Julian C. WHITE, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant , 840 F. Supp. 2d 83 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JULIAN C. WHITE,
Plaintiff,
Civil Action No. 11-279 (CKK)
v.
UNITED STATES DEPARTMENT OF
JUSTICE,
Defendant.
MEMORANDUM OPINION
(January 5, 2012)
Plaintiff Julian C. White seeks documents regarding a criminal case purportedly
prosecuted by the United States Attorney’s Office for the Eastern District of New York in 1998.
Plaintiff brought this suit against the United States Department of Justice (“DOJ”) under the
Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. The parties filed cross motions for
summary judgment.1 Because the Defendant conducted an adequate search for responsive
records, Defendant’s Motion for Summary Judgment shall be GRANTED, and Plaintiff’s Motion
for Summary Judgment shall be DENIED.
I. BACKGROUND
A. Procedural History
Although not at issue in this case, one of Plaintiff’s previous FOIA requests provides
useful context to suit. In 2007, Plaintiff filed an FOIA request with the FBI seeking records
1
Since some of the documents entered on the Court’s Docket are duplicative, for ease of
reference, the Court refers to the following pleadings: [12] Def.’s Mot. for Summ. J., [14] Pl.’s
Opp’n, [16] Def.’s Reply; and [18] Pl.’s Reply.
pertaining to Plaintiff’s missing brother, Moses White III. White Decl. ¶ 3; White v. FBI, Case
No. 1:09-cv-421 (N.D. Ga. Filed Feb. 18, 2009). In response to this request, the FBI produced
redacted records concerning the investigation into Moses White’s disappearance. See Pl.’s Ex.
A. The records indicate Moses White was assisting the FBI New Orleans and New York Field
Divisions with an investigation associated with file number 26B-NY-264824. Id. at 1. The
records further indicate that in early 1998, in connection with that investigation, at least one
defendant was arrested for violating 18 U.S.C. § 2312 (Interstate Transportation of Stolen Motor
Vehicles), and either pled guilty or was convicted. Id. at 1, 2.
Plaintiff, through counsel, submitted a FOIA request to the Executive Office for United
States Attorneys on June 16, 2010. Def.’s Ex. A. Plaintiff requested “[a]ll court filings from the
federal court criminal case cross referenced as/involving FBI File No. 26B-NY-264824, a case
that was prosecuted by AUSA Dolan M. Garrett (approximate date 1998), and which led to the
defendant’s conviction for violation of 18 U.S.C. 2312 [sic] (Interstate Transportation of Stolen
Motor Vehicles).” Id. at 1. The letter requested all responsive records “in the possession or
control of your office, as well as any responsive records in the possession or control of the U.S.
Attorney [sic] Office for the Eastern District of New York.” Id. The letter did not indicate
whether Mr. White was the “defendant” in the referenced case. See id. The EOUSA received
the request on June 25, 2010 (id.) and notified Mr. White on July 22, 2010 that his request had
been received, the EOUSA had assigned a tracking number to the request, and that the request
would be processed in the order in which it was received (Def.’s Ex. B).
Having received no further correspondence, Mr. White wrote to the EOUSA on August
19, 2010 asking for “the date by which we can anticipate a final response” to the request. Def.’s
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Ex. C. The EOUSA responded that due to the large number of FOIA requests received, Mr.
White’s request had not yet been processed as of September 16, 2010. Def.’s Ex. D. On
September 29, 2010, the EOUSA issued a response to the request, indicating a search for records
in the United States Attorney’s Office for the Eastern District of New York (“USAO”) revealed
no responsive records. Def.’s Ex. E. Mr. White appealed to the DOJ Office of Information
Policy, arguing “there must clearly be some responsive records for [sic] copies of the federal
court criminal action that was identified in this FOIA request.” Def.’s Ex. F. The appeal was
received on October 18, 2010, and denied on December 29, 2010. Def.’s Exs. G, H. Plaintiff
filed suit on January 31, 2011.
B. Defendant’s Search for Responsive Records
On September 13, 2010, Thomas P. Lowenthal, the Paralegal Specialist serving as the
FOIA liaison with the EOUSA assigned to the USAO, received Plaintiff’s FOIA request.
