Pinson v. U.S. Department of Justice ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JEREMY PINSON, :
:
Plaintiff, : Civil Action No.: 12-1872 (RC)
:
v. : Re Document Nos.: 332, 336
:
U.S. DEPARTMENT OF JUSTICE, et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT;
DENYING PLAINTIFF’S MOTION TO STRIKE
I. INTRODUCTION
Pro se Plaintiff Jeremy Pinson has filed multiple Freedom of Information Act (FOIA), 5
U.S.C. § 552, requests with various components of the U.S. Department of Justice (DOJ). At
issue here are certain requests she1 submitted to the Executive Office of the United States
Attorneys (EOUSA). Although the EOUSA responded to the requests, Pinson challenged its
responses. This Court has already granted in part and denied in part two motions for summary
judgment concerning these requests. See generally 1st Mem. Op., Pinson v. DOJ, 145 F. Supp.
3d 1 (D.D.C. 2015), ECF No. 246; 2d Mem. Op., Pinson v. DOJ, 189 F. Supp. 3d 137 (D.D.C.
2016), ECF No. 291.
1
Pinson identifies using feminine pronouns. This Court adopts Pinson’s usage, and the
government has occasionally done the same. See Defs.’ Notice Repeat Service of FOIA
Releases, ECF No. 343; see also Defs.’ Opp’n Pl.’s Mot. Strike, ECF No. 337. The Court’s use
of feminine pronouns does not convey any substantive or legal characterization.
Now before the Court is the DOJ’s third motion for summary judgment as to the five
remaining FOIA requests,2 Def.’s 3d Mot. Summ. J., ECF No. 332, as well as a motion by
Pinson to strike the DOJ’s motion, Mot. Strike, ECF No. 336. For the reasons stated below, the
Court will again grant in part and deny in part the DOJ’s motion for summary judgment, and
deny Pinson’s motion to strike.
II. BACKGROUND
This Court has explained the factual background in detail in its prior Memorandum
Opinions. See 1st Mem. Op., Pinson v. DOJ, 145 F. Supp. 3d 1, 5–7 (D.D.C. 2015), ECF No.
246; 2d Mem. Op., Pinson v. DOJ, 189 F. Supp. 3d 137, 141–45 (D.D.C. 2016), ECF No. 291.
The Court therefore confines its discussion to the facts most relevant to the five requests at issue
in the present motion.
2
Pinson initially submitted eighteen numbered requests and twenty-one unnumbered
requests to the EOUSA. See generally 1st Mem. Op., Pinson v. DOJ, 145 F. Supp. 3d 1 (D.D.C.
2015), ECF No. 246; 1st Order, ECF No. 245. After filing and immediately withdrawing a
motion for summary judgment in 2015, Defs.’ Mot. Summ. J., ECF No. 150; Defs.’ Mot.
Withdraw, ECF No. 158, the EOUSA submitted its “first” motion for summary judgment. Defs.’
1st Mot. for Summ. J., ECF No. 170. Based upon the first motion, the Court granted the EOUSA
summary judgment as to Request Nos. 12-1752 and 12-3947, and all twenty-one of the
unnumbered requests. See 1st Mem. Op., Pinson v. DOJ, 145 F. Supp. 3d 1, 10 (D.D.C. 2015),
ECF No. 246. In addition, the Court granted the EOUSA summary judgment on eight requests
(Nos. 10-4127, 10-4177, 12-1751, 12-1761, 12-1762, 12-3065, 12-3094, and 12-3096) because
Pinson “expressly concede[d] all claims with respect to” them. See 1st Mem. Op., Pinson v.
DOJ, 145 F. Supp. 3d 1, 5 n.2 (D.D.C. 2015), ECF No. 246; Pl.’s Resp. at 1, ECF No. 223.
The EOUSA subsequently filed a second motion for summary judgment. Defs.’ 2d Mot.
for Summ. J., ECF No. 254. In resolving that motion, the Court granted the EOUSA summary
judgment as to Request Nos. 11-3289, 11-4508, 12-1748, 12-1764, 12-3095, and 12-3097. See
generally 2d Mem. Op., Pinson v. DOJ, 189 F. Supp. 3d 137 (D.D.C. 2016), ECF No. 291; 2d
Order, ECF No. 290. Five numbered requests, therefore, remain at issue here—Nos. 12-1754,
12-1757, 12-1758, 12-1760, and 13-1085.
2
A. Request No. 12-1754
Request No. 12-1754 sought the “production of all documents, emails, [and] records”
related to Case No. SACR 07-202(A)-DOC in the Central District of California. See 3d Luczynski
Decl. ¶ 3, ECF No. 332–3;3 Freedom of Information Act Request, ECF No. 254-4, Ex. P.4 Pinson
did not specifically limit the amount of search time or pages produced by this request. Freedom
of Information Act Request, ECF No. 254-4, Ex. P. Pinson later clarified as part of an appeal that
this request included public records. Freedom of Information Act Appeal (Oct. 31, 2013), ECF
No. 254-4, Ex. T (complaining that the agency “failed to release public records”).5
After the Court denied the DOJ’s second motion for summary judgment concerning this
request,6 the DOJ performed another search for “responsive records, including public records.”
3d Luczynski Decl. ¶ 6. The FOIA coordinator interpreted the (A) at the end of the case number
to refer to the records concerning one of the defendants in the overall case, Jesse Vasquez.
Rhedrick Decl. ¶ 7, ECF No. 332-3, Ex. A. The FOIA coordinator determined that the case was
3
Consistent with its prior practice, the Court refers to the document docketed at ECF No.
332-3 as the “3d Luczynski Decl,” although the Court notes that the DOJ has titled this
document “Second Declaration Addressing Court’s June 1, 2016[] Order.”
4
Pinson’s request sought documents from multiple federal districts, but the EOUSA
separated them into different numbered requests. Request No. 12-1754 deals only with the
documents sought from the Central District of California. 3d Luczynski Decl. ¶ 3.
5
Although the appeal that refers to seeking public records does not list Request No. 12-
1754, the DOJ has apparently treated Pinson as also seeking public records concerning Request
No. 12-1754. 3d Luczynski Decl. ¶ 5.
6
Request No. 12-1754 was not addressed in the DOJ’s first motion for summary
judgment. See generally 1st Mem. Op., Pinson v. DOJ, 145 F. Supp. 3d 1, 4 n.1 (D.D.C. 2015),
ECF No. 246. In its second motion for summary judgment, the DOJ argued that all responsive
documents were exempt from release under Exemption 7(A) because the case was currently
pending appeal. See Salazar Decl. ¶¶ 4–5, ECF No. 254-4, Ex. X1. The Court denied the DOJ’s
second motion for summary judgment because the DOJ failed to inform Pinson of its
determination. See 2d Mem. Op., Pinson v. DOJ, 189 F. Supp. 3d 137, 143, 148–49 (D.D.C.
