71 F.3d 885 (D.C. Cir. 1995), 94-5275, Nation Magazine, Washington Bureau v. United States Customs Service

Docket Nº:94-5275.
Citation:71 F.3d 885
Case Date:December 08, 1995
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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71 F.3d 885 (D.C. Cir. 1995)

The NATION MAGAZINE, WASHINGTON BUREAU, and Max Holland, Appellants,



No. 94-5275.

United States Court of Appeals, District of Columbia Circuit

December 8, 1995

Argued Oct. 27, 1995.

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[Copyrighted Material Omitted]

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Katherine A. Meyer, Washington, DC, argued the cause and filed the briefs for appellants.

Michael J. Ryan, Assistant United States Attorney, argued the cause for appellee, with whom Eric H. Holder, Jr., United States Attorney, and R. Craig Lawrence, Assistant United States Attorney, were on the brief. John D. Bates and Charles F. Flynn, Assistant United States Attorneys, Washington, DC, entered appearances.

Before: WALD, SILBERMAN and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Appellants The Nation Magazine and Max Holland, one of The Nation's contributing editors, ("The Nation") appeal a decision by the district court granting summary judgment to appellee the United States Customs Service ("Customs Service" or "Customs"). Asserting their right to obtain information from a government agency under the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552 et seq. (1994), appellants requested records regarding offers from billionaire and then-Presidential candidate H. Ross Perot to aid the Customs Service in its drug interdiction efforts. In its response letter, the Customs Service told appellants that it would neither confirm nor deny the existence of any records in its law enforcement investigatory files pursuant to FOIA's exception for law enforcement records set forth in 5 U.S.C. Sec. 552(b)(7)(C) ("Exemption 7(C)"), and that its search had otherwise revealed no responsive records. Appellants then filed suit in district court challenging Customs' determination as to the adequacy of the search and the applicability of Exemption 7(C). The district court granted summary judgment for Customs on both issues. The Nation Magazine v. U.S. Customs Service, No. 94-808, Memorandum Opinion (D.D.C. July 29, 1994) ("Mem.Op."). Appellants now ask us to reverse the district court's ruling.

We reverse the court's grant of summary judgment on both the adequacy of Customs' search and the applicability of Exemption 7(C). Regarding the adequacy of the agency's search, we find that Customs has not demonstrated beyond material doubt that its search was reasonably calculated to reveal responsive documents. It has not adequately explained what files other than Privacy Act records might contain information pertaining to the subject matter of appellants' request, nor has it provided details about the agency's "reading files" sufficient to support its claim that a search of those files for the 1981 "Chadwick memo" would be too laborious. As to Customs' assertion that Exemption 7(C) permits it to categorically refuse to confirm or deny the existence of any responsive records pertaining to third parties in its investigative files, we find this response cannot be categorically issued under Exemption 7(C) in all situations where a third-party FOIA requester seeks information from Customs' law enforcement files naming another individual,

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if the requester credibly demonstrates that the records sought may shed light on agency conduct in which the requester is interested. Instead, on remand the district court must perform an ad hoc balancing of the privacy and public interests implicated by disclosure of any responsive material.


On November 14, 1992, appellants submitted a FOIA request seeking access to "U.S. Customs Service records and documents indexed or cross-indexed under the name H. Ross Perot that were created any time between January 1969 and November 1992." They explained that the request included "all records and documents pertaining to Mr. Perot maintained for or by the Washington, DC headquarters of the Customs Service; and ... the Miami, Florida, and Houston, Texas offices," as well as information "pertaining to any person identified during the years 1969 to 1992 as an employee, consultant, or advisor to Mr. Perot." Appellants also noted that they were "especially interested in documents and records that pertain to offers by Mr. Perot to assist the Customs Service in the interdiction of illegal drugs." 1

