Ferguson v. U.S. Department of Education
Filing
27
DECISION AND ORDER: that the Departments motion for summary judgment is granted in part and denied in part. By 10/15/2011, the Department shall produce to Ferguson any OPE records responsive to his Request that were created between 8/3 and 11/1/2007, if such records have not previously been produced. Since this accords Ferguson all the relief to which he is entitled, the Clerk of the Court is respectfully requests to enter judgment accordingly and to close this case. (Response to Request to Production of Documents due by 10/15/2011.) (Signed by Magistrate Judge Frank Maas on 9/13/2011) Copies Mailed By Chambers. (ft)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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BERNARD FERGUSON,
:
Plaintiff,
- against -
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 9/13/11
:
:
DECISION AND ORDER
U.S. DEPARTMENT OF EDUCATION,
:
09 Civ. 10057 (FM)
Defendant.
:
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FRANK MAAS, United States Magistrate Judge.
This pro se action is brought pursuant to the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, by plaintiff Bernard Ferguson (“Ferguson”). Ferguson is an
attorney who also serves as President of the International Association of Medical
Colleges, a not-for-profit organization. In the latter capacity, Ferguson seeks
documentation from the United States Department of Education (“Department”)
concerning foreign medical schools. The Department has moved for summary judgment
on the ground that its search for such documents constituted a thorough, reasonable, and
adequate response to Ferguson’s request. For the reasons set forth below, the
Department’s motion for summary judgment is granted in part and denied in part.
I.
Background
A.
National Committee on Foreign Medical Education and Accreditation
The Department is the entity responsible for keeping the records of the
National Committee on Foreign Medical Education and Accreditation (“Committee”),
which is charged with “determining whether the standards of accreditation used by a
foreign country to accredit medical schools are comparable to the standards of
accreditation applied to M.D. programs in the United States.” (See Decl. of Charles J.
Mula, dated Feb. 28, 2011 (“Mula Decl.”), ¶ 6). Accordingly, a foreign country seeking a
determination that its standards are comparable to those of medical school programs in
the United States must comply with the Committee’s “standardized submission process.”
(Id. ¶ 7). As part of that process, foreign country applicants must submit “a narrative
about the governance and structure of the country’s postsecondary education system; a
description of the specific standards the country uses to evaluate its medical education
programs and evidence documenting the application of such standards; and information
concerning, and evidence documenting, matters such as evaluator qualifications, controls
against conflict of interest, and monitoring.” (Id.). The Committee, however, “does not
mandate the submission of specific documents.” (Id. ¶ 9). Thus, “[i]t is not unexpected
or unusual for one country’s submission to look different from that of another country.”
(Id.).
The Committee convenes twice each year to review applications from
foreign countries. (Id. ¶ 11). The Committee “consider[s] the materials submitted and
2
the testimony presented [from the country’s representative in attendance]” and may
determine at the meeting that “a country’s medical school accreditation standards are
comparable to U.S. standards.” (Id.). The Committee’s “determinations of comparability
have a maximum duration of six years from the date of issuance, except where the
Committee earlier withdraws, extends, or renews its determination.” (Id.).
In 2007, when Ferguson submitted his FOIA request to the Department,
“any accredited medical school in a country the Committee determined to be comparable
could apply to the Department to participate in the Federal Family Education Loan
(‘FFEL’) program.” (Id. ¶ 12). If a medical school’s application was approved, any
enrolled student who was a citizen or permanent resident of the United States could
receive an FFEL loan for his schooling, provided that the program’s other eligibility
requirements were met. (Id.). Within the Department, the Foreign Schools Team is
responsible for overseeing foreign postsecondary schools that participate in the FFEL
program. (Decl. of Barbara E. Hemelt, dated Feb. 28, 2011 (“Hemelt Decl.”), ¶ 8). The
Foreign Schools Team is part of the Department’s Office of Federal Student Aid (“FSA”).
(Id. ¶ 1).
B.
FOIA Request
On August 3, 2007, Ferguson submitted a FOIA request (“Request”) to the
Department seeking the following information:
1.
The last submission and/or documentation by all
countries for recognition by the Department that the
medical schools charte[re]d within that country are
3
governed by accreditation standards that are
comparable to those used in the United States.
2.
The staff’s recommendations to the Committee[.]
3.
The Countries[’] responses.
4.
The . . . Secretary of Education’s official notification
of the Department’s findings.
5.
Any application/documents to the Department’s
Foreign Schools Team that the [foreign medical
school] applicant meets the regulatory requirements to
participate in the [FFEL] Program.
6.
The final response to that application.
(Decl. of Angela Arrington, dated Feb. 28, 2011 (“Arrington Decl.”), Ex. A).
The Department’s FOIA Service Center determined that the Office of
Postsecondary Education (“OPE”) held records responsive to the first four items of the
Request and that the FSA maintained records responsive to items five and six. (Id. ¶¶ 910). Accordingly, on or about November 19, 2007, the Request was transmitted to OPE
and FSA. (Id. ¶ 11).
C.
Department’s Initial Search and Production
1.
OPE
OPE processed Ferguson’s Request using its standard procedures. (See
Mula Decl. ¶ 15). First, the OPE FOIA coordinator distributed the Request to OPE’s
Accreditation Division, which maintained responsive records. (Id. ¶ 16; see id. ¶ 13).
The electronic records manager of the Accreditation Division determined that responsive
4
records were stored in an electronic system known as “Panagon” and in a “shared file on
the K:/ drive folder named ACE_DOCS.” (Id. ¶¶ 13(c), 16). The Panagon system
contains two folders: one organized by Committee meeting dates and the other organized
by country. (Id. ¶ 13(c)). The meetings folder is organized chronologically and
“indicates which countries are discussed at a given meeting.” (Id.). The country folder
“contains each country’s application and supporting documentation.” (Id.). The Panagon
folder organized by meeting date contains the same data as the ACE_DOCS folder on the
K drive. According to the Department, there are no other repositories within the
Department of “records concerning the work of the Committee.” (Id.).