2016), ECF No. 291. The case has now been closed. Rhedrick Decl. ¶¶ 11–12, ECF No. 332-3.
3
closed, and obtained twenty physical boxes of records relating to Case No. SACR 07-202.
Rhedrick Decl. ¶¶ 11–12. The FOIA coordinator performed a manual search of all twenty boxes
by looking for Jesse Vasquez’s name in the caption or header of documents. Rhedrick Decl.
¶¶ 13–14. This search resulted in 78 responsive pages, which the FOIA coordinator transmitted
to the EOUSA. Rhedrick Decl. ¶ 15. The EOUSA released all of the pages—in full and without
redactions—to Pinson. See 3d Luczynski Decl. ¶ 7; Letter from Thomas Anderson to Jeremy
Pinson (Oct. 27, 2016), ECF No. 332-3, Ex. B.7
Although the EOUSA has previously asserted that FOIA Exemption 7(A) justified
withholding some responsive documents while the underlying case was pending appeal, see ECF
No. 254-2 at 7–8, the case is now closed and the Court understands that the EOUSA searched for
all responsive records and did not withhold any documents from the results of the current search.
See Rhedrick Decl. ¶ 9 (“Case View is the computer case tracking system used by the USA . . .
to locate any and all corresponding files.” (emphasis added)); Rhedrick Decl. ¶ 11 (“[A]ll
documents concerning closed cases are to be stored [within the twenty boxes searched].”
(emphasis added)); Rhedrick Decl. ¶¶ 13–14 (“I personally searched through twenty boxes of
documents . . . Due to the large number of documents in the 20 boxes of records relating to this
case, it took me approximately two hours to search them by hand.”). The DOJ now moves for
summary judgment on the grounds that it conducted a search reasonably calculated to identify all
responsive records and it has released all responsive records in full. See Defs.’ Mem. Supp. 3d
Mot. for Summ. J. (Defs.’ 3d MSJ) at 5, ECF No. 332-2.
7
The Rhedrick declaration states that 78 responsive pages were located, and the release
letter states that 78 pages were disclosed in full. Rhedrick Decl. ¶ 15; Letter to Jeremy Pinson
from Thomas Anderson (Oct. 27, 2016), ECF No. 332-3, Ex. B. However, the third Luczynski
declaration states that 57 pages of records were released. The Court assumes that the “57” is a
typographical error.
4
B. Request No. 12-1757
Request No. 12-1757 sought the “production of all documents, emails, or records” for
cases 11-cv-1906,8 11-cv-1346, and 10-cv-949 in the Middle District of Pennsylvania. See 3d
Luczynski Decl. ¶ 8; Freedom of Information Act Request, ECF No. 254-4, Ex. Y.9 Pinson did
not explicitly limit the number of pages produced or search time occupied by this request.
Freedom of Information Act Request, ECF No. 254-4, Ex. Y. Pinson later clarified during an
appeal that this request also sought public records. Freedom of Information Act Appeal (Oct. 31,
2013), ECF No. 254-4, Ex. T (complaining that the agency “failed to release public records”).
After the Court denied the DOJ’s second motion for summary judgment,10 the EOUSA
conducted a new search. See 2d Matuszewski Decl. ¶ 14, ECF No. 332-3, Ex. C. The FOIA
8
Because Pinson’s original, handwritten request is difficult to read, the DOJ noted that it
was not certain if Pinson sought records from 11-cv-1906, or from 11-cv-1908. 3d Luczynski
Decl. ¶ 13. However, a search for 11-cv-1908 revealed that the EOUSA would have no records
relating to it because no U.S. attorney was ever served or entered an appearance. 3d Luczynski
Decl. ¶ 13. The search therefore proceeded for 11-cv-1906, although the EOUSA separately sent
Pinson 43 pages of public docket information concerning case 11-cv-1908 out of an abundance
of caution. 3d Luczynski Decl. ¶ 13; Letter from Thomas Anderson to Jeremy Pinson (Oct. 28,
2016), ECF No. 332-3, Ex. D2. The Court understands the two isolated references to “13-cv-
1096” and “13-cv-1098” in the DOJ’s briefing to be typographical errors. See Defs.’ 3d MSJ at 6
n.1, ECF No. 332-2.
9
Pinson’s request sought documents from multiple federal districts, but the EOUSA
separated them into different numbered requests. Request No. 12-1757 deals only with the
documents sought from the Middle District of Pennsylvania. 3d Luczynski Decl. ¶ 10.
10
Initially, the EOUSA did not release any records to Pinson, on the grounds that the
requested records concerned a third party and therefore “cannot be released absent express
authorization and consent of the third party, proof that the subject of the request is deceased, or a
clear demonstration that the public interest in disclosure outweighs the personal privacy
interest.” 3d Luczynski Decl. ¶ 10. Pinson appealed the EOUSA’s determination that the records
could not be released, but the EOUSA closed the appeal after Pinson filed this lawsuit. See 1st
Luczynski Decl. ¶ 27, ECF No. 170-4. The Court denied the DOJ’s first motion for summary
judgment concerning this request because the DOJ had failed to provide a reasonably detailed
affidavit supporting the agency’s search for responsive documents. See 1st Mem. Op., Pinson v.
DOJ, 145 F. Supp. 3d 1, 8–12 (D.D.C. 2015), ECF No. 246. The DOJ then performed a search,
identified thirty-seven pages of records, and withheld them all pursuant to FOIA Exemption
7(C). See 1st Matuszewski Decl. ¶ 13, ECF No. 254-4, Ex. DD. The Court denied the DOJ’s
5
coordinator used the Middle District of Pennsylvania’s electronic case management system to
identify records relating to case 11-cv-1906 and 10-cv-949,11 and obtained those case files from
the National Archives. 2d Matuszewski Decl. ¶ 15. A search of the case files produced a total of
197 responsive pages of documents, which were forwarded to the EOUSA. 2d Matuszewski
Decl. ¶¶ 17–18. The EOUSA’s declaration does not explain what type of search was performed
on the files, or how examining the files “produced” the stated number of pages. See 2d
Matuszewski Decl. ¶¶ 16–18 (“A request to the Federal Records Center was made to retrieve
case files 11-CV-1906 and 10-CV-949. A second search of 11-CV-1906 produced 22 pages of
correspondence, e-mails, declarations and inmate data from the Bureau of Prisons as well as 67
pages of court-filed documents. . . . A second search of 10-CV-949 produced 14 pages of
correspondence and e-mails as well as 94 pages of court-filed documents.”). Similarly, while the
EOUSA’s declaration states that “[a]n additional computer search of the USAO MDPA files was
performed and no documents were located for neither [sic] civil numbers 11-CV-1906 nor 10-
CV-949,” the declaration does not explain how the search was performed, or what search terms
were used. 2d Matuszewski Decl. ¶ 19.
second motion for summary judgment for several reasons, including that the DOJ contradicted
itself concerning whether a search had been conducted, the DOJ did not specify which search
terms it used, and the DOJ released some public records to Pinson despite claiming to withhold
records. 2d Mem. Op., Pinson v. DOJ, 189 F. Supp. 3d 137, 147–48 (D.D.C. 2016), ECF No. 291.
