United States District Court, D. Columbia
August 31, 2005.
J. TRENT MOSBY, Plaintiff,
UNITED STATES MARSHALS SERVICE, Defendant.
The opinion of the court was delivered by: HENRY KENNEDY, District Judge
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
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
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. 1993);
Weisberg, 705 F.2d at 1351-52. Mere speculation as to the
existence of records not located in the agency's search does not
undermine the adequacy of the search. See Weisberg,
745 F.2d at 1485 (focus of court's inquiry is on reasonableness of search,
not whether undisclosed records may exist).
The search here was adequate. The USMS searched for records in
the Western District of Missouri office, the location identified
in plaintiff's request. Keys Decl., ¶ 11. The agency utilized the
Prisoner Processing and Population Management/Prisoner Tracking
System and the Warrant Information Network systems of records.
Id., ¶ 12. The USMS maintains records in these systems in
connection with the receipt, processing, transportation and
custody of prisoners, the execution of arrest warrants, and the
investigation of fugitives. Id. The USMS also searched in the
Inappropriate Communciations/Threat Information System
("IC/TIS"). Id., ¶ 15. The IC/TIS files cover threats made to
individuals protected by the USMS, threats to USMS employees and
federal buildings, and threats made to private individuals that
are maintained by local law enforcement agencies. Id., ¶ 16.
Based on supplemental information provided by plaintiff, the USMS
searched IC/TIS records in the Western District of Oklahoma
office. Id., ¶ 21; Ex. C.
It is apparent from the declaration submitted by the agency
representative that defendants have made a "good faith effort to
conduct a search for the requested records, using methods which
reasonably can be expected to produce the information requested."
Moore v. Aspin, 916 F.Supp. 32, 35 (D.D.C. 1996) (citing
Oglesby v. Dep't of the Army, 920 F.2d at 68). No more is
B. Exemption 7(C)
Defendant relies on FOIA Exemption 7(C) to justify withholding
the names of law enforcement personnel, names and information pertaining to an
individual under the protection of the USMS, and the names and
information pertaining to third parties. Keys Decl., ¶ 22.
Exemption 7 (C) of the FOIA protects from mandatory disclosure
records compiled for law enforcement purposes to the extent that
disclosure "could reasonably be expected to constitute an
unwarranted invasion of personal privacy."
5 U.S.C. § 522(b)(7)(C).
The names and identities of individuals of investigatory
interest to law enforcement agencies and those merely mentioned
in law enforcement files have been consistently protected from
disclosure for the reasons defendant asserts here. See Perrone
v. FBI, 908 F.Supp. 24, 26 (D.D.C. 1995) (citing Dep't of
Justice v. Reporters Committee for Freedom of the Press,
489 U.S. at 779); Baez v. Dep't of Justice, 647 F.2d 1328, 1338
(D.C. Cir. 1980); Branch v. FBI, 658 F.Supp. 204, 209 (D.D.C.
1987). "Exemption 7 (C) takes particular note of the strong
interest of individuals, whether they be suspects, witnesses, or
investigators, in not being associated unwarrantedly with alleged
criminal activity." Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C.
Cir. 1990) (quoting Dunkelberger v. Dep't of Justice,
906 F.2d 779, 781 (D.C. Cir. 1990)) (other citation and internal quotation
marks omitted); see also Computer Professionals for Social
Responsibility v. United States Secret Serv., 72 F.3d 897, 904
(D.C. Cir. 1996) ("records contain[ing] the names of informants,
witnesses, and potential suspects who are relevant to its
criminal investigation . . . clearly fall within the scope of
Once a privacy interest is identified under Exemption 7 (C),
the FOIA records requestor must establish that (1) the public
interest is a significant one; and (2) the information is likely
to advance that interest. Favish, 541 U.S. 157, 172 (2004). The
requestor must provide evidence that would warrant a belief by a
reasonable person that the alleged government impropriety might have occurred. Id. at 174. The privacy interests of third
parties mentioned in law enforcement files are "substantial,"
while "[t]he public interest in disclosure [of third-party
identities] is not just less substantial, it is insubstantial."
SafeCard Servs., Inc., v. SEC, 926 F.2d 1197, 1205 (D.C. Cir.
1991). It is the "interest of the general public, and not that of
the private litigant" that the court considers in this analysis.
Brown v. FBI, 658 F.2d 71, 75 (2d Cir. 1981) (citing Ditlow v.
Shultz, 517 F.2d 166, 171-72 (D.C. Cir. 1975)).
Plaintiff has not asserted any public interest to outweigh the
privacy interests of the individuals in the USMS's records.
Therefore, the information was properly withheld.
C. Exemption 7(E)
Defendant also withheld records under Exemption 7(E). That
exemption protects from disclosure information compiled for law
enforcement purposes where release of the information "would
disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for
law enforcement investigations or prosecutions if such disclosure
could reasonably be expected to risk circumvention of the law."
5 U.S.C. § 552(b)(7)(E). Thus, for information to be properly
withheld under this exemption, a court must find that (1) the
information was compiled for law enforcement purposes; and (2)
release of the information could reasonably be expected to
circumvent the law. FBI v. Abramson, 456 U.S. 615, 622 (1982);
Edmonds, 272 F.Supp.2d at 56.
Under this exemption, the USMS withheld its administrative and
operational guidelines and procedures. Keys Decl., ¶ 24. This
information facilitates monitoring investigations, the flow and
maintenance of investigative records, and aids in detecting and
apprehending fugitives. Id. The agency asserts that disclosure
of this information would provide assistance to persons threatening individuals and property protected by the USMS and
allow fugitives to avoid apprehension. Id., ¶ 25 & ¶ 26.
The Court finds that the information withheld was compiled for
law enforcement purposes and that disclosure of the records would
be reasonably expected to lead to circumventions of the law.
Defendant properly withheld the documents under Exemption 7(E).
If a record contains information that is exempt from
disclosure, any reasonably segregable information must be
released after deleting the exempt portions, unless the
non-exempt portions are inextricably intertwined with exempt
portions. See Trans-Pacific Policing Agreement v. United States
Customs Serv., 177 F.3d 1022, 1026-27 (D.C. Cir. 1999);
5 U.S.C. § 552(b). A court errs if it "simply approve[s] the withholding
of an entire document without entering a finding on
segregability, or the lack thereof." Powell v. United States
Bureau of Prisons, 927 F.2d 1239, 1242 n. 4 (D.C. Cir. 1991)
(quoting Church of Scientology v. Dep't of the Army,
611 F.2d 738, 744 (9th Cir. 1979)).
Having reviewed the agency's declaration, the Court concludes
that defendant has withheld only the records or portions of
records exempt under FOIA's provisions, and that all reasonably
segregable material has been released. See Keys Decl., ¶ 29.
With respect to these records, the agency declaration and Vaughn
index adequately specify "in detail which portions of the
document[s] are disclosable and which are allegedly exempt."
Vaughn, 484 F.2d at 827. IV. CONCLUSION
For the foregoing reasons defendant's motion for summary
judgment is granted. An appropriate order accompanies this
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