Henry Lavado, Jr., Appellant, v. Department of Justice, 946 F.2d 1565 (D.C. Cir. 1991)

Annotate this Case
US Court of Appeals for the District of Columbia Circuit - 946 F.2d 1565 (D.C. Cir. 1991) May 10, 1991




Upon consideration of the motion for summary affirmance and the opposition thereto, it is

ORDERED that the motion be denied. It is

FURTHER ORDERED, on the court's own motion, that the district court's order filed August 9, 1989, be vacated and the case remanded for further proceedings. It is impossible to determine from the declaration submitted by the government in support of its motion to dismiss whether the agency made any search for responsive documents contained in files other than the inmate central file that were specifically enumerated in appellant's Freedom of Information Act ("FOIA") request. The declaration also fails to address issues relating to the FOIA exempt portions of the central file. Finally, the declaration fails to address whether the agency disclosed the presentence investigation report. See United States Department of Justice v. Julian, 486 U.S. 1 (1988). In the absence of any indication that a search for these documents was conducted, the declaration fails to provide evidence of compliance with FOIA sufficient to support a grant of summary judgment. See Founding Church of Scientology v. National Security Agency, 610 F.2d 824, 837 (D.C. Cir. 1979) (where there were "well-defined requests and positive indications of overlooked materials," substantial doubts existed about the caliber of the agency's search so that summary judgment was inappropriate).

The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 15.