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McLeod v. U.S. Dep't of Justice

October 18, 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 requested records concerning his criminal case from the United States Attorney's Office in Tampa, Florida ("USAO-Tampa") and the Federal Bureau of Investigation ("FBI"). Defendants move to dismiss the claims arising from the request to USAO-Tampa and for summary judgment on the claims arising from the request to the FBI.*fn1 Upon consideration of the parties' submissions and the entire record, the Court will grant in part and deny in part defendant's motion for summary judgment.*fn2


1. FBI Records

By letter dated August 7, 2005, plaintiff requested "information . . . of any evidence of criminal misconduct, exculpatory evidence or evidence planting or tampering by any persons involved in" the criminal prosecution of him in the "13th Judicial Circuit Court, In and For Hillsborough County, Florida." Compl., Exs. 10, 11. By letter dated September 20, 2005, FBI Headquarters, to which plaintiff's request addressed to the "FBI Corruption Squad" in Tampa, Florida (Compl. Ex. 10) was forwarded, informed plaintiff that it located no responsive records in its "automated indices to our central records system files" and advised him of his appeal rights. Declaration of David M. Hardy ("Hardy Decl."), Ex. C. Plaintiff lodged his appeal with DOJ's Office of Information and Privacy ("OIP") by letter dated October 3, 2005. Id., Ex. D.

A search of the FBI's Tampa field office located three letters plaintiff had sent to the FBI requesting "assistance in matters unrelated to his FOIA request." Id. ¶ 15. The FBI released unredacted copies of those letters to plaintiff by letter dated March 31, 2006. Id. The FBI also released by letter of May 5, 2006, a redacted four-page account of an interview plaintiff had provided the FBI on September 22, 2004, concerning his allegations of judicial corruption in Hillsborough County. Id., Ex. G. The FBI redacted information pursuant to FOIA exemptions 6 and 7(C), see 5 U.S.C. § 552(b), and Privacy Act exemption (j)(2), see 5 U.S.C. § 552a. Hardy Decl. ¶ 17 and Ex. G.

2. EOUSA Records

By notice dated January 17, 2006, the Executive Office for United States Attorneys ("EOUSA") informed plaintiff that before processing his request made to USAO-Tampa, it would need a notarized example of his signature or a certification of identity.*fn3 Def.'s Ex. 1, Declaration of David Luczynski ("Luczynski Decl."), Ex D. It advised plaintiff to correct "the above deficiencies" and to submit a new request because the notice constituted "a final determination and your request has been closed." Id. EOUSA further advised plaintiff of his right to appeal the decision to OIP. Plaintiff complied with the notice by returning a completed Certification of Identity form dated January 24, 2006. Id., Ex. E. Plaintiff initiated this action on February 10, 2006. By letter dated March 30, 2006, EOUSA informed plaintiff about the processing of his request and possible search and duplication fees. Luczynski Decl., Ex. F. Also, on or about March 30, EOUSA conducted a search but located no responsive records. Id., Ex. G (Declaration of Christina J. Griffiths ¶ 8).


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 a motion for 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 National 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.

In a FOIA case, the Court may award summary judgment to an agency solely on the basis of information provided in affidavits or declarations. When, as here, no responsive records are located, the agency is entitled to summary judgment if it shows "beyond material doubt [] that it has conducted a search reasonably calculated to uncover all relevant documents." Weisberg v. United States Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). 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); Int'l Trade Overseas, Inc. v. Agency for Int'l Dev.,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 [the agency'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)). Summary judgment is inappropriate "if a review of the record raises substantial doubt" about the adequacy of the search. Valencia- Lucena, 180 F.3d at 326.


1. EOUSA's ...

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