11
The FOIA coordinator had previously determined that the electronic case management
system contained no records relating to 11-cv-1346. 2d Matuszewski Decl. ¶ 11. A search of
PACER suggested that the EOUSA had no records because that case was dismissed before the
U.S. Attorney’s office was served. 2d Matuszewski Decl. ¶ 12. It does not appear that a second
search was performed for files relating to 11-cv-1346.
6
The EOUSA subsequently released 200 pages of records12 in full to Pinson. 3d Luczynski
Decl. ¶ 13, ECF No. 332-3; Letter from Thomas Anderson to Jeremy Pinson (Oct. 27, 2016),
ECF No. 332-3, Ex. D. This 200 pages appears to have included both the 67 and 94 pages of
“court-filed documents” identified from the two cases as well as 22 and 14 pages of
correspondence, emails, and other Bureau of Prisons documents. 2d Matuszewski Decl. ¶¶ 17–18.
It is unclear from the EOUSA’s filings if the search was intended to produce all responsive
documents, or the search was only for public records (or, alternatively, if non-public records
were withheld from the release). See 2d Matuszewski Decl. ¶ 14 (“I was directed . . . to perform
a second search of the files located . . . and to provide all documents contained within the files.”);
2d Matuszewski Decl. ¶ 20 (“All systems of records located within USAO/MDPA that were
likely to contain records responsive to Pinson’s request have been searched. The searches were
reasonably calculated to uncover all relevant records responsive to Pinson’s request.”). But see
3d Luczynski Decl. ¶ 13 (“A new search for publicly filed responsive records . . . has revealed
200 pages of responsive public records to plaintiff’s request.”). The DOJ now again moves for
summary judgment, this time on the basis that its search was reasonably calculated to identify all
responsive records without withholdings. See Defs.’ 3d MSJ at 8.
C. Request No. 12-1758
Request No. 12-1758 sought the “production of all documents, emails, or records”
regarding cases 11-cv-140-KSF, 11-cv-96-HRW, and 10-cv-299-HRW in the Eastern District of
Kentucky. See 3d Luczynski Decl. ¶ 14; Freedom of Information Act Request, ECF No. 254-4,
12
Adding together the 67, 22, 94, and 14 pages enumerated in the Matuszewski declaration
suggests that a total of 197 pages were identified. See 2d Matuszewski Decl. ¶ 17–18. The Court
is therefore at a loss to explain the three additional pages apparently released to Pinson.
7
Ex. Y.13 Pinson did not limit the search time or number of pages generated by this request.
Freedom of Information Act Request, ECF No. 254-4, Ex. Y. Pinson later clarified as part of an
appeal that this request also sought public records. Freedom of Information Act Appeal (Oct. 31,
2013), ECF No. 254-4, Ex. T (complaining that the agency “failed to release public records”).
After the Court denied the DOJ’s second motion for summary judgment,14 the EOUSA
performed a new search for responsive records. Long Decl., ECF No. 332-3, Ex. F. The FOIA
coordinator for the Eastern District of Kentucky searched the district’s electronic case
management system and PACER for records responsive to each of the case numbers. Long Decl.
¶¶ 8–9. The search of the case management system did not produce any records relating to 11-
cv-96 or 11-cv-140. Long Decl. ¶ 11. A PACER search for the two cases revealed that “[the]
office was never served or involved in [these] cases,” Long Decl. ¶ 11, explaining the lack of
records. The case management system did contain files relating to 11-cv-299. Long Decl. ¶ 11.
According to the FOIA coordinator, these files comprised four volumes of pleadings, two
13
Pinson’s request sought documents from multiple federal districts, but the EOUSA
separated them into different numbered requests. Request No. 12-1754 deals only with the
documents sought from the Eastern District of Kentucky. 3d Luczynski Decl. ¶ 14.
14
Initially, the EOUSA did not release any records to Pinson, explaining that the
requested records concerned a third party which “generally cannot be released absent express
authorization and consent of the third party, proof that the subject of the request is deceased, or a
clear demonstration that the public interest in disclosure outweighs the personal privacy interest.”
3d Luczynski Decl. ¶¶ 9, 15. Pinson appealed that determination, but the appeal was closed when
she filed this lawsuit. 3d Luczynski Decl. ¶¶ 16–18. Similar to Request No. 12-1757, the Court
denied the DOJ’s first motion for summary judgment with respect to this request, concluding that
Pinson had constructively exhausted her administrative remedies and that the DOJ had failed to
provide a reasonably detailed affidavit supporting the agency’s search for responsive documents.
See 1st Mem. Op., Pinson v. DOJ, 145 F. Supp. 3d 1, 8–12 (D.D.C. 2015), ECF No. 246. The
Court denied the DOJ’s second motion for summary judgment for several reasons, including that
the DOJ contradicted itself concerning whether a search had been conducted, the DOJ did not
specify which search terms it used, and the DOJ released some public records to Pinson despite
claiming to withhold records. 2d Mem. Op., Pinson v. DOJ, 189 F. Supp. 3d 137, 147–48
(D.D.C. 2016), ECF No. 291.
8
volumes of correspondence, and several file folders. Long Decl. ¶ 11. The FOIA coordinator
then “forwarded all documents in these files” to the EOUSA. Long Decl. ¶ 12. The EOUSA
released 100 pages in full to Pinson free of charge and informed her that there were
approximately 1,000 additional pages available for a fee of $100. See 3d Luczynski Decl. ¶ 18;
Letter from Thomas Anderson to Jeremy Pinson (Oct. 27, 2016), ECF No. 332-3, Ex. E.