Lowenthal Decl. ¶¶ 1, 5. Mr. Lowenthal used the Legal Information Office Network System
(“LIONS”) to search for documents responsive to Mr. White’s request. Id. at ¶ 7. The LIONS
database tracks civil, criminal, and appellate investigations and cases. Id. The database can be
searched using a variety of criteria, including the USAO staff assigned to the case,
victim/witness names, “scheduled events,” participants, and various numbers associated with the
case or investigation. Def.’s Reply Ex. A. Participant searches allow queries composed of all or
part of the name of a person associated with the case, or a number associated with the
participant, such as their social security number. Id. A search for a participant’s name will
return results for both exact matches and similar sounding names. Lowenthal Decl. ¶ 8. Number
or “case” searches allow the user to search for a matter or case based on “a variety of numbers in
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LIONS associated with the matter or case (Agency File Number, Court Number, Grand Jury
Number, etc),” including the FBI file number. Def.’s Reply Ex. A.
Mr. Lowenthal, believing the “defendant” in the case referenced in Plaintiff’s request to
be Mr. White, searched for Mr. White’s name in the LIONS database.2 Lowenthal Decl. ¶ 8.
This search did not return any responsive records. Id. Plaintiff did not identify who the
“defendant” might be. The only names provided in the request were Mr. White’s, and the
prosecutor’s. Mr. Lowenthal also performed a search using the FBI file number provided in
Plaintiff’s request. Id. at ¶ 9. This search likewise failed to return any responsive records. Id.Finally, Mr. Lowenthal searched the EDNY PACER court docket number database for Mr.
White’s name, but did not locate any cases involving the United States Attorney’s Office. Id. at
¶ 10.
II. LEGAL STANDARD
FOIA cases are typically and appropriately decided on motions for summary judgment.
Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Rushford v. Civiletti, 485 F. Supp. 477, 481
n.13 (D.D.C. 1980). Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment
must be granted when “the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any material
2
Plaintiff initially took issue with Defendant’s search for responsive documents because
several of the queries assumed Mr. White was the defendant in the case referenced in the request.
Plaintiff vigorously argues that his request “does not ever state, imply, nor in any respect
suggest,” that Mr. White was the defendant in the referenced case. Pl.’s Reply at 10. Defendant
explains in detail why its assumption that Mr. White’s request dealt with a case in which he was
a defendant was reasonable. Def.’s Reply at 2-4. Although the Court is inclined to agree that
Defendant’s interpretation of the request was reasonable, the Court need not reach the issue. As
explained below, Defendant’s search using the FBI file number provided in the request was
adequate.
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fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment
is properly granted against a party who “after adequate time for discovery and upon motion . . .
fails to make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, the court must draw all
justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence
as true. Liberty Lobby, 477 U.S. at 255. A nonmoving party, however, must establish more than
“the mere existence of a scintilla of evidence” in support of its position. Id. at 252.
III. DISCUSSION
The FOIA requires agencies of the federal government to release records to the public
upon request, unless one of nine statutory exemptions applies. See NLRB v. Sears, Roebuck &
Co., 421 U.S. 132, 136 (1975); 5 U.S.C. § 552(b). In this case, Defendant’s search revealed no
responsive records, thus resolution of the parties’ motions turns entirely on the adequacy of the
agency’s search.3 The adequacy of a search is measured by a standard of reasonableness and
depends on the individual circumstances of each case. Truitt v. Dep’t of State, 897 F.2d 540, 542
(D.C. Cir. 1990). The question is not whether responsive documents may exist, but whether the
search itself was adequate. Steinberg v. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994)
(citations omitted). Before it can obtain summary judgment in a FOIA case, “the agency must
3
Plaintiff’s Reply emphasizes that Defendant did not refute Plaintiff’s claim “that
Defendant has unlawfully withheld responsive records, by failing to provide Plaintiff with any
responsive record.” Pl.’s Reply at 1. Plaintiff’s argument is misplaced. At the point Defendant
shows it performed an adequate search that returned no responsive records, Defendant’s failure
to produce “any responsive record” is excused and the statutory exemptions are irrelevant.