In response to the Request, the electronic records manager of the OPE
Accreditation Division searched both the Panagon system and the ACE_DOCS folder for
“documentation and decisions pertaining to foreign countries’ applications for Committee
review from 2000 to 2007.” (Id. ¶ 17). As the first part of that search, the manager
“reviewed each meeting file in the Panagon system’s Committee meeting folder for the
relevant time period and identified which countries made applications for review. The
manager then located the application and/or supporting documentation, if any, for each
country by opening the file for that country in the Panagon system’s country folder and
the staff report and decision letter in the ACE_DOCS folder.” (Id.).
The responsive records were electronically collected and stored on a shared
drive. (Id. ¶ 18; see id. ¶ 13(e)). Thereafter, the responsive records, totaling 6,740 pages,
were uploaded into the Department’s electronic FOIA system, “FOIAXpress,” and
5
reviewed for material exempted from disclosure. (Id. ¶ 18; see id. ¶ 13(e), (f)). OPE
determined that portions of 111 pages contained material subject to Exemptions 4 and 6
of FOIA, 5 U.S.C. § 552(b)(4), (b)(6), and redacted the records accordingly.1 (Id. ¶ 19).
On June 5, 2008, OPE sent Ferguson a CD containing the records responsive to items one
through four of the Request and explained the basis for its withholding of certain
information. (See Arrington Decl. Ex. B). Ferguson paid the fees associated with OPE’s
search and production of responsive records. (Id. ¶ 17).
2.
FSA
FSA is the “sole custodian” of “documents concerning the work of the
Foreign Schools Team with respect to eligibility certifications and recertifications of
foreign medical schools that participate in” FFEL programs. (Hemelt Decl. ¶ 4). For that
reason, the FOIA Service Center sent FSA items five and six of the Request, which
sought information concerning applications submitted to the Foreign Schools Team.
(Arrington Decl. ¶¶ 10-11). Barbara Hemelt, a team leader within the Foreign Schools
Team, was responsible for conducting FSA’s search for responsive records. (Hemelt
Decl. ¶¶ 1, 3).
In December 2007, Hemelt contacted Ferguson to clarify the scope of items
five and six of the Request because she considered them “ambiguous.” (Id. ¶¶ 3, 10).
The Department contends that Hemelt and Ferguson “agreed[] that he wished to receive
1
These redactions were made to protect such information as the applicants’
proprietary budget information and personally identifiable information. (Mula Decl. ¶ 19).
6
records related to the Department’s eligibility decisions made with respect to initial
applications from foreign medical schools dating to 2000.” (Id. ¶ 11). As Hemelt
explains, the year 2000 was selected as the cut-off date because that was when the
Department began to track eligibility decisions electronically through FSA’s
“management information repository” known as the Postsecondary Education Participants
System (“PEPS”).2 (See id. ¶¶ 11-12). Hemelt informed Ferguson that between 2000 and
2007, “the Department had issued decisions on six initial applications from foreign
medical schools.” (Id. ¶ 13).
According to the Department, Ferguson further agreed to “modify the scope
of the Request to include decisions on completed recertification applications as well as
initial certifications, but to exclude pre-2000 certification decisions and records
concerning pending applications (i.e., applications as to which the Department had made
no final decision).” (Id.). The Department maintains that Ferguson also agreed to
exclude foreign medical schools’ catalogs from his Request due to their bulk. (Id.).
Ferguson offers a slightly different account of his communications with
Hemelt, but does not appear to dispute that he ultimately agreed to the date range she
proposed. (See Decl. of Bernard Ferguson, dated Mar. 31, 2011 (“Ferguson Decl.”),
2
PEPS contains information for “all entities associated with the Title IV Higher
Education Act student financial aid programs. PEPS generates school identification numbers for
FSA operations systems and other institutional information, and maintains eligibility,
certification, demographics, financials, program reviews, audit and default rate data about
schools and financial partners participating in the Title IV programs.” (Hemelt Decl. ¶ 12).
7
¶ 48 (“While my digest of the discussion with Barbara Hemelt on December 4, 2007 did
not include . . . my agreement with Barbara Hemelt to limit my schools request to when
their electronic system began in 2000, I did agree with her in this discussion. Because
this spared her an unnecessary, onerous, time consuming, mostly unproductive search.”).
In December 2007 and January 2008, Hemelt searched for records relating
to the Department’s decisions during the 2000-2007 time frame regarding certification
and recertification applications submitted by foreign medical schools. (Hemelt Decl.
¶ 14). The first part of that search identified initial applications; the second part located
recertification applications.
Hemelt began her search by querying the PEPS database for all approved
and denied initial and recertification applications completed between January 1, 2000 and
December 4, 2007. (Id. ¶¶ 15, 17). Because the list generated by these queries did not
identify the applicant institutions, (id. ¶¶ 16, 18), Hemelt generated another PEPS report
to obtain the name of “every foreign institution that had an initial certification application
completed during the 2000-2007 time period.” (Id. ¶¶ 19-20). Hemelt then compared the
names from that report “against a list of current or former participating foreign medical
schools.” Based on that comparison, Hemelt identified six foreign medical schools whose
initial applications were completed during the relevant time period. (Id.).
The second part of Hemelt’s search, which identified recertification
applications from foreign medical schools, (see id. ¶ 21), largely mirrored her search for
8
initial applications. Hemelt first reviewed the results of her queries to create a list of all
approved and denied recertification applications during the relevant time period. (Id.
¶¶ 22-23). Hemelt then generated a PEPS report listing all the institutions that had
submitted recertification applications during the relevant time period. (Id. ¶¶ 25-26).
Hemelt then compared that report with a list of current or former participating foreign
medical schools and identified thirty-eight foreign medical schools that completed a
recertification application between 2000 and 2007. (Id. ¶ 26).