Although the EOUSA has previously argued that FOIA Exemption 7(C) would justify
withholding some or all of the records responsive to this request, see ECF No. 254-4 at 4–7, the
Court now understands that the EOUSA undertook to search for all responsive records and did
not withhold any identified records. See Long Decl. ¶ 11 (“[Case number 10-cv-299] consists of
4 volumes of pleadings, 2 volumes of correspondence, and numerous [Redwelds].”); Long Decl.
¶ 12 (“I forwarded all documents in these files to EOUSA on disc. . . . I included Court Filed
Public Records in the documents provided to EOUSA.”). The DOJ now again moves for
summary judgment, contending that its search was reasonably calculated to identify all
responsive records without withholdings. See Defs.’ 3d MSJ at 9.
D. Request No. 12-1760
Request No. 12-1760 sought “copies [of] all documents, email[s], or records in . . .
Northern District of West Virginia Case No. 11-CR-51.” See 2d Zumpetta-Parr Decl. ¶ 6, ECF
No. 332-3, Ex. G; Freedom of Information Act Request, ECF No. 254-4, Ex. Y.15 Pinson did not
explicitly limit the search time or pages produced by this request. Freedom of Information Act
Request, ECF No. 254-4, Ex. Y. Pinson later clarified as part of an appeal that this request
15
Pinson’s request sought documents from multiple federal districts, but the EOUSA
separated them into different numbered requests. Request No. 12-1754 deals only with the
documents sought from the Northern District of West Virginia. 3d Luczynski Decl. ¶¶ 8, 19.
9
included public records. Freedom of Information Act Appeal (Oct. 31, 2013), ECF No. 254-4,
Ex. T (complaining that the agency “failed to release public records”).
After the Court denied the DOJ’s second motion for summary judgment,16 the EOUSA
performed a new search for responsive records. 2d Zumpetta-Parr Decl. ¶ 7. The FOIA
coordinator for the district searched PACER for 11-cr-51. Zumpetta-Parr Decl. ¶ 9. This search
identified three different cases with this number. Zumpetta-Parr Decl. ¶ 9. The FOIA coordinator
consulted an “attorney for EOUSA” and decided to focus on the Hackett case, which “involved a
prosecution of 6 co-defendants for a conspiracy to commit assault against fellow prison inmates,
a type of case similar to the others on which Pinson sought records.” Zumpetta-Parr Decl. ¶ 9.
The FOIA coordinator then searched all public records on two case management systems and
PACER, and “located everything on PACER and in our case files themselves, which included
three case files, and scanned the entire file and sent [it] to EOUSA, which consisted of more than
165 scanned files.” Zumpetta-Parr Decl. ¶¶ 10–11. According to the EOUSA, this comprised 900
16
Initially, the EOUSA did not release any records to Pinson, explaining that the
requested records concerned a third party which “generally cannot be released absent express
authorization and consent of the third party, proof that the subject of the request is deceased, or a
clear demonstration that the public interest in disclosure outweighs the personal privacy
interest.” See 3d Luczynski Decl. ¶¶ 20–21. Pinson appealed that determination, but the appeal
was closed when she filed this lawsuit. 3d Luczynski Decl. ¶¶ 22–23. Similar to Request Nos.
12-1757 and 12-1758, the Court denied the DOJ’s first motion for summary judgment with respect
to this request, concluding that Pinson had constructively exhausted her administrative remedies
and that the DOJ had failed to provide a reasonably detailed affidavit supporting the agency’s
search for responsive documents. See 1st Mem. Op., Pinson v. DOJ, 145 F. Supp. 3d 1, 8–10, 13
(D.D.C. 2015), ECF No. 246. The DOJ argued in its second motion for summary judgment that
the EOUSA properly refused to conduct a search for documents responsive to request 12–1760.
See Defs.’ 3d MSJ at 4–7, ECF No. 254-2. The Court denied the DOJ’s second motion for
summary judgment for several reasons, including that the DOJ contradicted itself concerning
whether a search had been conducted, the DOJ did not specify which search terms it used, the
DOJ released some public records to Pinson despite claiming to withhold records, and the DOJ
apparently limited its search with the term “Jeremy Pinson” against the text of the FOIA request.
2d Mem. Op., Pinson v. DOJ, 189 F. Supp. 3d 137, 147–48 (D.D.C. 2016), ECF No. 291.
10
pages of records. 3d Luczynski Decl. ¶ 24. Of those, 100 pages were released to Pinson for free
in full, and Pinson was informed that the others could be obtained for an $80 fee. 3d Luczynski
Decl. ¶ 25; Letter from Thomas Anderson to Jeremy Pinson (Oct. 27, 2016), ECF No. 332-3, Ex. H.
Although the EOUSA has previously argued that FOIA Exemption 7(C) would justify
withholding some or all of the records responsive to this request, see Mem. P. & A. Supp. Defs.’
2d Mot. Summ. J. at 4–7, ECF No. 254-2, the Court now understands that the EOUSA undertook
to search for all responsive records and did not withhold any identified records. See Zumpetta-
Parr Decl. ¶ 10 (“I performed a search of all public records . . . and scanned the entire file and
provided those records to USAEO.”); Zumpetta-Parr Decl. ¶ 1017 (“I interpreted [the request] to
mean all documents, including publicly filed ones. Accordingly, I located everything in PACER
and in our case files themselves . . . and sent to EOUSA . . . .”). The DOJ now again moves for
summary judgment, this time on the grounds that its search was reasonably calculated to identify
all responsive records without withholdings. See Defs.’ 3d MSJ at 10–11.
E. Request No. 13-1085
Pinson submitted a FOIA request seeking “copies of all discovery material” in case
number 11-cr-68-EJL, in the District of Idaho, and 12-cr-236-IEG, in the Southern District of
California. Freedom of Information Act Request, ECF No. 332-3, Ex. I; 3d Luczynski Decl.
¶ 26. Pinson limited her request to “no more than 150 pages, per case, of information and no
more than 2 hours search time per district.” Freedom of Information Act Request, ECF No. 332-3,
Ex. I. After the EOUSA informed Pinson that it could not release the information because such
third-party information was protected under the Privacy Act and FOIA Exemptions 6 and 7(C),
17
The Zumpetta-Parr declaration includes two paragraphs numbered ten. This citation is
to the second one.
11
Pinson agreed to limit the scope of her request to “seek only public records.” Letter from Jeremy
Pinson (Apr. 22. 2013), ECF No. 170-5, Ex. UUU (emphasis added); see also 1st Luczynski
Decl. ¶¶ 82–83, ECF No. 170-4.
