The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Pro se plaintiff Jimmy L. Nance filed this complaint under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 522, against the Federal Bureau of Investigation ("FBI"), alleging that the FBI had wrongfully denied him access to forensic evidence he had requested. The FBI has moved under Federal Rule of Civil Procedure 56 for summary judgment, arguing that, although it failed to locate a forensic test that Nance had requested, its search was sufficiently reasonable and that it provided him with all responsive non-exempt information. Because there is no genuine factual dispute as to the reasonableness of the FBI's search and the FBI is entitled to judgment as a matter of law, the motion for summary judgment will be granted.
In 1992, Nance was convicted of the murder of federal postal employee Donna Stevenson and sentenced to life imprisonment. During the investigation into Stevenson's death, the U.S. Postal Inspection Service asked the FBI's Laboratory Division to examine certain items discovered during the investigation. According to the FBI, the submitted items were examined, analyzed, documented, and subsequently returned with their reports to the U.S. Postal Service. Between 1996 and 2008, Nance submitted to the FBI a number of FOIA requests seeking forensic evidence that he believed would exonerate him of the murder conviction. (Compl. ¶¶ 3, 9; Def.'s Mem. in Supp. of Mot. for Summ. J. ("Def.'s Mem.") at 1, 4-10.) Nance claims that he received incomplete responses to his requests and that he was unlawfully denied access to information that the FBI possessed and that he had a right to see. (Compl. ¶¶ 3, 5-9.)
On February 10, 2008 Nance sent to the FBI FOIA request number 1111039-000, which asked for a verified copy of the Wythe County Sheriff's Office Narrative Summary of Nance's criminal case, verified copies of all negative control tests done on Stevenson's blood, or in the alternative a statement in writing that negative control tests were not done. The FBI acknowledged that request, and informed Nance that the only files located in response to his request were Nance's previous FOIA requests, and that the only files pulled were the two he had previously received. (Def.'s Stmt. of Mat. Facts ("Def.'s Stmt.") ¶¶ 18-20.)
Nance filed the instant complaint seeking to compel the defendant to provide him access to the following documents:
(1) "[n]egative control tests done on blood samples of Jimmy Nance and Donna Stevenson"; (2) "[n]otes and findings of Agent(s) Jennifer Lindsay and Audrey Lynch"; and (3) "[l]uminol test results done on [Nance's] vehicle and clothes[.]" (Compl. ¶ 9.) The United States Attorney's office sent a letter to Nance confirming that negative control tests had been conducted, stating that those tests and their results were no longer in the FBI laboratory file pertaining to Nance's criminal case, informing Nance that the file appeared to contain all relevant notes pertaining to the DNA examinations performed, and revealing that no luminol tests on any items from Nance's case had been conducted at the FBI laboratory. (Pl.'s Opp'n at 22-23, Ex. 4.)
The FBI has moved for summary judgment under Rule 56, arguing that Nance failed to exhaust his administrative remedies with respect to all requests other than request number 1111039-000, and that the FBI performed reasonable searches of its records in response to each of Nance's requests and provided Nance with all documents in its possession responsive to those requests, subject to certain redactions in compliance with applicable FOIA exemptions. (Def.'s Mem. at 12-14, 43-45.)
The FBI attached to its motion for summary judgment a declaration from David M. Hardy, Chief of the Record/Information Dissemination Section, Records Management Division, at the FBI's Interim Central Records Complex in Winchester, Virginia. (Id., Hardy Decl. at ¶ 1.) In this declaration, Hardy explained in detail the processes by which the FBI conducts searches in response to FOIA requests generally, and how it conducted searches specifically in response to Nance's requests, including how and under what provisions of the FOIA it redacted certain information from responsive documents. Hardy asserts that the FBI searched its Automated Case Support System to search its Central Records System ("CRS") using Nance's name, Nance's social security number, Nance's birth date, and Stevenson's name, in an attempt to find documents responsive to Nance's request. Hardy said through each search of the CRS, the FBI found three investigatory files responsive to Nance's requests. File number 95A-HQ-1036805, the lab file from the criminal investigation, was a closed file sent from the FBI's Laboratory Division to be stored at the FBI's Alexandria Records Center ("ARC"). Hardy states that the FBI requested that the ARC pull file number 95AHQ-1036805, and ship it to FBI headquarters for review and processing. However, the lab file had been processed and its contents released two previous times - - once to Nance during previous litigation, and once to Nance's son on Nance's behalf in 2007. (Hardy Decl. ¶ 19, 33; Def.'s Stmt. ¶¶ 14-15.) In addition, Hardy's searches revealed file 252A-RH-42534(HQ), which contained information that was forwarded to the National Center for the Analysis of Violent Crime, processed, and released to Nance in 2007. (Hardy Decl. ¶ 33) Further, Hardy's search revealed a Violent Crime Apprehension Program ("ViCap") report in file number 252A-IR-C983, serial 1993VA00013, which was held by the FBI's Critical Incident Response Group. However, Hardy noted that the only file that would contain responsive information to Nance's complaint was the lab file, file number 95A-HQ-1036805. (Id. ¶¶ 30-31.)