In total, Hemelt’s “searches for initial and recertification applications
completed for foreign medical schools between 2000 and 2007 located forty-four
certification actions.” (Id. ¶ 27).
3.
FSA’s Production of Responsive Records
Hemelt and her staff identified and retrieved the responsive records for the
forty-four certification actions she located through her PEPS searches. These records
were copied from FSA’s electronic archives and, to the extent they were not
electronically archived, from the hard copy case folders. (Id. ¶¶ 28-29). Hemelt
represents that this search entailed a review of “[a]ll FSA files likely to contain records
responsive to Items 5-6 of Mr. Ferguson’s Request.” (Id. ¶ 28). She and her staff
identified information on 896 pages (out of 9,225 pages of responsive records) that
required redaction pursuant to FOIA Exemptions 2, 4, 5, and 6.3 (Id. ¶¶ 30, 32).
3
See 5 U.S.C. § 552(b)(2), (b)(4), (b)(5), (b)(6). These redactions were made to
protect such information as passwords and identification numbers, applicants’ proprietary budget
(continued...)
9
On January 25, 2008, the responsive records identified by Hemelt and her
staff were uploaded to FOIAXpress for further review and production. (Id. ¶ 32).
Thereafter, on August 25, 2008, the Department sent Ferguson a CD containing 9,225
pages of records responsive to items five and six of the Request, with redactions on 896
pages, and explained the basis for its redactions. (Arrington Decl. ¶ 21 & Ex. C).
Ferguson paid the fees associated with FSA’s search and production of responsive
records. (Id. ¶ 23).
D.
Ferguson’s FOIA Appeal and the Instant Action
On September 30, 2008, the Department received Ferguson’s appeal from
the Department’s decision to deny, in part, his Request. (See id. Ex. D). In that appeal,
Ferguson complained about the “extraordinary” delay in the production of the responsive
records, the Department’s denial of his fee waiver, the omission of certain records
pertaining to foreign medical schools, and the inclusion of unresponsive records. (Id.).
Ferguson, however, did not contest the redactions made pursuant to FOIA exemptions.
(See id.).
During spring 2009, the Department’s FOIA Service Center contacted
Ferguson to clarify the scope of his appeal. (Id. ¶ 28). Ferguson and the FOIA liaison
subsequently communicated regarding records that Ferguson believed were improperly
omitted from the OPE and FSA productions. (See ECF No. 1 (“Compl.” or “Complaint”)
3
(...continued)
information, privileged deliberative materials, attorney-client communications, attorney work
product, and personally identifiable information. (Hemelt Decl. ¶ 30).
10
Ex. 5). Upon further review, the FOIA liaison identified certain additional documents
responsive to the Request that had not been produced in 2008. (See id. at 9). As a
consequence, in April 2009, the Department sent Ferguson five additional CDs of
responsive records. (See id. at 7). Ferguson suggests that these additional records were
“a little helpful but not close to being complete disclosure.” (Id.).
While the administrative appeal was pending, Ferguson filed this lawsuit on
December 8, 2009. (See Compl.). In his Complaint, Ferguson claims that there was “no
legal basis” for the Department’s denial of his “access” to the requested records, and he
seeks an order directing the Department to disclose those records. (Id. at 2). Ferguson
does not challenge the Department’s denial of a fee waiver. (See id.).
E.
Supplemental Search and Production in 2010
After Ferguson filed his Complaint, the Department offered to conduct a
supplemental search and production of records at no cost to him and “without strict regard
to whether such materials were within the scope of his Request.” (ECF No. 21 (“Def.’s
Mem.”) at 7-8; see Hemelt Decl. ¶ 35). Accordingly, FSA undertook a supplemental
search and production of records related to four foreign medical schools that Ferguson
had identified,4 as well as “any other school within the scope of the Request [as modified
by Hemelt’s discussions with Ferguson in December 2007] that had been omitted from
the 2008 production.” (Hemelt Decl. ¶ 35). The Department agreed to search for records
4
These schools were St. George’s University in Grenada, Ross University in
Dominica, American University of the Caribbean in St. Maarten, and St. Matthew’s University
in the Cayman Islands. (Hemelt Decl. ¶ 35).
11
relating to the four schools that Ferguson had identified even though the Department’s
certification decisions concerning them “post-dated the cutoff date for the prior search [in
2008] and thus were outside the scope of the Request.” (Id. ¶ 36). With respect to
records maintained by OPE, the Department “agreed to verify that all publicly available
documents responsive to . . . [the] Request concerning country comparability
determinations were previously produced to [Ferguson], and to produce any such record
not previously produced.” (Id. Ex. A at 4).
Hemelt and her staff used the records disclosed in FSA’s 2008 production
regarding Dalhousie University as a “template for the types of documents to be produced
in the [supplemental] production.” (Id. ¶ 37). Based on that template, the Foreign
Schools Team identified and retrieved a total of 4,942 pages of records concerning the
four schools Ferguson had identified and two additional schools for which records had
not previously been produced.5 (Id. ¶ 38). According to Hemelt, “not all of the school
files contained all of the categories of documents in the Dalhousie template, [but] all
responsive, non-exempt documents maintained by the Department on those schools were
produced.” (Id. ¶ 39).
As a result of her renewed search, Hemelt uploaded 4,942 pages of
responsive records to FOIAXpress for further review and production. (See id. ¶ 40).
5
The two schools were Charles University of Prague (Faculty of Medicine in
Pilsen) and Universita Karlova v Praze (First Faculty of Medicine – Pilsen). (Id. ¶ 38).
12
Hemelt recommended that 576 pages be redacted pursuant to FOIA Exemption 5 because
these records reflected the Department’s predecisional internal communications and legal
advice. (Id. ¶ 40). Thereafter, the additional records, with redactions, were transmitted to
Ferguson between April and June 2010. (See id. ¶ 41).
F.