After this Court denied its second motion for summary judgment,18 the EOUSA
submitted with its renewed motion two FOIA response letters sent to Pinson. The letters appear
to indicate that Pinson was sent 100 pages—in full—for free concerning each case, with the
option to pay to receive an additional 16,000 pages concerning the 11-cr-68 case and an
additional 162 pages concerning the 12-cr-236 case. Letter from Thomas Anderson to Jeremy
Pinson (Oct. 27, 2016), ECF No. 332-3, Ex. J; Letter from Thomas Anderson to Jeremy Pinson
(Oct. 27, 2016), ECF No. 332-3, Ex. L. Although it is not precisely clear what the 100 pages
comprised, for the 12-cr-236 case the EOUSA states that the 100 pages were “docket material.”
3d Luczynski Decl. ¶ 27.
The EOUSA provides a declaration from an Assistant United States Attorney involved in
the 12-cr-236 case stating that the case is ongoing and that all of the discovery material is subject
to a protective order. See McGrath Decl. ¶ 5, ECF No. 332-3, Ex. M (“Discovery material in the
18
Before the Court adjudicated the EOUSA’s first summary judgment motion, the
EOUSA apparently released 100 pages to Pinson (on two occasions after the first was not
received), although it is not clear what material was included in the release or what search led to
the released material. Letter from Susan B. Gerson to Jeremy Pinson (Dec. 13, 2013), ECF No.
170-5, Ex. VVV; Letter from Susan B. Gerson to Jeremy Pinson (Feb. 11, 2015), ECF No. 170-5,
Ex. VVV1; 1st Luczynski Decl. ¶¶ 84–85, ECF No. 170-4. The DOJ’s first motion for summary
judgment argued that summary judgment was warranted because Pinson failed to exhaust her
administrative remedies. The Court denied the DOJ’s motion as to this request because there was
a genuine dispute of material fact regarding whether Pinson received the documents, potentially
precluding her ability to file an appeal or exhaust her administrative remedies. See 1st Mem. Op.,
Pinson v. DOJ, 145 F. Supp. 3d 1, 10–11 (D.D.C. 2015), ECF No. 246. The Court denied the
DOJ’s second motion for summary judgment because the DOJ did not articulate a basis on which
summary judgment might be granted. 2d Mem. Op., Pinson v. DOJ, 189 F. Supp. 3d 137, 147
(D.D.C. 2016), ECF No. 291.
12
[12-cr-236] case cannot be released under FOIA at this time. There is a protective order in place,
which prevents release of any of the discovery material.”); see also Defs.’ 3d MSJ at 11
(“Because here is a protective order in [12-cr-236], . . . the USAO is unable to release discovery
material therefrom.”). Although the EOUSA does not submit a similar declaration relating to the
11-cr-68 case, it points to the docket for 11-cr-68, which it argues establishes that “discovery is
subject to a protective order.” Defs.’ 3d MSJ at 12. The DOJ now again moves for summary
judgment, this time on the grounds that all records responsive to this request are properly
withheld under Exemption 7(A). See Defs.’ 3d MSJ at 11–12.
F. Pinson’s Receipt of Responses
As discussed above, the DOJ asserts that it has released documents to Pinson under each
of the five FOIA requests at issue here. Pinson initially argued in her opposition to the instant motion
for summary judgment that she had not received any of the releases. Pl.’s Response, ECF No.
340 (“[T]his plaintiff never received the releases on FOIA requests 12-1754, 12-1757, 12-1758,
12-1760, 13-1085. Nor did plaintiff’s counsel19 as has been customary.”); Pinson Decl. ¶ 7, ECF
No. 340, Ex. A (“At no time have I received a response to EOUSA Request No’s. 12-1754, 12-1757,
12-1758, 12-1760 and 13-1085.”). On December 19, 2016, this Court received a “surreply” from
Pinson stating that she “still [had not] received the 4 recent FOIA releases” although she had
received a response from the BOP concerning her request for an administrative remedy
concerning her mail.20 Pinson Decl. ¶ 2, ECF No. 344, Ex. 1; Request for Administrative
Remedy, ECF No. 344, Att. A. On that same day, the Court received a notice from the DOJ
19
At the time of these filings, Pinson had been appointed counsel for the limited purpose
of reviewing correspondence withheld by the BOP and determining compliance with FOIA.
Order Appt. Pro Bono Counsel, ECF 204.
20
In the context of this case, the Court understands Pinson to refer to all five of the FOIA
requests she listed elsewhere in her filing.
13
indicating that—in order to ensure that Pinson received the FOIA releases—it had (1) “provided
the releases directly to plaintiff’s counsel, who confirmed receipt by email dated December 14,
2016” and (2) “on December 19, 2016, . . . re-released the records to Pinson at MCFP
Springfield using certified mail (as opposed to legal mail).” Notice Repeat Service FOIA
Releases, ECF No. 343.
The Court finds that the discrepancy between Pinson’s and the DOJ’s account may be
explained by their missives crossing in the mail, given that both filings were received by this
Court on December 19. In addition, the DOJ subsequently notified the Court that “Pinson has
now signed for receipt” of the certified mail package containing the five FOIA releases. Notice
Hand Delivery EOUSA Releases, ECF No. 350. Furthermore, Pinson has not reiterated any
complaint concerning her receipt of the releases after December 19, 2016, despite filing several
other documents with this Court. The Court therefore concludes that Pinson has now received the
FOIA releases for these five requests.
III. LEGAL STANDARD
“[T]o prevail in a Freedom of Information Act suit, ‘the defending agency must prove
that each document that falls within the class requested either has been produced, is
unidentifiable or is wholly exempt from the Act’s inspection requirements.’” Weisberg v. U.S.
Dep’t of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980) (quoting National Cable Television Ass’n v.
FCC, 479 F.2d 183, 186 (D.C. Cir. 1973)). At the summary judgment stage, the agency must do
so by showing that no material facts remain in dispute. Id. at 367. This showing requires the
agency to demonstrate both that its search was adequate and that all responsive records were
either released or properly withheld.
14
Under FOIA, an adequate search is one that is “reasonably calculated to uncover all
relevant documents.” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (internal quotation
marks and citation omitted). The agency need not to search “every record system” for the
requested documents, but it “must conduct a good faith, reasonable search of those systems of
records likely to possess the requested records.” Marino v. DOJ, 993 F. Supp. 2d 1, 9 (D.D.C.
2013) (citing Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). In order to
receive summary judgment, the agency must provide a “reasonably detailed” affidavit describing
the scope of its search. See Iturralde v. Comptroller of Currency, 315 F.3d 311, 313–14 (D.C.
