United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 17, 1999 Decided June 25, 1999
No. 98-5041
Carlos Valencia-Lucena,
Appellant
v.
United States Coast Guard,
FOIA/PA Records Management,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 97cv01693)
Jeffrey A. Rackow argued the cause as amicus curiae on
behalf of appellant. With him on the briefs was Roy T.
Englert, Jr., appointed by the court.
Carlos Valencia-Lucena, appearing pro se, was on the
brief for appellant.
Meredith Manning, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.
Before: Williams, Rogers and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: Carlos Valencia-Lucena appeals
from the grant of summary judgment to the Coast Guard in
his lawsuit under the Freedom of Information Act ("FOIA"),
5 U.S.C. s 552 et seq., seeking pages from the logbook of a
Coast Guard cutter that seized containers of drugs dropped
offshore from an airplane that he piloted. According to
Valencia-Lucena's FOIA request, the Captain of the Coast
Guard cutter brought the logbook to Valencia-Lucena's crimi-
nal trial and referred to pages of the logbook in testifying to
the amount of drugs. In response to his first FOIA request
for the logbook pages, the Coast Guard disclosed pages from
another logbook. In a second FOIA request, Valencia-
Lucena attached exemplars of the pages from the logbook
that he was requesting. The Coast Guard responded that
there were no other responsive documents. Because the
record fails to show that the Coast Guard conducted an
adequate search, we reverse.
I.
Carlos Valencia-Lucena was convicted in 1989 with four
others of conspiring to possess with intent to distribute 137.2
kilograms of cocaine in violation of 21 U.S.C. s 846, and
conspiring to import into the United States 137.2 kilograms of
cocaine in violation of 21 U.S.C. s 963. See United States v.
Valencia-Lucena, 925 F.2d 506, 509 (1st Cir. 1991)
("Valencia-Lucena I"). At trial the government established
that the conspirators intended to transport the drugs from
Columbia, South America to the United States through the
Virgin Islands by retrieving containers filled with cocaine
dropped offshore from an airplane. See id. at 510. With the
assistance of an informant, the government became aware of
the conspiracy, and eventually, with the assistance of the
Coast Guard, recovered 137.2 kilograms of cocaine that it
claimed was dropped from a plane piloted by Valencia-
Lucena on December 31, 1988. See id. at 509-10; United
States v. Valencia-Lucena, 988 F.2d 228, 230 (1st Cir. 1993)
("Valencia-Lucena II"). Lieutenant Nesel, the Captain of
the U.S. Coast Guard cutter MONHEGAN, participated in
the seizure and testified. See Valencia-Lucena II, 988 F.2d
at 233. According to Valencia-Lucena, Captain Nesel con-
sulted a logbook during his testimony and the government
introduced a number of pages from the logbook into evidence.
The Court of Appeals for the First Circuit affirmed his
conviction but vacated his sentence of 120 months imprison-
ment, holding that a downward departure was improper and
remanding for the district court to determine the reliability of
the evidence as to the amount of cocaine. Valencia-Lucena
I, 925 F.2d at 515-16.1 Following a hearing in which the
parties stipulated that the evidence was the same as at trial,
the district court on remand found that the conspirators were
responsible for 137.2 kilograms of cocaine, based on the
informant's trial testimony and the amount actually recovered
by the government after the arrests. See id. at 515;
Valencia-Lucena II, 988 F.2d at 232-233. Denying the
conspirators' discovery request (including a request for the
Coast Guard's certified logbook) aimed at rebutting the gov-
ernment's evidence on the amount of cocaine, the district
court resentenced Valencia-Lucena to 235 months imprison-
ment. See Valencia-Lucena II, 988 F.2d at 231, 233. On
__________
1 The offshore drop was successful, but the conspirators en-
countered recovery problems. Only six of ten coolers were recov-
ered and the cocaine was subsequently turned over to the govern-
ment by an informant after the arrests. See Valencia-Lucena I,
925 F.2d at 510. The original indictment charged law violations
with regard to 200 kilograms of cocaine; the first superceding
indictment charged 173.2 kilograms, and the second superceding
indictment charged 132.7 kilograms, the amount actually recovered
by the government. See id. at 515. At trial, the district court
excluded the evidence of the amount of cocaine involved in the
conspiracy because the government's proof of the chain of custody
was weak, the evidence was unduly prejudicial, and it was unneces-
sary to prove the conspiracy. See id.; United States v. Valencia-
Lucena, 988 F.2d 228, 230 (1st Cir. 1993) ("Valencia-Lucena II").