Procedural History
On February 15, 2011, the parties consented to my exercise of jurisdiction
over this case for all purposes pursuant to 28 U.S.C. § 636(c). (ECF No. 19). On
February 28, 2011, the Department filed its motion for summary judgment, (ECF No. 20),
arguing that it has complied with its obligations pursuant to FOIA. Ferguson filed
opposition papers on April 5, 2011, (ECF Nos. 25-26), and the Department filed reply
papers on April 14, 2011, (ECF No. 24). The motion therefore is fully submitted.
II.
FOIA
Through its enactment of FOIA, Congress endorsed “a general philosophy
of full agency disclosure.” Dep’t of Air Force v. Rose, 425 U.S. 352, 360 (1976) (quoting
S. Rep. No. 89-813, at 3 (1965)). “[FOIA] seeks to permit access to official information
long shielded unnecessarily from public view and attempts to create a judicially
enforceable public right to secure such information from possibly unwilling official
hands.” EPA v. Mink, 410 U.S. 73, 80 (1973). Under the statute, agencies must disclose
their records upon request unless they can show that the requested records fall within at
least one of nine enumerated exemptions. See 5 U.S.C. § 552(b) (listing exemptions);
13
Mink, 410 U.S. at 79. Citizens may file a challenge to an agency’s response to a FOIA
request in a district court, which “shall determine the matter de novo [with] the burden
. . . on the agency to sustain its action.” 5 U.S.C. § 552(a)(4).
Summary judgment is the preferred vehicle for resolving FOIA cases. “In
order to prevail on a motion for summary judgment in a FOIA case, the defending agency
has the burden of showing that its search was adequate and that any withheld documents
fall within an exemption to the FOIA.” Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812
(2d Cir. 1994); see also Ramstack v. Dep’t of Army, 607 F. Supp. 2d 94, 105 (D.D.C.
2009) (quoting Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir.
1995)) (“agency must demonstrate beyond material doubt that its search was reasonably
calculated to uncover all relevant documents”). The agency’s search must be conducted
in good faith and “using methods that are reasonably expected to produce the requested
information.” Ramstack, 607 F. Supp. 2d at 105. The agency is not required, however, to
“search every record in the system or conduct a perfect search.” Id. (citing SafeCard
Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991)).
Thus, when a plaintiff challenges the adequacy of an agency’s search, “the
factual question it raises is whether the search was reasonably calculated to discover the
requested documents, not whether it actually uncovered every document extant.” Grand
Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 489 (2d Cir. 1999) (quoting SafeCard Servs.,
926 F.2d at 1201); see also Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C.
Cir. 1984) (reasonableness of agency’s search “depends, not surprisingly, upon the facts
14
of each case”). A review of an agency’s search therefore should not focus on the results
of that search, but rather the search itself. See Ramstack, 607 F. Supp. 2d at 105-06;
Hornbostel v. U.S. Dep’t of Interior, 305 F. Supp. 2d 21, 28 (D.D.C. 2003), aff’d, 2004
WL 1900562 (D.C. Cir. 2004).
To show that its efforts to locate responsive information complied with
FOIA, an agency must set forth a reasonably detailed description of its search in
affidavits or declarations. See Grand Cent. P’ship, 166 F.3d at 478 (quoting Gallant v.
NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994)) (affidavits must “contain reasonable
specificity of detail rather than merely conclusory statements”) (emphasis in Grand Cent.
P’ship). Such affidavits are “accorded a presumption of good faith,” and “cannot be
rebutted by purely speculative claims about the existence and discoverability of other
documents.” Id. at 489 (internal quotation marks and citations omitted). The
presumption may be rebutted, however, if the plaintiff shows that the agency acted in bad
faith. Carney, 19 F.3d at 812. “If the record raises substantial doubts regarding the
agency’s efforts, ‘particularly in view of well defined requests and positive indications of
overlooked materials,’ summary judgment is not appropriate.” Ramstack, 607 F. Supp.
2d at 106 (quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir.
1999)).
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III.
Discussion
The crux of Ferguson’s claim is that the Department has failed to produce
records that he believes should exist in its files. Thus, Ferguson does not challenge the
Department’s decision to deny him a fee waiver, nor does he object to the redactions it
made to the records produced. For its part, the Department contends that it has fulfilled
its obligations pursuant to FOIA by conducting a “thorough, reasonable, and adequate
search.” (Def.’s Mem. at 1). It further maintains that Ferguson’s “speculation that
additional documents could exist is insufficient” to deny the Department’s motion for
summary judgment. (Id.).
A.
Agency Declarations
As an initial matter, the Department has provided detailed nonconclusory
declarations made under penalties of perjury by the agency employees who conducted
and supervised the searches and document production undertaken in response to the
Request. These declarants are: (i) Charles J. Mula, a Management and Program Analyst
in the Accreditation Division of OPE, who oversaw OPE’s search and production; (ii)
Barbara E. Hemelt, a Team Leader of the FSA Foreign Schools Team, who supervised
and participated in FSA’s initial and supplemental searches for records; and (iii) Angela
Arrington, Director of the Department’s Regulatory Information Management Services,
who supervised the Department’s FOIA Service Center. (Mula Decl. ¶¶ 1-2; Hemelt
Decl. ¶¶ 1, 3, 5; Arrington Decl. ¶¶ 1, 3). Because these individuals oversaw the
Department’s response to the Request, their declarations are sufficient for summary
16
judgment purposes. See Carney, 19 F.3d at 814 (“affidavit from an agency employee
responsible for supervising a FOIA search is all that is needed to satisfy Rule 56(e)”).
The three declarations describe step-by-step the process the Department
used to search for, identify, and retrieve the records responsive to Ferguson’s Request.
(See, e.g., Arrington Decl. ¶¶ 9-10; Mula Decl. ¶¶ 13, 15-21; Hemelt Decl. ¶¶ 10-40).
