Davis v. Department of Justice

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 13, 2006 Decided August 22, 2006

No. 04-5406

JOHN DAVIS,
APPELLANT

v.

DEPARTMENT OF JUSTICE,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 88cv00130)

James H. Lesar argued the cause and filed the briefs for
appellant.

Heather Graham-Oliver, Assistant U.S. Attorney, argued
the cause for appellee. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney, and Michael J. Ryan, Assistant U.S.
Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered
an appearance.

Before: RANDOLPH and GARLAND, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.
 2

GARLAND, Circuit Judge: This case involves four
audiotapes recorded more than twenty-five years ago during an
FBI corruption investigation in Louisiana. The plaintiff, an
author, seeks release of the tapes under the Freedom of
Information Act (FOIA), 5 U.S.C. § 552. There are two
speakers on the tapes, one a “prominent individual” who was a
subject of the FBI’s investigation, and the other an “undercover
informant” in that investigation. The only question on this
appeal is whether the FBI has undertaken reasonable steps to
determine whether the speakers are now dead, in which event
the privacy interests weighing against release would be
diminished.

The FBI has not been able to determine whether either
speaker is dead or alive. It says it cannot determine whether the
speakers are over 100 years old (and thus presumed dead under
FBI practice), because neither mentioned his birth date during
the conversations that were surreptitiously recorded. It says it
cannot determine whether the speakers are dead by referring to
a Social Security database, because neither announced his social
security number during the conversations. And it declines to
search its own files for the speakers’ birth dates or social
security numbers, because that is not its practice. The Bureau
does not appear to have contemplated other ways of determining
whether the speakers are dead, such as Googling them.1

We conclude that the FBI has not “made a reasonable effort
to ascertain” whether the two speakers, on whose behalf it has
invoked a privacy exemption from FOIA, are living or dead.
Schrecker v. Dep’t of Justice, 349 F.3d 657, 662 (D.C. Cir.
2003) (“Schrecker II”). As a consequence, there is a serious

1
See Oxford English Dictionary Online, http://www.oed.com
(defining “Google” as “to use the Google search engine to find
information on the Internet”).
 3

“‘question whether the Bureau’s invocation of the privacy
interest represented a reasonable response to the FOIA
request.’” Id. (quoting Summers v. Dep’t of Justice, 140 F.3d
1077, 1085 (D.C. Cir. 2003) (Williams, J., concurring)). We
therefore reverse the district court’s dismissal of the plaintiff’s
FOIA complaint and remand for further proceedings.

I

This is the fourth time we have considered an appeal arising
out of the FOIA dispute between Davis and the FBI. In 1986,
Davis submitted a FOIA request for all audiotapes recorded
during an FBI criminal investigation known as “BRILAB.”
That investigation, conducted during 1979-80, concerned
bribery and racketeering activities among organized crime
figures, politicians, and labor unions in Louisiana. The
investigation led to the indictment of five individuals, two of
whom were ultimately convicted -- including reputed Mafia boss
Carlos Marcello.2 Portions of more than 130 BRILAB tape
recordings were played at the defendants’ 1981 trial. Davis
sought the tapes as background for a book he subsequently
published in 1989. See JOHN H. DAVIS, MAFIA KINGFISH:
CARLOS MARCELLO AND THE ASSASSINATION OF JOHN F.
KENNEDY (McGraw-Hill 1989).

After the government refused to release the tapes, Davis
brought suit pursuant to FOIA. See 5 U.S.C. § 552(a)(4)(B).
The government contended that each tape was properly withheld
under one or more statutory exemptions, but the district court
concluded that material “unconditionally revealed in open court
. . . enter[s] the public domain beyond recall for all time” and
therefore cannot be withheld under FOIA. Davis v. Dep’t of

2
The convictions were later overturned on collateral review. See
United States v. Marcello, 876 F.2d 1147 (5th Cir. 1989).
 4

Justice, No. 88-0130, Order at 3 (D.D.C. May 6, 1991).
Although the government argued that it was no longer possible
to determine which of a “play list” of 163 taped excerpts had
actually been played in the courtroom, the district court held that
the government bore the burden of showing that the tapes had
not entered the public record and must “suffer the consequences
of the impasse.” Id. at 4. The court ordered release of all the
tapes.

On appeal, this court reversed. See Davis v. Dep’t of
Justice, 968 F.2d 1276, 1282 (D.C. Cir. 1992) (“Davis I”). We
held that, while the ultimate burden of persuasion remains on the
government, “a party who asserts that material is publicly
available carries the burden of production on that issue.” Davis
I, 968 F.2d at 1279 (emphasis omitted). We then remanded to
give Davis an opportunity to show that the tapes he sought, or
portions of them, were played at the trial. Id. at 1282.