appeal, the First Circuit rejected various challenges to the
new sentences and affirmed the denial of the discovery re-
quest, but remanded for specific findings on whether the
amount of cocaine was foreseeable to other members of the
conspiracy. Id. at 230, 233, 235.2
After he was resentenced, Valencia-Lucena submitted two
FOIA requests to the Coast Guard, the second of which is the
subject of this appeal.3 He submitted his first FOIA request
in February 1993 for copies of the MONHEGAN's logbook
entries for December 25, 1988 to January 10, 1989. The
Coast Guard responded in August 1993 with redacted sum-
mary sheets noting weather observations and various opera-
tions from a different logbook than he was seeking.4
Valencia-Lucena therefore submitted a second FOIA request
in November 1993, specifying that he wanted copies of the
captain's log, deck, and/or communications logbooks from
December 30, 1988 to January 8, 1989. He identified Lieu-
tenant Nesel as the captain of the vessel during that period,
and specified that he was requesting "any entry of drugs
__________
2 In affirming the denial of the discovery request, the First
Circuit noted that at trial the conspirators had the opportunity to
cross-examine the commanders of the Coast Guard and British
Virgin Island police vessels, that at the remand hearing they had
the opportunity to contest the government's evidence on the amount
of cocaine but did not, and that they "failed to show [ ] how the
logbooks would have added anything to the testimony already
received." Valencia-Lucena II, 988 F.2d at 233.
3 In 1996, the district court denied Valencia-Lucena's collateral
attack on his sentence pursuant to 28 U.S.C. s 2255 on the ground
of double jeopardy, because the government had previously forfeit-
ed his residence on the basis of the conduct underlying the conspir-
acy charges. Valencia-Lucena v. United States, 933 F. Supp. 129,
131 (D.P.R. 1996).
4 The summary sheets show that on December 31, 1988, the
MONHEGAN was en route to a "possible airdrop"; on January 6,
1989, the crew conducted a field test that was positive for cocaine on
one bale and one packet; and on January 7, 1989, the MONHEGAN
docked in San Juan, Puerto Rico, unloading nine bales of cocaine
and transferring them to the Drug Enforcement Agency.
found and/or seized by this vessel, circumstances involved,
type and quantity of drugs found, description of containers in
which drugs were found, to whom these drugs were found
and/or seized, and to which Law Enforcement agency the
drugs were delivered to in San Juan, PR and/or other port of
entry." He also attached logbook pages introduced by the
government as evidence at trial; the exemplars appear to
represent the December 31, 1988, entry of a logbook authenti-
cated under Lieutenant Nesel's signature, showing that the
MONHEGAN responded to an airdrop and met with Drug
Enforcement Agency officials to search the surrounding area.
After receiving acknowledgments by the Coast Guard of
receipt of his second FOIA request in December 1993 and
again in January 1994, Valencia-Lucena heard nothing more
for over two years. In response to his letters of February
1995 and March 1996, the Coast Guard responded in the
spring or early summer of 1996, treating the March letter as
if it were a new FOIA request and stating that it had no
responsive documents. The Coast Guard informed Valencia-
Lucena, however, that there was "a possibility that the rec-
ords ... requested/additional records responsive to [his] re-
quest may be located at the federal records center in Geor-
gia" and provided him with the address so he could contact
the center directly. Valencia-Lucena sent a letter to the
Georgia center requesting the logbook documents, but re-
ceived no response.