Cir. 2003) (quoting Oglesby, 920 F.2d at 68). It is not enough, however, for the affidavit to state
in conclusory fashion that the agency “conducted a review of [the files] which would contain
information that [the plaintiff] requested” and did not find anything responsive to the
request. Weisberg, 627 F.2d at 370. On the other hand, once the agency has provided a
reasonably detailed affidavit describing its search, the burden shifts to the FOIA requester to
produce “countervailing evidence” suggesting that a genuine dispute of material fact exists as to
the adequacy of the search. Morley, 508 F.3d at 1116 (citation omitted).
If responsive records are located, the agency must either disclose them or justify its
withholding through one of the FOIA’s nine exclusive statutory exemptions. See 5 U.S.C.
§ 552(b); see also Elliott v. U.S. Dep’t of Agric., 596 F.3d 842, 845 (D.C. Cir. 2010)
(“[A]gencies may withhold only those documents or portions thereof that fall under one of nine
delineated statutory exemptions.”). In a case such as this one, where the requester initially
challenges the agency’s response but does not consistently articulate specific objections to the
agency’s releases, the Court is mindful that summary judgment cannot be granted as conceded
and that it must independently evaluate whether any issues of material fact exist. See Winston &
15
Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016) (“Under the Federal Rules of Civil
Procedure, a motion for summary judgment cannot be ‘conceded’ for want of opposition. ‘The
burden is always on the movant to demonstrate why summary judgment is warranted. The
nonmoving party’s failure to oppose summary judgment does not shift that burden.’ The District
Court ‘must always determine for itself whether the record and any undisputed material facts
justify granting summary judgment.’” (quoting Grimes v. District of Columbia, 794 F.3d 83, 97
(D.C. Cir. 2015) (Griffith, J., concurring))).
IV. ANALYSIS
The DOJ’s instant motion for summary judgment argues that it has performed an
adequate search with respect to each of the five requests and released all non-exempt documents.
Pinson initially objected that she had not received the releases, but, as discussed supra Part II.F,
the Court concludes that Pinson has now received them. Pinson raises several collateral
objections, which this Court rejects.21 See generally Pl.’s Opp’n, ECF No. 340. Pinson does not
21
First, Pinson’s opposition contains a paragraph stating that “[e]mployees . . . at MCFP
Springfield, are extremely hostile to this litigation and have acted to thwart plaintiff’s access to
the Court. Plaintiff seeks sanctions under Rule 11” against the employees and two BOP attorneys
who “actively encouraged the misbehavior.” Pl.’s Opp’n , ECF No. 340. Pinson does not
articulate a theory on which the Court could grant such relief, and this Court does not construct
one for her. Davis v. Kelly, 160 F.3d 917, 922 (2d Cir. 1998) (“[A] court need not act as an
advocate for pro se litigants . . . .”). In brief, the Court must deny Pinson’s request for relief
because these allegations are not reflected in her complaint and she identifies no cause of action;
the employees are not parties to this action and the Court likely lacks personal jurisdiction over
them; Pinson has not shown a specific instance of lack of access to the courts, such as a missed
filing deadline; Rule 11 sanctions are only appropriate against counsel and parties; and Pinson is
no longer being held at MCFP Springfield and thus any request for prospective relief would be
moot. See Ali v. Carnegie Inst. of Wash., 309 F.R.D. 77, 84 (D.D.C. 2015) (“This Court,
however, lacks the authority to issue a judgment that would bind a non-party.”), aff’d, No. 2016-
2320, 2017 WL 1349280 (Fed. Cir. Apr. 12, 2017); Isaac v. Samuels, 132 F. Supp. 3d 56, 59
(D.D.C. 2015) (“[I]t is not enough for an inmate to state in a conclusory fashion that he was
denied access to the courts; rather, he also must allege actual injuries as a result of the denial by
claiming that an actionable claim was rejected, lost, or prevented from being filed.”); see also
16
challenge the adequacy of the searches or the DOJ’s withholdings, see generally Pl.’s Opp’n, but
the Court nonetheless considers if the DOJ has demonstrated that it is entitled to summary
judgment.
A. Request No. 12-1754
The DOJ asserts that the EOUSA adequately searched and properly released records
responsive to Request No. 12-1754, Defs.’ 3d MSJ at 4–5, and the Court agrees. The Rhedrick
declaration sufficiently explains that all record systems likely to contain responsive records were
searched, and describes how the FOIA coordinator searched the applicable boxes of physical
files by hand using the name of the defendant. See generally Rhedrick Decl., ECF No. 332-3, Ex.
A. This description includes the search term used and sufficiently explains that the agency’s
search was reasonably calculated to uncover all responsive documents. Nor has Pinson
challenged the agency’s assertion that its search was adequate.
Fed. R. Civ. P. 11(b)(1) (requiring that “attorney[s] or unrepresented part[ies]” not present any
filings for an improper purposes “such as to harass, cause unnecessary delay, or needlessly
increase the cost of litigation”).
Second, Pinson moves to strike the DOJ’s third motion for summary judgment because
she asserts she did not receive it. See Pl.’s Mot. Strike, ECF No. 336. Pinson also objects in light
of the Fox/Neal order that she received on November 4, 2016, Pl.’s Mot. Strike, which the Court
interprets as an objection to the time limit for her response provided in the Fox/Neal order based
on the alleged non-receipt of the DOJ’s motion. The Court understands that Pinson has now
received the third motion for summary judgment—indeed, she has filed an opposition—and she
has not articulated any prejudice resulting from any delay. See generally Pl.’s Resp., ECF No.
340; see also Defs.’ Opp’n at 1, ECF No. 337 (noting Pinson signed for legal mail on November
4, 2016 at MCFP Springfield, and ECF Nos. 332 and 333 are “the only documents that . . .
[were] mailed to Pinson at that facility”); see also Defs.’ Opp’n at 3 (indicating that the DOJ
mailed an additional copy of the third motion for summary judgment along with its opposition to
Pinson on November 17, 2016). In any event, striking a filing is an extreme remedy that is not
appropriate for a failure to serve. Cf. Riddick v. Holland, 134 F. Supp. 3d 281, 285 (D.D.C.
2015) (“Motions to strike are ‘drastic remed[ies] that courts disfavor, and the decision to grant or
deny a motion to strike is vested in the trial judge’s sound discretion.’” (quoting United States ex
rel. Landis v. Tailwind Sports Corp., 308 F.R.D. 1 (D.D.C. 2015))).
