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BAY AREA LAWYERS ALLIANCE FOR NUCLEAR ARMS CONTROL

July 28, 1992

BAY AREA LAWYERS ALLIANCE FOR NUCLEAR ARMS CONTROL, an Unincorporated Association, Plaintiff,
v.
DEPARTMENT OF STATE, et. al., Defendants.



The opinion of the court was delivered by: THELTON HENDERSON

 This matter comes before the Court on defendants' Motion for Partial Summary Judgment, filed with the Court on September 5, 1991. Plaintiff opposed the motion and submitted its own request to take discovery. Defendants' motion came on for oral argument on November 18, 1991. At that hearing, the Court ordered further briefing as to which Vaughn indexes and/or documents plaintiff either found sufficient or was no longer interested in. The parties conferred, and defendants have submitted redacted Vaughn indexes containing only those indexes which plaintiff feels are inadequate and cover documents responsive to plaintiff's inquiry. Having reviewed the disputed Vaughn indexes, and having considered the oral and written arguments of counsel, the Court has decided that defendants' motion should be GRANTED IN PART AND DENIED IN PART and that plaintiff's motion for discovery should be DENIED.

 FACTUAL BACKGROUND:

 Over two and a half years ago, plaintiff submitted to the Department of State (DOS) its request for documents under the Freedom of Information Act (FOIA). In that request, plaintiff requested four categories of information:

 1. All steps taken by the Department of state (since approval of the Limited Test Ban Treaty of 1963) to achieve the discontinuance of all test explosions of nuclear weapons for all time.

 2. All written records of any negotiations (since the United States approved the Limited Test Ban Treaty of 1963) furthering the end of achieving the discontinuance of all test explosions.

 3. All records of any efforts spelled out in paragraphs 1 and 2 above which were in specific response to the preamble to the Non-Proliferation Treaty of 1970.

 4. All records used or reports prepared by the Department of State which review any of the three topics above, and evaluate whether or not treaty obligations are being honored by the United States of America.

 Defendants' search produced approximately 2500 potentially responsive documents. These documents were referred to their originating agencies, who determined whether they were in fact responsive, and if so, whether they could be disclosed. Many of the documents that were ultimately found to be responsive were disclosed in full to plaintiff. They are not the subject of this litigation. Many other documents were either withheld in part or in full. Plaintiff seeks the assistance of this Court in compelling disclosure of those withheld documents.

 The DOS contends that it has located no documents responsive to item 4. In 1990, plaintiff sought discovery concerning the nature and scope of DOS's search, and sought documents which had been considered in that search. This court granted defendants a protective order, holding that "discovery is only proper in a Freedom of Information Act case after the defendant has had an opportunity to submit its justification for withholding documents responsive to a FOIA request by a dispositive motion." May 9, 1990 Order.

 Upon stipulation of the parties, plaintiffs selected a sample of the 669 documents withheld by the DOS and the 851 documents withheld by the Arms Control Disarmament Agency (ACDA). Defendants were required to produce Vaughn indexes (descriptions of the withheld documents and justifications for their withholding) for those documents. Defendants have submitted those Vaughn indexes, which they claim explain why the documents were properly withheld under exceptions to FOIA. Based upon those indexes, DOS seeks summary judgment that it properly withheld the documents under FOIA exceptions 1 (classified information/national security), 3 (disclosure statutorily barred), and 5 (privileged information). 5 U.S.C. §§ 552(b)(1), (3) and (5). Only documents withheld under exceptions 1 and 5 are at issue in the present motion.

 DISCUSSION:

 I. IMPROPER DEFENDANTS

 As a preliminary matter, defendants move to dismiss James Baker, Secretary of State, and Peter Sheils, Chief, Information Access Branch, Department of State, from the suit. They allege, correctly, that under the FOIA, only agencies are proper parties to FOIA actions. 5 U.S.C. § 552(a)(4)(B). Plaintiff does not oppose this motion, and we GRANT this motion and dismiss these defendants.

 II. SCOPE OF SEARCH

 Plaintiff has long had a problem with the scope of defendants' search because plaintiff simply does not believe that a proper search could produce no documents responsive to "item 4" of its request. It alleges that defendants' declarations concerning the manner and scope of the search demonstrate the need for discovery on this matter because some of the facts attested to are based upon "information and belief" rather than personal knowledge.

 A FOIA search is adequate if it is "reasonably calculated to uncover all relevant documents." Weisberg v. U.S. Department of Justice, 240 U.S. App. D.C. 339, 745 F.2d 1476, 1485 (D.C. Cir. 1984), reh. denied, 763 F.2d 1436 (1985). An agency may prove the reasonableness of its search through the declarations of agency officials. Exxon Corp. v. F.T.C., 446 F. Supp. 1088, 1093 (D.D.C. 1974), aff'd, 213 U.S. App. D.C. 356, 663 F.2d 120 (D.C. Cir. 1980). These declarations are not required to

 
set forth with meticulous documentation the details of an epic search for the requested records. Rather, in the absence of countervailing evidence or apparent inconsistency of proof, affidavits that explain in reasonable detail the scope and method of the search conducted by the agency will suffice to demonstrate compliance with the obligations imposed by the FOIA.

 Perry v. Block, 221 U.S. App. D.C. 347, 684 F.2d 121, 127 (D.C. Cir. 1982). Furthermore, the search need not turn up every existing potentially responsive or relevant document. Meeropol v. Meese, 252 U.S. App. D.C. 381, 790 F.2d 942, 952-53 (D.C. Cir. 1986); Covington & Burling v. Food & Nutrition Service, 744 F. Supp. 314, 232 (D.D.C. 1990). "The issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but whether the search for those documents was adequate." Weisberg, 745 F.2d at 1485 (emphasis in original).

 III. WITHHELD DOCUMENTS - SUFFICIENCY OF VAUGHN DECLARATIONS

 FOIA creates a presumption in favor of disclosure of government documents. Dept. of the Air Force v. Rose, 425 U.S. 352, 360-61, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976). An agency may withhold a document "only if the information contained in the document falls within one of the nine statutory exemptions to the disclosure requirements set forth in § 552(b)." Bowen v. U.S. Food and Drug Admin., 925 F.2d 1225, 1226 (9th Cir. 1991) (emphasis in original). These exemptions are to be narrowly construed. Cal-Almond, Inc. v. U.S. Dept. of Agriculture, 960 F.2d 105, 107 (9th Cir. 1992); United States Dept. of Justice v. Julian, 486 U.S. 1, 108 S. Ct. 1606, 1611, 100 L. Ed. 2d 1 ...


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