A third acknowledgment in July 1997 from the Coast Guard
stated that his FOIA request would "be processed as soon as
possible." After waiting nearly four years, Valencia-Lucena
sought injunctive relief in the district court to compel the
agency to act. Prompted by the lawsuit, the Coast Guard
disclosed the same pages it had released in response to his
first FOIA request and claimed "that a reasonable search for
responsive records ha[d] been made and [that] no other
places within the Coast Guard exist where the records are
likely to be found." The district court granted the Coast
Guard's motion for summary judgment, concluding that it had
performed an adequate search. Valencia-Lucena appealed,
and this court appointed amicus curiae.5
II.
The law in this circuit on agency obligations under FOIA is
long-established and embraces the congressional purpose of
open government. See Campbell v. United States Dep't of
Justice, 164 F.3d 20, 27 (D.C. Cir. 1998). While recognizing
that the number of requests for information may pose bur-
dens on agencies, Congress determined its ultimate policy of
open government should take precedence. See John Doe
Agency v. John Doe Corp., 493 U.S. 146, 151 (1989); Depart-
ment of the Airforce v. Rose, 425 U.S. 352, 361 (1976). The
fundamental principle animating FOIA is public access to
government documents. John Doe Agency, 493 U.S. at 151.
Accordingly, this court has required agencies to make more
than perfunctory searches and, indeed, to follow through on
obvious leads to discover requested documents. Campbell,
164 F.3d at 28. An agency fulfills its obligations under FOIA
if it can demonstrate beyond material doubt that its search
was "reasonably calculated to uncover all relevant docu-
ments." Truitt v. Department of State, 897 F.2d 540, 542
(D.C. Cir. 1990) (quoting Weisberg v. Department of Justice,
705 F.2d 1344, 1351 (D.C. Cir. 1983)). "[T]he agency must
show that it made a good faith effort to conduct a search for
the requested records, using methods which can be reason-
ably expected to produce the information requested." Ogles-
by v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C.
Cir. 1990) ("Oglesby I"). The 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." Id;
see also Campbell, 164 F.2d at 28.
A requester dissatisfied with the agency's response that no
records have been found may challenge the adequacy of the
agency's search by filing a lawsuit in the district court after
exhausting any administrative remedies. See 5 U.S.C.
__________
5 Order of August 12, 1998, Valencia-Lucena v. United States
Coast Guard, No. 98-5041.
s 552(a)(6)(A)(i) & (C); Oglesby I, 920 F.2d at 67. At the
summary judgment stage, where the agency has the burden
to show that it acted in accordance with the statute, the court
may rely on "[a] reasonably detailed affidavit, setting forth
the search terms and the type of search performed, and
averring that all files likely to contain responsive materials (if
such records exist) were searched." Oglesby I, 920 F.2d at
68; see also Kowalczyck v. Department of Justice, 73 F.3d
386, 388 (D.C. Cir. 1996); Weisberg, 705 F.2d at 1351. How-
ever, if a review of the record raises substantial doubt,
particularly in view of "well defined requests and positive
indications of overlooked materials," Founding Church of
Scientology v. National Sec. Agency, 610 F.2d 824, 837 (D.C.
Cir. 1979), summary judgment is inappropriate. Id.; see also
Oglesby v. United States Dep't of the Army, 79 F.3d 1172,
1185 (D.C. Cir. 1996) ("Oglesby II"); Krikorian v. Depart-
ment of State, 984 F.2d 461, 468 (D.C. Cir. 1993); Weisberg v.
United States Dep't of Justice, 627 F.2d 365, 369-70 (D.C.
Cir. 1980). Most recently, for example, in Campbell, 164 F.3d
at 28, the court held a search inadequate when it was evident
from the agency's disclosed records that a search of another
of its records system might uncover the documents sought.
So too here, on de novo review, see Nation Magazine v.
United States Customs Serv., 71 F.3d 885, 889 (D.C. Cir.
1995), the record indicates that the search was deficient and
consequently summary judgment for the Coast Guard was
not proper.
Noting, correctly, that the adequacy of a search is separate
from the question of whether the requested logbook entries
are found, Nation Magazine, 71 F.3d at 892 n.7; Meeropol v.
Meese, 790 F.2d 942, 953 (D.C. Cir. 1986); see also Perry v.
