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Plunkett v. Department of Justice

United States District Court, District of Columbia

February 20, 2013

Anthoine PLUNKETT, Plaintiff,
v.
DEPARTMENT OF JUSTICE, Defendant.

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Anthoine Plunkett, Inez, KY, pro se.

Sean Joseph Vanek, United States Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

RICHARD W. ROBERTS, District Judge.

In this civil action, plaintiff seeks to compel the Executive Office for United States Attorneys (" EOUSA" ) to disclose " all non-exempt records" responsive to his request brought under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552. See Compl. [Dkt. # 1]; Am. Compl. [Dkt. # 27]. Defendant moves for summary judgment under Rule 56 of the Federal Rules of Civil Procedure based on its release of records.[1] Upon consideration of the parties' submissions and the relevant parts of the record, the motion will be granted in part and denied in part.

BACKGROUND

The relevant facts are as follows. By letter dated May 12, 2008, plaintiff requested from EOUSA " copies of any and all records ... in whatever format ... that makes [sic] reference to me or relates [sic] to me under my name and/or identifier assigned to my name." Declaration of John F. Boseker (" Boseker Decl." ) [Dkt. # 16-5], Ex. A. Plaintiff stated that he was " [m]ore specifically ... seeking information generated and/or retained by your agency as a result of the homicide of ‘ Tyree Nathaniel Wimbush’, that occurred on or about July 22, 1999, in the City of Danville, Virginia." Id. Plaintiff requested that his " approval" be sought for " any expenses in excess of $300.00...." Id. In response to EOUSA's subsequent acknowledgment letter dated June 5, 2008, id., Ex. B, plaintiff returned a form EOUSA had included to revise his request " to try to reduce fees," stating that he was limiting his request to " [a]ny and all (statements and investigative) information pertaining to me from January 1st of 1999 up until the present," and again specifying that he sought information pertaining to the Wimbush homicide " within this time frame." Id., Ex. C (parenthesis in original).

By letter of May 8, 2009, EOUSA purported to release to plaintiff 178 unredacted pages and 48 redacted pages of information. Id., Ex. H. EOUSA withheld 305 pages in full and invoked FOIA exemptions 3, 6, 7(C), 7(D), and 7(F), see 5 U.S.C. 552(b), and Privacy Act exemption (j)(2), see 5 U.S.C. § 552a, as the bases for its withholdings. Id., Ex. H. In addition,

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EOUSA referred other records that " may or may not be responsive to [plaintiff's] request" to the United States Marshals Service and the Bureau of Prisons (" BOP" ) for their review and responses directly to plaintiff. Id. at 2. Plaintiff unsuccessfully appealed EOUSA's determination to the Office of Information Policy (" OIP" ), which added exemption 5 as a basis for withholding information. See id., Ex. L.

Plaintiff filed this action on February 9, 2011. Thereafter, on June 2, 2011, EOUSA released to plaintiff an additional 36 pages of information, 35 of which contained redactions made pursuant to FOIA exemptions 3, 5, 7(C), 7(D), and 7(F). Id., Ex. N [Dkt. # 21-2]. In preparing a Vaughn index in support of the instant summary judgment motion, see Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C.Cir.1973), Boseker determined that EOUSA had miscalculated the initial number of released pages and, accounting also for the additional release in June 2011, clarified that EOUSA released 170 pages in full and 83 pages in part, and withheld a total of 1,738 pages in full that includes 885 pages of grand jury records and 707 pages of " non-responsive/categorically third-party records, (including 160 pages returned from the BOP)." Boseker Decl. ¶¶ 22-24 (parenthesis in original). All of the responsive records were located in plaintiff's criminal case file maintained by the United States Attorney's Office for the Western District of Virginia (" USAO/WDVA" ) where plaintiff was prosecuted and convicted " of multiple counts of criminal statutory violations relating to [a] murder for hire perpetrated upon ... Mr. Wimbush." Id. ¶ 26; see Plunkett v. U.S., No. 4:04-cr-70083, No. 4:09-cv-80205, 2011 WL 2199174, at *1 (W.D.Va. June 6, 2011) (identifying plaintiff as " a federal inmate serving a life sentence for his convictions in connection with his role in a murder for hire conspiracy...." ).

REVIEW STANDARD

Summary judgment may be appropriately granted when " 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). 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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. Dep't 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, summary judgment in favor of an agency is warranted where the agency demonstrates that no material facts are in dispute, 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)).

When, as here, an agency's search is questioned, the agency is entitled to summary judgment upon a showing, through declarations that explain in reasonable detail and in a nonconclusory fashion the scope and method of the search, that it conducted a search likely to locate all responsive records. Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982). Without contrary evidence of bad faith, the agency's

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amply detailed affidavits are sufficient to demonstrate compliance with the FOIA. Id. 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, ...


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