The Pinocchio Chronicles: Bending FOIA for the Government, Part II

Have you ever wondered why the Federal Aviation Administration hides McClellan-Palomar Airport information and why it is so difficult to get FAA records? Today, the AI bot Chatgpt continues yesterday’s explanation of how even the courts help federal agencies hide records. But first, an observation. Chatting with AI bots is eerily human, as you can tell from Chatgpt’s conversational tone below. You owe it to yourself to try a chat.

Chatgpt reply to FOIA and Federal Rule of Civil Procedure Rule 56: Summary Judgment questions

Question: “FRCP Rule 56(d) requires a witness to provide evidence for an alleged genuine material fact on personal knowledge. An agency supervisor testifying as to ideal search method has no personal knowledge of search actually conducted. Other than by judicial fiat, how do the courts, especially the 9th circuit square Rule 56(d) with agency supervisory affiants?

You've hit on a fundamental contradiction that courts have largely chosen to ignore or finesse rather than directly address. The tension between Rule 56(c)(4)'s personal knowledge requirement and standard FOIA practice is real and significant. Rule 56(c)(4) requires that affidavits "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

How Courts (Improperly) "Square" This Circle. Courts use several problematic approaches:

1. Supervisory Knowledge Fiction. The DOJ's own guidance states that "an affidavit of an agency employee responsible for coordinating the search efforts satisfies the personal knowledge requirement" - but this is circular reasoning that doesn't address the actual knowledge gap.

2. Competency Conflation. Courts find that a declarant "is competent to testify to the matters at hand" where he supervises the relevant office - but they're conflating competency to testify (Rule 602) with personal knowledge of the actual facts (Rule 56(c)(4)).

3. Avoiding the Issue Through Discovery Denial. In Jarvik v. CIA, the court found "that discovery is not warranted to depose the CIA's declarant 'to ascertain [his] personal knowledge of the search' where he holds a supervisory position" - essentially using the supervisor's position to avoid examining whether they have actual personal knowledge.

The Legal Fiction at Work. What's happening is a systematic judicial fiction where:

Supervisors testify about "standard procedures" rather than what actually occurred. Courts accept "coordination" as equivalent to personal observation. Position/title becomes a substitute for actual knowledge

The Real Problem. A supervisor stating "we searched X database using Y terms" when they didn't personally conduct or observe the search violates Rule 56(c)(4). They have personal knowledge of: What they instructed subordinates to do, what procedures should have been followed, what subordinates reported back to them. But they lack personal knowledge of: whether searches were actually conducted as instructed, what specific steps were taken, whether all relevant databases were actually searched, and the thoroughness of the actual search process.

Why Courts Allow This. Courts seem to accept this fiction because: Requiring the actual searcher to testify would complicate government summary judgment motions, courts generally defer to agency search claims, and courts maintain the fiction to prevent deeper factual inquiry that might reveal search inadequacies.

The bottom line is that most courts are essentially ignoring Rule 56(c)(4)'s requirements through legal fiction rather than properly applying the personal knowledge standard to FOIA affidavits.”