The Customs Service issued appellants a "Glomar response," 2 refusing to confirm or deny the existence of any such records. It asserted that because "disclosure of the mere fact that an individual is mentioned in an agency's law enforcement files carries a stigmatizing connotation," it could withhold any responsive records under Exemption 7(C). The Nation appealed this determination to the Director of Customs' Office of Regulations and Rulings, who affirmed the response. In its response, the agency stated that "the information sought, if it exists, is in a law enforcement system of records," and concluded that because disclosure of the existence of any records would be stigmatizing, "[p]roduction ... would be an unwarranted invasion of the personal privacy of the individual and exempt from disclosure pursuant to 5 U.S.C. Sec. 552(b)(7)(C)." Customs also told Holland that it had searched "non-investigatory files relating to Mr. Perot" in its Houston and Miami offices, as well as making a search of the system which logs correspondence of the Customs Commissioner, but had not located any responsive records in those files.

The Nation challenged this decision in district court, claiming that Customs' "refus[al]

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to process plaintiffs' FOIA request" 3 and make requested records available was unlawful. Complaint, The Nation Magazine v. United States Customs Service, No. 92-808 (D.D.C. July 29, 1994). Both appellants and the Customs Service then cross-filed for summary judgment. In their motion, appellants contested the adequacy of the search and the lawfulness of the "Glomar response" issued by the agency. In explaining its position, Customs reiterated the grounds it had provided in its letter to The Nation: if they existed, the records sought would most likely be in investigatory files; the agency had a policy of not confirming or denying the existence of such records; and no other relevant records had been located in the search of non-investigatory files in the Houston or Miami offices.

The district court granted Customs' motion for summary judgment and denied appellants' motion. It ruled that the agency had made an adequate search for the requested information, finding that the affidavits submitted by Customs sufficiently explained why the search was reasonably calculated to succeed. Mem.Op. at 13-14. The court also upheld Customs' refusal to confirm or deny the existence of responsive records in its investigatory files, finding that appellants had waived their right to this information by stating that they believed it unlikely the agency would locate responsive information in these files. Id. at 6-7. In addition, the court determined that even if responsive records indexed under Perot's name had been located in the investigatory files, the agency could withhold them under Exemption 7(C) on the grounds that they related to the actions of a private citizen, not the government, and thus fell outside the scope of FOIA. Id. at 7-8.

Appellants raise two issues on appeal. First, they challenge the district court's ruling on the adequacy of the search, arguing that the district court erred in allowing Customs to limit its search to Privacy Act records and to exclude "reading files" from the search. Second, appellants contend that the court erred in allowing Customs to categorically refuse to confirm or deny the existence of responsive records in the enforcement files on the basis of Exemption 7(C). They argue that in light of the agency's repeated identification of the investigatory files as the likely source of responsive records, the court cannot preclude disclosure based on appellants' original skepticism about the adequacy of this search. Appellants also take issue with the district court's determination that because any responsive information in the investigatory files would relate to the activities of a private citizen, rather than to agency conduct, it would be exempt anyway under Exemption 7(C).


Appellants first argue that the district court erred in granting summary judgment for the government on the question of whether Customs' search for responsive records was adequate. We review de novo a district court's grant of summary judgment in favor of an agency which claims to have complied with FOIA. Steinberg v. United States Dep't of Justice, 23 F.3d 548, 551 (D.C.Cir.1994) (citing Weisberg v. United States Dep't of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984) (Weisberg III )).

  1. Scope of Appellants' Request

    To assess the adequacy of Customs' search, we must first ascertain the scope of the request itself. Customs limited its search to "Privacy Act systems of records," which include all records accessible by a name or personal identifier. 4 Supplemental

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    Decl. of Kathryn C. Peterson at 2. The agency argued that this search was adequate because appellants only asked for records "indexed and cross-indexed" to Perot's name. Appellants disagreed with this characterization of their request, arguing that it extended to documents which we will call "subject matter files" for the sake of convenience--those documents which contain information relevant to Perot's offers of assistance, but are not filed under Perot's name. They claimed that since a search of Privacy Act records would not necessarily turn up such files, Customs' efforts were inadequate.

    Although a requester must "reasonably...

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