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In many FOIA suits, the defendant agency will face challenges not only to its reliance on particular exemptions, but also to the nature and extent of its search for responsive documents. Sometimes, that is all that a plaintiff will dispute. (162) (For discussions of administrative considerations in conducting searches, see Procedural Requirements, Searching for Records, above.) To prevail in a FOIA action, the agency must show that it made "'a good-faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.'" (163) The fundamental question is not "'whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.'" (164) In other words, "the focus of the adequacy inquiry is not on the results." (165)

181. See, e.g., Van Strum v. EPA, No. 91-35404, 1992 WL 197660, at *2 (9th Cir. Aug. 17, 1992) (agreeing that a date-of-search "cut-off" date is "the most reasonable date for setting the temporal cut-off in this case"); McGehee, 697 F.2d at 1104 (favoring a "date-of-search cut-off" because it "results in a much fuller search and disclosure" than does a "date-of-request cut-off"); see also Defenders of Wildlife v. United States Dep't of the Interior No. 03-1192, 2004 WL 842374, at *6 n.10 (D.D.C. Apr. 13, 2004) (recognizing that because the agency's FOIA regulations established a "date-of-search cut-off," records created after the agency's "FOIA search began . . . are not covered by [the FOIA] request").

193. Pollack v. Bureau of Prisons, 879 F.2d 406, 409 (8th Cir. 1989); see Miller v. United States Dep't of State, 779 F.2d 1378, 1383 (8th Cir. 1986) ("An agency may prove the reasonableness of its search through affidavits of responsible agency officials so long as the affidavits are relatively detailed, nonconclusory, and submitted in good faith."); Weisberg, 705 F.2d at 1351 (same); Perry, 684 F.2d at 127 ("[A]ffidavits 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."); Goland, 607 F.2d at 352 (finding agency's description of withheld material to be "specifically described and justified"); Triestman v. United States Dep't of Justice, 878 F. Supp. 667, 672 (S.D.N.Y. 1995), 878 F. Supp. at 672 ("[A]ffidavits attesting to the thoroughness of an agency search of its records and its results are presumptively valid."); see also FOIA Update, Vol. IV, No. 1, at 6 (discussing what constitutes "adequate search"); cf. FOIA Post, "Use of 'Cut-Off' Dates for FOIA Searches" (posted 5/6/04) (explaining importance of proper use of "cut-off" dates in determining appropriate temporal limits of search).

201. See Nation Magazine, 71 F.3d at 892 n.7 ("Of course, failure to turn up [a specified] document does not alone render the search inadequate."); Citizens Comm'n, 45 F.3d at 1328 (adequacy of search not undermined by inability to locate 137 out of 1000 volumes of responsive material, absent evidence of bad faith, and when affidavit contained detailed, nonconclusory account of search); Maynard, 986 F.2d at 564 ("'The fact that a document once existed does not mean that it now exists; nor does the fact that an agency created a document necessarily imply that the agency has retained it.'" (quoting Miller, 779 F.2d at 1385)); Piper, 294 F. Supp. 2d at 23-24 (stating that because the "inquiry regarding the adequacy of a search is the search itself and not the results thereof," the fact that documents were missing is insufficient to rebut otherwise-adequate affidavits demonstrating the reasonableness of the search); Grace v. Dep't of Navy, No. 99-4306, 2001 WL 940908, at *4 (N.D. Cal. Aug. 13, 2001) (finding "more than reasonably adequate" an agency search for misplaced personnel records); Tolotti v. IRS, No. 97-003, 2000 WL 1274235, at *1 (D. Nev. July 14, 2000) ("Obviously the agency cannot produce destroyed documents."); Coalition on Political Assassinations v. DOD, No. 99-0594, slip op. at 7 (D.D.C. Mar. 29, 2000) (reasoning that even if the agency once possessed responsive records, the agency's unsuccessful search was nevertheless thorough and well-explained and thus the agency "fulfilled its obligation under the FOIA"), aff'd, 12 Fed. Appx. 13 (D.C. Cir. 2001); Kay, 976 F. Supp. at 33 (explaining that search not inadequate simply because plaintiff received in discovery documents not produced in response to FOIA request; discovery "may differ from FOIA disclosure procedures"); Antonelli v. United States Parole Comm'n, No. 93-0109, slip op. at 2 (D.D.C. Feb. 23, 1996) ("While it is undisputed that [plaintiff] provided the U.S. Marshals Service with a copy of the document he now seeks, the fact that the USMS cannot find it is not evidence of an insufficient search."); Shewchun v. INS, No. 95-1920, slip op. at 7 (D.D.C. Dec. 10, 1995) ("Nor does plaintiff's identification of undisclosed documents that he has obtained through other sources render the search unreasonable."), summary affirmance granted, No. 97-5044 (D.C. Cir. June 5, 1997). But cf. Tran v. United States Dep't of Justice, No. 01-0238, 2001 U.S. Dist. LEXIS 21552, at **12-13 (D.D.C. Nov. 20, 2001) (finding that "it is not enough for [an agency] to simply state that [the] documents are destroyed or missing" without providing more explanation), motion for summary judgment granted, 2002 WL 535815 (D.D.C. Mar. 12, 2002); Kronberg, 875 F. Supp. at 870-71 (requiring government to provide additional explanation for absence of documentation required by statute and agency regulations to be created, when plaintiff presented evidence that other files, reasonably expected to contain responsive records, were not identified as having been searched).

