The opinion of the court was delivered by: SEYBERT
This is an action brought by plaintiff Eyal Katzman, proceeding pro se, under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), to compel the Central Intelligence Agency ("CIA") to furnish certain information that was the subject of a prior administrative request. Pending before the Court is the CIA's motion to dismiss this action. For the reasons discussed herein, the defendant's motion is denied.
On January 27, 1992, Paul Greenfield, plaintiff's attorney, filed a FOIA request with the CIA seeking the production of all files pertaining to and on behalf of the plaintiff. On February 11, 1992, the CIA replied to this letter by requesting further information before a search for documents could be conducted. On March 19, 1992, plaintiff's attorney furnished the requested information. The CIA acknowledged receipt of this information by letter dated April 23, 1992. Thereafter, on June 23, 1992, John H. Wright, the CIA's Information and Privacy Coordinator, sent a letter to plaintiff's attorney stating that no records were found in response to this search request. This letter, however, incorrectly identified the subject of the search as Mr. Greenfield (plaintiff's attorney), and not the plaintiff.
Defendant now moves to dismiss this action as moot because the CIA was unable to locate any relevant records. Defendant states that Mr. Wright informed the plaintiff, through a letter to Mr. Greenfield dated January 11, 1995, that the error in the June 23, 1992 letter was administrative and that a thorough and diligent record search was conducted on the plaintiff which produced no records. Furthermore, defendant submits a declaration of Mr. Wright to explain the procedures that the CIA followed in processing the plaintiff's search request. It should be noted, however, that the defendant does not cite a specific federal procedural rule as the basis for its motion to dismiss, and moreover, does not cite any case law in support of its position. Since the defendant has submitted both Wright's affidavit and the letter dated January 11, 1995 in support of its application, the Court will construe this motion as seeking summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Under the law of the Second Circuit, a district court must weigh the following considerations in evaluating whether to grant a motion for summary judgment with respect to a particular claim:
First, summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Second, the burden is upon the moving party to demonstrate that no genuine issue respecting any material fact exists. In considering that, third, all ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought. Fourth, the moving party may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party's case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper. . . . Finally, the trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding, it does not extend to issue-resolution.
Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223-24 (2d Cir. 1994) (internal case citations omitted). In evaluating the above considerations, a court must be mindful of whether the purported factual dispute is material, because "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).
Under the FOIA, federal government agencies are required to make certain classes of information available to the public upon request. See 5 U.S.C. § 552(a). To enforce FOIA provisions, federal district courts may "enjoin the agency from withholding agency records and . . . order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B). Thus, "under 5 U.S.C. § 552(a)(4)(B) federal jurisdiction is dependent upon a showing that an agency has (1) 'improperly' (2) 'withheld' (3) 'agency records.'" Kissinger v. Reporters Comm., 445 U.S. 136, 150, 100 S. Ct. 960, 968, 63 L. Ed. 2d 267 (1980). "Unless each of these criteria is met, a district court lacks jurisdiction to devise remedies to force an agency to comply with the FOIA's disclosure requirements." U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142, 109 S. Ct. 2841, 2846-47, 106 L. Ed. 2d 112 (1989).
In a FOIA action, the facts are viewed in a light most favorable to the requester of information. See Becker v. IRS, 34 F.3d 398, 405 (7th Cir. 1994). Indeed, it is the agency that bears the burden to establish that the materials sought have not been improperly withheld. See Tax Analysts, 492 U.S. at 142 n.3, 109 S. Ct. at 2847 n.3. Where, as in the instant case, the plaintiff alleges that the agency has improperly withheld documents through its failure to locate them, the agency's burden is to establish that it conducted an adequate search that failed to produce the requested records. See Perry v. Block, 221 U.S. App. D.C. 347, 684 F.2d 121, 127 (D.C. Cir. 1982). "[A] search need not be perfect, only adequate, and adequacy is measured by the reasonableness of the effort in light of the specific request." Meeropol v. Meese, 252 U.S. App. D.C. 381, 790 F.2d 942, 956 (D.C. Cir. 1986). Furthermore, a search is adequate if it is "reasonably calculated to discover the requested documents." SafeCard Servs. v. SEC, 288 U.S. App. D.C. 324, 926 F.2d 1197, 1201 (D.C. Cir. 1991).
Should a court find that the agency has sustained its burden of demonstrating that it conducted a reasonable search that failed to uncover any relevant documents, the burden shifts to the plaintiff to make a showing of agency bad faith sufficient to impugn the agency's affidavits. See Carney v. U.S. Dep't of Justice, 19 ...