Campbell v. U.S. Dept. of Justice

Citation164 F.3d 20
Decision Date03 March 1999
Docket NumberNo. 97-5269,97-5269
PartiesJames CAMPBELL, Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (No. 89cv03016).

James H. Lesar argued the cause and filed the briefs for appellant.

Fred E. Haynes, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Wilma A. Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. Brian J. Sonfield, Assistant U.S. Attorney, entered an appearance.

Before: WILLIAMS, GINSBURG and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

James Campbell appeals from the grant of summary judgment to the Department of Justice in an action under the Freedom of Information Act ("FOIA") seeking Federal Bureau of Investigation ("FBI") records about author and civil rights activist James Baldwin. Campbell contends that the FBI has conducted an inadequate search for documents responsive to his FOIA request, that the declarations in support of the FBI's invocation of FOIA's national security and law enforcement exemptions are insufficiently detailed to establish the absence of a genuine dispute of material fact, and that the district court erred in affirming the FBI's denial of Campbell's request for a complete waiver of fees. We agree with these contentions, in part because this circuit's FOIA jurisprudence has advanced while the lawsuit has stood relatively still, and we therefore reverse and remand the case to the district court for further proceedings.

I.

This case arises from a scholar's efforts to unearth artifacts from an awkward period in the history of the FBI. See, e.g., Hobson v. Wilson, 737 F.2d 1, 9-13 (D.C.Cir.1984) (describing the FBI's COINTELPRO investigations). In 1988, Appellant James Campbell was writing a biography about James Baldwin, a noted author and leader in the civil rights movement. To obtain information for use in his forthcoming book, Campbell submitted a FOIA request to the New York office of the FBI in which he sought "the FBI file" on Baldwin. The parties exchanged correspondence and the New York and national FBI offices identified and produced a limited number of responsive documents, often in redacted form. These documents, only some of which are in the appellate record, suggest that the FBI monitored Baldwin's civil rights activities and contacts with alleged communists during the 1960s. The parties eventually reached an impasse about the scope of the FBI's disclosure obligations. After exhausting his administrative remedies, Campbell filed suit in November 1989 for injunctive relief compelling the Justice Department to produce requested documents and waive copying fees. Over the course of the next year, the FBI released additional documents. In 1991, Campbell published "Talking at the Gates: A Life of James Baldwin."

Between 1991 and 1996, Campbell's case languished in district court as various stays permitted the FBI to review documents and respond to new judicial interpretations of FOIA. In September 1996, the district court partially granted the Justice Department's motion for summary judgment. The court concluded that the FBI had conducted an adequate search, properly invoked exemptions to FOIA, and established an appropriate copying fee. After conducting an in camera inspection of a file labeled "miscellaneous law enforcement," the court also concluded that the Department had properly invoked FOIA's law enforcement exemption, and in August 1997 granted summary judgment to the Department on that file as well. The court denied Campbell's cross motion for summary judgment, except with regard to a limited category of information related to certain investigative techniques that the court ordered be disclosed. Campbell appeals the September 1996 and August 1997 summary judgment orders.

II.

A. Adequacy of the search. Viewing the FOIA terrain with an eye toward providing guidance to agencies consistent with congressional intent, the court explained with respect to an adequacy-of-search claim in Oglesby v. United States Dep't of the Army, 920 F.2d 57 (D.C.Cir.1990), that "the agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Id. at 68. "If, however, the record leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper." Truitt v. Department of State, 897 F.2d 540, 542 (D.C.Cir.1990). The court applies a "reasonableness" test to determine the "adequacy" of a search methodology, Weisberg v. United States Dep't of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983), consistent with congressional intent tilting the scale in favor of disclosure. See, e.g., John Doe Agency v. John Doe Corp., 493 U.S. 146, 151-52, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989).