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show, viewing the facts in the light most favorable to the requester, that . . . it has conducted a
‘search reasonably calculated to uncover all relevant documents.’” Id. (quoting Weisberg v.
Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). There is no requirement that an agency
search every record system, but the agency must conduct a good faith, reasonable search of those
systems of records likely to possess the requested information. Oglesby v. Dep’t of Army, 920
F.2d 57, 68 (D.C. Cir. 1990).
To establish that an adequate search was conducted, agencies may and often do rely on
affidavits in support of their motions for summary judgment. Weisberg, 745 F.2d at 1485. An
agency’s 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) (internal citation and quotation
omitted). To be sufficiently detailed, the agency’s affidavits must at a minimum describe “what
records were searched, by whom, and through what process.” Steinberg, 23 F.3d at 552.
Plaintiff challenges both the adequacy of the USAO’s affidavit, and the adequacy of the
underlying search itself. None of Plaintiff’s arguments are persuasive, and therefore the
Defendant is entitled to summary judgment.
A. Adequacy of Defendant’s Affidavit
For the first time in his reply in support of his own motion, Plaintiff contests the
sufficiency of the affidavit Defendant submitted to show the adequacy of the agency’s search for
responsive documents. Specifically, Plaintiff argues Mr. Lowenthal’s Declaration fails to
indicate (1) the particular search methodology used; (3) the particular search terms used, and (3)
whether the LIONS system “would be expected to include a listing of the requested court
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records” for the relevant time period. Pl.’s Reply at 6. Defendant further claims that Defendant
failed to aver that “all systems of records that are likely to contain responsive materials for this
FOIA request.” Id. at 7.
Defendant submitted the declaration of Mr. Lowenthal, the USAO’s liaison for FOIA
requests, and performed the searches in response to Plaintiff’s request. Lowenthal Decl. ¶ 1, 5;
see SafeCard, 926 F.2d at 1201 (noting that the individual coordinating the search “is the most
appropriate person to provide a comprehensive affidavit”). Mr. Lowenthal explained that the
LIONS database tracks “civil, criminal, and appellate investigations and cases.” Lowenthal
Decl. ¶ 7. Defendant further explained that the “Case Search” inquiry in LIONS allows users to
search by agency file numbers, including FBI file numbers. Def.’s Reply Exs. B-C. If the FBI
was the investigating agency, the FBI file number should be in the database, and thus any case
relating to a particular FBI file number should be retrieved by a search for the FBI file number.
See id. In relevant part, Mr. Lowenthal’s Declaration indicates he searched for the FBI file
number as provided in the FOIA request, but the search returned no responsive records. Id. at ¶
9. Mr. Lowenthal stated that he was aware of “no other methods of searching which would lead
to locate responsive records.” Lowenthal Decl. ¶ 7.
Ultimately Plaintiff fails to “offer evidence of circumstances sufficient to overcome an
adequate agency affidavit.” Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir.
2003). Plaintiff fails to explain what additional information could be provided, or why it would
be relevant to determining the adequacy of Defendant’s search. Mr. White does not allege the
USAO failed to “search particular offices or files where the document[s] might well have been
found.” Id. Nor does Mr. White argue the USAO failed to interview employees who might have
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been helpful in locating the case file in question. See id.; cf. Ancient Coin Collectors Guild v.
