Valencia-Lucena v. United States Coast Guard

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.