Powell v. United States Department of Treasury, Office of Foreign Assets Control ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WILLIAM E. POWELL,
Plaintiff,
v. Civil Action No. 17-2435 (JEB)
UNITED STATES DEPARTMENT OF
TREASURY OFFICE OF FOREIGN
ASSETS CONTROL, et al.,
Defendants.
MEMORANDUM OPINION
In the latest of a multitude of Freedom of Information Act suits, pro se Plaintiff William
E. Powell seeks records from Defendants Department of Treasury and Department of Justice. In
now moving for summary judgment, Defendants contend that, although they came up empty,
they have conducted an adequate search for the material Powell seeks. The Court agrees.
I. Background
Powell’s First Amended Complaint here, filed on February 23, 2018, requests documents
from the Office of Foreign Assets Control (OFAC), which is housed within Treasury. See ECF
No. 11 at 1. Specifically, he requested the following:
All Applications and License provided by the Office of Foreign
Assets Commission [sic] (OFAC) for the Powell Printing Inc,
Powell Printing Co, William A. Powell aka William Andrew
Powell, Andrew Powell[,] Seco Tools Inc, Sandvik
Cormorant/Sandvik Group and Amelia L. Powell aka Amelia
Louise Powell, Amelia Louise Zeigler aka Amelia L. Zeigler and
William E. Powell to include family travel and business for years
January 1, 1987 through December 11, 2017.
Letter of Dec. 28, 2017, attached to FAC.
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It is unclear why Powell believes that OFAC, which “is principally responsible for
administering U.S. economic sanctions programs . . . primarily directed against foreign states and
foreign nationals,” would have records on these people and entities. See ECF No. 14-1
(Declaration of Marshall H. Fields, Jr.), ¶ 6. Nor is there any basis here to have named DOJ. In
any event, “the OFAC FOIA Office tasked the Licensing Division to search for responsive
records [since] . . . if OFAC had any responsive records . . . , they would be located within the
Licensing Division.” Id., ¶ 14. As Powell had previously submitted the same request to OFAC
with a shorter list of names, this time its FOIA Office only searched for records with names not
already used. Id., ¶¶ 12, 15. Specifically, this time around, it plugged in “Seco Tools,”
“Sandvik,” “Cormorant,” “Amelia Powell,” and “Amelia Zeigler.” Id., ¶¶ 13, 15 (inadvertently
saying new search terms in ¶ 12, when actually in ¶ 13). The new search yielded no responsive
records. Id., ¶ 16. Defendant, consequently, now moves for summary judgment, asserting its
search was sufficient.
II. Legal Standard
Summary judgment may be granted if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A genuine issue of material fact is one that would change the outcome of the litigation.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.”). In the event of conflicting evidence on a material issue, the Court is to
construe the conflicting evidence in the light most favorable to the non-moving party. See
Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006).
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FOIA cases typically and appropriately are decided on motions for summary judgment.
See Defenders of Wildlife v. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v.
U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). In FOIA cases, the agency
bears the ultimate burden of proof to show that it conducted an adequate search. See Steinberg
v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). “At all times courts must bear in
mind that FOIA mandates a ‘strong presumption in favor of disclosure’ . . . .” Nat’l Ass’n of
Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Dep’t of State v. Ray, 502
U.S. 164, 173 (1991)). The Court may grant summary judgment based solely on information
provided in an agency’s affidavits or declarations when they describe “the documents and the
justifications for nondisclosure with reasonably specific detail, demonstrate that the information
withheld logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981).
III. Analysis
In moving for summary judgment, Treasury maintains that it conducted an adequate
search. The adequacy of an agency’s search for documents under FOIA “is judged by a standard
of reasonableness and depends, not surprisingly, upon the facts of each case.” Weisberg v. Dep’t
of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). The issue is, ultimately, whether an agency’s
search was “reasonably calculated to uncover all relevant documents.” Truitt v. Dep’t of State,
897 F.2d 540, 542 (D.C. Cir. 1990) (internal citation and quotation marks omitted). To meet its
burden, the agency should submit affidavits or declarations that explain the scope and method of
its search “in reasonable detail.” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). The
“adequacy of a FOIA search is generally determined not by the fruits of the search, but by the
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appropriateness of the methods used to carry out the search.” Iturralde v. Comptroller of the
Currency, 315 F.3d 311, 315 (D.C. Cir. 2003).
