UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


VALENCIA-LUCENA

v.

US COAST GUARD


98-5041a

D.C. Cir. 1999


*	*	*


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


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


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 




__________

n 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,


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




__________

n 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


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. 




__________

n 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


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


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


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


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.


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


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


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-


Accordingly, we reverse the grant of summary judgment  for the Coast
Guard and remand the case to the district court  for further
proceedings.