In an effort to meet his burden under Davis I, Davis
produced docket entries and transcripts from the Marcello trial.
In response, the FBI released 157 of the 163 tapes and said it
would have released another tape but could not find it. The FBI
continued to withhold the five remaining tapes on the basis of
FOIA Exemption 7(C), which permits an agency to withhold
otherwise disclosable records if they were “compiled for law
enforcement purposes” and their release “could reasonably be
expected to constitute an unwarranted invasion of personal
privacy.” See 5 U.S.C. § 552(b)(7)(C). The district court
sustained the FBI’s actions. See Davis v. Dep’t of Justice, No.
88-0130, Order at 15 (D.D.C. Oct. 16, 1997).

Davis appealed a second time. In Davis II, we upheld the
district court’s determination that the FBI’s search for the
missing tape was adequate. See Davis v. Dep’t of Justice, 1998
WL 545422, at *1 (D.C. Cir. July 31, 1998) (“Davis II”). We
 5

again remanded, however, this time for the court to determine
“whether any of the five tapes withheld in their entirety . . .
contains material that can be segregated and disclosed without
unwarrantably impinging upon anyone’s privacy.” Id.

On remand, the FBI determined that it could release one of
the five tapes because the principal speaker on the tape had died.
But the Bureau concluded that the remaining four tapes were
wholly subject to Exemption 7(C), because it could not
determine whether the speakers on those tapes were living or
dead. See Decl. of Scott A. Hodes ¶¶ 5, 7 (Nov. 24, 1998).
Citing an FBI affidavit, see id. ¶ 7, the district court held that the
“defendant has made adequate efforts to establish that the
speakers on these tapes are not deceased.” Davis v. Dep’t of
Justice, No. 88-0130, Order at 2 (D.D.C. Sept. 15, 2000).

Once again, Davis appealed. In Davis III, we summarily
reversed the district court and again remanded the case. See
Davis v. Dep’t of Justice, 2001 WL 1488882, at *1 (D.C. Cir.
Oct. 17, 2001) (“Davis III”). “The FBI’s affidavit,” we held,
was “insufficient to determine the extent of the Bureau’s efforts
to ascertain whether putative beneficiaries of Exemption 7(C)
are alive or dead.” Id. As a consequence, we were “unable to
say ‘whether the Government reasonably balanced the interests
in personal privacy against the public interest in release of the
information at issue.’” Id. (quoting Schrecker v. Dep’t of
Justice, 254 F.3d 162, 167 (D.C. Cir. 2001) (“Schrecker I”)).
Citing our recent opinion in Schrecker v. Department of Justice,
we remanded so that “the FBI may document what sources it
consulted, and the district court can decide in the first instance
whether the government ‘did all it should have done, and
whether it may withhold the disputed information pursuant to
Exemption 7(C).’” Id. (quoting Schrecker I, 254 F.3d at 167).
 6

Following our remand order, the FBI filed two more
affidavits, spelling out the steps it took to determine whether the
speakers were dead or alive, and declaring that those steps did
not establish that the speakers on the tapes were deceased. See
Second Decl. of Scott A. Hodes (Feb. 26, 2002); Third Decl. of
Scott A. Hodes (July 11, 2002). We detail those steps in Part
II.A below. The FBI’s filings make clear that there are only
“two speakers on the audiotapes at issue.” Def.’s Mot. for
Recons. at 3 (citing Fourth Decl. of Scott A. Hodes ¶ 4 (Aug. 7,
2002)). According to the government, the four tapes come from
the FBI’s undercover investigation of a “prominent individual,”
and the speakers are that “prominent individual and the
undercover informant.” Appellee’s Br. 11 (citing affidavits).

In July 2002, unsatisfied with the government’s efforts, the
district court ordered the FBI to advise each of the two speakers,
“by first class mail[,] . . . of defendant’s obligation pursuant to
this Order to [release the tapes] unless the speaker objects
thereto in writing within 30 days.” Davis v. Dep’t of Justice,
No. 88-0130, Order at 1 (D.D.C. July 23, 2002). More than a
year later, after this court issued a subsequent opinion in the
Schrecker case, see Schrecker II, 349 F.3d at 657, the
government asked the district court to reconsider that order. On
August 31, 2004, the court granted the motion to reconsider,
“relieve[d] the government from undertaking the additional
tasks mandated” in its July 2002 order, and granted summary
judgment in favor of the FBI. Davis v. Dep’t of Justice, No. 88-
0130, Order at 1 (D.D.C. Aug 31, 2004).

