APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH (D.C. NO. 2:04-CV-00772-DAK).
The opinion of the court was delivered by: Hartz, Circuit Judge.
Before TACHA, EBEL, and HARTZ, Circuit Judges.
Jesse Trentadue, apparently spurred by concern about the death of his brother in federal custody, has vigorously sought information concerning investigations conducted by the Federal Bureau of Investigation (FBI).*fn1 This appeal arises out of his suit under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to obtain records of the FBI's investigation into the infamous bombing of the Alfred R. Murrah Federal Building in Oklahoma City in 1995. His request is limited to records that relate to the Southern Poverty Law Center (SPLC) and its founder Morris Dees. After initially producing no records, the FBI eventually provided 19 redacted documents, and the district court ruled that the agency need not conduct any further searches of its records. Several months later, however, Mr. Trentadue moved the court for permission to depose Terry Nichols, a convicted conspirator in the Oklahoma City bombing, and David Paul Hammer, a death-row inmate who purportedly had discussed the bombing with a fellow inmate, Timothy McVeigh, who was executed for his role in the bombing. In support of the motion, Mr. Trentadue submitted declarations by Nichols and Hammer. The court granted the motion over the FBI's objections.
The FBI appeals the discovery order, and we reverse. The FBI submitted declarations to the district court that provide a consistent and uncontradicted showing that it has conducted an adequate search for the records requested by Mr. Trentadue, and there is no reason to believe that depositions of Nichols and Hammer would produce evidence relevant to this FOIA case.
FOIA was enacted to enable the public to examine government records. See Campaign for Responsible Transplantation v. FDA, 511 F.3d 187, 190 (D.C. Cir. 2007) ("FOIA is a disclosure statute enacted to facilitate public access to Government documents." (internal quotation marks omitted)).The general rule under FOIA is that a person is entitled to copies of a federal agency's records upon making a request that "reasonably describes such records" and that complies with required procedures for such requests.5 U.S.C. § 552(a)(3)(A)(i). Certain categories of records, however, are exempt from disclosure. See id. § 552(b)(1)--(b)(9) and § 552(c)(1)--(c)(3). When a request is made, the agency ordinarily must "determine within 20 [business] days . . . whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor . . . ." Id. § 552(a)(6)(A)(i).If the agency decides to comply with the request, "the records shall be made promptly available" to the requester. Id. § 552(a)(6)(C)(i).If the agency decides not to comply, the requester can seek relief in federal court. District courts have "jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." Id. § 552(a)(4)(B).
FOIA does not set forth a general standard regarding how hard an agency must look to find requested records. On that issue the sole relevant provision, which was added in 1996, states: "In responding under this paragraph to a request for records, an agency shall make reasonable efforts to search for the records in electronic form or format, except when such efforts would significantly interfere with the operation of the agency's automated information system." Id. § 552(a)(3)(C) (emphasis added); Pub. L. 104-231, § 5(4), 110 Stat. 3048 (1996).Although § 552(a)(3)(C) concerns only electronic searches, it appears to reflect an implicit assumption by Congress that an agency's search for records need only be "reasonable" in scope and intensity.The circuit courts to address the issue have so construed FOIA - both in its original form, see Nat'l Cable Television Ass'n, Inc. v. FCC, 479 F.2d 183, 192 (D.C. Cir. 1973),and since § 552(a)(3)(A) acquired its present form in 1974, see Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir. 1986) (adequacy of search "is measured by the reasonableness of the effort in light of the specific request"); Weisberg v. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983); Goland v. CIA, 607 F.2d 339, 352 & n.78, 369--70 (D.C. Cir. 1978); Gillin v. IRS, 980 F.2d 819, 822 (1st Cir. 1992) (following Meeropol);Ruotolo v. Dep't of Justice, Tax Div., 53 F.3d 4, 9 (2d Cir. 1995) (agency need not perform search that is "unreasonably burdensome"); Abdelfattah v. U.S. Dep't of Homeland Sec., 488 F.3d 178, 182 (3d Cir. 2007) (per curiam); Rein v. U.S. Patent & Trademark Office, 553 F.3d 353, 362 (4th Cir. 2009) (following Meeropol); Patterson v. IRS, 56 F.3d 832, 841 (7th Cir. 1995) (following Meeropol);Miller v. U.S. Dep't of State, 779 F.2d 1378, 1383 (8th Cir. 1985) ("[T]he search need only be reasonable; it does not have to be exhaustive.");Zemansky v. U.S. EPA, 767 F.2d 569, 571 (9th Cir. 1985) ("[A]dequacy of the search . . . is judged by a standard of reasonableness . . . .") (internal quotation marks omitted); Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1257 (11th Cir. 2008)(following Meeropol).
