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KUFFEL v. UNITED STATES BUR. OF PRISONS

January 27, 1995

Edward J. Kuffel, Plaintiff,
v.
United States Bureau of Prisons, et al., Defendants



The opinion of the court was delivered by: RICARDO M. URBINA

 Granting Defendants' Motions to Dismiss and/or for Summary Judgment

 Upon review of this court's Memorandum Order of January 27, 1995 granting the Defendants' Motions to Dismiss or for Summary Judgment, the court, without disturbing the case outcome, amends that order by the issuance of this superceding Memorandum Order.

 Background

 Plaintiff is a pro se prisoner who is currently incarcerated at the Federal Medical Center in Rochester, Minnesota. Pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, the Plaintiff requested any and all information pertaining to himself from eleven government agencies. Plaintiff exhausted all administrative appeals under FOIA and filed this action requesting that the Court order the Defendants to release all records they possess which are responsive to Plaintiff's initial requests, or in the alternative, to provide the Plaintiff with detailed explanations as to why the records are being withheld. *fn1" Plaintiff also asks the Court to award him $ 10,000 dollars per Defendant. Plaintiff claims he is entitled to an award of damages because the Defendants violated FOIA by not responding to his requests within the statutory time limits and they wrongfully withheld information from him. Plaintiff also claims that he is entitled to attorney's fees and/or litigation costs.

 Defendants filed Motions to Dismiss and/or Motions for Summary Judgment, claiming that Plaintiff is not entitled to the relief he requests either because (1) there is a lack of jurisdiction as the agencies have no records responsive to Plaintiff's requests, or (2) because the agencies were justified in withholding certain records pursuant to exemptions found in FOIA, and therefore, as there is no genuine dispute as to any material fact, they are entitled to judgment as a matter of law.

 Motions to Dismiss

 Pursuant to Federal Rule of Civil Procedure 12(b)(1), a dismissal may be granted by the court if there is a lack of subject matter jurisdiction. The Court may go beyond the pleadings and consider affidavits to determine whether subject matter jurisdiction exists. Air Line Pilots Ass'n v. Northwest Airlines, Inc., 444 F. Supp. 1138, 1142 (D.D.C. 1978); McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). Section 552(a)(4)(B) of FOIA grants U.S. district courts exclusive jurisdiction over FOIA cases. In Kissinger v. Reporters Comm. for Freedom of the Press,2 the Supreme Court held that the Plaintiff must establish that an agency has 1) "improperly" 2) "withheld" 3) "agency records" in order for the court to have jurisdiction over a FOIA case. The Plaintiff must show that the agency "contravened all three components of this obligation" in order for jurisdiction to be valid. Id. at 150. In Forsham v. Harris,3 the companion case to Kissinger, the Supreme Court held that in order for a record to be an "agency record" within the meaning of FOIA, it must first be created or obtained by that agency in the normal course of business. Agencies are not obligated to create or retain documents merely to satisfy FOIA requests. Kissinger at 152.

 The affidavits that agencies use to support allegations that they have conducted thorough searches in compliance with FOIA must be relatively detailed, nonconclusory, and submitted in good faith. Weisberg v. Dep't of Justice, 227 U.S. App. D.C. 253, 705 F.2d 1344, 1351 (D.C. Cir. 1983). If the affidavits show that the agencies "made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested", Oglesby v. Dep't of the Army, 287 U.S. App. D.C. 126, 920 F.2d 57, 68 (D.C. Cir. 1990), and no responsive records were found, the mere speculation by the plaintiff that records exist does not diminish the adequacy of the agency's search in the judgment of the court. Id. at 67 n.13.

 Therefore, if it can be established through affidavits that no "agency records" responsive to the Plaintiff's requests were found by any of the five agencies after a good faith, reasonable search was conducted, no jurisdiction remains over these claims because the FOIA requirement that "agency records" exist to be "improperly" "withheld" cannot be met.

 The Court holds that Plaintiff's claims against the five agencies that were not able to find any responsive documents will be dismissed for the reasons stated below.

 The IRS alleges that it was not able to find any records responsive to Plaintiff's FOIA request after conducting a reasonable search that could be expected to produce responsive records. It supports its allegation with the affidavit of Mary Lou Oswoski, Disclosure Specialist in the Office of Disclosure in the Chicago District of the IRS where the Plaintiff made his request. The affidavit is reasonably detailed in setting forth how, where, and by whom the search was conducted. It also explains that all files likely to contain responsive records were searched. Oswoski Aff. at 2-4.

 This Court concludes that the IRS conducted a good faith, reasonable search for the requested information and found no responsive documents. Accordingly, this action is dismissed for lack of jurisdiction.

 Tax Division of the Department of Justice ("DOJ-Tax")

 DOJ-Tax alleges that it was not able to find any records responsive to Plaintiff's FOIA request after conducting a reasonable search that could be expected to produce responsive records. It supports its allegation with the affidavit of Pamela J. Martin, a paralegal specialist with the Information & Privacy Unit of DOJ-Tax. The affidavit is reasonably detailed in setting forth how, where, and by whom the search was conducted. It also explains that all files likely to contain responsive records were searched. Martin Aff. at 2-3.

 This Court concludes that DOJ-Tax conducted a good faith, reasonable search for the requested information and found no responsive documents. Accordingly, this action is dismissed for lack of jurisdiction.

 U.S. Secret Service ("USSS"), Office of the Attorney General ("OAG"), and Criminal Division of the Justice Department ("DOJ-Crim")

 The three above-mentioned agencies filed a joint motion for summary judgment. It would be improper to grant summary judgment in the claims against these three agencies because the Court does not have jurisdiction over the dispute. Winslow v. Walters, 815 F.2d 1114, 1116 (7th Cir. 1987). Therefore, the claims will instead be dismissed for lack of jurisdiction as discussed below.

 The U.S. Secret Service alleges that it was not able to find any documents responsive to Plaintiff's FOIA request after conducting a reasonable search that could be expected to produce responsive records. It supports its allegations with the affidavit of Guy P. Caputo, Deputy Director of the Secret Service. The affidavit is reasonably detailed in setting forth how, where, and by whom the search was conducted. It also explains that all files likely to contain responsive records were searched. Caputo Aff. at 2-3.

 This Court concludes that the USSS conducted a good faith, reasonable search for the requested information and found no responsive documents. Accordingly, this ...


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