The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
This matter is before the Court on defendants' motion for summary judgment. On consideration of defendants' motion, plaintiff's opposition, and the entire record of the case, the Court will grant summary judgment for defendants.
In September 2005, plaintiff submitted a request to the Executive Office for United States Attorneys ("EOUSA"), United States Department of Justice, under the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552. Complaint ("Compl.") ¶ 4. From the criminal case file pertaining to proceedings against him in the Superior Court of the District of Columbia, United States v. Ernest B. Ford, Crim. No. F-6753-87 ("Crim. Case No. F-6753-87"), plaintiff requested three documents:
1.) July 1989 Plea Hearing Transcript.
2.) September 1989 Sentencing Hearing Transcript.
3.) 1989 Transcript of the last court appearance in the case (in which both counsel and defendant were present) that chronologically preceded the July 1989 Plea Hearing.
Memorandum in Support of the Defendant's Motion for Summary Judgment ("Defs.' Mot."), Attach. 1 (First Stearns Decl.), Ex. 1 (September 19, 2005 FOIA Request) at 1. Plaintiff indicated that he "may be requesting the entire case file" at some point but, "due to cost limitations, [he] realize[d] that [it] may not be either feasible or prudent" to make such a request at that time. Id. The EOUSA assigned the matter Request Number 05-2930. Compl. ¶ 5; First Stearns Decl. ¶ 6.
In September 2005, EOUSA staff forwarded plaintiff's FOIA request to the FOIA contact person ("FOIA Contact") at the United States Attorney's Office for the District of Columbia ("USAO/DC"). Defs.' Mot., Attach. 2 (Bowman Decl.) ¶¶ 1, 3. A search of computerized records in September 2007 yielded one closed case file (one box) for Crim. Case No. F-6753-87, and a manual search of these paper records did not yield the three transcripts.*fn1 Id. ¶¶ 6-7. An electronic mail request to the entire staff of the USAO/DC, too, failed to locate these transcripts. Id. ¶ 8. The EOUSA notified plaintiff of this "no records" result in writing. First Stearns Decl., Ex. 5 (September 11, 2007 letter form William G. Stewart II, Assistant Director, Freedom of Information & Privacy Staff, EOUSA).
Plaintiff filed the instant civil action in July 2007. See Compl. (stamped "received" by the Clerk of Court on July 2, 2007). In an Amended Complaint, plaintiff requested "that defendants disclose and make immediately available to him, not only the three originally requested transcript documents but, the entire case file in Crim. Case No. F-6753-87 (United States v. Ernest B. Ford) already referenced as being heard in the Superior Court of the District of Columbia and prosecuted by the United States Attorneys of that jurisdiction." Motion to Amend Complaint ("Amd. Compl.") ¶ 1 (emphasis in original).*fn2
The EOUSA had no record of a FOIA request from plaintiff for the entire file for Crim. Case No. F-6753-87 prior to the filing of the Motion to Amend Complaint. Defendants' Reply to Plaintiff's Opposition to Defendants' Motion for Summary Judgment, Attach. 1 (Second Stearns Decl.) ¶¶ 4-5. It treated plaintiff's request for the entire case file as a new FOIA request and assigned it Request Number 07-4195. Id. ¶ 6 & Ex. 1 (December 13, 2007 letter from William G. Stewart II). The EOUSA has asked the USAO/DC perform a new search for records responsive to Request Number 07-4195. Id. ¶ 7. The results of this search were not included in the record of this case.
A. Summary Judgment in a FOIA Case
The Court grants a motion for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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). The moving party bears the burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual assertions in the moving party's affidavits may be accepted as true, unless the opposing party submits his own affidavits or documentary ...