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U.S.

Department o~
Homeland Security

Office of the Administrative


law Judge
United States Coast Guard

United States

Coast Guard

Coast Guard Headquarters


2703 Mart.in luther King, Jr. Ave.
SE Washington DC 20593
Staff Symbol: CG.OQJ
Phone: 202-372-4446
Fax: 202-372-8304
Email: Stuart.A.Keefe@uscg.mil

5720
November 17,2016
Bill Geerhart

RE: DHS FOIA APPEAL 2016-FEAP-00022


Dear Mr. Geerhart:
This letter concerns your June 9, 2016 appeal of the Department of Homeland Security's
(DHS) Final Response to your Freedom of Information Act (FOIA) request 2014-FEF000888 (designated as 20 16-FEAP-00022 on appeal). You are appealing the adequacy of
DHS' search. Specifically, your appeal states you are "requesting a more extensive
search and accounting of what became of [the requested documents]. If these records
were destroyed by FEMA, I would like confirmation of that fact and details on their
destruction .... " After review of the entire record, this appeal is being REMANDED
back to DHS for the reasons provided in this letter.
On or about August 9, 20 14, you submitted your request. The request asked for a copy of
"all Architect of the Capitol records pertaining to the Greenbrier Congressional Bunker
(aka Project CASPER, aka Project X, aka Project Greek Island) that were transferred to
FEMA in 1995."
On June 9, 2016, DHS responded to your request. DHS stated it considered your request
and informed you it searched FEMA Region Til and the National Preparedness
Directorate for records responsive to your request. Further, DHS informed you it did not
locate or indentify any records responsive to your request.
Pursuant to a memorandum of agreement, the United States Coast Guard Office of the
Chief Administrative Law Judge is reviewing FOIA appeals for the Department of
Homeland Security General Counsel. Therefore, the Office of the Chief Administrative
Law Judge will be rendering the official appeal decision on behalf of the Department of
Homeland Security.
The adequacy of an agency search is judged by a test of "reasonableness," which will
vary from case to case. See 5 U.S.C. 552(a)(3); Zemansky v. EPA, 767 F.2d 569, 57173 (9th Cir. 1985) (observing the reasonableness of an agency search depends upon the
facts of each case). Courts have found searches to be reasonable when they are based on
a reasonable interpretation of the scope of the request and the records sought. See, u.
Anderson v. Dep't of Justice, No. 07-2284,2009 WL 1209472, at *1 (2d Cir. May 4,

2009) (finding search reasonable and adequate where agency conducted two searches,
both failing to identify responsive records, and described in detail how it conducted
searches and operation of database used to do so); Jennings v. Dep't of Justice, 230 F.
App'x 1, I (D.C. Cir. 2007) (holding agency performed adequate search and recognizing
"the adequacy of a FOIA search is generally determined not by the fruits of the search,
but by the appropriateness of the methods used to carry out the search" (quoting lturralde
v. Comptroller of Currency, 315 F.3d 3 11 , 3 15 (D.C. Cir. 2003))); Knight v. NASA, No.
04-2054, 2006 WL 3780901 (E.D. Cal. Dec. 2 1, 2006) (finding there is no requirement
an agency search all possible sources in response to a FOIA request when it believes all
responsive documents are likely to be located in one place).
Further, agencies are not required to answer questions posed as FOIA requests, nor are
they required to respond to requests by creating records. See Jean-Pierre v. BOP, 2012
WL 3065377 (D.D.C. July 30, 2012) (concluding request for objective pieces of
infonnation, such as "who gave the order" and "on what day," are not "cognizable under
FOIA, because they ask questions calling for specific pieces of information rather than
records"); Stuler v. IRS, 2006 WL 891073 (W.D. Pa. Mar. 3 1, 2006) (stating that agency
"is not required to create documents that don't exist"). Therefore, you are not enti tled to
additional information that is not responsive to your FOIA request
The record indicates DHS conducted a search of what it considered the appropriate
systems of records (FEMA Region III and the National Preparedness Directorate) in
response to the request and found no responsive records. However, the record does not
contain sufficient documentation to determine whether an adequate search was
conducted. This FOIA Appeal is being REMANDED back to DHS for further
clarification on how the search was conducted. DHS has 30 days from the dateof this
letter to provide the undersigned attorney with the details of how it conducted the search
for your requested records.
As part of the 2007 FOIA amendments, the Office of Government Information Services
(OGIS) was created to offer mediation services to resolve disputes between FOIA
requesters and Federal agencies as a non-exclusive alternative to litigation. Using OGIS
services does not affect your right to pursue litigation. If you are requesting access to
your own records (which is considered a Privacy Act request), you should know that
OGIS does not have the authority to handle requests made under the Privacy Act of 1974.
If you wish to contact OGIS, you may email them at ogis@ nara.gov or call 1-877-6846448.

-=

Attorney Advisor
United States Coast Guard

Copy : FOIA Officer, DHS


Sent: Vi a first class mail to the above address.

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