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

May 19, 2010

MICHAEL PENNY, PLAINTIFF,
v.
U.S. DEPARTMENT OF JUSTICE, DEFENDANT.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document No. 18

MEMORANDUM OPINION

GRANTING THE DEFENDANT'S RENEWED MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

In this civil action brought pro se under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, the plaintiff challenges the Drug Enforcement Administration's ("DEA") response to his requests for records pertaining to himself, other individuals and certain real property. In a prior memorandum opinion, the court dismissed the plaintiff's claims predicated on his requests for third-party records, but denied without prejudice the defendant's motion for summary judgment on the plaintiff's requests for all other records, concluding that the defendant had not provided an affidavit from a witness competent to testify about the adequacy of those search efforts. The defendant now renews its motion for summary judgment as to its search for non-third party records. Upon consideration of the parties' supplemental submissions, the court grants the defendant's renewed motion.

II. FACTUAL & PROCEDURAL BACKGROUND

In September 2006, the plaintiff requested DEA records pertaining to himself, a search warrant issued against him in August 1990, DEA agents who executed the search warrant and a retired case agent who allegedly made a statement about the plaintiff.*fn1 Def.'s Renewed Mot. for Summ. J. at 1-2. The plaintiff initiated this civil action on September 30, 2008. See generally Compl.

On September 21, 2009, the court granted in part and denied in part without prejudice the defendant's motion to dismiss or, in the alternative, for summary judgment. See generally Mem. Op. (Sept. 21, 2009). The court dismissed the plaintiff's claims predicated on his requests for third-party records because the plaintiff had failed to exhaust his administrative remedies. See id. at 3-4. The court, however, denied the defendant's motion for summary judgment on the plaintiff's remaining claims, concluding that the defendant had failed to offer testimony from a witness with personal knowledge of the defendant's search efforts. See id. at 7-8.

On October 5, 2009, the defendant filed this renewed motion for summary judgment, in which it attempts to remedy the deficiency identified in its prior motion. See generally Def.'s Renewed Mot. for Summ. J. The plaintiff filed his opposition on November 23, 2009, see generally Pl.'s Opp'n, and the motion is now ripe for adjudication.

III. ANALYSIS

A. Legal Standard for a Motion for Summary Judgment

Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). In deciding whether there is a genuine issue of material fact, the court is to view the record in the light most favorable to the party opposing the motion, giving the non-movant the benefit of all favorable inferences that can reasonably be drawn from the record and the benefit of any doubt as to the existence of any genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59 (1970). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.

The FOIA mandates full public disclosure of agency records unless the requested records "fall squarely" within one or more of the nine statutory exemptions. Wash. Post Co. v. U.S. Dep't of Agric., 943 F. Supp. 31, 33 (D.D.C. 1996) (quoting Burka v. U.S. Dep't of Health & Human Servs., 87 F.3d 508, 515 (D.C. Cir. 1996)). The court may award summary judgment solely on the information provided in affidavits or declarations that describe "the justifications for nondisclosure with reasonably specific detail . . . 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 Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).

When responsive records are not located, an agency is entitled to summary judgment if it establishes "beyond material doubt [] that it conducted a search reasonably calculated to uncover all relevant documents." Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). For purposes of this showing, the agency "may rely upon affidavits . . . , as long as they are relatively detailed and nonconclusory and . . . submitted in good faith." Id. (citations and quotations omitted). The required level of detail "set[s] forth the search terms and the type of search performed, and aver[s] that all files likely to contain responsive materials (if such records exist) were searched." Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990); accord Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999). "If the requester produces countervailing evidence placing the sufficiency of the identification or retrieval procedures genuinely in issue, summary judgment is inappropriate." Spannaus v. Cent. Intelligence Agency, 841 F. Supp. 14, 16 (D.D.C. 1993) (citing Church of Scientology v. Nat'l Sec. Agency, 610 F.2d 824, 836 (D.C. Cir. 1979)). In determining the adequacy of a FOIA search, the ...


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