The Declaration from Marshall Fields, the Assistant Director of OFAC’s Information
Disclosure and Records Management Division, shows that Defendant searched for records in the
only place they were likely to be housed – viz., the Licensing Division – and also searched using
terms that would locate responsive records. See Fields Decl., ¶¶ 12-15, As a result, the
Government has apparently satisfied its burden. Powell, however, is not entirely convinced,
although he does not put up much of a fight here, see ECF No. 16 (Opp.), particularly compared
to his lengthy briefs in his other FOIA cases.
Plaintiff first very broadly rejoins that “Defendant did not illustrate when the search was
conducted, what office/files were searched, name of database was searched [sic] and who
conducted the search and by what means regarding Plaintiff’s FOIA Request.” Opp. at 3. This
is not the case. Fields explained that the search was conducted by Licensing Division personnel
of their records on or directly before March 26, 2018, using the search terms previously
discussed. See Fields Decl., ¶¶ 15-16.
Powell next complains that Defendant’s search for “Sandvik” was inappropriate since his
request was for “Sandvik Cormorant/Sandvik Group.” Opp. at 3-4. Of course, as Treasury notes
in its Reply, shorter search terms would “have captured any records . . . that included the
searched words as part of longer strings.” Reply at 4.
Plaintiff also points out that his previous requests had a narrower time scope than his last
one; as a result, the Government cannot rely on its prior searches of the old terms. See Opp. at 4.
This argument is valid inasmuch as the request at issue seeks records from 1987 to 2017. See
Dec. 28, 2017, Letter. Powell’s earlier missives, conversely, sought documents from 1988-2007
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(Aug. 1, 2017, email modifying earlier request) and 1988-2017 (Nov. 3, 2017, Request). See
Fields Decl., ¶ 12 & exhibits cited therein. In other words, the only year the prior searches did
not cover for all terms was 1987. Instead of arguing that this is a trivial matter, Treasury has
admirably dotted all of its i’s. As Fields explains in a supplemental declaration, the Licensing
Division went back and did a search of 1987 records for certain terms, which would have
covered all the bases. See ECF No. 20-2 (Supplemental Declaration of Marshall H. Fields, Jr.),
¶¶ 12-13.
In his Surreply, Powell also mentions that there was no search for hard-copy records. See
ECF No. 19 at 3. Yet, Fields refutes this point, explaining that, “subsequent to the Plaintiff’s
Opposition, the Licensing Division also reviewed available hard copy records contained in
several notebooks which summarize licenses issued under the Cuba program . . . from January 1,
1987[,] until the end of those hard copy records on March 25, 1999.” Fields Supp. Decl., ¶ 14.
Powell also argues that OFAC did not search the Federal Records Center for hard copies. See
Surreply at 3. Not only is this an argument that exceeds the permitted scope of the Surreply, see
Minute Order of June 15, 2018, but Fields has twice averred that all responsible documents
would be found in the Licensing Division. The Court has no reason to question that conclusion.
* * *
Although this winds up the current litigation, it is unlikely to dissuade Powell from
continuing his course of making FOIA requests and then following up with suits – at least six in
front of this Court alone − particularly given that he qualifies for in forma pauperis status and
thus pays nothing. Perhaps he could articulate at some point to the Government or this Court
what he hopes to ultimately accomplish, as there may be a more direct and less exhausting route
to relief.
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IV. Conclusion
In any event, as far as this case is concerned, the Court will issue an Order granting
Defendants’ Motion for Summary Judgment.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: July 3, 2018
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