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Saldana v. Federal Bureau of Prisons

April 27, 2010


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


Plaintiff Francisco Saldana filed a pro se complaint under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, against the Federal Bureau of Prisons ("BOP"), the Executive Office for the United States Attorneys ("EOUSA"), the United States Marshals Service ("USMS"), and the Federal Bureau of Investigation ("FBI"), each of which is a component of the United States Department of Justice ("DOJ"). Each defendant component has filed a dispositive motion, to which the plaintiff has filed oppositions.*fn1 In addition, Saldana has moved for an order requiring the BOP to provide additional information and a copy of mail logs. The motions filed by the BOP and the EOUSA will be granted, and Saldana's motion for an order directing the BOP to provide copies of mail logs will be denied. Ruling on the motions filed by the USMS and the FBI will be deferred, and the USMS and the FBI will be required to submit supplemental declarations.


Saldana is currently a federal prisoner, having been sentenced in 1996 to serve life plus 15 years in prison after convictions for drug trafficking and weapons violations. Through FOIA requests dating back to 2004 directed to various offices, he has sought information relating to his investigation, prosecution, and defense, including summaries of specific conversations he had with a federal agent before he was arrested and conversations and visits he had with that agent and other persons while in custody before being sentenced.


In August 2004, Saldana addressed a FOIA request to the USMS Office of General Counsel, seeking "all records, documents, and information you have in your files pertaining to me or mentioning my name," and specifically requesting copies of documents showing the dates, time and names of the marshals who had custody of him or were assigned to his case, and copies of records showing the dates and times of his departures and returns to the Federal Detention Center ("FDC") in Miami, Florida. USMS Mot. to Dismiss or for Summ. J. ("USMS Mot."), Declaration of William E. Bordley (Mar. 26, 2009) ("Bordley Decl.") Ex. A. Without providing any rationale in support, Saldana also requested a fee waiver or reduction, but stated that if the waiver was denied "I hereby agree to pay the fees for search and duplication while retaining my right to appeal your denial of fee waiver." Id. His request was assigned No. 2004USMS7629. Id. Ex. B.

The USMS maintains a Prisoner Processing and Population Management/Prisoner Tracking System ("PPM/PTS") and a Warrant Information Network ("WIN"), which contain the agency's records related to the apprehension of fugitives, the receipt and processing of federal detainees, and the transportation, maintenance and custody of federal prisoners from the time of their arrest or remand until the prisoner is committed to the Attorney General for service of sentence. Bordley Decl. ¶¶ 16-17. Once a prisoner is either committed for service of sentence or removed to another district, that prisoner's file is closed and transferred to a Federal Records Center ("FRC") for storage. Id. ¶¶ 19-21. Saldana's PPM/PTS and WIN records had been transferred to the FRC. Id. ¶ 19. Although the USMS requested retrieval of Saldana's file, staff at the FRC could not locate the file. Id. ¶ 22. The record shows that the USMS never communicated this information to Saldana, but mentioned it only in the agency declaration filed with its dispositive motion. A search of the PPM/PTS nonetheless located two documents pertaining to Saldana, which were produced to him. Id. ¶¶ 19, 23. The USMS also searched the DOJ's Consolidated Asset Tracking System ("CATS") and located approximately 498 pages of potentially responsive records. Of the responsive records located, the USMS released 100 pages of records without charge, 48 of which had minimal redactions pursuant to FOIA Exemptions 2 and 7(C), 5 U.S.C. §§ 552(b)(2) & (7)(C). Id. ¶ 6 & Ex. E. The USMS denied Saldana's request for a fee waiver, informed him that copying the remainder of records for release to him would incur an estimated fee of $40, and stated that further processing depended on his agreement to pay the fees. Id. Ex. E. It also suggested that if Saldana wanted to reformulate his request to reduce costs, he should contact the author of the USMS letter. Id.

Saldana did not agree to pay the $40 copying fee. But soon after receiving the USMS's response, Saldana did undertake to "reformulate" his request by expanding it to include copies of all written reports made by any U.S. marshal, other agents assigned to work security concerning United States of America v. Francisco Saldana, case No.: 95-605-CR-Nesbitt, specifically reports filed by U.S. marshal Correal,... [and] copies of all written notes concerning his [Correal's] contacts with" [Assistant United States Attorney ("AUSA")] Allyson Fritz and Jonathal Loo [sic], and other federal/state agents.

