The opinion of the court was delivered by: HENRY KENNEDY JR., District Judge
Plaintiff, proceeding pro se, bings this action pursuant to the
Freedom of Information Act ("FOIA"), 5 U.S.C. § 522, and the
Privacy Act, 5 U.S.C. § 552a. This court previously granted
defendant's motion for summary judgment on plaintiff's Privacy
Act claim and denied summary judgment on his FOIA claim because
defendant's search for records was inadequate. Defendant has
filed a renewed motion for summary judgment and plaintiff has
filed a cross-motion for summary judgment. Based on the parties'
filings and the applicable law, defendant's motion will be
granted and plaintiff's cross-motion denied.
On July 19, 2002, plaintiff sent a letter to the United States
Marshal Service ("USMS"), pursuant to FOIA and the Privacy Act,
Any and all records relating to me, mention me, or
otherwise pertain to me. The records should include,
but not be limited to, documents, files,
investigative reports, communications, electronic
data, voice mail recordings (or other voice storage
files), facsimiles, teletypes, memoranda, briefs,
orders, directives, notes, field notes, videos, logs, telephone logs, letters, data files, interoffice
memoranda, intraoffice memoranda, interagency
communications, requests, etc.
Declaration of Florastine P. Graham ("Graham Decl."), Exhibit
Plaintiff provided the USMS with his
identifying data and specified the areas where the documents were
most likely to be located.
The USMS processed plaintiff's request by searching for records
indexed to his name. Id., ¶ 4. The USMS located a file which
contained a four-page document entitled, "NOTICE OF INVOCATION OF
RIGHTS BY INJURED PARTY, MICHAEL SUSSMAN." Id. Plaintiff had
sent this document to the residence of United States District
Court Judge Alan Bloch in the Western District of Pennsylvania,
and to the office addresses of the Clerk of the United States
District Court, the United States Attorney and United States
Marshal in that judicial district. Id. The USMS released this
document to plaintiff with one deletion, the address of an
individual, citing Exemption 6 of FOIA. Id., ¶ 5. The USMS did
not locate any other documents responsive to plaintiff's request.
Id., ¶ 4.
On November 7, 2002, plaintiff appealed the USMS's action to
the Office of Information and Privacy ("OIP"). Id., ¶ 7. In his
appeal, plaintiff contended the USMS records search was
inadequate. He identified the following as information not
disclosed: a "wanted poster" for Keith Maydak, alleging Michael
Sussman as an alias; records of Deputy U.S. Marshal Joseph
Morehead's inquiries about plaintiff's business affairs to third
parties; subpoenas for plaintiff's business records obtained by
Deputy Marshal Morehead; and the records received in response to
those subpoenas. Id., Attachment, Nov. 7, 2002 letter. After
plaintiff filed the present action, OIP closed its file on plaintiff's administrative appeal. Id., ¶ 8.
Following this Court's August 3, 2004 Order, the USMS searched
Keith Maydak's files for records related or pertaining to
plaintiff or that mentioned plaintiff by name. Defendant's Motion
for Summary Judgment ("Deft's Mot."), Supplemental Declaration of
Shaaron L. Keys ("Keys Decl."), ¶ 3. On February 28, 2005, the
USMS informed plaintiff that the agency had located approximately
330 pages of documents responsive to his request. Id., Ex. A.
Duplicate copies of certain documents were included. Id. The
USMS also informed plaintiff that ten of the pages had originated
with other agencies the United States Postal Service ("USPS"),
the Bureau of Citizenship and Immigration Services ("CIS"), and
the Federal Bureau of Investigation ("FBI"). Id. The USMS
disclosed 81 pages of documents to plaintiff, 80 of them in their
entirety and one page withholding the name of a USMS employee
pursuant to FOIA Exemption 7 (C). Id. The USMS advised
plaintiff that it was still processing his request and would
contact him again. Id.
On March 14, 2005, the USMS informed plaintiff that it had
completed the processing of his FOIA request and had located an
additional 722 pages of responsive documents. Id., Ex. B. The
USMS advised that 123 pages had originated with the Commodities
Futures Trading Commission ("CFTC") and the Executive Office for
United States Attorneys ("EOUSA") and had been referred to those
agencies for disclosure determinations. Id. The USMS disclosed
552 pages of documents to plaintiff, 76 pages in their entirety,
476 pages with information withheld pursuant to Exemptions 2, 3,
7(C), 7(D), and 7(E), and the remaining 47 pages withheld in
their entirety pursuant to the same exemptions. Id. On March
18, 2005, the USMS disclosed to plaintiff an additional one-page
document that had been inadvertently withheld. Id., Ex. C.
The agencies that had been referred documents by the USMS
provided responses to plaintiff's FOIA request. On August 30, 2005, the EOUSA released
to plaintiff 111 pages in full and 10 pages in part, with
information withheld pursuant to Exemption 7(C). Defendant's
Opposition to Cross Motion for Summary Judgment and Reply to
Plaintiff's Opposition to Summary Judgment ("Deft's Opp."),
Declaration of John W. Kornmeier ("Kornmeier Decl."), ¶ 5 & Ex.
C. The FBI disclosed its one page document in full. Deft's Opp.,
Ex. B. On April 18, 2005, the CFTC disclosed in full three pages.
Id., Ex. C. On March 17, 2005, the USPS withheld in full seven
pages pursuant to Exemptions 6 and 7(C). Id., Ex. D. The CIS
released one page in its entirety and withheld no material.
Id., Ex. E.
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. Rule 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
nonmoving 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)). The mere existence of a factual dispute by itself,
however, is not enough to bar summary judgment. 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).
To obtain summary judgment of the issue of the adequacy of
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); ...