More specifically, the Arrington Declaration explains that upon receipt of the Request,
the FOIA Service Center determined that OPE and FSA maintained responsive records,
and, therefore, transmitted the Request to those offices. (Arrington Decl. ¶¶ 9-10).
Additionally, Mula and Hemelt each state in their declarations that their offices’ standard
procedures for responding to FOIA requests were followed in response to Ferguson’s
Request. (Mula Decl. ¶¶ 15, 22; Hemelt Decl. ¶ 43). At OPE, that procedure entailed
forwarding the Request to the Accreditation Division, the office within OPE that
maintained the responsive records, and searching the Accreditation Division’s electronic
files, in which records relating to foreign countries’ applications for comparability
determinations were stored. (Mula Decl. ¶ 13). At FSA, the efforts to locate responsive
information began with several searches of the PEPS database to identify certification and
recertification actions from foreign medical schools completed between 2000 and 2007.
(Hemelt Decl. ¶¶ 15-26). FSA staff then retrieved the records for those schools from the
FSA electronic archives and hard copy files. (Id. ¶¶ 28-29).
The Department’s submissions are not conclusory and clearly provide
“reasonable specificity of detail” about the manner in which it responded to Ferguson’s
17
Request. See Grand Cent. P’ship, 166 F.3d at 478. The Court therefore may rely on the
Department’s declarations to determine whether the Department conducted a reasonable
search.
B.
Adequacy of the Department’s Search
Liberally construed, Ferguson’s papers appear to present a tri-fold challenge
to the adequacy of the Department’s search. First, he apparently contends that the
Department improperly narrowed the scope of his Request for records concerning foreign
medical schools’ certifications and recertifications. (See Ferguson Decl. ¶ 48). Second,
Ferguson claims that the Department’s search was deficient because it failed to produce
certain records relating to (i) foreign countries’ applications for comparability
determinations, and (ii) foreign medical schools’ certifications to participate in the FFEL
program. (See, e.g., id. ¶¶ 11, 25-27, 29, 48). Third, Ferguson suggests that the
Department should have taken additional steps beyond searching OPE’s and FSA’s
databases, such as interviewing agency employees to determine the location of responsive
records and consulting information in the public domain. (See, e.g., id. ¶¶ 21-24; ECF
No. 26 (“Pl.’s Mem.”) at 4).
1.
Scope of the Request
In his papers opposing the Department’s motion, Ferguson first appears to
contend that he did not agree to modify the scope of his Request with respect to records
maintained by FSA. In that regard, Hemelt states that she contacted Ferguson in
December 2007 to discuss items five and six of his Request because they were
18
ambiguous. (Hemelt Decl. ¶ 10). Indeed, those items were not limited to records in a
specific date range, but, rather, sought “any application/document” from a foreign
medical school that applied to participate in FFEL, and the Department’s “final response”
to any such application. (See Arrington Decl. Ex. A). Hemelt states that during the
ensuing discussions, Ferguson agreed to limit those two items to records relating to
foreign medical schools’ initial certifications and recertifications completed between
2000 and 2007. (Hemelt Decl. ¶¶ 10-11, 13).
An agency clearly may ask a requester to clarify the scope of a FOIA
request when it lacks specificity or is overbroad. See Jarvik v. CIA, 741 F. Supp. 2d 106,
115 (D.D.C. 2010). Additionally, an “agency may decide to limit the scope of an
ambiguous request as long as the narrowed scope is a reasonable interpretation of what
the request seeks.” Wilson v. U.S. Dep’t of Transp., 730 F. Supp. 2d 140, 154 (D.D.C.
2010).
Here, it appears that Hemelt offered to search FSA’s records dating back to
2000 because of the burden involved in searching its pre-2000 records, which were not
maintained electronically. (See Hemelt Decl. ¶¶ 11-12; Ferguson Decl. ¶ 48). Although
Ferguson seemingly tries to suggest that he never agreed to modify the scope of his
Request during his conversation with Hemelt, it is clear that he did not reject her
suggestion. (See Ferguson Decl. ¶ 48 (noting that Ferguson reached an agreement with
Hemelt to avoid an “onerous” and “unproductive” search)). Indeed, had Ferguson
disagreed with Hemelt’s proposed modification of the Request, he could have declined
19
her request and administratively appealed FSA’s decision not to search pre-2000 records.
Ferguson did not do so. Having failed to take those steps, Ferguson cannot successfully
argue in this forum that his Request remained unrestricted in terms of the applicable
starting date. Cf. Jarvik, 741 F. Supp. 2d at 115 (requester’s amended FOIA request
governed because requester agreed to restrict scope of his initial request pursuant to
agency’s offer and did not “appeal [agency’s] decision to reject his initial FOIA request”).
Accordingly, the only issue properly before the Court is the adequacy of the Department’s
response to Ferguson’s Request, as modified by Hemelt’s offer to search for certifications
and recertifications completed between 2000 and 2007.
2.
Records Omitted from the Production
In his opposition papers, Ferguson makes a lengthy attempt to show that
responsive Department records were not produced. For example, Ferguson notes with
respect to the Department’s production of foreign countries’ applications for
comparability determinations that records for Australia’s application in September 2007
were not produced, even though the Committee considered that application. (Ferguson
Decl. ¶¶ 8-10). Ferguson raises similar objections with respect to applications submitted
in 2008, 2009, and other years from a host of countries, including Belize, the Cayman
Islands, Canada, Dominica, Grenada, Israel, Costa Rica, Hungary, India, Ireland, the
Netherlands, and the Slovak Republic. (See, e.g., id. ¶¶ 11-14, 19, 24-27, 29, 31-34, 38,
47). Ferguson further contends that FSA’s production in 2008 was deficient because he
20
did not receive records for all of the forty-four schools Hemelt and her staff had identified
through their search. (Id. ¶ 48.).