Davis then filed his fourth notice of appeal, challenging
both the district court’s grant of summary judgment dismissing
his FOIA complaint, and an earlier order denying his motion for
an award of attorney’s fees. We consider the former in Part II
and the latter in Part III. We “review de novo a decision
granting summary judgment to an agency claiming to have
 7

complied with FOIA.” Schrecker II, 349 F.3d at 661-62. We
also review de novo a district court’s attorney’s fees
determination, like the one at issue here, that “rests on an
interpretation of the statutory terms that define eligibility for an
award.” Edmonds v. FBI, 417 F.3d 1319, 1322 (D.C. Cir. 2005)
(internal quotation marks omitted).

II

FOIA Exemption 7(C) exempts law enforcement records
from release “to the extent that” release “could reasonably be
expected to constitute an unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(7)(C). In deciding whether the
release of particular information constitutes an “unwarranted”
invasion of privacy, an agency must balance the privacy interest
at stake against the public interest in disclosure. See
Department of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 777 (1989); Schrecker I, 254 F.3d at 166.
We have recognized “that the privacy interest in nondisclosure
of identifying information may be diminished where the
individual is deceased.” Schrecker II, 349 F.3d at 661. Indeed,
the “fact of death, . . . while not requiring the release of
information, is a relevant factor to be taken into account in the
balancing decision whether to release information.” Id. (quoting
Schrecker I, 254 F.3d at 166). Consequently, “without
confirmation that the Government took certain basic steps to
ascertain whether an individual was dead or alive, we are unable
to say whether the Government reasonably balanced the interests
in personal privacy against the public interest in release of the
information at issue.” Schrecker I, 254 F.3d at 167.

The government’s obligation in this regard is to “ma[k]e a
reasonable effort to ascertain life status.” Schrecker II, 349 F.3d
at 662. Its “efforts must be assessed in light of the accessibility
of the relevant information.” Id. As we said in Schrecker II,
 8

there “‘would be a question whether the Bureau’s invocation of
the privacy interest represented a reasonable response to the
FOIA request . . . if the Bureau has, or has ready access to, data
bases that could resolve the issue.’” Id. (quoting Summers, 140
F.3d at 1085 (Williams, J., concurring)) (emphasis added in
Schrecker II). In short, “the proper inquiry is whether the
Government has made reasonable use of the information readily
available to it, and whether there exist reasonable alternative
methods that the Government failed to employ.” Schrecker II,
349 F.3d at 662.

A

The government’s affidavits and pleadings declare that the
FBI took three steps to determine whether the two speakers on
the tapes were deceased. The Bureau reports that, because those
individuals’ deaths could not “be ascertained” by these methods,
“the four tapes were withheld in full pursuant to exemption
b(7)(C).” Second Hodes Decl. ¶ 8. Of course, “[t]he failure to
discover the information sought is not conclusive evidence that
the agency has failed to make a reasonable effort.” Schrecker II,
349 F.3d at 662. Here, however, the government’s own
declarations provide that evidence.3

1. The government describes the first method it employed
in the following paragraph from its principal affidavit:

The FBI has institutional knowledge of the death of
certain individuals from the processing of prior FOIA
requests or internal records. The FBI relies on this

3
We measure the reasonable sufficiency of the government’s
effort on the basis of the aggregate of the steps it took, not on the basis
of any individual step alone.
 9

institutional knowledge, as well as Who Was Who, a
book of famous individuals [who have died].

Second Hodes Decl ¶ 5. From this description, it appears that
the government’s first step involved resort to two different
sources: institutional knowledge and Who Was Who.

If the FBI truly used its “institutional knowledge” to
determine whether the speakers were dead or alive, this first step
might well be reasonable. But the Bureau’s method of accessing
that knowledge is so constrained as to render it effectively
useless. Although the affidavit could be read as suggesting that
the FBI uses its “internal records” to determine an individual’s
status, the same affidavit indicates that the Bureau did not search
any records that were not themselves “responsive” to Davis’
FOIA request -- that is, it did not search any records other than
the audiotapes themselves. See Second Hodes Decl. ¶¶ 6, 7.4
Needless to say, the tapes themselves disclose nothing on this
point, other than that the speakers were alive when they were
speaking sometime during 1979-80.

The only other piece of “institutional knowledge”
mentioned in the FBI’s description is knowledge gained from
“the processing of prior FOIA requests.” Second Hodes Decl.
¶ 5. We have no idea what that means. On its face, however, its
utility must depend upon there having been a prior FOIA request

4
Subsequently, the FBI did conduct one search of its internal
records. According to another affidavit, the FBI searched a specific
index in its Criminal Justice Information Service Division for the
names of the speakers. However, “the only individuals . . . within the
index[] are those whose fingerprints are taken from corpses by law
enforcement personnel.” Third Hodes Decl. ¶ 4. There was no reason
-- or at least none has been offered -- to suggest that a search of this
index was likely to be productive, and apparently it was not.
 10

involving the same individuals. The FBI does not suggest that
there had ever been such a request.

