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Geronimo v. Executive Office for United States Attorneys

July 14, 2006


The opinion of the court was delivered by: John D. Bates United States District Judge


In this action brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, plaintiff challenges the Executive Office for United States Attorneys' ("EOUSA") response to his request for records pertaining to his criminal case prosecuted in the District of Massachusetts. EOUSA moves for summary judgment on plaintiff's claims. Upon consideration of the parties' submissions, the Court will grant in part and deny in part EOUSA's motion for summary judgment.


By letter dated September 26, 2005, EOUSA released to plaintiff 24 pages of responsive records, 12 of which were redacted, and withheld a total of 480 pages of responsive records. Def.'s Statement of Material Facts Not in Genuine Dispute ¶ 10. EOUSA withheld information under FOIA exemptions 2, 3, 5, and 7(C) and under subsection (j)(2) of the Privacy Act, 5 U.S.C. § 552a. Id. In addition, EOUSA referred 669 pages of material to the United States Customs Service and 140 pages of material to the Drug Enforcement Administration.*fn1


Summary judgment should be granted to the movant if it has shown, when the facts are viewed in the light most favorable to the non-movant, that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Greene v. Dalton, 164 F.3d 671, 674 (D.C. Cir. 1999). The party opposing summary judgment "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 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (quoting First Nat'l Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288 (1968)). All reasonable inferences from the facts must be drawn in favor of the nonmoving party. Id. at 255.

The FOIA requires a federal agency to release all records responsive to a request except those protected from disclosure by one or more of nine enumerated exemptions set forth at 5 U.S.C. § 552(b). The district court is authorized "to enjoin [a federal] agency from withholding agency records or to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B); see Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 139 (1980). The agency has the burden of proving that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements." Goland v. Central Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978), cert. denied, 445 U.S. 927 (1980) (internal citation and quotation omitted); see also Maydak v. Dep't of Justice, 218 F.3d 760, 764 (D.C. Cir. 2000) (the government has the burden of proving each claimed FOIA exemption). The Court may award summary judgment to an agency solely on the basis of information provided 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 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).


Plaintiff challenges EOUSA's withholding of information and its search for records. As an initial matter, defendant advised plaintiff "that access to his [presentence report] could be obtained through contacting the U.S. Bureau of Prisons directly." Facts ¶ 10. An agency component may not deny documents it possesses "on the ground that they are available elsewhere." Tax Analysts v. United States Dep't of Justice, 845 F.2d 1060, 1066 (D.C. Cir. 1988), aff'd, United States Dep't of Justice v. Tax Analysts, 492 U.S. 136 (1989). In the absence of any asserted exemptions to justify withholding, EOUSA would have to release the presentence report to plaintiff. United States Dep't of Justice v. Tax Analysts, 492 U.S. at 151 ("It follows from the exclusive nature of the § 552(b) exemption scheme that agency records which do not fall within one of the exemptions are 'improperly' withheld") (footnote omitted).*fn2 .

A. EOUSA's Search for Responsive Records

Plaintiff seeks an order requiring "the government to conduct a more proper, adequate and reasonable research to further uncover more responsive material related to plaintiff's request," Pl.'s Response and Objection to Defendant's Motion for Summary Judgment and Request to Disclose Files Withheld ("Pl.'s Opp.") at 14, but he has not advanced an argument or proffered any evidence to rebut EOUSA's showing that it performed an adequate search. In determining the adequacy of an agency's search, the Court is guided by principles of reasonableness. See Campbell v. United States Dep't of Justice, 164 F.3d 20, 28 (D.C. Cir.1998); International Trade Overseas, Inc. v. Agency for International Development,688 F. Supp. 33, 36 (D.D.C. 1988). A search is deemed adequate upon a showing that the agency "made a good faith effort to conduct a search for the requested records, using methods which can reasonably be expected to produce the information requested." Oglesby v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). 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) (quoting Oglesby, 920 F.2d at 68). "Once the agency has shown that its search was reasonable, the burden shifts to [plaintiff] to rebut [defendant's] evidence by a showing that the search was not conducted in good faith." Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citing Miller v. U.S. Dep't of State, 779 F.2d 1378, 1383 (8th Cir.1985)). Here, the Court is satisfied from the Declarations of John F. Boseker ("Boseker Decl.") at ¶ 22 and Maryellen Barrett at ¶¶ 5-13 that EOUSA conducted a search reasonably calculated to locate all responsive records.

B. EOUSA's Exemption Claims

Defendant proffers the Boseker declaration in conjunction with a Vaughn index that reasonably describes the documents at issue and correlates the withholdings with the asserted ...

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