Block, 684 F.2d 121, 128 (D.C. Cir. 1982), the Coast Guard
refers to the declaration of Lieutenant Matthew Ross, the
FOIA coordinator in the Office of Law Enforcement, Division
of Drug Interdiction at Coast Guard Headquarters. He
processed Valencia-Lucena's second FOIA request and re-
released logbook pages of the MONHEGAN disclosed in
response to the first FOIA request from December 25, 1988
through January 10, 1989, with the names of law enforcement
personnel redacted and an acknowledgment that two missing
pages, for December 30 and January 1, could not be located
upon a further search. Lieutenant Ross attests that he
searched the paper and microfiche files in the Office of Law
Enforcement by date and name U.S. Coast Guard Cutter
MONHEGAN. He also contacted the Federal Archives and
Records Center in Bayonne, New Jersey to search for the
original logbooks, but the original logbooks could not be found
although they are to be maintained at the center in accor-
dance with the Coast Guard Paperwork Management Manual,
M5212.12. Finally, he directed the Coast Guard Seventh
District in Miami, Florida, the MONHEGAN's home port, to
search its Search and Rescue and Law Enforcement files, but
the Seventh District did not find any responsive documents.
Nothing in Lieutenant Ross' declaration or the record
before the court expressly demonstrates, however, that the
Coast Guard focused its search on the specific document
requested, as indicated by the exemplars attached to
Valencia-Lucena's second FOIA request. The nature of the
precise requests to the entities within the Coast Guard is
unclear. Because the agency's disclosures in response to
Valencia-Lucena's first FOIA request were non-responsive,
Valencia-Lucena contends that it is of some significance
whether the exemplar pages were described or provided to
those searching for the records, particularly in light of the
fact that the only documents released in response to his
second FOIA request were the same documents it had previ-
ously released. Still, we think the absence of such an express
indication is not grounds for reversal inasmuch as Lieutenant
Ross attached the exemplars to his declaration, thereby im-
plicitly suggesting that his directions to those within the
agency were properly focused. To conclude otherwise would
burden the agency without purpose. Nonetheless, in a future
declaration, further clarity on the point would eliminate any
concerns.
Rather, what causes us to conclude that the search was
inadequate arises from the fact that the record itself reveals
"positive indications of overlooked materials." Founding
Church of Scientology, 610 F.2d at 837; see also Oglesby II,
79 F.3d at 1185; Krikorian, 984 F.2d at 468; Weisberg, 627
F.2d at 369-70. First, the offices searched according to the
Ross declaration were not the only places "likely to turn up
the information requested." Oglesby I, 920 F.2d at 68, quoted
in Campbell, 164 F.3d at 28. By letter in mid-1996, the
Coast Guard informed Valencia-Lucena "that the records [he]
requested/additional records responsive to [his] request may
be located at the federal records center in Georgia." The
Coast Guard declined to search the Georgia office and provid-
ed the address for Valencia-Lucena to contact the center
directly.
Its failure to search the center it had identified as a likely
place where the requested documents might be located clear-
ly raises a genuine issue of material fact as to the adequacy of
the Coast Guard's search. It is well-settled that if an agency
has reason to know that certain places may contain respon-
sive documents, it is obligated under FOIA to search barring
an undue burden. See, e.g., Campbell, 164 F.3d at 28; Kriko-
rian, 984 F.2d at 468; Oglesby II, 79 F.3d at 1185. Pursuant
to the regulations of the National Archives and Records
Administration, 36 C.F.R. s 1228.162 (1998), agency records
stored at a federal record center are deemed "to be main-
tained by the agency which deposited the record." There-
fore, the Coast Guard's failure to search cannot be excused by
contending that it was not obligated to check the records
center, and, indeed, the Coast Guard provides no explanation
for why it did not search the Georgia facility. The Coast
Guard's abdication of its duty under FOIA to perform a
search of all places it knew "likely to turn up the information
requested," Oglesby I, 920 F.2d at 68, makes clear that
summary judgment for the Coast Guard was inappropriate,
cf. Krikorian, 984 F.2d at 468.