If the FBI’s reference to its institutional knowledge means
anything more than what we have just described, we cannot
determine that from the affidavit the Bureau filed. What we said
of an earlier affidavit in this case, one that made a similar
reference to the FBI’s “institutional knowledge,” remains
equally true regarding this affidavit’s treatment of that subject:
“The FBI’s affidavit is insufficient to determine the extent of the
Bureau’s efforts to ascertain whether putative beneficiaries of
Exemption 7(C) are alive or dead.” Davis III, 2001 WL
1488882, at *1. Indeed, with respect to the FBI’s reliance on its
institutional knowledge, it appears that the Bureau has “been
completely passive on the issue, taking death into account only
if the fact has happened to swim into [its agents’] line of vision.”
Summers, 140 F.3d at 1085 (Williams, J., concurring); see also
Schrecker I, 254 F.3d at 167 (reversing and remanding the
district court’s judgment regarding the applicability of
Exemption 7(C) because the FBI’s affidavit was too vague to
determine if the agency had taken “certain basic steps to
ascertain whether an individual was dead or alive”).

The other source mentioned in the FBI’s affidavit is Who
Was Who, a multi-volume set of books published periodically by
Marquis Who’s Who, LLC. Each new volume “includes the
biographies of the most prominent and noteworthy people who
have died since the publication of the previous edition.”5 It is a
select company: of the more than 7.2 million Americans who

5
Marquis Who’s Who, LLC, Home Page, http://www.
marquiswhoswho.com.
 11

died during 2000-02,6 for example, no more than 4000 are
portrayed in the Who Was Who volume covering that period.
See 14 WHO WAS WHO IN AMERICA, 2000-02 (2002). How one
earns a place in it is unclear, although Marquis reports that most
of the entries were originally listed with the subjects’ permission
in its sister Who’s Who in America publication, and that many
of the biographies “have been scrutinized and revised by
relatives or legal representatives of the deceased Biographee.”
Id. at vi. All of this suggests both considerable self-selection
and considerable lag time.

The government describes one of the two speakers at issue
here as a “prominent individual” and the other as an “undercover
informant.” Appellee’s Br. 11. The latter seems unlikely to
qualify for the distinction of a Who Was Who entry, and we have
no way of knowing whether the former was prominent enough
to qualify. Accordingly, we cannot conclude that the FBI’s first
method -- reference to its institutional knowledge and to Who
Was Who -- was reasonably calculated to determine whether the
speakers on the tapes were living or dead.

2. The government describes the second method it
employed as follows:

When birth dates are provided in responsive records,
and these dates indicate the individual would be over
100 years of age, the name and/or any other identifiers
will be released. Although the FBI is aware that many
individuals live to be older than 100 years of age, . . .

6
Centers for Disease Control and Prevention (CDC), Deaths:
Final Data for 2002, NAT’L VITAL STAT. REP., Oct. 12, 2004, at 1;
CDC, Deaths: Final Data for 2001, NAT’L VITAL STAT. REP., Sept.
18, 2003, at 1; CDC, Deaths: Final Data for 2000, NAT’L VITAL
STAT. REP., Sept. 16, 2002, at 1.
 12

the FBI has consistently relied upon the 100-year rule
in all of its FOIA processing.

Second Hodes Decl. ¶ 6 (emphasis added). The key to the utility
of the FBI’s 100-year rule is the clause that we have italicized.
As explained above, when the FBI refers to “responsive
records,” it means those records -- and only those records --
actually sought in the FOIA request. In this case, the only
responsive records were the audiotapes, and “there were no birth
dates on these tapes.” Second Hodes Decl. ¶ 6. Therefore, the
affidavit concludes, since “no birth dates were provided in the
responsive records, the FBI did not assume death of the
individuals speaking on these tapes.” Id.

The reasonableness of this second method obviously
depends upon the probability that the responsive records will
contain the individual’s birth date -- as might well be the case if
the records sought by the FOIA requester were FBI investigative
reports or personnel files. But unless the FBI has tape recorded
a birthday party, it seems highly unlikely that the participants in
an audiotaped conversation would have announced their ages or
dates of birth.7 Accordingly, this second method was also
destined to fail, as it did.