17
Although the FOIA coordinator exercised a small amount of judgment in concluding that
the (A) at the end of the case number referred to defendant Jesse Vasquez, that is proper because
an agency may reasonably interpret an ambiguous FOIA request. 5 U.S.C. § 552; see also Wilson
v. U.S. Dep’t of Transp., 730 F. Supp. 2d 140, 153 (D.D.C. 2010) (finding that once a plaintiff
agrees to an agency’s interpretation of an ambiguous request, “plaintiff cannot allege that the
agency failed to produce responsive records when the records he now identifies fall outside the
scope of his appropriately narrowed request” (quoting Kenney v. DOJ, 603 F. Supp. 2d 184, 189
(D.D.C. 2009)). Here, Pinson has not clarified her request or objected to the EOUSA’s interpretation.
All of the 78 responsive pages that were identified were released in full to Pinson. See 3d
Luczynski Decl. ¶ 7; Letter from Thomas Anderson to Jeremy Pinson (Oct. 27, 2016), ECF No.
332-3, Ex. B. The Court therefore need not consider the propriety of any FOIA exemptions.
Having determined that no genuine issues of material fact exist, the Court thus grants the DOJ
summary judgment as to Request No. 12-1754.
B. Request No. 12-1757
The DOJ asserts that the EOUSA adequately searched and properly released records
responsive to Request No. 12-1757. Defs.’ 3d MSJ at 5–8. However, because the EOUSA has
not explained how the searches were conducted with sufficient detail, summary judgment is
inappropriate.
The EOUSA’s declaration provides a general description of the search, including describing
all of the records systems that were searched and explaining why those systems were likely to
contain all responsive records. See generally 2d Matuszewski Decl. ¶ 14, ECF No. 332-3, Ex. C.
However, although the declaration makes some reference to using case numbers, it is not
clear precisely how the searches were conducted. For example, the FOIA coordinator states that
18
the case files for 11-cv-1906 and 10-cv-949 were obtained, and then simply concludes that “[a]
second search of 11-CV-1906 produced 22 pages of correspondence [and other documents]” and
“[a] second search of 10-CV-949 produced 14 pages of correspondence [and other documents].”
2d Matuszewski Decl. ¶¶ 17–18. The Court does not know how the search “produced” those
results. Were additional search terms applied, or does the EOUSA’s accounting represent all
documents in the case files? The D.C. Circuit has emphasized that, in order to justify summary
judgment, an agency must explain the search in detail. See Aguiar v. DEA, --- F.3d ---, No. 16-
5029, 2017 WL 3318758, at *6 (D.C. Cir. Aug. 4, 2017) (“The DEA’s declarations explain how
it found the two case files, but not how it searched within those files. . . . That description, we
held, was ‘not sufficiently detailed to support a summary judgment because it does not disclose
the search terms . . . and the type of search performed.’” (quoting DeBrew v. Atwood, 792 F.3d
118 (D.C. Cir. 2015))); 1st Mem. Op., Pinson v. DOJ, 145 F. Supp. 3d 1, 13 (D.D.C. 2015), ECF
No. 246 (“Furthermore, the Declaration’s claim that each U.S. Attorney’s Office conducted a
‘systematic search for records’ is merely conclusory and fails to clearly define any iteration of
the search methods used, or the search terms employed, to locate responsive documents.”).
Likewise, although the declarations state that electronic records were searched, they do not
explain how or what search terms were used. See 2d Matuszewski Decl. ¶ 19 (“An additional
computer search of the USAO MDPA files was performed and no documents were located for
neither [sic] civil numbers 11-CV-1906 nor 10-CV-949.”).
The Court must therefore deny the EOUSA summary judgment as to its response to
Request No. 12-1757.22 The DOJ should renew its motion for summary judgment including a
22
The Court does not understand the EOUSA to be claiming either that it cut short its
search because the free search time had elapsed or that it cut short its release of documents
because the 100 free pages had been exceeded. See generally Matuszewski Decl., ECF No. 332-3,
19
declaration that adequately describes the search terms used to perform the search. The agency
should also clarify if the search and released documents were limited to only public records. The
Court understands that Pinson expanded her request to also encompass public records, but not
that she has given up any request for any other responsive records. Therefore if the EOUSA
believes it may withhold any responsive non-public records under a FOIA exemption it must
plainly state and justify its position. Finally, the DOJ should address the discrepancy between the
197 pages located and the 200 pages apparently released, if relevant in light of the DOJ’s
renewed motion. However, the Court finds that the EOUSA’s search as to case 11-cv-1346—the
case for which no responsive records were found because the U.S. Attorney’s Office had not
been served—was reasonable because the agency has sufficiently explained where it searched
and why no responsive records are likely to be found elsewhere. Likewise, the agency need take
no further action concerning the possible case number 11-cv-1908, because the agency also
determined that it did not possess any responsive records because the U.S. Attorney’s Office was
never served.
C. Request No. 12-1758
The DOJ asserts that the EOUSA adequately searched and properly released records
responsive to Request No. 12-1758, Defs.’ 3d MSJ at 8–9, and the Court agrees. The EOUSA’s
declarations clearly explain how the search was performed, including that the record systems
selected were reasonably calculated to contain all responsive records, and that the case numbers
Ex. C; see also Letter from Thomas Anderson to Jeremy Pinson (Oct. 27, 2016), ECF No. 332-3,
Ex. D (“All of the records you seek are being made available to you. . . . After reviewing all of
the documents, we have determined that we can make a full release.”). If that is the EOUSA’s
position, it must inform Pinson of either the estimated search fee or estimated duplication fee, as
applicable, and provide her with the opportunity to pay the fee and continue the search.
20
were used as search terms to locate the appropriate files. See generally Long Decl., ECF No.
332-3, Ex. F. Nor has Pinson challenged the adequacy of the EOUSA’s search.
Although the EOUSA’s declarations could be more clear, the Court understands that all
responsive records, and not merely public records, were searched for and released, despite the
EOUSA’s prior reference to withholding documents, 3d Luczynski Decl. ¶ 15. See 3d Luczynski
Decl. ¶ 18 (“Declaration . . . explaining the search for responsive records, including public
records, is attached . . . .”); Long Decl. ¶ 12 (I forwarded all documents in these files to EOUSA
on disc. . . . I included Court Filed Public Records in the documents provided to EOUSA.”).
The DOJ released 100 pages to Pinson—in full—for free and offered to release an
additional 1000 pages after receiving an appropriate fee. See 3d Luczynski Decl. ¶ 18; Letter
from Thomas Anderson to Jeremy Pinson (Oct. 27, 2016), ECF No. 332-3, Ex. E. The Court
therefore need not consider the propriety of any FOIA exemptions. Having determined that no
genuine issues of material fact exist, the Court thus grants the DOJ summary judgment as to
Request No. 12-1758.