We follow our sibling circuits. Their "reasonableness" rule is a realistic interpretation of FOIA. Although FOIA might be read to demand that an agency provide every nonexempt requested document regardless of the cost of locating it, we doubt that Congress would have chosen to impose "unreasonable" burdens on agencies in that regard.
In light of the reasonable-search requirement, the focal point of the judicial inquiry is the agency's search process, not the outcome of its search. "The issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate[,] . . . [which is determined under] a standard of reasonableness, and is dependent upon the circumstances of the case." Weisberg, 705 F.2d at 1351 (brackets, citations, and internal quotation marks omitted);see Rugiero v. U.S. Dep't of Justice, 257 F.3d 534, 547 (6th Cir. 2001) ("The question focuses on the agency's search, not on whether additional documents exist that might satisfy the request."); Office of Info. & Privacy, U.S. Dep't of Justice, Freedom of Information Act Guide at 103--13, 954--58 (2007); 1 James T. O'Reilly, Federal Information Disclosure § 7:4 at 164 (3d ed. 2000) ("The courts require reasonable, not extraordinary, searches by the agency. . . . The test is adequacy of the search, not existence of any record."). The reasonableness of an agency's search turns on "the likelihood that it will yield the sought-after information, the existence of readily available alternatives, and the burden of employing those alternatives." Davis v. Dep't of Justice, 460 F.3d 92, 105 (D.C. Cir. 2006).
II. BACKGROUND AND PROCEEDINGS BELOW
On July 19, 2004, Mr. Trentadue submitted a letter to the FBI and its Oklahoma City Field Office, making two requests under FOIA. The first request was for a January 4, 1996, "memorandum from former FBI Director [Louis] Freeh concerning Morris Dees and the Southern Poverty Law Center ('SPLC')" (which we will call "the Freeh Memorandum"). J.A. Vol 1 at 39. The memorandum, according to Mr. Trentadue, referenced an "SPLC informant at Elohim City," id., the site of what he characterizes as a "white supremacist paramilitary camp compound" in Oklahoma that included persons purportedly involved in the Oklahoma City bombing, id. Vol. 4 at 986. Mr. Trentadue's letter attached a newspaper article describing the Freeh Memorandum.
Mr. Trentadue's second request was for records which, directly or indirectly, report upon, concern, reference or refer to Morris Dees' and/or the SPLC's involvement with and/or connection to the following: Elohim City, OKBOMB, BOMBROB, Tim McVeigh, Richard Guthrie, Terry Nichols, Dennis Mahon,
Robert Millar, Michael Brescia, Peter Langan and/or Andreas Strassmeir including all contacts Dees or the SPLC may have indirectly had with the foregoing through informants.
Id. Vol. 1 at 40. OKBOMB is a reference to the FBI's investigation of the Oklahoma City Bombing. BOMBROB refers to the FBI's investigation of the Mid-West Bank Robbery Gang, a group of neo-Nazis who, according to Mr. Trentadue, were "suspected by the FBI of being involved in the robbery of banks to fund attacks upon the government of the United States." Id. at 47.The request continued:
In searching for documents - records responsive to this Freedom of In[f]ormation Act request, I want you to look beyond the official files at FBI Headquarters and the Oklahoma City Field Office. Specifically, in addition to all responsive documents - records from the FBI's official files, I want all responsive documents - records from the I - Drive, S - Drive and/or any other electronic device used for purposes of document - evidence storage, retention, holding, review, etc. at FBI Headquarters and/or the Oklahoma City Field Office, including any responsive documents - records from temporary document, record, data and/or evidence storage locations, files and/or facilities regardless of where such storage files or facilities are located.
One week later the FBI sent to Mr. Trentadue a form letter confirming receipt of his FOIA request.