3. The third method the FBI used was the following:

If a social security number is revealed on the
responsive records, the FBI, in its administrative
discretion, may check the Social Security Death Index
(SSDI) -- a database maintained by a third party on the

7
Although a tape might also reveal a speaker’s birth date if that
date were inscribed on the outside of the cassette that holds the tape,
the government provides no information as to whether that is ever the
case.
 13

Internet. This website is maintained by a private
individual, and the FBI cannot verify or vouch for the
accuracy of this index, which the website purchases
from the Social Security Administration.

Second Hodes Decl. ¶ 7 (emphasis added). Once again, the rub
is that the FBI will not even check the Social Security Death
Index unless the speaker’s social security number is revealed on
responsive records. See id. (declaring that the “FBI does not
research third-party names internally to discover social security”
numbers). As expected, the FBI reports that, because “[t]his
case concerns audio tapes,” and “[a]s no social security numbers
are on the tapes at issue, this website [the SSDI] was not
checked.” Needless to say, no one announces his or her social
security number in ordinary conversation -- not even at a
birthday party. Accordingly, the Bureau again utilized a method
that could not help but fail in the circumstances of this case.

4. As we have discussed, none of the three methods used by
the FBI had any likelihood of discovering whether the two
individuals, whose conversations were captured by the
audiotapes in question, were living or dead. Indeed, if the FBI
limits itself to those methods in the future, it is doubtful that it
will ever be able to discover the status of a speaker on an
audiotape. Although futility alone may not render the FBI’s
efforts unreasonable, it surely is an important factor in the
equation.

The other factor we must consider is “whether the
Government has made reasonable use of the information readily
available to it, and whether there exist reasonable alternative
methods that the Government failed to employ.” Schrecker II,
349 F.3d at 662. As we have said, the question is whether “the
Bureau has, or has ready access to, data bases that could
 14

resolve the issue.” Id. (internal quotation marks omitted). We
now consider some of the alternatives the FBI failed to employ.

Turning first to the FBI’s internal records, we cannot
conclude that the government “made reasonable use” of its own
information in this case. The flaw in the government’s 100-year
rule and Social Security Death Index methodologies -- at least
as far as audiotapes are concerned -- is that the Bureau refused
to look anywhere but in the tapes themselves to discover the
speakers’ birth dates or social security numbers. This meant
that, even if those personal identifiers were present in other FBI
records, the FBI would not have found them. In this case, it is
not unlikely that such other records do exist. In an FBI
undercover operation like BRILAB, for example, one would
expect to find investigative reports that list the various players
(witnesses, informants, subjects, targets) and identifying
information about them.8 The FBI’s Electronic Surveillance
(ELSUR) indices also may well contain the necessary personal
identifiers for the two individuals, whose voices were captured
by electronic surveillance.9

8
See, e.g., Blanton v. Dep’t of Justice, 64 Fed. Appx. 787, 788
(D.C. Cir. 2003) (noting that the FBI maintained “informant files”
relating to an investigation); Perri v. United States, 53 Fed. Cl. 381,
395-96 (2002) (noting that the FBI maintained a “137 (Confidential
Informant) File” and a “270 (Cooperative Witness) File” in an
undercover operation); Meeropol v. Meese, 790 F.2d 942, 947 (D.C.
Cir. 1986) (noting that the FBI maintained “subject files” regarding
eleven named principals).
9
See Wheeler v. Dep’t of Justice, 403 F. Supp. 2d 1, 4 (D.D.C.
2005) (noting that, through ELSUR, “the FBI maintains information
on all subjects whose electronic and/or voice communications have
been intercepted by the FBI since January 1, 1960,” and that ELSUR
can be searched by name, “date of birth, place of birth and social
security number”); see also Campbell v. Dep’t of Justice, 164 F.3d 20,
 15

The FBI has neither denied that it has such records nor
suggested that it would be difficult to access them in this case.
To the contrary, yet another FBI affidavit explains that the
Bureau’s Central Records System (CRS) contains “all pertinent
information which it has acquired in the course of fulfilling its
mandated law enforcement responsibilities,” and makes clear
that much of that system can be searched by an individual’s
name. Fourth Hodes Decl. ¶ 7. For example, with respect to
FBI Headquarters:

Communications directed to FBIHQ from the various
field offices . . . are filed in the pertinent case files and
indexed to the names of individuals, groups, or
organizations which are listed in the case caption(s) or
title(s) as a subject(s), a suspect(s), or as a victim(s).
Therefore, for example, a search made in this index to
locate records concerning a particular individual
would be made by searching the name of that
individual in the index.

Id. ¶ 8 (emphasis added). And similarly, with respect to FBI
field offices:

Access to the CRS files at FBI field divisions is also
afforded by the General Indices (automated and
manual), which are likewise arranged in alphabetical
order, and consist of an index on various subjects,
including the names of individuals and organizations.
Searches made in the General Indices to locate records
concerning a particular subject, such as John Doe, are
made by searching the subject requested in the index.

