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O'Connor v. United States Department of Treasury

December 2, 2008

COZEN O'CONNOR, A PROFESSIONAL CORPORATION
v.
UNITED STATES DEPARTMENT OF TREASURY



The opinion of the court was delivered by: Savage, J.

MEMORANDUM OPINION

Because there were questions regarding the adequacy of the Treasury Department's search for documents responsive to Cozen O'Connor's Freedom of Information Act ("FOIA") request and the applicability of asserted exemptions to certain documents,*fn1 Treasury's motion for summary judgment was denied. Order, August 7, 2008 (Document No. 71). At the same time, Treasury was given the opportunity to supplement the record to address the concerns raised in the memorandum opinion of August 7, 2008. See Cozen O'Connor v. U.S. Dep't of Treasury, 570 F. Supp. 2d 749 (E.D. Pa. 2008). It has done so and now renews its motion for summary judgment.

Considering Treasury's response to the Order denying summary judgment, its supplemental declarations and exhibits, and its in camera submissions, I now conclude that Treasury's search was adequate and its asserted exemptions were proper. Additionally, any confusion that may have existed among the various agencies' Vaughn indices has been clarified. Treasury has also produced the commercial databases it had previously withheld under Exemption 7E. Therefore, summary judgment will be entered in favor of Treasury and against Cozen O'Connor.

Adequacy of Search*fn2

Treasury's response must be evaluated in light of the request itself.*fn3 Cozen defined the scope of the search by specifically requesting files generated in the designation process. Treasury searched, by name, the evidentiary files that were the product of the designation process and the blocked assets database that contained information of designated entities and persons. It also looked at delisting files.

Treasury had limited its search to evidentiary files that had been developed during the terrorism designation process. Because it claimed that other files were "not likely" to contain responsive documents, it left open the possibility that those "other files" might have requested information. In addition, its search methodology was not fully explained.

In response to the Order of August 7, 2008, Treasury has submitted another declaration by Virginia Canter, Associate Director of Research Management for Treasury's Office of Assets Control ("OFAC"), that provides additional details regarding how Treasury conducted its search and what was searched. See generally Fourth Canter Decl., Sept. 15, 2008. Canter's declaration clarifies earlier statements and dispels the impression that files beyond the evidentiary files could contain responsive documents.Treasury now explains that those "other files" do not relate to the designation process, that is, they do not contain information that was used in making the designation decision. They relate to post-designation activities, such as enforcement, licensing and civil penalty actions.

Treasury is not required to search for documents that go beyond what Cozen specifically requested. There might be other documents somewhere in Treasury's possession. But, Treasury has performed an adequate search that was reasonably calculated to uncover documents responsive to Cozen's specific request.

The test of adequacy is one of reasonableness. As long as the agency has conducted a search that is calculated to produce the requested information, it need not show that its search was exhaustive. Having clarified what it meant when it used the words "typically" and "likely," Treasury has demonstrated that its search was adequate.

Continuing Obligation to Respond

Cozen complains that Treasury has not supplied it with documents relating to entities that were listed on its request but were not designated until after the request was made. Treasury has no obligation to produce documents that were not responsive at the time the request was made. See Bonner v. U.S. Dep't of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991).

An agency does not have a continuing duty to update its previous response to a FOIA request. McGehee v. CIA, 697 F.2d 1095, 1103 (D.C. Cir. 1983). A document's status is determined at the cut-off date. Bonner, 928 F.2d at 1153. A subsequent decision that changes the status of the document does not render it improperly withheld. Id. This is consistent with the notion that an agency is not required to produce documents that were exempt at the cut-off date but subsequently became nonexempt after the agency fully responded to the FOIA request. See Ashfar v. Dep't of State, 702 F.2d 1125, 1137 n.18 (D.C. Cir. 1983) (noting that although the government declassified requested documents after the cut-off date, remanding the case to take into account that change would be contrary to FOIA's goal of speedy and final resolution of FOIA requests); McGehee, 697 F.2dat 1103. In these circumstances,the requester may submit another FOIA request. Bonner, 928 F.2d at 1153.

An agency is expected, however, to update the FOIA request when it has improperly withheld information in its prior responses or has not responded fully to the FOIA request. See id. Aninadequate search renders the initial cut-off date as suspect. Dayton Newspaper Inc. v. Dep't of Veterans Affairs, 510 F. Supp. 2d441, 452 (S.D. Ohio 2007). Therefore,when a search has been found to be inadequate and another search must be conducted, the date of the supplemental search can serve as the cut-off date. Id. at 451; Wilderness Soc'y v. U.S. Bureau of Land Mgmt, No. 01-2210, 2003 WL 255971, at *7 n. 18 (D.D.C. 2003).

Here, Treasury's search was adequate. Treasury used December 1, 2006, the date it completed processing Cozen's request, as the cut-off date. It notified Cozen of this cutoff in a letter dated December 1, 2006. Given the nature of the request and these proceedings, this cut-off date is not unreasonable. Accordingly, Treasury ...


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