FOIA does not demand that the Department “conduct a perfect search” for
responsive records. See Ramstack, 607 F. Supp. 2d at 105. Rather, FOIA simply
requires that the Department conduct a search that is “reasonably calculated” to locate the
relevant records. See id. at 107. The Department plainly has done so in this case with
respect to the databases it searched. The Department forwarded Ferguson’s request to
OPE and FSA because those offices were likely to maintain records responsive to his
Request. OPE and FSA then searched the databases that were likely to contain the
relevant records and produced them to Ferguson to the extent that they did not contain
exempt material. (See Mula Decl. ¶ 22; Hemelt Decl. ¶ 43). Indeed, the Department
produced nearly 16,000 pages of records in 2008. (See Arrington Decl. Ex. C).
Moreover, after Ferguson filed an administrative appeal which identified certain
omissions in the Department’s 2008 production, the Department voluntarily conducted a
comprehensive supplemental search in 2010 for the omitted information. (See Hemelt
Decl. ¶¶ 35-41). That production yielded nearly 5,000 pages of additional records that
were provided to Ferguson. (Id. ¶ 41).
Ferguson’s focus on the results of the Department’s search misses the point.
See Hornbostel, 305 F. Supp. 2d at 28 (“the focus of the adequacy inquiry is not on the
results”). The narrow focus of the Court’s inquiry necessarily must be the reasonableness
of the Department’s search. See Grand Cent. P’ship, 166 F.3d at 489. Thus, an agency’s
21
search may be sufficient under FOIA even if it does not uncover every record that a
plaintiff believes is relevant and likely to exist in the agency’s files. See Ramstack, 607
F. Supp. 2d at 106-08 (agency’s search was reasonable even though it yielded no
responsive records); Hornbostel, 305 F. Supp. 2d at 28 (agency’s failure to produce
documents that were cited in responsive records insufficient to establish inadequacy of
search). Ferguson’s belief that additional responsive records exist — even if correct —
therefore does not render the Department’s search inadequate.
a.
OPE’s Production of Records Concerning Foreign Countries
The bulk of the records that Ferguson contends were improperly omitted
from the Department’s production concern foreign country applications for comparability
determinations in OPE’s files. (See, e.g., Ferguson Decl. ¶¶ 19, 24, 25-27, 32-34, 39, 41,
42, 44-47). The allegedly missing records post-date the Request that Ferguson sent to the
Department in August 2007. It appears that Ferguson mentions them because he believes
that the Department has a continuing obligation to update its production regarding foreign
country applications because his Request sought the “last” submissions from such
countries. (See, e.g., id. ¶ 19 (“Due to the Department’s extraordinary delay in
production[,] these March 2009 presentations [from foreign countries to the Committee]
now became, ‘The latest submissions.’”) (emphasis in original)). If so, Ferguson
misapprehends the Department’s obligations under FOIA.
22
The Department was not required to update its response to the Request each
time the Committee considered an application from a foreign country at a subsequent
meeting. See Coven v. U.S. Office of Pers. Mgmt., No. 07 Civ. 1831 (PHX) (RCB), 2009
WL 3174423, at *9-10 (D. Ariz. Sept. 29, 2009) (rejecting plaintiff’s request for
“ongoing, daily copies of job vacancy announcements” issued by agency). Rather, it was
reasonable for the Department to restrict the temporal scope of its search so that the
search did not become a “never ending process.” Id. at *7; see Negley v. FBI, 766 F.
Supp. 2d 190, 195 (D.D.C. 2011) (“eminently reasonable” for agency to assume that
plaintiff’s request “was limited to documents in existence at the time of his request and
within the scope of the request”); Fox News Network, LLC v. U.S. Dep’t of Treasury,
739 F. Supp. 2d 515, 536 (S.D.N.Y. 2010) (commencement date of agency’s search was
reasonable cut-off date).
Here, the Department contends that it was reasonable to utilize the date of
the Request as the cut-off for its search of OPE records, which would render any
documents created in or after September 2007 outside the scope of the Request. (See
ECF No. 24 (“Def.’s Reply Mem.”) at 4-5 & n.2). The Department, however, does not
explain why the Request date should be deemed the appropriate cut-off date. In an
analogous case, the District of Columbia Circuit rejected the proposition that the “use of a
time-of-request cut-off date is always reasonable.” See McGehee v. CIA, 697 F.2d 1095,
1102-03 (D.C. Cir. 1983) (emphasis in original). There, the requester claimed that the
agency’s date-of-request cut-off policy was unreasonable because it had failed to provide
23
responsive records for two years after the submission of a FOIA request. Id. at 1100.
Although the court declined to address whether it was reasonable to use the date-ofrequest as the cut-off date, it remanded that issue to the district court. Id. at 1104.
Subsequently, in another case, the District of Columbia Circuit rejected the
agency’s use of the date-of-request as the cut-off date because the agency “failed to
substantiate its claim that an ‘administrative nightmare’ would result” if it were to use
another date. Pub. Citizen v. Dep’t of State, 276 F.3d 634, 643-44 (D.C. Cir. 2002)
(internal citation marks omitted) (agency’s policy utilizing date-of-request as cut-off date
was unreasonable both generally and as applied). The court noted, however, that its
opinion did not preclude any federal agency from attempting to set forth a “more
compelling justification for imposing a date-of-request cut-off on a particular FOIA
request.” Id. at 644.
In this case, the Department has not offered any compelling justification for
its decision to limit its search of OPE’s files to records that were created on or before
August 3, 2007 — the date of the Request. Indeed, the Department has not offered any
reason to support that early a cut-off date. Thus, the Department has failed to meet its
burden of establishing the reasonableness of that aspect of its search. See McGehee, 697
F.2d at 1101 (burden of establishing reasonableness of limitations on search lies with
agency).