The record indicates that the FBI limited its search for information about James Baldwin to files that it could locate by searching its Central Records System (CRS) index, which is capable of locating most, but not all, documents responsive to a general request for information about a particular subject. The district court rejected Campbell's claim that the FBI had conducted an inadequate search because it failed to check a separate electronic surveillance (ELSUR) index and to search for "tickler" 1 files even though documents that the FBI did produce alluded to potentially responsive ELSUR and tickler records. 2 The FBI has not offered any evidence to rebut Campbell's claim that some of the Bureau's documents suggest--through administrative annotations and express references in the text 3--that searching the ELSUR index, or searching for ticklers, would have identified additional information about James Baldwin. 4 Instead, the FBI contends that ELSUR and tickler searches are unnecessary in the vast majority of cases, and that it therefore need not conduct such searches unless expressly asked to do so in a FOIA request. Because Campbell's request asked only for "the FBI file" on Baldwin, the FBI maintains that it acted reasonably by searching only the CRS index.

We will assume that the FBI's characterization of ELSUR and tickler searches is correct, and that such searches rarely uncover information beyond the scope of a CRS search. It follows from this assumption that in most cases, the FBI need not conduct ELSUR and tickler searches when the FOIA requester does not expressly ask it to do so. FOIA demands only a reasonable search tailored to the nature of a particular request. When a request does not specify the locations in which an agency should search, the agency has discretion to confine its inquiry to a central filing system if additional searches are unlikely to produce any marginal return; in other words, the agency generally need not "search every record system." Oglesby, 920 F.2d at 68.

However, an agency "cannot limit its search to only one record system if there are others that are likely to turn up the information requested." Id. An agency has discretion to conduct a standard search in response to a general request, but it must revise its assessment of what is "reasonable" in a particular case to account for leads that emerge during its inquiry. Consequently, the court evaluates the reasonableness of an agency's search based on what the agency knew at its conclusion rather than what the agency speculated at its inception. Here, the FBI started with the reasonable assumption that only a CRS review would be necessary, but that assumption became untenable once the FBI discovered information suggesting the existence of documents that it could not locate without expanding the scope of its search. Cf. Kowalczyk v. Department of Justice, 73 F.3d 386, 389 (D.C.Cir.1996). In resisting this conclusion, the Department maintains that the "weight of authority" justifies refusing to supplement a CRS search with an ELSUR search unless specifically asked to do so within the FOIA request. In fact, such authority indicates that the FBI must search ELSUR in addition to CRS in response to a general FOIA request for which ELSUR may be relevant. See Biberman v. FBI, 528 F.Supp. 1140, 1144-45 (S.D.N.Y.1982); Larouche v. Webster, 1984 WL 1061, * 2 (S.D.N.Y.1984); cf. Schrecker v. United States Dep't of Justice, 14 F.Supp.2d 111, 119 (D.D.C.1998). Moreover, the FBI appears in many cases to have searched ELSUR without being asked to do so. See Hart v. FBI, 1996 WL 403016 at * 2 (7th Cir.1996); Marks v. United States, 578 F.2d 261, 263 (9th Cir.1978); Canning v. United States Dep't of Justice, 848 F.Supp. 1037, 1050 (D.D.C.1994). 5

The Department also asserts that the existence of ticklers in its archives is "speculative" because ticklers are not generally preserved for posterity and also might not contain information distinct from what the FBI already found within the CRS. It is true that Campbell has claimed only that a tickler existed at one time, not that it exists today or that it contains unique information. Yet in any FOIA request, the existence of responsive documents is somewhat "speculative" until the agency has finished looking for them. As the relevance of some records may be more speculative than others, the proper inquiry is whether the requesting party has established a sufficient predicate to justify searching for a particular type of record. Cf. Meeropol v. Meese, 790 F.2d 942, 953 (D.C.Cir.1986). Here, the FBI does not deny that such a predicate exists, rendering its "speculation" claim irrelevant. Cf. Oglesby v. United States Dep't of the Army, 79 F.3d 1172, 1185 (D.C.Cir.1996); Schrecker, 14 F.Supp.2d at 119.

For these reasons we conclude that the district court erred in...

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