29 (D.C. Cir. 1998) (remanding with instructions that the FBI search
its ELSUR records).
 16

Indexing functions have been automated by field
divisions.

Id. ¶ 9 (emphasis added).

It is plain, then, that the FBI could have searched its files by
the names of the two speakers -- one the subject of a criminal
investigation, the other an informant -- to determine whether
records in those files disclose their dates of birth or social
security numbers (or even their deaths). But the FBI did not do
so. See Second Hodes Decl. ¶¶ 6, 7. The Bureau gave no reason
at all for not searching its records for the speakers’ birth dates,
and only one reason for not searching for their social security
numbers:

The FBI does not research third-party names internally
to discover social security [numbers] because to do so
would violate these third parties’ privacy rights. The
records that may possess these individual[s’] social
security numbers were created for law enforcement
purposes; they were not created for the purpose of
ascertaining whether individuals contained in FBI
records are still alive.

Second Hodes Decl. ¶ 7. We expressly rejected this precise
rationale (asserted by the same FBI declarant) in Schrecker II,
saying: “We fail to see how the purpose for which an internal
record was created bears on whether searching the record for an
individual’s social security number would violate that
individual’s privacy.” 349 F.3d at 664.

Turning from the FBI’s own databases to those it “has
ready access to,” id. at 662 (internal quotation marks omitted),
we have to ask why the FBI limited itself to Who Was Who. The
fact that the Bureau uses such an outside source indicates that
 17

there is no bar to its doing so. And apparently the biographies
of the decedents contained in those books make it possible to
determine that the “John Doe” for whom the FBI is searching is
the same John Doe whose death is there reported. See infra Part
II.B.

But if that is so, one has to ask why -- in the age of the
Internet -- the FBI restricts itself to a dead-tree source with a
considerable time lag between death and publication, with
limited utility for the FBI’s purpose, and with entries restricted
to a small fraction of even the “prominent and noteworthy”?
Why, in short, doesn’t the FBI just Google the two names?
Surely, in the Internet age, a “reasonable alternative” for finding
out whether a prominent person is dead is to use Google (or any
other search engine) to find a report of that person’s death.10
Moreover, while finding a death notice for the second speaker --
the informant -- may be harder (assuming that he was not
prominent), Googling also provides ready access to hundreds of
websites collecting obituaries from all over the country, any one
of which might resolve that speaker’s status as well. See, e.g.,
http://www.legacy.com (hosting the obituary sites of more than
275 newspapers, including three Louisiana papers); http://www.
obituarycentral.com (containing a directory of links to online
obituaries and death notices in every state).

We do not suggest that the FBI must use one, or any, of the
search methods outlined above. But when the only search
methods the FBI did employ were plainly fated to reach a dead
end (in a manner of speaking), and when there appear to be

10
That is particularly so here, since an FBI affidavit declared that
the Bureau knew the “prominent individual” at issue was alive as
recently as 1994. Decl. of Robert A. Moran ¶ 19 (Oct. 21, 1994).
(How the FBI knew the individual was living in 1994, but could not
determine whether he was living or dead by 1998, remains a mystery.)
 18

reasonable alternatives that the government failed to consider,
there is a serious “question whether the Bureau’s invocation of
the privacy interest represented a reasonable response to the
FOIA request.” Schrecker II, 349 F.3d at 662 (internal
quotation marks omitted). This a question that has not yet been
answered, and that the district court must address on remand.

B

The government does not dispute that the steps the FBI took
to determine whether the speakers on the audiotapes were dead
could not reasonably be expected to answer that question. Nor
does it contend that resort to any of the alternatives identified
above would be burdensome on the facts of this case. Instead,
its argument is simply that “the steps taken by the FBI here were
the same taken by the FBI in Schrecker II,” and that because we
affirmed the grant of summary judgment for the government
there, we must do so here as well. Appellee’s Br. 9; see Oral
Arg. Tape at 29:15-34:12 (confirming the government’s view
that the FBI does not have to search for the speakers’ birth dates
or social security numbers, even if it knows they can quickly be
found by a name search, because “there is no obligation under
Schrecker to conduct additional searches” of nonresponsive
records). That is a serious misreading of Schrecker II.

