Miller v. U.S. Dept. of State

• Decision Date: 14 February 1986
• Docket Number: No. 84-5161,84-5161
• Citation: 779 F.2d 1378
• Parties: James MILLER, Appellant, v. UNITED STATES DEPARTMENT OF STATE, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1378

779 F.2d 1378

James MILLER, Appellant, v. UNITED STATES DEPARTMENT OF STATE, Appellee.

No. 84-5161

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 12, 1985.

Decided Dec. 30, 1985.

Rehearing Denied Feb. 14, 1986.

Gary Weissman, Minneapolis, Minn., for appellant.

Susan Sleater, D.J., Civ. Div., Washington, D.C., for appellee.

Before ROSS, McMILLIAN, and ARNOLD, Circuit Judges.

ARNOLD, Circuit Judge.

This case arises under the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552. Plaintiff James Miller requested certain information from the State Department. When, after the passage of a year, he had received only a handful of documents, and repeated inquiries to Department officials had borne no fruit, he filed this suit in the District Court, ¹ seeking injunctive relief against the Department and certain named employees ² and also recovery of his costs of suit, including legal fees. After receiving evidence in the form of affidavits, the District Court granted summary judgment to the State Department on the ground that its response to Miller's request had been adequate under the statute. The District Court also denied Miller recovery of his legal fees. From that order, plaintiff appeals. We affirm as to the grant of summary judgment but reverse with respect to attorney's fees and remand for further consideration in the District Court.

I.

Plaintiff Miller, an amateur historian, requested on 23 July 1981 the following information from the State Department:

(a) All State Department documents relating to the attack on the U.S.S. Liberty on 8 June 1967 by Israel.

(b) Any documentary evidence which demonstrates that this attack wasn't deliberate.

Internal documents and documents between the U.S. and Israel are both requested.... I assume that there were documents through Dec. 1980 when Israel agreed to compensation for the U.S.S. Liberty itself.

Correspondence involving compensation to victims of this attack is not requested.

Appendix at 7. ³

On 21 August 1981, the State Department advised Mr. Miller that a search was under way for the documents which he had requested. During December of that year, Miller twice called the State Department to check on his request. During at least one of those conversations, he mentioned an earlier FOIA request on the same subject by one James Ennes. On 15 January 1982, after he had written the Department complaining of the delay in processing his request, he was informed that the Ennes file (containing 163 documents) had been located. The State Department employee who wrote him forwarded seven of the documents from that file and stated that any other releasable documents would follow as soon as the file was organized. The official indicated that since the Ennes request had been broader than Miller's, ⁴ few of the papers would be responsive to Miller's request. Miller was also told at this time that a search had been initiated several months earlier for documents related to Israeli compensation for the loss of the ship. (This information would have been outside the scope of the 1977 Ennes request, and therefore would not have been in the file assembled for it.)

On 26 February 1982, Miller wrote the State Department requesting the entire contents of the Ennes file ⁵ that defendants said they had located, and indicating his intention to file an appeal if the documents were not released by 31 March 1982. On 7 April 1982, after hearing nothing more from the State Department on his request, Miller filed an appeal with the Department under 5 U.S.C. Sec. 552(a)(6). Acknowledging his letter on 21 April 1982, the Department declined to process his appeal because the requested material had not been "formally denied" to him. In this letter, the Department explained its tardiness as the result of "an imbalance of requests and available resources." Miller heard no more from the Department until after he filed this lawsuit in the District Court on 23 June 1982.

Miller's complaint sought (1) a declaration that the defendants' failure to respond promptly to his FOIA request constituted a denial of the documents and estopped them to assert that he had not exhausted his administrative remedies; (2) a mandatory injunction compelling the defendants to release the documents which he had requested; (3) production of an itemized index identifying each document withheld under an exemption to the Act, and justifying such withholding; (4) recovery of attorneys' fees and costs under Sec. 552(a)(4)(E); and (5) that the District Court order the Office of Personnel Management to investigate the defendants' "arbitrary, capricious, and dilatory behavior" for the purpose of considering whether disciplinary measures might be appropriate against individual State Department employees, as authorized by 5 U.S.C. Sec. 552(a)(4)(F).