Id. Ex. F at 1-2. The USMS treated this reformulated request as a new one and assigned it No. 2005USMS8415. Id. Ex. G. The USMS then informed Saldana that a search for the records identified in No. 2005USMS8415 failed to locate responsive records, and that he had 60 days to appeal this determination. Id. This response did not mention Saldana's PPM/PTS and WIN file that had not been located by the staff at the FRC.

In three subsequent letters Saldana submitted additional requests, framing them as part of his initial 2004 request. See id. Exs. H, I, J. The USMS assigned No. 2007USMS10808 to these three new requests, and informed Saldana that a supplemental search had not located any responsive documents, that it had no additional documents pertaining to his criminal prosecution, and that he had 60 days to appeal this determination. Id. Ex. K. It also informed Saldana that most of the 400 pages related to his 2004 request that had been located but not released were seized asset records. Id. This response also gave no additional information regarding the missing file at the FRC.

Saldana appealed to the Office of Information and Privacy ("OIP"), which affirmed the USMS's response. Id. Ex. M (denying as moot his "appeal from USMS's failure to respond"). Twice thereafter Saldana attempted to expand the scope of No. 2007USMS10808. Id. Exs. N, O. The first such correspondence was not directed to, and did not reach, the USMS office that handles FOIA requests. The second request sought records that are not maintained by the USMS, and the USMS directed Saldana to submit his request elsewhere.

The USMS has moved for dismissal or summary judgment on the ground that Saldana has not exhausted his administrative remedies. It maintains that because Saldana did not pay the required $40 copying fee related to the 400 pages of responsive documents not released to him, he did not exhaust his administrative remedies and is therefore not entitled to judicial review. Reply at 14. In the alternative, the USMS argues that its search was adequate and it has released all non-exempt information to which Saldana is entitled. Id. at 7-8. Saldana contends that he is entitled to a fee waiver, Opp'n to USMS 20-21, and that because he reformulated his request, he is not subject to paying the processing fees, id. at 17-18. He further argues that the searches the USMS conducted were not adequate, as they did not include an interview of Deputy Correal or a search of his "internal or external office," and because the file stored at the FRC was not located and reviewed for responsive documents. Id. at 7. Saldana does not raise any challenges with respect to the USMS's invocation of FOIA Exemptions 2 and 7(C).


In January 2005, Saldana wrote to FBI headquarters ("FBIHQ") asking for "all records, documents and information [illegible] in your files pertaining to me or mentioning my name," and additionally mentioning specific records and categories of information he was seeking. FBI Mot. for Summ. J. ("FBI Mot."), Declaration of David M. Hardy (Mar. 26, 2009) ("Hardy Decl.") Ex. A. The FBI identified the request as No. 1014622-000, id. Ex. D, and searched for records indexed to Saldana's name in its FBIHQ's automated index to its Central Records System ("CRS"). Id. ¶¶ 30-35. That search identified potentially responsive material, which was "unavailable and has been placed on 'locate.'" Id. Ex. E. (The Court understands "unavailable" to mean that the file could not be found at the time. The Court does not know, and the Hardy Declaration does not reveal, the significance of a file being "placed on 'locate.'") In January 2006, Saldana sent another FOIA request to FBIHQ, this one identifying the case number for his criminal prosecution and reiterating his request for some of the specific information mentioned in his request the prior year. Id. Ex. F. After receiving no response despite making interim inquiries, Saldana filed an appeal, which was denied as moot because there had been no adverse determination. See id. Exs. G, H, & I.

Saldana sent two more inquiries about No. 1014622. See id. Exs. J & K. In response, the FBI opened a new request, No. 1080531-000, see id. Ex. L, apparently based on Saldana's January 2006 request, which specifically sought records of statements made to a certain named FBI agent on October 11, 1995, and copies of all 302's*fn2 filed by that agent for which Saldana was the source of information, see id. Ex. F. A search of the main files*fn3 in FBIHQ's CRS did not locate any responsive records. See id. Ex. M. The FBI's response to Saldana did not acknowledge or provide any additional information regarding the file that was "placed on 'locate'" more than two years earlier. See id. Exs. E & M. Saldana's appeal from this determination was unsuccessful. Id. Ex. R.

In the meantime, Saldana directed a FOIA request to the FBI's Miami Field Office framed as an add-on to No. 1080531-000, one of Saldana's earlier requests directed to FBIHQ. The substance of Saldana's Miami request was for "a copy of the 302 filed by Agent [] on April of 1996." Id. Ex. S. He also requested a copy of the three-way, three-party telephone conversation between Saldana, his ex-wife, and the agent. Id. This request to the Miami Field Office was assigned No. 1104474-000, id. Ex. T, and a search of the CRS index in the Miami Field ...

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