White v. Department of Justice , 952 F. Supp. 2d 213 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANTHONY G. WHITE, SR., )
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Plaintiff, )
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v. ) Civil Action No. 11-2045 (RJL)
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DEPARTMENT OF JUSTICE, )
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DefundanL )
•/L-~
MEMORANDUM OPINION
July+' 2013 [# 19]
Plaintiff, proceeding prose, challenges the Department of Justice's ("DOJ's")
response to his request under the Freedom oflnformation Act ("FOIA"), 5 U.S.C. § 552,
for records pertaining to him. On September 26, 2012, the Court denied defendant's
Motion to Dismiss or for Summary Judgment and directed it to supplement the record
with regard to the search for responsive records and the claimed exemptions. White v.
DOJ, 893 F. Supp. 2d 24 (D.D.C. 2012). Defendant renewed its motion for summary
judgment, Def.'s Renewed Mot. for Summ. J., Dec. 6, 2012 [Dkt. # 19], and plaintiff
opposed the motion. Pl.'s Mem. in Response to Def.'s Renewed Mot. for Smnm. J.
("Pl.'s Opp'n"), Jan. 7, 2013 [Dkt. # 20]; Pl.'s Mem. in Response to the Court's Order of
Jan. 9, 2013 ("Pl.'s Supp. Opp'n"), Jan. 15,2013 [Dkt. # 23]. Upon consideration ofthe
parties' submissions and the entire record, the Court GRANTS defendant's Motion for
Summary Judgment.
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BACKGROUND
By letter dated January 16, 2010 and received by DOJ's Mail Referral Unit,
plaintiff requested "all records pertaining to [himself]." White, 893 F. Supp. 2d at 26.
The request was forwarded to the Criminal Division for processing. In response to the
Criminal Division's request for additional information, plaintiff completed a form
indicating that he was requesting searches of the following sections: Appellate, Asset
Forfeiture and Money Laundering, Fraud, Gang, Narcotic and Dangerous Drug (NDDS),
Electronic Surveillance Unit, Organized Crime and Racketeering, Executive Office for
Organized Crime Drug Enforcement Task Force (OCDETF), and National Gang
Targeting, Enforcement & Coordination Center (GangTECC). !d.
Defendant's "search ofthe appropriate indices of Criminal Division records"
located no responsive records. !d. While plaintiffs request was pending, OCDETF
became an independent DOJ component, and that "portion of [plaintiffs] request" was
referred to OCDETF for processing and a direct response to plaintiff. !d. OCDETF, in
turn, referred three documents totaling 23 pages to DOJ's Executive Office for United
States Attorneys ("EO USA"). EOUSA withheld the pages in full under FOIA
exemptions 2, 6, 7(C), 7(D), 7(E), and 7(F), see 5 U.S.C. § 552(b), and Privacy Act
exemption U)(2). !d.
STANDARD OF REVIEW
Summary judgment must be granted when the movant demonstrates "that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a
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matter oflaw." Fed. R. Civ. P. 56( a). "When assessing a motion for summary judgment
under FOIA, the Court shall determine the matter de novo." Judicial Watch, Inc. v. US.
Dep 't of Homeland Sec., 598 F. Supp. 2d 93, 95 (D.D.C. 2009) (citing 5 U.S.C. §
552(a)( 4)(B)).
In a FOIA action, the Court may award summary judgment based solely on
information provided in affidavits or declarations if 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). Such
affidavits or declarations "are accorded a presumption of good faith, which cannot be
rebutted by purely speculative claims about the existence and discoverability of other
documents." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)
(citation and internal quotation marks omitted). To rebut the presumption, a plaintiff
"must point to evidence sufficient to put the Agency's good faith into doubt." Ground
Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981). "Ultimately, an agency's
justification for invoking a FOIA exemption is sufficient if it appears logical or
plausible[,]" is adequately supported, and is not contradicted by the record. Larson v.
Dep 't ofState, 565 F.3d 857, 862, 864-65 (D.C. Cir. 2009) (citation and internal
quotation marks omitted).
The agency to which a FOIA request is submitted is required to "make a good
faith effort to conduct a search for the requested records, using methods which can
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reasonably be expected to produce the information requested." Int 'l Trade Overseas, Inc.
v. Agency for Int'l Dev., 688 F. Supp. 33, 36 (D.D.C. 1988) (quoting Marrera v. DOJ,
622 F. Supp. 51, 54 (D.D.C. 1985)) (other citations omitted). "In determining the
adequacy of a [FOIA] search, the Court is guided by principles of reasonableness." !d.
(citing Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). Because the agency is
the possessor of the records and is responsible for conducting the search, the Court may
rely on "[a] reasonably detailed affidavit, setting forth the search terms and the type of
search performed, and averring that all files likely to contain responsive materials (if such
records exist) were searched." Valencia-Lucena v. United States Coast Guard, 180 F .3d
321, 326 (D.C. Cir. 1999) (citations omitted). "Once the agency has shown that its search
was reasonable, the burden is on [the plaintiff] to rebut [the defendant's] evidence by a
showing that the search was not conducted in good faith." Moore v. Aspin, 916 F. Supp.
