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Kenney v. United States Dep't of Justice

March 30, 2009


The opinion of the court was delivered by: Paul L. Friedman United States District Judge


Plaintiff William Kenney brought this Freedom of Information Act ("FOIA") suit against defendant, the United States Department of Justice, to obtain records in the possession of two of its component agencies, the Executive Office for United States Attorneys ("EOUSA") and the Federal Bureau of Investigation ("FBI"). Defendant now seeks partial summary judgment with respect to the EOUSA's response to plaintiff's request.*fn1 Plaintiff has responded with a cross motion for partial summary judgment. After careful consideration of the parties' papers and the entire record in the case, the Court grants defendant's motion and denies plaintiff's motion.*fn2


On June 20, 1996, plaintiff, who is currently serving a prison sentence imposed by the United States District Court for the District of New Hampshire for a criminal conviction in 1992, submitted a FOIA/Privacy Act ("PA") request to the EOUSA requesting records relating to the criminal case against him and his co-conspirators. See Mot., Statement of Material Facts Not in Genuine Dispute ("Def. Facts") ¶¶ 1- 3; see also United States v. Neal, 36 F.3d 1190 (1st Cir. 1994) (affirming Kenney's conviction).*fn3 The EOUSA forwarded the request to the United States Attorney's Office for the District of New Hampshire ("USAO DNH") asking it to conduct a search for responsive records. See Def. Facts ¶ 4. The USAO DNH searched the computer case tracking system for records responsive to plaintiff's request, using plaintiff's name as a search term. See id. It also conducted a search of paper records, specifically its indices of criminal and civil cases and the Federal Records Center's paper indices of criminal and civil cases. See id. ¶ 4. USAO DNH also had its staff search their own personal files for responsive records. See id. These searches uncovered the master criminal case file for plaintiff's criminal case, 27 boxes in total. See id. ¶¶ 4, 14.

After initially withholding the records, and then subsequently determining that the records were appropriate for processing based on a change in its treatment of Exemption (7)(A) of the FOIA, the EOUSA informed plaintiff by letter of May 5, 2000 that it had located nine boxes of potentially responsive nonpublic material and approximately 11,900 pages of public, court-filed potentially responsive documents. See Def. Facts ¶¶ 6, 7. Over the next few months, plaintiff submitted numerous PA waivers for the third parties about whom he had requested records, in order to allow the EOUSA to release the third parties' records. See id. ¶ 8. Between June 7, 2000 and March 29, 2004, plaintiff submitted death certificates for additional third parties (in lieu of PA waivers). See id. ¶ 9.

By letter of February 10, 2004, the EOUSA informed plaintiff that it was rejecting the PA waiver that he had submitted for Richard J. Ferguson and for four other third parties. See Def. Facts ¶ 10. In a letter dated March 29, 2004, the EOUSA notified plaintiff that it would honor his FOIA/PA request to the extent that it sought information relating to himself and to third parties for whom he had submitted death certificates, but was rejecting all of the PA waivers. See id. ¶ 11. The EOUSA also advised plaintiff that "[b]ecause we have received numerous letters from you during the past two years altering your FOIA request and/or narrowing it, the scope of your request has become ambiguous to us. Therefore, we request clarification for the type of records you request on yourself and the deceased individuals." See id., Ex. AA at 2. By letter of April 20, 2004, plaintiff responded: "I am now respectfully requesting all investigative records and information on myself and the deceased individuals." See id. ¶ 12, Ex. CC (emphasis in original). From that point onward, the EOUSA treated plaintiff's FOIA request as seeking the investigative records for himself and for the third parties for whom he had submitted death certificates.

Based upon plaintiff's reformulated request, the USAO DNH shipped eleven boxes of potentially responsive records to the EOUSA, including, among other things, all investigative records contained in the criminal case file. See Mot., Declaration of Karen M. Finnegan ("First Finnegan Decl.") ¶ 46. By letter of June 8, 2004, the EOUSA informed plaintiff that it had conducted a search of the records in its possession (the eleven boxes from the USAO DNH) pursuant to his April 20, 2004 letter and located approximately three boxes (or 6,000 pages) of responsive investigative records, and about 120 pages of responsive publically filed records. See Def. Facts ¶¶ 13-14; First Finnegan Decl. ¶ 46. The EOUSA further informed plaintiff that it would refer these records to the FBI for processing before release to plaintiff. See Def. Facts ¶ 13. Plaintiff responded by letter of June 23, 2004, declining to pursue production of the publically available records, but stating that he did "want to pursue the investigative records." See id. ¶ 15, Ex. FF.

By letter of August 9, 2004, the EOUSA informed plaintiff that it had "gathered all investigative records and referred them to the FBI for review and processing." See Def. Facts ¶ 16; Mot., Ex. GG at 1. The letter also explained that "[t]his is the final action this office will take concerning your request," and informed plaintiff of his right of appeal. See Mot., Ex. GG at 2. The EOUSA referred all of the approximately 6,000 pages of investigative records potentially responsive to plaintiff's final formulation of his FOIA request to the FBI for processing. See Def. Facts ¶ 17. Both defendant and plaintiff now move for summary judgment on the adequacy of the EOUSA's response to plaintiff's FOIA request.


The Court will grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits or declarations, show that there is no genuine issue of 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 a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits or declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

In a FOIA case, the Court may grant summary judgment based on the information provided in affidavits or declarations when the affidavits or declarations 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 Hertzberg v. Veneman, 273 F.Supp.2d 67, 74 (D.D.C. 2003). 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.'" SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. Central Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).


Defendant moves for partial summary judgment on the ground that the EOUSA conducted an adequate search for records and properly referred potentially responsive records to the FBI for processing. Plaintiff does not contest the adequacy of the EOUSA's search for documents. Instead he challenges the agency's failure to produce those records, arguing that the EOUSA impermissibly narrowed the scope of ...

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