U.S. Dep’t of State, 641 F.3d 504, 514-15 (D.C. Cir. 2011) (reversing summary judgment as to
the adequacy of the State Department’s search where agency’s affidavit failed to address the
potential relevance of emails stored on backup tapes, and issue specifically raised by the
plaintiff). Defendant’s affidavit explains what system was searched, the terms used, why it was
likely to contain responsive documents, and that no other search method would reveal responsive
documents. Although the affidavit could in theory be more detailed, that fact alone does not
warrant denying summary judgment in favor of Defendant. See Perry v. Block, 684 F.2d 121,
127 (D.C. Cir. 1982) (“To be sure, the descriptions of the searches could have been more
detailed. . . . The arguable inadequacy of the search descriptions here is, however, no more than
marginal and does not render the grant of summary judgment inappropriate.”). Nor was
Defendant required to search every system of records maintained by the USAO as Plaintiff
suggests when the reference to the criminal case was limited to the FBI file number, the name of
Mr. White, and the name of the prosecutor. Campbell v. U.S. Dept. of Justice, 164 F.3d 20, 28
(D.C. Cir. 1998) (“When a request does not specify the locations in which an agency should
search, the agency has discretion to confine its inquiry to a central filing system if additional
searches are unlikely to produce any marginal return; in other words, the agency generally need
not ‘search every record system.’”) (quoting Oglesby, 920 F.2d at 68). Having failed to provide
any evidence to overcome the presumption of good faith afforded to Defendant’s affidavit,
Plaintiff’s challenge to Mr. Lowenthal’s Declaration fails.
B. Adequacy of Defendant’s Search
Plaintiff also contends the USAO’s search itself was deficient because: (1) the USAO
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was required to contact the FBI to obtain the relevant docket number; and (2) there must be
records responsive to Plaintiff’s request. Both of Plaintiff’s arguments fail. First, the USAO
was under no obligation to seek out additional information from the FBI in order to process
Plaintiff’s FOIA request. Second, the adequacy of a search is determined by the search
parameters, not the outcome. Thus despite Plaintiff’s speculation that responsive documents
must exist, the Defendant’s search was adequate and Defendant is entitled to summary judgment.
1. Obligation to Contact the FBI
The only specific deficiency Plaintiff has identified in Defendant’s search is to claim that
Defendant should have contacted the FBI to obtain the Court docket number associated with the
FBI file number provided in Plaintiff’s request, and then performed a search using the docket
number. Plaintiff argues the Defendant had “a clear legal duty to follow up on known leads that
are presented in a FOIA request.” Pl.’s Opp’n at 3-4. However, none of the cases relied on by
Plaintiff support requiring the USAO to obtain additional information from other agencies in
order to perform an adequate search for responsive documents in their own record system.
For this argument, Plaintiff primarily relies on Valencia-Lucena v. U.S. Coast Guard, 180
F.3d 321 (D.C. Cir. 1999). In Valencia, the court found the Coast Guard’s search for records
was inadequate because the agency failed to (1) search the federal records center in Georgia,
which the agency noted likely housed responsive records; and (2) failed to contact the Coast
Guard employee who previously brought certain requested records to the plaintiff’s criminal
trial. Id. at 327-28. However, the Valencia-Lucena court concluded that interviewing the Coast
Guard employee was a necessary step because the Coast Guard had “no responsibility under
FOIA to make inquiries of other law enforcement agencies . . . for documents no longer within
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its control or possession.” Id. at 328. Contrary to Plaintiff’s assertion, Valencia-Lucena
supports the conclusion that the USAO was under no obligation to seek additional information
from the FBI in order to perform an adequate search in the USAO record system in response to
Plaintiff’s request.
The Campbell case is also unhelpful to Plaintiff. The court in Campbell concluded that
the FBI was required to search its ELSUR database once the search of the FBI’s central records
system “suggested the existence of documents that it could not locate without expanding the
scope of its search.” 164 F.3d at 28. Similarly, Judge Gladys Kessler in Center for National
Security Studies v. United States Department of Justice, 215 F. Supp. 2d 94 (D.D.C. 2002), held
that the defendant failed to perform an adequate search in part because “the other document
disclosed to [p]laintiffs clearly indicates the existence of earlier relevant documents, none of
which were disclosed.” Id. at 110. Judge Kessler noted that the defendant had an obligation to
search its agency records for the additional responsive information referenced in the documents
uncovered by the agency’s initial search. Id. In this case, the USAO’s initial search revealed no
responsive documents, and therefore did not provide any “leads” for the agency to follow up on.
In National Resources Defense Council v. United States Department of Defense, 388 F.