The Coast Guard's contention at oral argument that
Valencia-Lucena failed to raise the records center issue in
the district court is belied by the attachments to his sworn
declaration in opposition to summary judgment that were
filed in accordance with the district court's instructions. See
Valencia-Lucena v. United States Coast Guard, No. 97-1693
(D.D.C. Oct. 8, 1997). Moreover, the district court referred to
the attachments in its memorandum opinion granting sum-
mary judgment. See Valencia-Lucena v. United States
Coast Guard, No. 97-1693, slip op. at 3 (D.D.C. Dec. 18,
1997).
Second, Lieutenant Ross' declaration does not refer to
Lieutenant Nesel, the Captain of the MONHEGAN at the
relevant time, and there is nothing in the record to indicate
that the lieutenant was contacted. Although we hardly sup-
pose that the lieutenant retained possession of the logbook
that, according to the FOIA request, he brought to Valencia-
Lucena's trial, he would be a likely source for information
about what happened to that logbook. An inquiry to him
gains significance in this context because the Coast Guard has
no responsibility under FOIA to make inquiries of other law
enforcement agencies, such as the Justice Department, for
documents no longer within its control or possession. Cf.
Kissinger v. Reporters Comm. for Freedom of the Press, 445
U.S. 136, 150-51 (1980); National Sec. Archive v. Archivist of
the United States, 909 F.2d 541, 544-45 (D.C. Cir. 1990);
Bureau of Nat'l Affairs, Inc. v. United States Dep't of Jus-
tice, 742 F.2d 1484, 1490 (D.C. Cir. 1984). It is entirely
possible that Lieutenant Nesel would recall what he did with
the logbook after he testified at trial, assuming the truth of
Valencia-Lucena's assertion in his FOIA request. Absent
any indication that an inquiry of Lieutenant Nesel would be
fruitless, either because he is no longer in the Coast Guard or
because the storage of the logbook was controlled by other
persons or by internal procedures, such an inquiry was
required. When all other sources fail to provide leads to the
missing record, agency personnel should be contacted if there
is a close nexus, as here, between the person and the particu-
lar record. See Nation Magazine, 71 F.3d 885, on remand,
937 F. Supp. 39, 43-44 (D.D.C. 1996). The undisputed con-
nection between the missing logbook and Lieutenant Nesel
should have led the Coast Guard to inquire of him as a source
"likely to turn up the information requested," Oglesby I, 920
F.2d at 68, regarding the missing logbook's whereabouts.
Finally, the Coast Guard's contention that summary judg-
ment is appropriate because logbooks such as the one re-
quested by Valencia-Lucena are routinely destroyed after
two years is without merit. In support of its contention, the
Coast Guard relies on the response of the Seventh District to
Lieutenant Ross' search directive, that "[w]e forward all case
files to the national archives, but they are routinely destroyed
after two years." In addition, the Coast Guard refers to a
1988 edition of the Telecommunications Manual, submitted as
part of the record for the first time on appeal, setting forth
the policy and procedures for the administration and opera-
tion of the Coast Guard Telecommunications Systems. Chap-
ter 6E, pertaining to the disposal schedule of records materi-
al, provides that "[l]ogs incident to or involved in any claim or
complaint of which the command has been notified," shall be
destroyed "when two years old or when complaint or claim
has been fully satisfied, which ever is earlier." However, the
Manual also contains exceptions to the routine destruction of
documents, for communications messages or logs of "histori-
cal or continuing interest," which are to be permanently
maintained according to another Coast Guard Manual,
M5212.12. From the bare record, we are unable to determine
whether the requested logbooks might fall within these excep-
tions for either messages or logs. But inasmuch as the Ross
declaration states that the Coast Guard searched the Bay-
onne, New Jersey records center because logbooks such as
those requested by Valencia-Lucena are maintained there in
accordance with Coast Guard Manual, M5212, the logbooks
may be of the sort permanently retained. In short, general-
ized claims of destruction or non-preservation cannot sustain
summary judgment. See Campbell, 164 F.3d at 28; Weis-
berg, 627 F.2d at 369.
Accordingly, we reverse the grant of summary judgment
for the Coast Guard and remand the case to the district court
for further proceedings.