and microfiche files. The government has the burden of showing beyond material doubt that it has conducted a search reasonably calculated to uncover all relevant documents. See Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007). Here, the government has not rebutted Callaway's contention that the microfiche files could reasonably be expected to contain responsive material, nor has the government asserted that it searched all of the microfiche files but located no responsive materials.
In light of Exhibit W to the complaint, which contains the public transcripts of Callaway's criminal trial and sentencing hearing, it appears appellant has met his initial burden of pointing to specific information in the public domain that he asserts is the same as the information requested and withheld under an otherwise valid exemption. See Cottone v. Reno, 193 F.3d 550, 555 (D.C. Cir. 1999). The trial transcripts should be compared to the grand jury transcripts to determine whether any portion of the grand jury transcripts is identical to the public transcripts.
Finally, there was insubstantial support for the district court's determination that the government has withheld only exempt material, and has segregated and released any responsive, non-exempt materials. The government's affidavits state only legal conclusions regarding segregability, and the Vaughn index does not explain why responsive documents containing information such as names or administrative codes could not be redacted and released. See Stolt-Nielsen Transp. Group, Ltd. v. United States, 534 F.3d 728, 735 (D.C. Cir. 2008) (self-serving statements provided by the government are insufficient support for a court to conclude that all segregable non-exempt responsive material has been released).
On remand, the district court can request more detailed affidavits from the government, permit discovery, or conduct an in camera review of the materials at issue. See Quinon v. FBI, 86 F.3d 1222, 1232 (D.C. Cir. 1996).