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Lipsey v. United States Dep't of Justice Executive Office for United States Attorneys

March 19, 2007


The opinion of the court was delivered by: Reggie B. Walton United States District Judge


Derrick Lipsey, proceeding pro se, filed this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2002), and the Privacy Act, 5 U.S.C. § 552a (2004), appealing the disposition of his records request by the Executive Office for United States Attorneys ("EOUSA"). Defendant has filed a motion for summary judgment and plaintiff an opposition to the motion. For the following reasons, the Court will grant defendant's motion.*fn1


Plaintiff was sentenced and convicted of unidentified criminal offenses in the United States District Court for the Southern District of Ohio. Compl. ¶ 2. On July 17, 2002, plaintiff sent a letter to the EOUSA requesting all records pertaining to the investigation and prosecution of him by the Department of Justice. Declaration ("Decl.") of John W. Kornmeier ¶ 4 & Exhibit ("Ex.") A. In response to the request, on September 27, 2004, the EOUSA released to plaintiff 118 pages in full and 29 pages in part. Id. ¶ 5 & Ex. B. The EOUSA also withheld 30 pages in full. Id. The EOUSA cited FOIA Exemptions 2, 5, 7(C), and 7(D) as the bases for the non-disclosure of the withheld records. Id.

On October 6, 2004, plaintiff sent an additional FOIA request to the EOUSA. Id. ¶ 7 & Ex. D. He requested a copy of the district court's order denying his request to withdraw his guilty plea and copies of grand jury material from his case. Id. The EOUSA released ten pages in full in response to the additional request. Id. & Ex. E. The United States Attorney's Office for the Southern District of Ohio ("USAO/SDO") conducted a search of its records and failed to locate any grand jury material pertaining to plaintiff. Decl. of Nancy Vincent ¶¶ 13e and 15.

The EOUSA made supplemental releases of documents to plaintiff on September 26 and 29, 2006. Id. ¶ 6 & Ex. C & Ex. C.1, disclosing to plaintiff an additional 9 pages in full and part of 5 pages, id. In justifying its withholding of these records, the EOUSA relied on FOIA Exemption 7(C). Id.


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 the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

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. The party opposing a motion for summary judgment, however, "may not rest upon the mere allegations or denials of the adverse party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). 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., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 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).

In a FOIA case, the Court may award summary judgment solely on the basis of information provided by the responding department or agency in affidavits or declarations when the submissions describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstratethat 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). 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) (citation and quotation omitted).


A. Adequacy of the Agency Searches

To obtain summary judgment on the issue of the adequacy of a search for records under FOIA, 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. 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. In determining the adequacy of a FOIA search, the Court is guided by principles of reasonableness. Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990).

It is plaintiff's burden in challenging the adequacy of an agency's search to present evidence rebutting the agency's initial showing of a good faith search. Weisberg v. Dep't of Justice, 705 F.2d 1344, 1351-52 (D.C. Cir. 1983). The Court's inquiry regarding the adequacy of the search focuses on the search itself, not its results. Weisberg, 745 F.2d at 1485. An agency's failure to find a particular document does not undermine the determination that the search was adequate. Id.; Nation Magazine v. United States Customs Serv., 71 F.3d 885, 892 n.7 (D.C. Cir. 1995). Mere speculation as to the existence of records not located in the agency's search does not ...

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