D. Request No. 12-1760
The DOJ asserts that the EOUSA adequately searched and properly released records
responsive to Request No. 12-1757, Defs.’ 3d MSJ at 10–11, and the Court agrees. The EOUSA
provided a declaration that sufficiently describes its search. See generally Zumpetta-Parr Decl.,
ECF No. 332-3, Ex. G. The FOIA coordinator searched for the relevant case number using the
electronic case management system and PACER, and then sent the entire resulting file to the
EOUSA, which released the first 100 pages to Pinson and offered the remaining pages after
payment of a fee. Zumpetta-Parr Decl. ¶¶ 10–11; 3d Luczynski Decl. ¶ 25; Letter from Thomas
Anderson to Jeremy Pinson (Oct. 27, 2016), ECF No. 332-3, Ex. H. This explanation adequately
21
describes the records systems searched and the search terms used, and Pinson has not challenged
the adequacy of the EOUSA’s search.
Although the FOIA coordinator did exercise judgment in selecting which case of the
three sharing the same case number was responsive to Pinson’s request, that decision was
reasonable, especially in light of Pinson’s lack of subsequent objection or clarification. 5 U.S.C.
§ 552; see also Wilson v. U.S. Dep’t of Transp., 730 F. Supp. 2d 140, 153 (D.D.C. 2010) (finding
that once a plaintiff agrees to an agency’s interpretation of an ambiguous request, “plaintiff
cannot allege that the agency failed to produce responsive records when the records he now
identifies fall outside the scope of his appropriately narrowed request” (quoting Kenney v.
DOJ, 603 F. Supp. 2d 184, 189 (D.D.C. 2009)). Given that all responsive documents were
released to Pinson, there is no question of the applicability of FOIA exemptions. Having
determined that no genuine issues of material fact exist, the Court thus grants the DOJ summary
judgment as to Request No. 12-1760.
E. Request No. 13-1085
The DOJ asserts that the EOUSA adequately searched and properly released records
responsive to Request No. 12-1757. Defs.’ 3d MSJ at 11–12. Although the Court agrees that
summary judgment is appropriate for the materials related to 12-cr-236, it disagrees as to the
materials concerning 11-cr-68 because the agency does not provide an affidavit explaining why
it believes no responsive records exist. As an initial matter, although the EOUSA apparently
released 200 pages in total to Pinson, because these documents do not respond to Pinson’s
22
request for discovery materials they cannot satisfy the agency’s FOIA burden.23 The Court
therefore turns to the EOUSA’s other arguments.
The EOUSA argues that it possesses no materials responsive to Pinson’s request. Pinson
first requested discovery materials, Freedom of Information Act Request, ECF No. 332-3, Ex. I,
and later narrowed her request to “only public records,” Letter from Jeremy Pinson (Apr. 22. 2013),
ECF No. 170-5, Ex. UUU. According to the EOUSA, no records that meet both descriptions exist
because both cases are subject to protective orders such that there are no public discovery materials.24
An agency need not perform a search when the agency has sufficiently established that it
would be fruitless. See All Party Parliamentary Grp. on Extraordinary Rendition v. U.S. Dep’t of
Def., 134 F. Supp. 3d 201, 205–06 (D.D.C. 2015) (holding that “no search [was] required” when
the agency’s affidavits established that “a search for the documents requested would be futile”
because the topic of the request was not within the agency’s role); Reyes v. EPA, 991 F. Supp. 2d
20, 27 (D.D.C. 2014) (“An agency is not required to expend its limited resources on searches for
which it is clear at the outset that no search will produce the records sought.”); see also Weisberg
v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983) (“The adequacy of an agency’s
23
See Letter from Thomas Anderson to Jeremy Pinson (Oct. 27, 2016), ECF No. 332-3,
Ex. J; Letter from Thomas Anderson to Jeremy Pinson (Oct. 27, 2016), ECF No. 332-3, Ex. L.
These documents appear to be publicly available documents relating to the cases, such as docket
information, and not discovery material. See 3d Luczynski Decl. ¶ 27 ([T]here are no other
records responsive to the request except for the docket material, of which 100 pages have been
released to plaintiff . . . .”); Defs.’ 3d MSJ at 12, ECF No. 332-2 (“EOUSA released 100 pages of
public records pertaining to Request 13-1085, although those records were not discovery
materials.”). This material is not responsive to Pinson’s request for discovery materials, and thus,
while the Court applauds the EOUSA’s desire to provide Pinson with some material, the Court
does not analyze these releases in the context of satisfying the EOUSA’s FOIA-mandated duties.
24
The Court notes that any discussion of Exemption 7(A) is a red herring because Pinson
has explicitly limited her request to only publicly available materials, and therefore whether
materials can be withheld as exempt is not at issue. Letter from Jeremy Pinson (Apr. 22. 2013),
ECF No. 170-5, Ex. UUU.
23
search is measured by a standard of reasonableness and is dependent upon the circumstances of
the case.” (internal quotation marks and citations omitted)).
In this case, the EOUSA has adequately demonstrated that a search for public discovery
materials in 12-cr-236 would be fruitless because of the protective order. See McGrath Decl. ¶ 5
(“Discovery material in [12-cr-236] cannot be released under FOIA at this time. There is a
protective order in place, which prevents release of any of the discovery material.”). The
EOUSA therefore need not perform a search relating to 12-cr-236, and summary judgment is
therefore appropriate for the DOJ. However, the EOUSA has not provided a similarly persuasive
affidavit relating to 11-cr-68. Instead, the EOUSA points this Court toward the docket entry for
c11-cr-68. Cf. Defs.’ 3d MSJ at 12, ECF No. 332-2 (“[11-cr-68], however, also remains pending,
and discovery is subject to a protective order.” (citing the docket sheet for 11-cr-68)). This falls
short of the agency’s obligation to produce a “reasonably detailed” affidavit. Iturralde, 315 F.3d
at 313–14 (quoting Oglesby, 920 F.2d at 68). Therefore, rather than attempting to interpret the
docket entries itself, the Court will deny summary judgment as related to 11-cr-68 until the
agency produces an affidavit from a person with knowledge explaining why a search for public
discovery materials would be futile.
V. CONCLUSION
For the foregoing reasons, the DOJ’s third motion for summary judgment with respect to
the EOUSA (ECF No. 332) is GRANTED IN PART and DENIED IN PART. Pinson’s motion
to strike (ECF No. 336) is DENIED. An order consistent with this Memorandum Opinion is
separately and contemporaneously issued.
Dated: August 31, 2017 RUDOLPH CONTRERAS
United States District Judge
24