The question therefore becomes, what cut-off date is reasonable under the
circumstances of this case? In this District and elsewhere, courts have found that the date
24
on which the agency commences its search is an appropriate cut-off date.6 See Fox News,
739 F. Supp. 2d at 536 (collecting cases and noting that “courts have consistently held
that an agency may limit its FOIA search to records created on or before the date of the
commencement of the search”); Edmonds Inst. v. U.S. Dep’t of Interior, 383 F. Supp. 2d
105, 111 (D.D.C. 2005) (citing Pub. Citizen, 276 F.3d at 642) (“The D.C. Circuit has all
but endorsed the use of date-of-search as the cut-off date for FOIA requests.”). As the
court in Public Citizen recognized, a date-of-search cut-off date is especially appropriate
when an agency has a backlog of FOIA requests. 276 F.3d at 643. Because a requester
typically is incapable of knowing whether an agency has created new responsive records
that post-date the request, a date-of-request cut-off would force the requester to “file
multiple FOIA requests to obtain documents that the [agency] would have released in
response to a single request had it used a later cut-off date.” Id.
The policy concern that animated the Public Citizen court applies equally in
this case. Because the Committee usually meets twice a year, (see Mula Decl. ¶ 11), it
was likely that the Department would create new responsive records between the date of
Ferguson’s Request and the commencement of the agency’s search. Accordingly, if the
Request date were the cut-off date, Ferguson would have had to submit a new request to
6
Notably, FSA appears to have used the commencement date of its search as the
cut-off date. (See Hemelt Decl. ¶¶ 15, 17). Hemelt was assigned to manage FSA’s response to
the Request in December 2007. (Id. ¶ 10). According to Ferguson, he and Hemelt spoke on
December 4, 2007, regarding the scope of his Request. (Ferguson Decl. ¶ 48). Hemelt’s queries
in PEPS searched for certification actions completed between January 1, 2000 and December 4,
2007. (Hemelt Decl. ¶¶ 15, 17).
25
ensure that he received a complete production. Although it is reasonable to require that
Ferguson submit another FOIA request to obtain records created in 2008 and 2009
because they post-date OPE’s search, he should not have to submit one to obtain relevant
records that were created between the date of the Request and the date that OPE
commenced its search.
According to Mula, OPE commenced its search for responsive records in
November 2007. (Id. ¶ 15). The Department therefore will be required to produce to
Ferguson any responsive records maintained by OPE that were created between the date
of the Request (August 3, 2007) and November 1, 2007, to the extent that such records
have not already been provided to him.
b.
FSA’s Production of Records Concerning Foreign Medical
Schools
Ferguson contends that the Department’s search in 2008 for foreign medical
schools’ certifications was deficient because he did not receive records for all such
schools. Specifically, he argues that, although Hemelt identified forty-four medical
schools in her search, the production did not include records for all forty-four schools.
(Ferguson Decl. ¶ 48). In doing so, Ferguson mischaracterizes Hemelt’s description of
the search results.
In her declaration, Hemelt states that the “searches for initial and
recertification applications completed for foreign medical schools between 2000 and 2007
located forty-four certification actions.” (Hemelt Decl. ¶ 27) (emphasis added). Hemelt’s
26
search identified six foreign medical schools that completed an initial certification and
thirty-eight foreign medical schools that sought recertification. (Id. ¶¶ 20, 26).
Importantly, Hemelt did not state that her search yielded a list of forty-four unique
foreign medical schools. Indeed, because a school could have applied for both an initial
certification and recertification between 2000 and 2007, it is possible that a particular
school participated in more than one certification action. In any event, as noted above,
the Court’s assessment of the adequacy of the Department’s search is not based on the
results of that search. See Hornbostel, 305 F. Supp. 2d at 28. Ferguson’s contention that
certain records were missing from FSA’s production therefore does not undermine the
Department’s showing that the search was reasonably calculated to discover responsive
information.
Moreover, Ferguson’s contention regarding the foreign medical schools’
certifications overlooks the records he received as a result of the Department’s
supplemental search and production in 2010. After Ferguson identified four foreign
medical schools that he believed should have been included in the Department’s 2008
production, the Department voluntarily conducted a supplemental search to locate
additional records relating to those schools.7 (See Hemelt Decl. ¶¶ 35, 38). That the
Department’s supplemental search yielded nearly 5,000 pages of additional records does
not controvert the reasonableness of FSA’s initial search in 2008. See Grand Cent.
7
According to Hemelt, records relating to those four schools were not included in
the Department’s 2008 production because those certification actions “post-dated the cutoff date
for the prior search and thus were outside the scope of the Request.” (Hemelt Decl. ¶ 36).
27
P’ship, 166 F.3d at 489 (agency’s second search, which uncovered additional responsive
records, did not render initial search unreasonable).
3.
The Department’s Efforts to Locate Records
Ferguson further contends that the Department’s search procedures were
inadequate because the agency should have utilized additional methods to uncover
responsive records. Specifically, Ferguson questions why the Department did not rely on
the personal knowledge of its own employees, such as Mula, to determine the location of
relevant information. (See, e.g., Ferguson Decl. ¶¶ 21-24). Ferguson also maintains that
the Department should have reviewed other governmental records in the public domain to
determine which foreign countries had submitted an application for a comparability
determination. (See Pl.’s Mem. at 4). Both assertions are meritless.
As noted earlier, FOIA does not demand that an agency undertake specific
steps in its response to a request for information. Rather, the agency’s search is evaluated
based on a reasonableness standard. See Grand Cent. P’ship, 166 F.3d at 489. Here, the
Department’s search procedures with respect to the databases and files that it searched
were reasonably calculated to uncover responsive information. Moreover, the Request
did not identify specific databases that the Department should have searched, other than
to suggest that certain responsive records were maintained by the Foreign Schools Team.
(See Arrington Decl. Ex. A (item five of the Request)). Because Ferguson’s Request
failed to specify additional “locations in which an agency should search, the agency ha[d]
the discretion to confine its inquiry to [its central databases].” See Campbell v. U.S.
28
Dep’t of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998) (“agency generally need not search
every record system”) (internal quotation marks omitted).
