Memorandum Order.
Case: Electronic Privacy Information Center v. Department of Justice, et al.
Court: U.S. District Court for the District of Columbia.
Case Number: No. 00-1849(JR).
Date: March 25, 2002.
Source: Tech Law Journal transcribed from the original in the Court's file. The original also included a clerk's stamp stating that it was filed on March 25, 2002. The original also included a handwritten pleading number: 35.

MEMORANDUM ORDER

This case involves plaintiff's FOIA request to the FBI for the "release of all FBI records concerning the system known as 'Carnivore' and a device know as 'EtherPeek' for the interception and/or review of electronic mail (e-mail) messages." Defendant's search resulted in the processing of 1,957 pages of material to plaintiff (with some pages redacted). Def.'s Mot. for Summ. J. at 1. On August 1, 2001, defendants moved for summary judgment. Plaintiff responded with a motion to stay the proceedings pending discovery, arguing that it needs discovery as to the adequacy of FBI's search for documents responsive to its FOIA request. Defendants opposed the granting of any discovery, and moved for a protective order.

The heart of the discovery dispute appears to be plaintiff's concern that the FBI did not adequately search for documents in FBI divisions, including the offices of General Counsel and Congressional and Public Affairs, that would have dealt with the legal and policy implications of Carnivore, as opposed to the system's technical aspects. In response to plaintiff's FOIA request, the FBI search its Central Records System (CRS), the files of the Electronic Surveillance Technology Section (ESTS) in Quantico, Virginia, and the Contracts Unit (based on information from ESTS personnel regarding contractor involvement). Decl. of Scott Hodes ¶¶ 18-20. Although records from all FBI divisions, including the offices of General Counsel and Congressional and Public Affairs, are indexed to CRS, the FBI does not appear to contend that all records from those divisions would necessarily be found on CRS. Id. ¶ 15; Pl.'s Mot. to Stay at 6-9 (raising this issue).

In evaluating the adequacy of an agency's search for records responsive to a FOIA request, the "issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate." Weisberg v. United States Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983) (internal citations omitted) (emphasis in original). And agency "cannot limit its search to only one or more places if there are additional sources that are likely to turn up the information requested." Valencia-Lucena v. United States Coast Guard, FOAI/PA , 180 F.3d 321, 326 (D.C. Cir. 1999) (internal citations omitted). "[I]f a review of the record raises substantial doubt, particularly in view of well defined requests and positive indications of overlooked material, ... summary judgment is inappropriate." Id. at 326 (internal citations omitted). Plaintiff has raised a "positive indication" that the FBI may have overlooked documents in other FBI divisions, most notably the offices of General Counsel and Congressional and Public Affairs, that would be responsive to plaintiff's request for "all FBI records concerning the system known as 'Carnivore' and a device know as 'EtherPeek' for the interception and/or review of electronic mail (e-Mail) messages."

It is accordingly this 25th day of March 2002,

ORDERED that defendants conduct and complete within 60 days of the date of this order a further search of FBI records reasonably expected to produce the requested information, including (but not necessarily limited to) the files of the FBI offices of General Counsel and Congressional and Public Affairs. It is

FURTHER ORDERED that plaintiff's motion to stay the proceedings [#29] is denied, and defendant's motion for a protective order [#30] is denied. It is

FURTHER ORDERED that defendant's motion for summary judgment is denied [#26-2] is denied without prejudice to its renewal upon completion of the further search and the disclosure of any responsive documents thereby located, and it is

FURTHER ORDERED that defendant's motion to substitute the Department of Justice as the proper defendant [#26-1] is granted.