### DAMON ELLIOTT, UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA

Plaintiff, ) ) ) ) 

### v. ) Civil Action No. 07-1548 (RJL) ) 

### UNITED STATES DEPARTMENT OFTHE INTERIOR, ) ) ) 

### Defendant. )

## ~ MEMORANDUM OPINION**February~,2009** In this action brought under the Freedom ofInformationAct ("FOIA"), 5 U.S.C. 

### § 552, the plaintiffchallenges the defendant's failure to locate records responsive to his FOIA request. The defendant moves for summaryjudgmentpursuant to Rule 56 ofthe Federal Rules ofCivil Procedure [Dkt. No. 17]. Upon consideration ofthe parties' submissions and the entire record, the Court grants the defendant's motion. I. 

### BACKGROUND By letter ofApril 19, 2007, the plaintiffrequested "acopy ofall documents that provide[] the National Park Service (NPS) hasjurisdictionover 3696 Sellman Road Beltsville, MD 20705 to enforce laws and regulation overthis location." CompI. at 2. NPS conducted a search but located no responsive records. DefsMot., Declaration ofWilliam Line ("Line DecI.")**~** 4. 

### II. LEGAL STANDARD Summaryjudgment is appropriate when "the pleadings
... and any affidavits showthat there is no genuine issue as to any material fact and that the movant is entitled tojudgment as amatter oflaw." FED. R. CIV. P. 56(c). "[T]he substantive law will identify which facts are material. Only disputes over facts that might affect the outcome ofthe suit under the governing law will properly preclude the entry ofsummaryjudgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. LibertyLobby, Inc., 477 U.S. 242,248 (1986). In a FOIA action, the Court may award summaryjudgmentto an agency solely on the basis ofinformationprovided in declarations when they describe "thejustifications for nondisclosure with reasonably specific detail
... and are not controvertedby either contrary evidence in the record nor by evidence ofagency bad faith." MilitaryAuditProject v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Because agency declarations are accorded Ita presumption ofgood faith," Longv. Us. Dep't of Justice, 450 F. Supp.2d 42,54 (D.D.C. 2006), it is incumbentupon the plaintiffto "pointto evidence sufficient to put the Agency's good faith into doubt." GroundSaucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981). "A declarant in
a FOIA case satisfies the personal knowledge requirement in Rule 56(e) ifin his declaration, [he] attests to his personal knowledge ofthe procedures used in handling [a FOIA] request and his familiarity with the documents in question." Barnardv. Dep 't of HomelandSec., 531 F. Supp. 2d 131, 138 (D.D.C. 2008) (citations and internal quotation marks omitted; brackets in original). See SafeCardServs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991) (citing Meeropol v. Meese, 790 F.2d 942, 951 (D.C. Cir.1986)) (determining that the person in charge ofa search is "the most appropriate personto provide a comprehensive affidavit"). The Court'sjurisdictionunder the FOIA depends on the improperwithholding ofagency records. 5 U.S.C. § 552(a)(4)(B); McGehee v. CIA,697 F.2d 1095, 1105 (D.C. Cir. 1983). Because an inadequate search amounts to an improper withholding under the FOIA, see Maydak
2v. 

# u.s. Dep't. of Justice, 254 F. Supp.2d 23, 44 (D.D.C. 2003), the Court must determine the adequacy ofthe agency's searchwhen, as here, its failure to locate responsive records is challenged. The agency to which a FOIArequest is submitted is required "to make a good faith effort to conduct a search for the requested records, using methods which canreasonably be expected to produce the information requested." International Trade Overseas, Inc., 688 F. Supp. 33, 36 (D.D.C. 1988) (quoting Marrera v. Dep't of Justice, 622 F. Supp. 51,54 (D.D.C. 1985)) (citation omitted). In determining the adequacy ofa FOIA search, the Court is guided by principles of reasonableness. Id. (citing Weisberg v. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). Because the agency is the possessor ofthe records and is responsible for conducting the search, the Court may rely on "[a] reasonably detailed affidavit, setting forth the searchterms and the type ofsearchperformed, and averring that all files likely to contain responsive materials (ifsuch records exist) were searched." Valencia-Lucena v. UnitedStates Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (citing Oglesby v. UnitedStates Dep't of theArmy, 920 F.2d 57, 68 (D.C. Cir. 1990); Kowalczyk v. Dep't of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996); Weisberg v. Dep't of Justice, 705 F.2d 1344,1351 (D.C. Cir. 1983)). "Once the agency has shown that its search
was reasonable, the burden shifts to [the plaintiff] to rebut [the defendant's] evidence by a showingthat the searchwas not conducted in good faith." Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C.1996)(citingMillerv. 

# u.s. Dep'tofState, 779F.2d 1378,1383 (8thCir.1985)). Summaryjudgment is inappropriate "ifa review ofthe record raises substantial doubt" about the adequacy ofthe search. Valencia-Lucena, 180 F.3d at 326 (citing Founding Church of Scientology v. National SecurityAgency, 610 F.2d 824, 837 (D.C. Cir. 1979)).

3III. DISCUSSION The defendant has provided evidence ofan adequate search. See Line Deci.**~~** 4-5. 1 The plaintiffclaims that a genuine issue is presented because a government witness testified in August 1997 that "3696 Sellman Road is U.S. Government property." PI.'s Opp. [Dkt. No. 33] at 2. Plaintiffhas not provided a transcript ofsuch testimony but even iftrue, this fact alone is immaterial to the question ofwhetherthe defendant possessed a responsive record as coveredby the FOIA at the time ofthe plaintiffs request in 2007. 2 See McGehee, 697 F.2d at 1110 (an agency is required to produce only those records in its custody and control at the time ofthe FOIA request). In the absence ofany evidence calling into questionthe defendant's evidence ofan adequate search, the Court concludes that the defendant is entitled tojudgment as
a matter oflaw. A separate Order accompanies this Memorandum Opinion.

1 Line is the Communications, FOIA and Tourism Officer for the NPS'sNational Capital Region who coordinatedthe search for records responsive to the plaintiffs FOIA request. Line Decl.**~~** 2, 4. His statement is based on his "personal knowledge and/or experience and/or personal review ofplaintiffsFOIA request and/or upon information furnished to me in my official capacity." 

### !d.**~** 8.

2 "[R]ecord
... includes [] any informationthat would be an agency record subject to the requirements ofthis section when maintained by an agency in any format, including an electronic format[.]" 5. U.S.C. § 552(f). See Consumer Federation of America v. Dep't of Agriculture, 455 F.3d 283, 287 (D.C. Cir. 2006) (observing that the FOIA does not define recordperse); but cf5 U.S.C. 

### § 552a(a)(4) (Privacy Act defining record as "any item, collection, or grouping of information about an individual that is maintained by an agency ....")

4