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MOSBY v. U.S.

August 31, 2005.

J. TRENT MOSBY, Plaintiff,
v.
UNITED STATES MARSHALS SERVICE, Defendant.



The opinion of the court was delivered by: HENRY KENNEDY, District Judge

MEMORANDUM OPINION

Plaintiff, a federal inmate proceeding pro se, brings this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Before the court is defendant's motion for summary. Upon consideration of the motion, the opposition thereto, and the summary-judgment record, the court concludes that the motion must be granted.

I. BACKGROUND

  On July 8, 1999, plaintiff made a request of the United States Marshals Service ("USMS") for "any investigative reports, notes, or memos that had my name in them between January 1993 through June 1993, in regards to an investigation by the [USMS] to my location for questioning alleged `threats' against District Judge Clark. I am seeking the results of that investigation any other materials related to [these] reports." Defendant's Motion for Summary Judgment ("Deft's Mot"), Declaration of Shaaron L. Keys ("Keys Decl."), Exhibit ("Ex.") A. On August 6, 1999, the USMS informed plaintiff that it had no records responsive to his request. Id., Ex. E. Plaintiff filed an appeal to the Office of Information and Privacy ("OIP") at the Department of Justice. Id., Ex. F. On September 15, 1999, he was informed that he could not appeal because no documents were found responsive to his request. Id.

  On January 20, 2003, plaintiff made a second FOIA request, this time for "a copy of any and all reports, interoffice memos, files of investigation and any documents that your agency has with my name included, from the years of 1992 to the present year of 2003. All records from Springfield Missouri area and any other locations." Id., Ex. G. On April 8, 2003, the USMS advised plaintiff that it had located 111 pages of documents responsive to his request, Id., Ex. I, and released 70 pages in full and 23 pages with redactions pursuant to FOIA Exemptions 7 (C) and 7(E). Keys Decl., ¶ 13 & Ex. I. The USMS withheld 7 pages in their entirety under the same exemptions and referred 11 pages to the Bureau of Prisons ("BOP") for processing. Id.

  Plaintiff appealed to OIP on April 14, 2003. Id., Ex. J. OIP affirmed the USMS's decision on December 22, 2003. Id., Ex. K. The USMS released one additional document to plaintiff on March 1, 2004, with information redacted pursuant to Exemption 7 (C). Id., Ex. L. This decision was appealed by plaintiff on March 9, 2004. Id., Ex. M. Prior to the disposition of the appeal, plaintiff filed this action on December 1, 2004. Complaint ("Compl."). On February 25, 2005, the USMS notified plaintiff that 18 pages of documents had inadvertently not been sent for processing. Key Decl., Ex. N. Those pages were disclosed by the USMS to plaintiff in part, with information withheld pursuant to Exemption 7 (C).

  II. STANDARD OF REVIEW

  Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate if the pleadings on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56 (c). Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment bears the initial burden of demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).

  In considering whether there is a triable issue of fact, the Court must draw all reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; see also Washington Post Co. v. United States Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989). The party opposing a motion for summary judgment, however, "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248. The non-moving party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Moreover, "any factual assertions in the movant's affidavits will be accepted as being true unless [the opposing party] submits his own affidavits or other documentary evidence contradicting the assertion." Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992) (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982)).

  When a party confronts a motion for summary judgment he must do more than merely show that a factual dispute separates the parties. Rather, the party opposing the motion must show that there is a genuine issue of material fact. See Anderson, 477 U.S. at 247-48. To be material, the fact must be capable of affecting the outcome of the litigation; to be genuine, the issue must be supported by admissible evidence sufficient for a reasonable trier of fact to find in favor of the nonmoving party. See id.; Laningham v. United States Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987). 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). In a FOIA case, the court may award summary judgment solely on the basis of information provided by the department or agency in affidavits or declarations when the affidavits or declarations 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); see also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). Agency affidavits or declarations must be "relatively detailed and non-conclusory . . ." SafeCard Services v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). 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." Id. (internal citation and quotation omitted). An agency must demonstrate that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt from the Act's inspection requirements." Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal citation and quotation omitted).

  III. ANALYSIS

  A. Adequacy of the Search

  To obtain summary judgment on the issue of the adequacy of its records search, an agency must 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.'" Steinberg v. United States Dep't of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994) (quoting Weisberg v. United States Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail and in a non-conclusory fashion the scope and method of the agency's search. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency's compliance with the FOIA. Id. at 127. The agency must show that it 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, 920 F.2d 57, 68 (D.C. Cir. 1990); see Campbell v. United States Dep't of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998). In determining the adequacy of a FOIA search, the Court is guided by principles of reasonableness. Oglesby, 920 F.2d at 68.

  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. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (citing Oglesby v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990); Kowalczyk v. Dep't of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996); Weisberg v. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). "If the requestor produces countervailing evidence placing the sufficiency of the identification or retrieval procedures in issue, summary judgment is inappropriate." Spannaus v. Central Intelligence Agency, 841 F. Supp. 14, 16 (D.D.C. 1993) (citing Church of Scientology v. National Security Agency, 610 F.2d 824, 836 (D.C. Cir. 1979). It is plaintiff's burden in a challenge to the adequacy of an agency's search to present evidence rebutting the agency's initial showing of a good faith search. See Maynard v. CIA, 986 F.2d 547, 560 (2d Cir. ...


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