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GONZALEZ v. BUREAU OF ALCOHOL

November 9, 2005.

NELSON GONZALEZ, Plaintiff,
v.
BUREAU OF ALCOHOL, TOBACCO, AND FIREARMS, et al., Defendants.



The opinion of the court was delivered by: JOHN BATES, District Judge

MEMORANDUM OPINION

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' motions.

Background

  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 the appeal.

  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 Ohio. Id.

  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.

  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)). 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 omitted). Discussion

  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. ...


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