It is true that the three methods the FBI employed to
determine whether individuals mentioned in responsive records
in Schrecker II were dead are the same as those it employed in
this case. See Schrecker II, 349 F.3d at 660. It is also true that
we affirmed summary judgment in that case, holding, in
particular, that the Bureau did not have to examine
nonresponsive internal records for the mentioned individuals’
birth dates or social security numbers. Id. at 663-65. But
Schrecker II did not purport to affirm a set of search
methodologies as per se sufficient to satisfy the “reasonable
 19

efforts” standard. Id. at 662. To the contrary, we noted that the
“‘adequacy of an agency’s search is measured by a standard of
reasonableness, and is dependent upon the circumstances of the
case.’” Id. at 663 (quoting Truitt v. Dep’t of State, 897 F.2d
540, 542 (D.C. Cir. 1990) (additional quotation marks omitted).
And we expressly “cautioned . . . that it would be inappropriate
for the court to mandate ‘a bright-line set of steps for an agency
to take in this situation,’” because FOIA requires “‘both
systemic and case-specific exercises of discretion and
administrative judgment and expertise.’” Id. at 662 (quoting
Johnson v. Executive Office for U.S. Attorneys, 310 F.3d 771,
776 (D.C. Cir. 2002)).

Our determination in Schrecker II, that in that case the FBI
had reasonably decided to examine only responsive records for
birth dates and social security numbers, is distinguishable from
this case in two important respects. First, Schrecker involved a
FOIA request not for audiotapes, but for documents. Although
there is virtually no chance that a speaker will announce those
personal identifiers during an oral conversation, there is a
reasonable probability that they will be contained in responsive
documents. Indeed, in Schrecker II itself, the FBI found the
birth dates and social security numbers of at least some of the
mentioned individuals in a search of responsive pages. 349 F.3d
at 663, 664.

Second, at issue in Schrecker II were 113 names appearing
in over 24,000 responsive documents, making a search of
nonresponsive documents for personal identifiers “unduly
burdensome.” Id. at 664. That burden was magnified by the
fact that the 113 names were not those of the subjects of an FBI
investigation, but rather were merely mentioned in documents
relating to that investigation. This meant that “any name-based
search would likely encounter . . . duplication” of common
names, “making verification difficult or impossible.” Id. It also
 20

meant that the prospects of success were “dubious.” Id. Under
those circumstances, we held that to “require the Government to
shoulder such a potentially onerous task . . . goes well beyond
the ‘reasonable effort’ demanded in this context.” Id.

But Davis’ FOIA request entails no such burden. Here,
there are only two names and only four responsive records.
Those two names belong to the prominent subject of a major
FBI investigation, and to the FBI’s own undercover informant.
Given the Bureau’s knowledge of their biographies, even if
those individuals have common names, verification that a name-
based search has produced records that relate to them would be
neither “difficult [n]or impossible.” Id. While there may be
thousands of John Does, there are unlikely to be thousands
connected with the BRILAB investigation. And given the fact
that the FBI maintains name-specific records regarding its
subjects and informants, see Fourth Hodes Decl. ¶¶ 8, 9 (quoted
supra Part II.A.4); cases cited supra notes 8 & 9, here a name-
based search would not have “dubious prospects of success.”
Schrecker II, 349 F.3d at 664.

Indeed, the request in this case looks less like the one at
issue in Schrecker II and more like one that Schrecker II
expressly distinguished. The latter involved another FOIA
request by Ellen Schrecker, for documents relating to Joseph
Fischetti, a Chicago-based organized-crime figure. As we
explained, “Fischetti was the sole subject of that FOIA request,
not one of a multitude of third parties appearing in responsive
documents.” Id. at 664 (emphasis in original). The request in
Schrecker II was different, we said, because “[w]hile it may be
reasonable to pursue internal research to determine whether a
single subject is the same individual shown by the [Social
Security Death Index] to be deceased, . . . it would be unduly
burdensome to require the Government [to] do so for the large
number of third parties appearing in documents responsive to
 21

Schrecker’s request.” Id. Davis’ request, involving only two
names in four audiotapes, is far closer to the Fischetti request
than to the one we dismissed in Schrecker II.11

To repeat what we said at the beginning of this subpart,
there is no “bright-line set of steps for an agency to take in this
situation.” Id. at 662 (internal quotation marks omitted).
Rather, the “adequacy of an agency’s search is measured by a
standard of reasonableness, and is dependent upon the
circumstances of the case.” Id. at 663 (internal quotation marks
omitted). In determining whether an agency’s search is
reasonable, a court must consider the likelihood that it will yield
the sought-after information, the existence of readily available
alternatives, and the burden of employing those alternatives. In
this case, the methodology employed by the agency was
extremely unlikely to produce the needed information, and it
appears -- although we do not know for certain -- that there are
readily available alternatives that would not impose an undue
burden on the government. We remand to permit the agency an
opportunity to evaluate the alternatives, and either to conduct a
further search or to explain satisfactorily why it should not be
required to do so.