344. See Heily, 69 Fed. Appx. at 174 (explaining that when discovery is permitted, generally it is "limited to the scope of agency's search and its indexing and classification procedures"); see, e.g., Tax Analysts v. IRS, 214 F.3d 179, 185 (D.C. Cir. 2000) (remanding for discovery on "narrow and fact-specific question" concerning disclosability of specific type of document); Ruotolo v. Dep't of Justice, 53 F.3d 4, 11 (2d Cir. 1995) (holding that discovery on scope of burden that search would entail should have been granted); Weisberg v. United States Dep't of Justice, 627 F.2d 365, 371 (D.C. Cir. 1980) (finding discovery appropriate to inquire into adequacy of document search); Judicial Watch, Inc. v. United States Dep't of Commerce, 127 F. Supp. 2d 228, 230 (D.D.C. 2000) (permitting depositions to be taken about parameters of FOIA search); Pub. Citizen, 997 F. Supp. at 72 (holding that discovery is limited to "investigating the scope of the agency search for responsive documents, the agency's indexing procedures, and the like"); see also Wash. Post Co. v. United States Dep't of Justice, No. 84-3581, slip op. at 1-2 (D.D.C. Aug. 2, 1990) (permitting discovery, in Exemption 7(B) case, on issue of whether it is more probable than not that disclosure would seriously interfere with fairness of pending or "truly imminent" trial or adjudication); Silverberg v. HHS, No. 89-2743, 1990 WL 599452, at **1-2 (D.D.C. June 26, 1990) (permitting discovery, in Exemption 4 case, of responses by private drug-testing laboratories to agency's inquiry concerning whether their "performance test results" are customarily released to public); ABC, Inc. v. USIA, 599 F. Supp. 765, 768-70 (D.D.C. 1984) (ordering agency head to submit to deposition on issue of whether transcripts of tape-recorded telephone calls constitute "personal records" or "agency records"); cf. United States v. Owens, 54 F.3d 271, 277 (6th Cir. 1995) (allowing discovery on issue of ownership of joint state/federal task force records in action by United States to enjoin state court disclosure order under state public records law). But see Pa. Dep't of Pub. Welfare v. United States, No. 99-175, 1999 WL 1051963, at *3 (W.D. Pa. Oct. 12, 1999) (allowing limited discovery "regarding the authenticity and completeness of the material produced by HHS, as well as the methodology used to compile it," because plaintiff "'does not know the contents of the information sought and is, therefore, helpless to contradict the government's description of the information or assist the trial judge'" (quoting Davin v. United States Dep't of Justice, 60 F.3d 1043, 1049 (3d Cir. 1995))), appeal dismissed voluntarily, No. 01-1886 (3d Cir. Apr. 24, 2002).

349. See RNR Enters. v. SEC, 122 F.3d 93, 98 (2d Cir. 1997) (finding no abuse of discretion in district court denial of discovery propounded for "investigative purposes"); Flowers v. IRS, 307 F. Supp. 2d 60, 72 (D.D.C. 2004) (scolding plaintiff, who "may be unhappy with the search results," for seeking discovery in her FOIA case in order to conduct investigation of the agency's rationale for tax audit); Cecola v. FBI, No. 94 C 4866, 1995 WL 143548, at *3 (N.D. Ill. Mar. 31, 1995) (disallowing deposition concerning factual basis for assertion of Exemption 7(A), because "there is concern that the subject of the investigation not be alerted to the government's investigative strategy"); Williams v. FBI, No. 90-2299, 1991 WL 163757, at *3 (D.D.C. Aug. 6, 1991) ("An agency's rationale for undertaking an investigation of the Plaintiff is not the proper subject of FOIA discovery requests."); see also Freedman v. Dep't of Justice, No. 78-4257, slip op. at 3-4 (D. Kan. Jan. 3, 1990) (denying discovery concerning electronic surveillance investigative practices). 781b155fdc