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PENNSYLVANIA v. HHS

November 18, 1985

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, Plaintiff
v.
UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES, and THE UNITED STATES OF AMERICA, Defendants



The opinion of the court was delivered by: HERMAN

R. DIXON HERMAN

 MEMORANDUM

 Plaintiff brought this action pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to compel the Department of Health and Human Services and its operating component, the Health Care Financing Administration, to disclose certain records relating to the allowability of costs for vocational training and educational activities under the Medicaid program. The Commonwealth made three FOIA requests for these records between March, 1984, and January, 1985. In all, the defendants have released over 1,000 pages of responsive materials to plaintiff. Currently, defendants are withholding fifteen documents, claiming they are protected from disclosure by 5 U.S.C. § 552 (b) (5). Plaintiffs contest the applicability of exemption (5) to the withheld documents, challenge the adequacy of the search conducted by defendants, and claim that even if parts of the documents withheld are exempt from disclosure, the court should order an in camera inspection of the documents and order the release of segregable factual portions. The dispute is now before us on the defendants' motion for summary judgment.

 I. Adequacy of the Search and Sufficiency of the Index.

 In an FOIA case, the summary judgment standard of F.R.Civ.P. 56(c) applies just as much as in any other civil suit. Under that standard, the burden is on the moving party to demonstrate that there is no genuine issue of material fact and "that the moving party is entitled to a judgment as a matter of law." F.R.Civ.P. 56(c). In the context of an FOIA case, application of this standard means that the defending agency "must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the [FOIA's] inspection requirements." Perry v. Block, 221 U.S. App. D.C. 347, 684 F.2d 121, 126 (D.C. Cir. 1982), quoting, National Cable Television Association, Inc. v. Federal Communications Commission, 156 U.S. App. D.C. 91, 479 F.2d 183, 186 (D.C. Cir. 1973). In other words, the agency must prove the adequacy of the search undertaken and the applicability of specific exemptions. Such proof may be made by way of affidavits and a Vaughn index. Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C. Cir. 1973); Perry v. Block, 684 F.2d at 127.

 In the instant case, plaintiff preliminarily challenges defendants' entitlement to summary judgment by contesting the adequacy of the search undertaken by the agency, and the sufficiency of the affidavits and index provided to support the claimed exemptions.

 Mr. Cirrincione avers that, after analyzing the requests, he directed search of a total of six offices or bureaus within the Health Care Financing Administration, as well as of the ten regional offices of HCFA. Further, Cirrincione avers that in addition to the searches conducted under his supervision, he referred two of the requests to the Office of the Secretary for additional searches conducted by the Freedom of Information, Privacy Division.

 Mr. Coleman avers that, with respect to the two requests referred to the Office of the Secretary, his office directed a search of the Office of General Counsel, the Office of Inspector General, the Departmental Grant Appeals Board, and the Office of the Assistant Secretary for Personnel Administration.

 The Commonwealth challenges the sufficiency of the Cirrincione and Coleman affidavits to show the adequacy of the government's search on the grounds that neither Mr. Cirrincione nor Mr. Coleman has personal knowledge regarding what kind of search was performed at the regional level, or in the various bureaus and offices of the Health Care Financing Administration and of the Office of the Secretary.

 The adequacy of an affidavit explaining the search procedure used is not measured by the personal knowledge of the affiant of each individual file that was searched. Rather,

 
in the absence of countervailing evidence or apparent inconsistency of proof, affidavits that explain in reasonable detail the scope and method of the search conducted by the agency will suffice to demonstrate compliance with the obligations imposed by the FOIA.

 Perry v. Block, 684 F.2d at 127. Further, adequacy of search is not only demonstrated by the agency's affidavits, but also by the scope and responsiveness of the materials submitted by the agency:

 
In rendering a challenge to an agency's retrieval procedures, a reviewing court must thus determine whether the materials submitted by the agency satisfactorily demonstrate the apparent adequacy of the search conducted. Where the agency's responses raise serious doubts as to the completeness of the search or are for some other reason ...

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