Three months after this complaint was filed, the State Department provided Miller with copies of 56 documents from the previously-released "Ennes" file. After Miller filed a motion for a pretrial conference, the defendants released a total of 231 additional documents and other agencies released four documents which had been referred to them by the defendants. All of these documents were in addition to the ones which had been released to Mr. Ennes under his earlier and "broader" request under FOIA and the Privacy Act. In February 1983, Miller's motion for discovery was heard. Release of 31 additional documents followed, even though the defendants resisted the motion for discovery. A Miller motion to compel discovery in April 1983 was followed by three more documents. In May 1983 the defendants moved for summary judgment and averred that "all of the information relevant to this request is being released in full." ⁶ Yet at least 35 additional documents trickled in in succeeding releases by the State Department. By the end of September 1983, over two years after Miller's initial FOIA request and fifteen months after filing of this lawsuit, the State Department had released to him a total of 367 documents. ⁷

On 27 April 1984, the Magistrate filed his report and recommendation (App. at 135-50), to which Mr. Miller objected in a detailed brief. On 11 July 1984, the District Court entered an order granting summary judgment to the defendants and denying Miller the recovery of attorney's fees.

II.

Appellant appeals the grant of summary judgment on two grounds: First, that the District Court erred in finding that plaintiff had failed to raise a substantial issue of fact as to the adequacy of the State Department's search for the documents which he had requested and as to the good faith of the government affidavits which explained the search and the delays which accompanied it; and second, that the Court erred in accepting the State Department's justification for withholding all or part of some documents under the FOIA's national-security exemption.

A.

Summary judgment is available to the defendant in a FOIA case when the agency proves that it has fully discharged its obligations under FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester. Weisberg v. U.S. Department of Justice, 705 F.2d 1344, 1350 (D.C.Cir.1983). In order to discharge this burden, the agency "must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements." National Cable Television Ass'n, Inc. v. Federal Communications Comm'n, 479 F.2d 183, 186 (D.C.Cir.1973). The adequacy of an agency's search for requested documents is judged by a standard of reasonableness, i.e., "the agency must show beyond material doubt ... that it has conducted a search reasonably calculated to uncover all relevant documents." Weisberg, 705 F.2d at 1351. But the search need only be reasonable; it does not have to be exhaustive. See, e.g., Shaw v. U.S. Department of State, 559 F.Supp. 1053, 1057 (D.D.C.1983). An agency may prove the reasonableness of its search through affidavits of responsible agency officials so long as the affidavits are relatively detailed, nonconclusory, and submitted in good faith. Goland v. Central Intelligence Agency, 607 F.2d 339, 352 (D.C.Cir.1978), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980). It was the intent of Congress that agency affidavits be accorded substantial weight in national-security cases, see S.Rep. No. 1200, 93d Cong., 2d Sess. 12, reprinted in 1974 U.S.Code Cong. & Ad.News 6267, 6285, 6290. "[T]hese affidavits are equally trustworthy when they aver that all documents have been produced or are unidentifiable as when they aver that identified documents are exempt." Goland, 607 F.2d at 352.

Despite this weight to be accorded to agency affidavits, the burden remains on the government to demonstrate that it has thoroughly searched for the requested documents where they might reasonably be found. If the agency has not made this showing, then the requester can avert a motion for summary judgment merely by demonstrating some reason to think that the document would have turned up if the agency had looked for it, e.g., by showing that the document originated with the agency or that the agency is set up to retrieve just that kind of document. See Weisberg, 705 F.2d at 1351. But once the agency has shown by convincing evidence that its search was reasonable, i.e., that it was especially geared to recover the documents requested, then the burden is on the requester to rebut that evidence by a showing that the search was not in fact in good faith. Id. Summary judgment would be improper if the adequacy of the agency's search were materially disputed on the record, for such a dispute would indicate that material facts were still in doubt.

The State Department in this case furnished affidavits by responsible officers setting out in detail the search procedure used in responding...