III

Finally, we address Davis’ request for an award of
attorney’s fees, which the district court denied on the authority
of this circuit’s decision in Oil, Chemical & Atomic Workers
International Union, AFL-CIO v. Department of Energy, 288
F.3d 452 (D.C. Cir. 2002) (“OCAW”). See Davis, Order at 2

11
We note the possibility that a FOIA requester could attempt to
circumvent this distinction by slicing a single request for many names
into multiple requests of one name each. We are confident, however,
that a district court would be able to see through such a ruse.
 22

(July 23, 2002). The district court’s denial was correct. OCAW
forecloses a decision in Davis’ favor.

FOIA provides that a district court “may assess against the
United States reasonable attorney fees . . . reasonably incurred
in any case under this section in which the complainant has
substantially prevailed.” 5 U.S.C. § 552(a)(4)(E) (emphasis
added). In Buckhannon Board & Care Home, Inc. v. West
Virginia Department of Health & Human Resources, 532 U.S.
598 (2001), the Supreme Court construed the attorney’s fees
provision of two other statutes that permit courts to award fees
to a “prevailing party.”12 The Court rejected the plaintiffs’
contention, which it characterized as the “catalyst theory,” that
“a plaintiff is a ‘prevailing party’ if it achieves the desired result
because the lawsuit brought about a voluntary change in the
defendant’s conduct.” Buckhannon, 532 U.S. at 601. Rather,
the Court ruled that, for a litigant to be a “prevailing party,”
there must have been a “judicially sanctioned change in the legal
relationship of the parties.” Id. at 605. “[E]nforceable
judgments on the merits and court-ordered consent decrees,” the
Court said, suffice to create such a change. Id. at 604.

In OCAW, this circuit extended the holding of Buckhannon
to the fee-shifting provision of FOIA. 288 F.3d at 454-57. The
OCAW court concluded that “the ‘substantially prevail’
language in FOIA [is] the functional equivalent of the
‘prevailing party’ language found in” the statutes interpreted in
Buckhannon. Id. at 455-56. It “therefore h[e]ld that in order for
plaintiffs in FOIA actions to become eligible for an award of
attorney’s fees, they must have ‘been awarded some relief by [a]
court,’ either in a judgment on the merits or in a court-ordered

12
At issue in Buckhannon were provisions of the Fair Housing
Amendments Act, 42 U.S.C. § 3613(c)(2), and the Americans with
Disabilities Act, 42 U.S.C. § 12205.
 23

consent decree.” Id. at 456-57 (quoting Buckhannon, 532 U.S.
at 603) (emphasis added).

Davis’ problem is that, although to date he has received a
total of 158 tapes from the government, none were produced as
the result of a “judgment on the merits” or a “court-ordered
consent decree.” Id. at 457. It is true that, in 1991, he did
secure such a judgment from the district court, directing the FBI
to release 163 tapes. But that judgment was reversed by this
court in Davis I, and the government’s subsequent release of 157
of those tapes -- after the FBI determined that they had been
played at the trial -- was not made pursuant to any judgment or
order. Similarly, although Davis II remanded for the district
court to determine whether any of the remaining tapes contained
material that could be segregated, Davis II, 1998 WL 545422, at
*1, such a remand is insufficient to satisfy the OCAW test.13 The
FBI’s subsequent release of an additional tape (after determining
that the speaker was dead) similarly was not pursuant to a
judgment or order.

Davis appears to recognize the futility of his effort to
distinguish OCAW, as his brief devotes considerably more pages
to arguing that OCAW was wrongly decided than to arguing that
it can be distinguished. See Appellant’s Br. 24-28. The former
is an argument that we cannot entertain, because “[o]ne
three-judge panel . . . does not have the authority to overrule
another three-judge panel of the court.” LaShawn A. v. Barry,
87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc). We therefore

13
See OCAW, 288 F.3d at 458 (holding that an order directing the
government to review documents by a specified date did not qualify
the plaintiffs as “prevailing,” because it did “not order[] the [agency]
to turn over any documents” or “disallow any of the [agency’s]
justifications for exempting documents, or portions of documents,
from disclosure”).
 24

conclude that the district court correctly determined that it could
not grant Davis’ request for attorney’s fees.

IV

For the foregoing reasons, we affirm the district court’s
denial of attorney’s fees, but we reverse its grant of summary
judgment dismissing Davis’ FOIA complaint. The case is
remanded with directions that the FBI evaluate alternative
methods for determining whether the speakers on the requested
audiotapes are dead, and that thereafter the district court
determine whether the FBI’s chosen course is reasonable.

So ordered.