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Eric Joseph Marshall v. Federal Bureau of Investigation

August 10, 2011


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


Eric Joseph Marshall, who is incarcerated, seeks documents regarding DNA evidence relating to his criminal conviction. He brought this suit against the Federal Bureau of Investigation (FBI)*fn1 seeking records under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. The parties filed cross motions for summary judgment.*fn2 Because the FBI conducted an adequate search for records and disclosed all of the information available, subject to various exemptions, the FBI's motion for summary judgment will be granted and Mr. Marshall's cross motion will be denied.


Mr. Marshall was convicted on October 26, 2005 of armed bank robbery, use and brandishing of a firearm during and in relation to a crime of violence, and being a convicted felon in possession of a firearm. Def.'s Mot., Ex. 1 ("Hardy Decl.")*fn3 ¶ 6. He is incarcerated in the Federal Correctional Institution in Pollock, Louisiana.

On November 18, 2008, Mr. Marshall submitted a FOIA/Privacy Act (PA) request to FBI Headquarters seeking a copy of his DNA report from the FBI laboratory in Quantico, Virginia and a copy of his DNA report from the DNA Diagnostic Center Laboratory in Fairfield, Ohio. Hardy Decl., Ex. A. On October 2, 2009, the FBI released, in part, a one page document; the document was redacted pursuant to FOIA Exemptions §§ 552(b)(6) and (7)(C).*fn4 Hardy Decl., Ex. I. Mr. Marshall appealed to the Department of Justice Office of Information Policy ("OIP"). The FBI located additional records, and the OIP remanded the matter for further processing. Id., Ex. K.

Then, on February 9, 2010, Mr. Marshall made a specific request for the following DNA reports (including the Polymerase Chain Reaction ("PCR")*fn5 report and the Short Tandem Repeat ("STR") Report:*fn6 1) a report dated July 24, 2003, prepared by the FBI; 2) a report dated October 22, 2003, prepared by the FBI; and 3) a report dated March 25, 2004, prepared by the DNA Diagnostics Center. Id., Ex. L. On April 26, 2010, the FBI released, in part, ten pages of documents, redacted pursuant to FOIA Exemptions §§ 552(b)(2), (6), and (7)(C). See Hardy Decl. ¶ 34 & Ex. O (FBI's release of reports dated July 24, 2003; Oct. 22, 2003; and Dec.2, 2003).

Mr. Marshall filed this suit, alleging that the FBI did not adequately respond to his request for "complete copies of his DNA reports." See Compl. [Dkt. # 1] at 1. Specifically, he asks the Court to order the FBI to provide all DNA reports and related documents dated July 24, 2003 and October 22, 2003. Id. at 3.

Subsequently, on September 2, 2010, the FBI released two additional pages, withholding the pages in part under Privacy Act Exemption (j)(2) and FOIA Exemption § 552(b)(2). Hardy Decl., Ex. S. This release included a black and white copy of an electropherogram*fn7 dated July 11, 2003. On September 8, 2010, the FBI released two more pages - a color copy of the same electropherogram. Id., Ex. T. On February 7, 2011, the FBI released a copy of an electropherogram dated September 25, 2003. See Def.'s Notice [Dkt. # 29].

In sum, the FBI released fifteen pages, two in whole and the thirteen in part. See Hardy Decl. ¶ 4 & Exs. I, O, S, & T. The only information redacted from the documents was the telephone numbers and fax numbers of FBI personnel and names and identifying information of FBI Special Agents, FBI personnel, and third parties of investigative interest. Id. ¶ 40. After the Hardy Declaration was prepared, the FBI also released in full the electropherogram dated September 25, 2003. See Def.'s Notice [Dkt. # 29]. The FBI found no records pertaining to a March 25, 2004 DNA report prepared by DNA Diagnostics Center.

Mr. Marshall admits that the FBI responded to his FOIA request by producing certain PCR and STR reports and electropherograms. See Pl.'s Mot. at 4. He contends, however, that he requested more information that was not produced. He seeks "Laboratory Number 030903021 PF NR Date October 22, 2003 PCR/STR reports for [e]lectropherogram of computer specimen simulations Q2, Q68, and Q69." Id. The FBI contends that because it conducted an adequate search and produced documents that were properly redacted pursuant to valid FOIA Exemptions, summary judgment should be granted in its favor.


Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted against a party who "after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. FOIA cases are typically and appropriately decided on motions for summary judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Rushford v. Civiletti, 485 F. Supp. 477, 481 n.13 (D.D.C. 1980).


FOIA requires agencies of the federal government to release records to the public upon request, unless one of nine statutory exemptions applies. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975); 5 U.S.C. § 552(b). To prevail in a FOIA case, the plaintiff must show that an agency has (1) improperly (2) withheld (3) agency records. United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989). Even though FOIA "strongly favors prompt disclosure, its nine enumerated exemptions are designed to protect those legitimate governmental and private interests that might be harmed by release of certain types of information." August v. FBI, 328 F.3d 697, 699 (D.C. Cir. 2003) (internal quotation ...

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