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Roosevelt Petit-Frere v. United States Attorney's Office For the Southern District of Florida

August 8, 2011

ROOSEVELT PETIT-FRERE,
PLAINTIFF,
v.
UNITED STATES ATTORNEY'S OFFICE FOR THE SOUTHERN DISTRICT OF FLORIDA, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: James E. Boasberg United States District Judge

MEMORANDUM OPINION

Plaintiff Roosevelt Petit-Frere is serving 170 months for conspiracy and possession with intent to distribute cocaine. While incarcerated, he filed a FOIA request with Defendant United States Attorney's Office for the Southern District of Florida seeking records relating to an application for a wiretap that he alleges was once submitted to a federal judge. Defendants searched their files but found no such documents. Because Defendants' search was adequate -- particularly since another District Court has already determined that no such wiretap application was ever submitted to a federal judge -- the Court will grant Defendants' Motion for Summary Judgment.

I.Background

On June 30, 2008, Plaintiff sent a request for records under the Freedom of Information Act, 5 U.S.C. § 552, et seq., and the Privacy Act, 5 U.S.C. § 552a et seq, to the United States Attorney's Office for the Southern District of Florida (USAO). Dft. Motion, Declaration of Vinay J. Jolly, ¶ 4. His request sought information about a federal wiretap application that targeted him and was submitted to a federal judge in 2000. Jolly Decl., ¶ 5; see also id., Exh. B (Plaintiff's FOIA request). On August 12, 2008, the USAO forwarded Plaintiff's request to the Executive Office for United States Attorneys. Jolly Decl., ¶ 5. The Executive Office informed Plaintiff that it had received his request on August 28, 2008. Id., ¶ 6.

The FOIA staff at the Executive Office on September 9, 2008, requested that the USAO conduct a search for responsive records. Dft. Motion, Declaration of Carole M. Fernandez, ¶ 6. Six months later, Plaintiff inquired about the status of his request and narrowed it to the "exact date and action taken by the federal judge on a federal wiretap application involving myself, Roosevelt Petit-Frere." Jolly Decl., ¶ 6; id., Exh. C. (Plaintiff's February 4, 2009, letter). The Executive Office forwarded the narrowed request to the USAO on March 4, 2009, and requested that it conduct a search for responsive records to the altered request. Fernandez Decl., ¶7.

Plaintiff again inquired about the status of his request on May 20, 2009, and after apparently receiving no response from the Executive Office, he filed an appeal with the Office of Information and Privacy on June 4, 2009. Jolly Decl., ¶¶ 6-7; id., Exhs. D-E (Plaintiff's May 20, 2009, and June 4, 2009, letters). OIP twice informed Plaintiff that the Department of Justice regulations require the Agency to complete processing of any FOIA requests before an administrative appeal may be considered. Jolly Decl., ¶ 8; id., Exhs. F-G (citing 28 C.F.R. § 16.9). OIP further informed him of his right to file a lawsuit in response to the delay in processing his request. Jolly Decl., Exh. G. Plaintiff responded by filing this action on September 11, 2009.

In the meantime, the USAO completed its search for records responsive to Plaintiff's request. The search included electronic databases, file cabinets, and case files that the Agency believed were likely to contain responsive material. Fernandez Decl., ¶¶ 10-11, 13. No responsive documents were found. Id., ¶ 14. The Executive Office informed Plaintiff of this result in a letter dated September 15, 2009. Jolly Decl., ¶ 9; id., Exh. H.

On October 16, 2009, another judge in this District to whom this case was previously assigned dismissed Plaintiff's Complaint without prejudice because he determined that Plaintiff had failed to exhaust his administrative remedies. Defendants, however, informed that judge on November 9, 2009, that the factual basis for dismissal was not accurate. As a result, the case was reopened on December 4, 2009. The parties have since briefed Cross-Motions for Summary Judgment.*fn1

II.Legal Standard

Summary judgment may be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record." FED. R. CIV. P. 56(c)(1)(A). 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). "[A] material fact is 'genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party" on an element of the claim. Liberty Lobby, Inc., 477 U.S. at 248. Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

FOIA cases typically and appropriately are decided on motions for summary judgment.

Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v. United States Agency for Int'l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). In a FOIA case, the Court may grant summary judgment based solely on information provided in an agency's affidavits or declarations if they are relatively detailed and when they 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). 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. Cent. Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).

III.Analysis

The crux of Plaintiff's argument is that Defendants' search was inadequate. Plaintiff believes this to be the case because no responsive documents were found. He contends that Defendants should have searched the files of his co-defendants and contacted an investigator who worked for the local police department. Defendants respond that their search was sufficient ...


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