Defendant United States Department of Commerce moves the

Court, pursuant to Fed. R. Civ. Pro. 1 and 52, to enter judgment

against the Department of Commerce, as set forth herein.

 This is a Freedom of Information Act ("FOIA") case [1]

involving three requests for documents. These requests were

received by the Department of Commerce from plaintiff in

September and October of 1994. In combination, the three FOIA

requests relate to five Secretarial trade missions (to South

Africa, South America, the former Soviet Union, China and India.)

In a FOIA case, the relief available to a successful FOIA

requestor is an order enjoining the agency from withholding

agency records and directing the agency to produce any agency

records improperly withheld, see 5 U.S.C. § 552(a)(4)(B);

SafeCard Services. Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir.

1991), and, in a case where the plaintiff substantially prevails,
 
1.  5 U.S.C. § 552
 

an award of reasonable attorney's fees and costs. See 5 U.S.C. §

5s2(a)(4)(E).

    Here, plaintiff has raised two cognizable issues. First,

plaintiff claims that certain documents listed in the Vaughn

index filed by the Department of Commerce should be released.

Second, plaintiff alleges that the 1994-95 search for documents

by the Department of Commerce was not "adequate." As is readily

apparent, the first issue presented is one of law; the second

issue is either one of fact or is a mixed question of law and

fact. In this case, the Court has previously ruled on the first

issue. [See September 5, 1996 Order (granting in part and

denying in part Defendant's Motion For Summary judgment

regarding records withheld by agency as exempt under FOIA)] 2

 With regard to the second issue (i.e. the adequacy of the

search), it is well-settled that the fundamental question

under FOIA is not "'whether there might exist any other

documents possibly responsive to the request, but rather

whether the search for those documents was adequate."'

Steinbera v. DOJ, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting

Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984) (emphasis

original). What has become clear is that this case

has required an enormous expenditure of resources by the

Court, the parties, counsel, and present and

2  Subsequent to the Court's ruling, the plaintiff filed a
motion to reconsider as to those portions of the order granting
partial summary judgment in favor of defendant (as to which
defendant has filed an opposition) and defendant filed a motion to
stay with regard to those portions of the order requiring requiring release
of certain information claimed as exempt from disclosure.  Those
motions continue to pend.
                                                -2-

former employees of the Department of Commerce. As a result, in

order to conserve valuable resources, and to promote the general

public interest of confidence in Government, the Department of

Commerce has concluded it is appropriate to conduct a new search

for agency records responsive to plaintiff's three FOIA requests,

rather than expending any further time or money defending the

adequacy of its prior search.

Accordingly, the Department of Commerce moves hereby for the

Court to enter judgment against it in this case, as set forth

herein, providing plaintiff with the relief to which it would be

entitled if it prevailed under the FOIA.

    For the foregoing reasons, the Department of Commerce moves

the Court to enter judgment against the Department of Commerce

and in favor of plaintiff as follows: The Department of Commerce

should be ordered to (1) conduct a new and adequate search for

agency records responsive to plaintiff's FOIA requests made the

basis of this suit, (2) produce to plaintiff, or identify in an

appropriate Vaughn index, all responsive agency records as

required by the FOIA, and (3) pay plaintiff reasonable attorney's

fees and recoverable costs incurred in the above-referenced

litigation.

A proposed Order to this effect is attached hereto.

                                                -3-

WHEREFORE, the Department of Commerce urges the Court to enter a

judgment against defendant and in favor of plaintiff as

provided herein.
 

                                                        Respectfully Submitted,
 
                                                                                                                             
                                                        MARY LOU LEARY, D.C. BAR # 3377485
                                                        United States Attorney

                                                                                                                               
                                                        BRUCE C. HEGYI, D.C. BAR  # 422741
                                                        Assistant United States Attorney

                                                        Judiciary Center Building
                                                        555 Fourth Street
                                                        Room 10-832
                                                        Washington D.C. 20001
                                                        202-514-7161

[NOTE THIS DOCUMENT WAS CREATED WITH AN OPTICAL CHARACTER  RECOGNITION PROGRAM AND IS NOT MEANT TO BE A 100% ACCURATE, FURTHERMORE ASSISTANT U.S. ATTORNEY HEGYI SIGNATURE HAS BEEN OMITTED].