32, 35 (D.D.C. 1996) (citing Miller v. U.S. Dep 't ofState, 779 F.2d 1378, 1383 (8th Cir.
1985)).
Summary judgment is inappropriate "if a review of the record raises substantial
doubt" about the adequacy of the search. Valencia-Lucena, 180 F .3d at 326 (citing
Founding Church ofScientology v. Nat'l Sec. Agency, 610 F.2d 824, 837 (D.C. Cir.
1979)). However, the mere fact that a particular record was not found does not render the
search inadequate. Boydv. Crim. Div. ofU.S. DOJ, 475 F.3d 381,390-91 (D.C. Cir.
2007) (citing Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003))
(other citation omitted). "The adequacy of a FOIA search is generally determined not by
the fruits of the search, but by the appropriateness of the methods used to carry out the
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search." Santana v. DOJ, 828 F. Supp. 2d 204, 209 (D.D.C. 2011) (quoting Iturralde,
315 F.3d at 315) (internal quotation marks and other citation omitted).
ANALYSIS
Plaintiff contests two elements of defendant's response to his FOIA request. First,
he suspects that more responsive material should have been discovered in response to his
FOIA request. See Pl.'s Opp'n at 2-3. Second, he contests the justification for
withholding the 23 pages from the EOUSA referral. !d. at 3-4. Unfortunately, for
plaintiff, defendant has shown that it satisfied its search obligation and properly withheld
the 23 pages. As such, I must grant defendant's renewed motion for summary judgment.
I. Defendant's Search for Records
To demonstrate the adequacy of its search, defendant proffers the second
Declaration ofDavid Luczynski, Dec. 6, 2012 [Dkt. # 19-3], Attorney Advisor for
EOUSA, and the Declaration of John E. Cunningham III, Dec. 5, 2012 [Dkt. # 19-4],
Trial Attorney in DOJ's Criminal Division. Both declarants state that they work in their
respective FOIA units and have acquired personal knowledge about the processing of
plaintiffs request during the performance of their official duties. See Luczynski Decl. ,-r,-r
1-3; Cunningham Decl. ,-r,-r 1-4. "A declarant in a FOIA case satisfies the personal
knowledge requirement in Rule 56[(c)(4)] if in his declaration, he attests to his personal
knowledge of the procedures used in handling a FOIA request and his familiarity with the
documents in question." Barnard v. Dep't of Homeland Sec., 531 F. Supp. 2d 131, 138
(D.D.C. 2008) (citations, internal quotation marks, and alterations omitted); see SafeCard
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Servs., Inc., 926 F .2d at 1201 (determining that the person in charge of a search is "the
most appropriate person to provide a comprehensive affidavit") (citation omitted).
Cunningham states that, on May 14, 2010, the Criminal Division's FOIA/PA Unit
searched the sections plaintiff had identified using "the term 'Anthony Gerald White.' "
Cunningham Decl. ~ 13. Each section "would have [searched its] own Automated Case
Tracking System ("ACTS")," which "is a comprehensive electronic database that stores
records [as far back as 1978] related to investigations conducted by attorneys throughout
[the Criminal Division] .... " Jd.
In addition, the Criminal Division "electronically searched CRM-00 1, the Central
Criminal Division Index File, which is a system of records consisting of indices of names
and associated records related to subjects/target of investigations or defendants in
prosecutions involving [the Criminal Division]." Id. ~ 14. This search utilized four
variations of plaintiff's name and covered "records related to the time period of' 1980-
Present,' and ... 'State/Offense: MD/Conspiracy to Distribute & Possess. Cocaine Base;
Poss. ofFirearm & Poss. of Ammunition.'" Jd. The foregoing searches failed to locate
responsive records in the Criminal Division's control. !d.~~ 13, 14.
The Court is satisfied from Cunningham's description of the filing systems
searched and the search methods employed that the Criminal Division conducted a search
reasonably calculated to locate responsive records. Since the documents EOUSA
processed were "sent as a referral from OCDETF," Luczynski Decl. ~ 13, EOUSA did
not perform a search and had no obligation to do so in the absence of a request made
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directly to it. 1 See 5 U.S.C. § 552(a)(3)(A) (agency's disclosure obligations triggered
"upon any request for records which (i) reasonably describes such records and (ii) is
made in accordance with published rules ... "); 28 C.P.R. § 16.3 ("In most cases, [a]
FOIA request [for DOJ records] should be sent to a component's central FOIA office.").
