WEN DONG ZHAO v. UNITED STATES DEPARTMENT OF STATE (2019)

SUMMARY ORDER

Plaintiff-Appellant Wen Dong Zhao appeals from the July 24, 2018 judgment of the United States District Court for the Eastern District of New York (Donnelly, J.), granting the government’s motion for summary judgment. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

Zhao primarily argues that the district court erred in granting the government’s motion for summary judgment because (1) the government’s search terms in responding to his Freedom of Information Act (“FOIA”) request were inadequate, (2) the government’s search was inadequate because it should have contacted the United States Ambassador to Thailand and “the Thai lady who received the documents,” and (3) the government’s search was “too narrow in temporal scope.” Appellant’s Br. at 8-10. These arguments fail.

We review de novo a district court’s grant of summary judgment, “resolving all record ambiguities and drawing all factual inferences in favor of the non-moving party.” ITC Ltd. v. Punchgini, Inc., 482 F.3d 135, 145 (2d Cir. 2007). In order to prevail on a motion for summary judgment in a FOIA case, the defending agency has the burden of showing that its search was adequate and that any withheld documents fall within an exemption to the FOIA. See 5 U.S.C. § 552(a)(4)(B). “Affidavits or declarations supplying facts indicating that the agency has conducted a thorough search and giving reasonably detailed explanations why any withheld documents fall within an exemption are sufficient to sustain the agency’s burden.” Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir. 1994) (footnote omitted). “[A]n agency’s search need not be perfect, but rather need only be reasonable.” Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 489 (2d Cir. 1999).

First, the government submitted the sworn declaration of Eric F. Stein, the Director of the Office of Information Programs and Services of the United States Department of State, who is the official “immediately responsible for responding to [FOIA] requests.” App’x at 136. In his declaration, Director Stein describes with reasonable specificity the search the government conducted, including the search terms it employed. In particular, the government searched for variations and iterations of Zhao’s name; “Bangkok,” where Zhao states he delivered the materials; “Darryl N. Johnson,” the United States Ambassador to Thailand at the time Zhao delivered the materials; and “Iraq War.” App’x at 140, 143. Zhao argues that the government should have used the search terms “Saddam Hussein” as well as “any of the key words used in the slogan by the United States in the Iraq War.” Appellant’s Br. at 10. But Zhao requested documents “regarding the Iraq war”; his FOIA request did not mention Saddam Hussein. App’x at 146. Additionally, Zhao’s brief does not clarify what he means by “the slogan by the United States in the Iraq War.” The government’s search terms were reasonable.

Zhao failed to raise his second and third arguments before the district court; accordingly, these arguments are waived. “Although we may exercise discretion to consider waived arguments where necessary to avoid a manifest injustice,” we decline to do so here, where Zhao has “proffer[ed] no reason for [his] failure to raise the arguments below.” In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 133 (2d Cir. 2008) (internal quotation marks omitted).

We have considered the remainder of Zhao’s arguments and find them to be without merit. Accordingly, we hereby AFFIRM the district court’s judgment.