Similarly, the Department was not obligated to interview its employees to
locate responsive records when it had searched all files likely to contain relevant
information. See Saldana v. Fed. Bureau of Prisons, 715 F. Supp. 2d 10, 23 (D.D.C.
2010) (“agency is not required to conduct interviews, to search in places where the
requested documents are not likely to be found, or to search exhaustively”). Thus,
contrary to Ferguson’s assertion, the Department’s decision not to interview Mula or
other persons as part of its response to the Request did not render its search inadequate.
Additionally, the Department’s search was adequate even though it did not
consult agency records in the public domain to identify and locate responsive records.
According to Ferguson, the Department should have reviewed the Committee’s agendas,
which are published in the Federal Register, to determine which foreign countries had
submitted an application for a comparability determination because the agendas list the
foreign countries to be discussed at the Committee’s upcoming meetings. (See Pl.’s
Mem. at 4). Contrary to Ferguson’s assertion, OPE’s search procedures (with the
exception of the cut-off date for its search) were reasonably expected to locate and
identify relevant information about foreign countries’ submissions to the Committee.
Indeed, Mula states in his declaration that OPE’s search began with a review of its
electronic files organized by Committee meeting date. (Mula Decl. ¶ 17). Based on that
review, the OPE electronic records manager determined which applications had been
29
discussed at Committee meetings during the relevant time period. (See id.). Any
information concerning meetings that might have been gleaned from the announcements
in the Federal Register therefore would have been redundant. In these circumstances, the
fact that OPE failed to consult the Federal Register’s announcements of the Committee’s
meetings does not warrant the conclusion that the Department’s search was inadequate.
See Campbell, 164 F.3d at 28 (agency has discretion to search only central databases “if
additional searches [were] unlikely to produce any marginal return”).8
C.
Ferguson’s Showing of Bad Faith is Insufficient
In sum, through its declarations from agency supervisors who oversaw the
response to Ferguson’s Request, the Department has satisfied its burden of showing that
its searches were adequate (save for one aspect of OPE’s search). To avoid summary
judgment in favor of the Department, Ferguson therefore “must make a showing of bad
faith on the part of the agency sufficient to impugn the agency’s . . . declarations.”
Carney, 19 F.3d at 812. Ferguson has failed to proffer such evidence.
In his papers, Ferguson offers nothing more than conclusory statements
accusing the Department of “deliberate[ly]” omitting certain responsive records and
questioning the Department’s “due diligence” and good faith in conducting the searches.
8
Even if OPE had consulted the Federal Register for the Committee’s meeting
agendas, those records would have provided only a list of countries that were scheduled for
discussion at an upcoming meeting. (See Ferguson Decl. Ex. E (72 Fed. Reg. 39064 (July 17,
2007) (announcing Committee meeting on September 10, 2007, and listing countries “tentatively
scheduled to be discussed at the meeting”))). Importantly, the announcements in the Federal
Register do not contain any information about the countries’ applications — the very
information that Ferguson sought in his Request.
30
(See Ferguson Decl. ¶ 9). This is insufficient to establish that the Department acted in
bad faith. See Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 75 (2d Cir. 2009) (quoting
Larson v. Dep’t of State, 565 F.3d 857, 864 (D.C. Cir. 2009)) (“A finding of bad faith
must be grounded in ‘evidence suggesting bad faith on the part of the [agency].’”). Nor
do Ferguson’s bare assertions that the Committee omitted relevant records raise an
inference of bad faith. See SafeCard Servs., 926 F.2d at 1200 (requester’s “purely
speculative claims about the existence and discoverability of other documents” is
insufficient to rebut the presumption of good faith afforded to agency affidavits).
Ferguson thus has failed to impugn the Department’s declarations and establish that it
acted in bad faith.
D.
Discovery is Not Warranted
Finally, Ferguson contends that discovery is “necessary to retrieve the
missing documents and files” that he maintains were improperly omitted from the
Department’s production. (See Pl.’s Mem. at 7). Ferguson further requests that the Court
review in camera “materials declared exempt from production” and allow him to depose
the Department’s witnesses. (Id. at 3). In response, the Department asserts that Ferguson
has failed to make a showing sufficient to warrant discovery. (See Def.’s Reply Mem. at
8-9). The Department is correct.
Discovery in a FOIA case is “rare and should be denied where an agency’s
declarations are reasonably detailed, submitted in good faith and the court is satisfied that
no factual dispute remains.” Schrecker v. U.S. Dep’t of Justice, 217 F. Supp. 2d 29, 35
31
(D.D.C. 2002), aff’d, 349 F.3d 657 (D.C. Cir. 2003). Moreover, discovery is appropriate
“[o]nly if the agency has not undertaken an adequate search for responsive documents.”
Jarvik, 741 F. Supp. 2d at 122. “Where an agency’s affidavits regarding its search are
sufficient, the judge has broad discretion to forgo discovery.” Id.
Here, the Department has proffered detailed declarations describing its
search efforts, and Ferguson has failed to establish that the search was conducted in bad
faith. Indeed, Ferguson has utterly failed to proffer any reason which would justify
discovery. His contention that discovery is necessary to obtain “missing” responsive
records is unpersuasive since the Department’s search was reasonable (except with
respect to one aspect of OPE’s response, as to which discovery would shed no light).
Moreover, in camera review of the Department’s withheld records is unnecessary
inasmuch as the Department has submitted detailed declarations explaining its basis for
redacting its records. See Associated Press v. U.S. Dep’t of Justice, 549 F.3d 62, 67 (2d
Cir. 2008) (in camera review appropriate only when agency offers “vague or sweeping
claims” to support withholding of responsive records).
IV.
Conclusion
For the foregoing reasons, the Department’s motion for summary judgment
is granted in part and denied in part. By October 15, 2011, the Department shall produce
to Ferguson any OPE records responsive to his Request that were created between August
3 and November 1, 2007, if such records have not previously been produced. Since this
32
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