II. Defendant's Claimed Exemptions
Upon review of the claimed exemptions, the Court finds that defendant was
entitled to withhold from plaintiff the 23 pages from the EOUSA referral. Initially,
EOUSA withheld the 23 referred pages in full initially under FOIA exemptions 2, 6,
7(C), 7(D), 7(E), and 7(F). Luczynski Decl. ~ 5 & Ex. B. In this litigation, EOUSA
relies upon only exemptions 5 and 7. Luczynski Decl. ~ 14; see Def.'s Mem. ofP. & A
in Supp. ofDef.'s Renewed Mot. for Summ. J., Dec. 6, 2012 [Dkt. # 19-2] at 6 n.1
("EOUSA is abandoning its use ofExemption (b)(2).").
1 In his opposition, plaintiff declares that he has "personal knowledge that grand jury
testimony existed from his criminal case, and was part of the government's files .... "
Suppl. Aff. of Anthony G. White, Sr. [Dkt. # 23] ~ 7. The existence of such records does
not raise doubt about the reasonableness of the Criminal Division's search, since any
grand jury records are more likely maintained by EOUSA as the government's
prosecuting arm. See, e.g., Adionser v. DOJ, 811 F. Supp. 2d 284 (D.D.C. 2011)
(approving EOUSA's withholding of grand jury records under FOIA exemption 3);
Dipietro v. EOUSA, 357 F. Supp. 2d 177 (D.D.C. 2004) (same). To be clear, EOUSA is
not a party defendant in this action but rather provides material evidence with regard to
OCDETF's referral of responsive records. See Sussman v. US. Marshals Serv., 494 F.3d
1106, 1118 (D.C. Cir. 2007) (an agency must act upon receiving an initial request but
"may acquit itself through a referral, provided the referral does not lead to improper
withholding under the McGehee test") (applying McGehee v. CIA, 697 F.2d 1095, 1110
(D.C. Cir. 1983)); 28 C.P.R.§ 16.4(c) (authorizing a DOJ component to, inter alia,
"refer" a record to "the component best able to determine whether to disclose it ....
Ordinarily, the component ... that originated a record will be presumed to be best able to
determine whether to disclose it."). Hence, the outcome of this case has no bearing on
any request plaintiff might submit to EO USA.
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FOIA Exemption 5 protects from disclosure inter-agency or intra-agency letters or
memoranda "which would not be available by law to a party ... in litigation with the
agency." 5 U.S.C. § 552(b)(5). To qualify for this exemption, a document "must fall
within the ambit of a privilege against discovery under judicial standards that would
govern litigation against the agency that holds it." Dep 't of the Interior v. Klamath Water
Users Protective Ass 'n, 532 U.S. 1, 8 (2001). Courts have incorporated civil discovery
privileges into this exemption, such as attorney work-product, attorney-client privilege,
and "deliberative process" privilege. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132,
148-49 (1975); Coastal States Gas Corp. v. DOE, 617 F.2d 854, 866 (D.C. Cir. 1980).
EOUSA asserts the attorney work-product privilege as the basis for withholding
the referred pages in full. Luczynski Dec I. ~~ 18-19. The pages are described as
"OCDETF Forms" comprising three documents. !d., Ex. A (Referral Letter). The
attorney work-product privilege protects records prepared by or for an attorney in
anticipation of litigation. See Williams & Connolly v. SEC, 662 F.3d 1240, 1243 (D.C.
Cir. 2011) (quoting Fed. R. Civ. P. 26(b)(3)(A)) (citing cases). "The OCDETF program
is a multi-agency organization" that "supports the work of ... federal agents[,]
prosecutors[,] and ... state and local law enforcement officers who participate in
OCDETF cases." Luczinsky Decl. ~ 19; Cunningham Decl., Ex. 3 (Descriptive List of
Criminal Division Sections at 4 ). Luczinsky describes the OCDETF forms as
"documents ... assembled by, or at the direction of, an attorney ... made in the course of
an investigation and in anticipation of one or more prosecutions." Luczinsky Decl. ~ 18.
The attorney uses the forms to "track and describe the status of investigations and collect
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statistics on investigation." I d. ~ 19. Luczynski states that anyone completing the forms
"is reading that [they] are 'Law Enforcement Sensitive.' " I d. ~ 18. In addition, the
cover sheet to the forms contains language that "also restricts [their] distribution." ld.
EO USA properly withheld in full the 23 pages of forms under exemption 5 as
attorney work-product. See Martin v. DOJ, 488 F.3d 446, 455-56 (D. C. Cir. 2007)
(quoting Judicial Watch, Inc., 432 F.3d at 371 ("If a document is fully protected as
[attorney] work product, then segregability is not required.")); Dipietro, 357 F. Supp. 2d
at 184 (approving EOUSA's exemption 5 attorney work-product justification). Hence,
the Court need not address whether the pages were properly withheld also under
exemption 7. See Martin, 488 F.3d at 456 (declining to address the propriety of
withholding the same information under exemptions 6 and 7(C) where "the requested
document is attorney work-product that would not have been subject to routine
disclosure").
CONCLUSION
For the foregoing reasons, the Court GRANTS defendant's renewed Motion for
Summary Judgment. A separate Order accompanies the Memorandum Opinion .
./ I
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I {(:L~\{vw
RICHARD f._ L_EbN
United States District Judge
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