Supp. 2d 1086 (C.D. Cal. 2005), the plaintiff sought documents relating to the use of perchlorate
in rocket fuel. Id. at 1090-91. The Department of Defense had designated the Air Force as
responsible for coordinating all DOD efforts regarding perchlorate, but had not made that
information public. Id. at 1102. The Court concluded that the DOD was obligated to either
forward the plaintiff’s FOIA request to the Air Force, or inform the plaintiff that the request
should be resubmitted to the Air Force. Id. The conclusion was based on the fact that the DOD
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had information the agency knew the plaintiff did not know, but was necessary to processing
plaintiff’s request. See id. By contrast here, the USAO did not have any information unknown
to Plaintiff that would have re-directed Plaintiff’s search to the proper agency. Rather both the
Plaintiff and the agency lacked additional information other than the FBI file number, the name
of the requestor and the prosecutor, and Plaintiff seeks to place the burden of investigation on the
agency. National Resources provides no support for the notion that the responding agency is
required to request additional information from another agency in order to process a FOIA
request that was directed towards the proper agency.
In effect, Plaintiff seeks to require the USAO to create a document linking the FBI file
number provided in his request with a Court docket number, and then search for responsive
documents using the Court docket number. Defendant is correct that the agency is under no such
obligation. E.g., Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152
(1980) (“The Act does not obligate agencies to create or retain documents; it only obligates them
to provide access to those which it in fact has created and retained.”). As Judge Thomas Jackson
noted “[t]he FOIA was not intended to compel agencies to become ad hoc investigators for
requesters whose requests are not compatible with their own information retrieval systems.”
Blakey v. Dep’t of Justice, 549 F. Supp. 362 (D.D.C. 1982). “Rather, the proper inquiry is
whether the Government has made reasonable use of the information readily available to it, and
whether there exist reasonable alternative methods that the Government failed to employ.”
Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 662 (D.C. Cir. 2003). Defendant searched the
only relevant system using the most relevant information provided, and Plaintiff provides no
evidence that “reasonable alternative methods” (besides contacting the FBI) existed. Therefore,
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Defendant is entitled to summary judgment based on the search performed using the FBI file
number.
2. Existence of Responsive Records
Plaintiff’s final argument is that Defendant’s search must be considered inadequate
because responsive records must exist, but the USAO’s search did not return any responsive
documents. Plaintiff contends that since the documents produced by the FBI refer to a criminal
case relating to the FBI file number provided in the request, the USAO must have the court
filings in that case in its possession. While the Court appreciates the basic logic of Plaintiff’s
contention, “the fact that responsive documents once existed does not mean that they remain in
the [agency’s] custody today or that the [agency] had a duty under FOIA to retain the records.”
Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004). Even where it “strains credulity” to think
that the requested documents do not exist, that alone is not a sufficient basis to “undermine the
determination that the agency conducted an “adequate search for the requested records.” Morley
v. CIA, 508 F.3d 1108, 1120 (D.C. Cir. 2007)(quoting Wilbur, 355 F.3d at 678); e.g., Baker &
Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006) (finding the
agency performed an adequate search despite failing to identify any responsive documents from
certain high level officials). “[T]he 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 search.”
Iturralde, 315 F.3d at 315. Given the adequacy of the search analyzed supra, Plaintiff’s
speculation that responsive records must exist does not amount to “countervailing evidence”
sufficient to raise a “substantial doubt” as to the adequacy of the USAO’s search. Id. at 314.
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IV. CONCLUSION
For the foregoing reasons, the Court finds the Defendant performed an adequate search
for responsive records in responding to Plaintiff’s FOIA request. The affidavit submitted by the
individual who performed the actual search for records in response to Plaintiff’s request provides
adequate detail as to the searches performed, and Plaintiff provided no evidence to overcome the
presumption of good faith the Court accords to Defendant’s affidavit. The Defendant was not
required to seek additional information from the FBI before processing Plaintiff’s request for
documents. Finally, Plaintiff’s speculation that responsive documents must exist, without more,
does not undermine the determination that Defendant’s search was adequate. Having performed
an adequate search for but ultimately finding no responsive documents, Defendant’s Motion for
Summary Judgment is GRANTED, and Plaintiff’s Motion for Summary Judgment is DENIED.
An appropriate Order accompanies this Memorandum Opinion.
Date: January 5, 2012
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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