The opinion of the court was delivered by: JOHN BATES, District Judge
Pursuant to the Freedom of Information Act ("FOIA"),
5 U.S.C. § 552, plaintiff, a federal inmate proceeding pro se, filed FOIA
requests to the Executive Office of United States Attorneys
("EOUSA"), the Bureau of Alcohol, Tobacco, and Firearms ("ATF"),
the Federal Bureau of Investigation ("FBI"), the United States
Marshals Service ("USMS"), the Criminal Division of the
Department of Justice ("DOJ"), and the Drug Enforcement
Administration ("DEA"). The present action seeks review of these
agencies' dispositions of plaintiff's FOIA requests. Defendants
have filed motions for summary judgment. Based on the factual
record and the applicable law, the Court will grant defendants'
On May 26, 1999, in the United States District Court for the
Western District of Texas, plaintiff was sentenced to 365 months
imprisonment. Complaint ("Compl."), Attachment, Judgment.
Plaintiff subsequently filed FOIA requests with a number of
federal agencies, seeking documents related to the criminal
investigation that led to his conviction. Plaintiff seeks the information in order to challenge his conviction on the ground
that the prosecution withheld exculpatory evidence at his trial.
Compl., ¶¶ 1, 3.
On February 23, 2004, plaintiff sent a FOIA request to DOJ for
all records in his name. Defendants' Motion for Summary Judgment
("Defts.' Mot."), Declaration of Kathy Hsu ("Hsu Decl."), Exhibit
("Ex.") 1.*fn1 DOJ notified plaintiff on February 10, 2005
that the agency had not located any records responsive to his
request. Id., Ex. 7. On June 7, 2005, DOJ informed plaintiff
that it had performed an additional search in the Asset
Forfeiture and Money Laundering Section. Id., ¶ 9. DOJ located
a single-page document listing ten seized assets, and requested
plaintiff to identify which assets had previously been owned by
him. Id., ¶ 10. In response, plaintiff stated that he was not
the individual identified on the asset list and had never had a
possessory interest in any of the assets. Id., Ex. 9.
On February 18, 2004, plaintiff sent a FOIA request to the
USMS. Defts.' Mot., Declaration of William E. Bordley ("Bordley
Decl."), Ex. A. The USMS responded to plaintiff's FOIA request on
March 31, 2004. Id., Ex. C. The USMS located 47 pages
responsive to plaintiff's request. Id. Four pages were referred
to the DEA for processing, 29 pages were released to plaintiff in
their entirety, 11 pages were released with redactions, and 3
pages were withheld from disclosure. Id. The USMS cited FOIA
Exemption 7 (C) to justify its decision to withhold information.
Id. The USMS released an additional one-page document on July
5, 2005. Id., Ex. G. Plaintiff appealed the USMS's response to
the Office of Information and Privacy ("OIP"). Id., Ex. D. On
July 19, 2004, the OIP affirmed the USMS's action. Id., Ex. F. Plaintiff also submitted a FOIA request to the DEA on February
18, 2004 seeking "all criminal investigatory and forfeiture"
records "in any way connected to, related to, or even remotely in
reference to my name." Defts.' Mot., Declaration of Adele Odegard
("Odegard Decl."), Ex. A. On May 23, 2004, the DEA forwarded to
plaintiff 52 pages of records and withheld 151 pages pursuant to
FOIA Exemptions 2, 7 (C) and 7(D) and a Privacy Act provision,
5 U.S.C. § 552a(j)(2). Odegard Decl., ¶ 6. On June 8, 2004, the DEA
sent plaintiff a supplemental release of 9 pages of documents and
withheld 9 pages pursuant to the Exemptions 7 (C),7 (D) and 7(F),
and the Privacy Act. Id., Ex. B. Plaintiff appealed the
agency's action to OIP. Compl., Attachment, 7/23/04 Letter of
Richard L. Huff. On July 23, 2004, the OIP affirmed the DEA's
action on plaintiff's FOIA request. Id.
In conducting the search for records responsive to plaintiff's
request, the DEA had only identified records by "title," i.e.,
where plaintiff was the principal subject of an investigation.
Odegard Decl., ¶¶ 11-12. At plaintiff's request, the DEA
conducted a supplemental search for plaintiff's name in "related
files," that is, investigative records that made any reference to
plaintiff. Id., ¶ 13 & Ex. C. As a result of this search, on
July 15, 2005, the DEA disclosed to plaintiff 74 pages in their
entirety and 76 pages with redactions, and withheld 10 pages.
Id., Ex. D.
On February 18, 2004, plaintiff filed a FOIA request with the
ATF for all records of any criminal investigation of plaintiff.
Defts.' Mot., Declaration of Averill P. Graham ("Graham Decl."),
Ex. A. The ATF informed plaintiff that the agency did not possess
any records responsive to his request. Id., Ex. B. On June 28,
2004, OIP affirmed ATF's decision on appeal. Id., Ex. E. Plaintiff sent a FOIA request to the FBI on February 18, 2004.
Defts.' Mot., Declaration of Nancy L. Steward ("Steward Decl."),
¶ 5. Plaintiff sought any and all documents, records and
information that the FBI had in its possession that were in any
way connected to, related to, or even remotely in reference to
him. Id. On August 9, 2004, the FBI sent plaintiff 11 partial
pages of records, withholding material from the records under
FOIA exemptions 7 (C), (D), and (E) and section 552a(j)(2) of the
Privacy Act. Id., ¶ 11. Plaintiff appealed the FBI's action on
August 25, 2004. Id., ¶ 12. OIP has yet to issue a decision on
Plaintiff filed a number of FOIA requests with the EOUSA. With
one exception, the EOUSA did not locate any records responsive to
the requests. See Defendant EOUSA's Motion for Summary Judgment
("Deft. EOUSA's Mot."), Declaration of David Luczynski
("Luczynski Decl."), ¶ 4. Plaintiff sought all records pertaining
to him in the United States Attorney's Offices located in the
states of Texas and Ohio, Rochester, Minnesota, Springfield,
Missouri and Oklahoma City, Oklahoma. Id., Ex. A. Plaintiff
appealed this action to the OIP. Id., Ex. B. On August 16,
2004, OIP notified plaintiff that his request was being remanded
for a search of the United States Attorney's offices in Texas and
On June 30, 2005, the EOUSA sent plaintiff notice of its
decision on his request. Id., Ex. F. The EOUSA stated that it
would release 49 pages in full and 9 pages in part, and withhold
in their entirety 306 pages. Id. The EOUSA informed plaintiff
that it would disclose the records once he paid a $49.00 search
fee. Id. The EOUSA also informed plaintiff that 103 pages had
been referred to the Bureau of Prisons ("BOP"), 33 pages to the
FBI, 39 pages to the Immigration and Naturalization Service
("INS"), and 113 pages to the DEA. Id. The EOUSA denied
plaintiff's request for a fee waiver. Id., Ex. G. Plaintiff did
not appeal this determination by the EOUSA. Luczynski Decl., ¶ 12.
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)). 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).
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 that 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 Agency Searches
In order to obtain summary judgment on the issue of the
adequacy of a 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 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. ...