Hardy claims that the Record/Information Dissemination Section ("RIDS") consulted the DNA Analysis Unit of the FBI's Lab Division to locate the information specifically requested by Nance. The DNA Analysis Unit informed RIDS that no testing procedure that the FBI lab conducted supported the assertion that human skin was found under Stevenson's fingernails, and that while human blood was identified under Stevenson's fingernails, there was insufficient material to enable further examination. (Hardy Decl. ¶ 59.) The DNA Analysis Unit also informed RIDS that the FBI lab did not perform luminol or saliva tests on items from Nance's case, and that the only negative control tests associated with Stevenson's blood samples would have been related to the amplification of DNA for DQ alpha testing. However, the pages that would have described the use of negative control tests on Stevenson were absent from the lab file. RIDS attempted to locate the missing pages regarding the negative control tests by contacting current employees who had worked in the Laboratory Division or the DNA Legal Assistance Unit, but the former employees could only speculate as to the reason that the pages were missing or as to their location. (Id.)
Nance opposes the FBI's motion for summary judgment, but does not directly contradict the FBI's assertion that he has exhausted his administrative remedies only with respect to request number 1111039-000.*fn1 (See Pl.'s Mem. Br. in Supp. of Opp'n ("Pl.'s Opp'n") at 4.) Instead, Nance argues that "the focal point of this case is now . . . [v]erified copies of all negative control tests done on the blood of Donna Stevenson[.]" (Id.) Nance also argues that summary judgment is not appropriate here because "genuine issues of material fact remain in dispute as it relates to the FBI's search in the 'pre-suit' context." (Id. at 5.)
"'Summary judgment may be appropriately granted when the moving party demonstrates that there is no genuine issue as to any material fact and that moving party is entitled to judgment as a matter of law.'" Pueschel v. Nat'l Air Traffic Controllers Ass'n, 772 F. Supp. 2d 181, 183 (D.D.C. 2011) (quoting Bonaccorsy v. Dist. of Columbia, 685 F. Supp. 2d 18, 22 (D.D.C. 2010) (citing Fed. R. Civ. P. 56(c))). Courts draw all reasonable inferences from the evidentiary record in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "A district court must conduct a de novo review of the record in a FOIA case, and the agency resisting disclosure bears the burden of persuasion in defending its action." Milton v. U.S. Dept. of Justice, 783 F. Supp. 2d 55, 57 (D.D.C. 2011) (citing 5 U.S.C. § 552(a)(4)(B)). In a FOIA case, a court will grant summary judgment in favor of an agency where the agency demonstrates that no material facts are in dispute and that it conducted a search of records in its custody or control that was reasonably forecast to divulge all relevant information, Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984), and that the information found through the search has either been released to the requestor or is exempt from disclosure. See Skinner v. U.S. Dept. of Justice, 806 F. Supp. 2d 105, 111 (D.D.C. 2011) (citing Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001)). To show that the agency's search used methods which were reasonably expected to produce the desired information, Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007), the agency may submit declarations that explain in reasonable detail the scope and method of the search. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). Without contrary evidence, the agency's amply detailed affidavits are sufficient to demonstrate compliance with the FOIA. Perry, 684 F.2d at 127. A search does not have to be exhaustive, and whether a search is adequate is determined by methods, not results. Weisberg, 745 F.2d at 1485. An agency's failure to locate a specific responsive document will not, on its own, render an otherwise reasonable search inadequate. See Brown v. FBI, 675 F. Supp. 2d 122, 125-26 (D.D.C. 2009) (citing Weisberg, 745 F.2d at 1485, and Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004)).
Nance argues that the FBI's pre-suit searches failed to meet the standard required for an adequate search, but Nance admits that the FBI's post-suit acknowledgment that the negative control tests were conducted rendered what he calls their adequate search defense "viable and almost legally sufficient to prevail on summary judgment [in the 'post-suit' context]." (Pl.'s Opp'n at 4-5) (emphasis added). However, at summary judgment in a FOIA case, the timing of a search is irrelevant, so long as an adequate search has been conducted and all redactions from responsive documents are justified. See Landmark Legal Foundation v. EPA, 272 F. Supp. 2d 59, 62-63 (D.D.C. 2003) (citing Atkins v. Dep't of Justice, No. 90-5095, 1991 WL 185084, at *1 (D.C. Cir. Sept. 18, 1991) (stating that "[t]he question whether [the defendant] complied with the [FOIA's] time limitations in responding to [plaintiff's] request [was] moot" where the defendant had responded prior to filing a motion for summary judgment). If the FBI demonstrates that it conducted an adequate search with proper redactions at some point prior to filing for summary judgment, Nance's distinction ...