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Dorsey v. Executive Office For United States Attorneys

United States District Court, District of Columbia

March 1, 2013

Alvin DORSEY, Plaintiff,
v.
EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, Defendant.

Page 254

Alvin Dorsey, Bennettsville, SC, pro se.

Sean Joseph Vanek, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

EMMET G. SULLIVAN, District Judge.

This matter is before the Court on the defendant's motion for summary judgment. For the reasons discussed below, the motion will be granted in part and denied in part without prejudice.

I. BACKGROUND

On or about June 16, 2011, Compl. at 2, pursuant to the Freedom of Information Act (" FOIA" ), see 5 U.S.C. § 552, plaintiff submitted to the Executive Office for United States Attorneys (" EOUSA" ) a request for " [s]urveillance video, video logs, handwritten call logs, warrants D.E.A.-6, promises, agreements and any information that is required to be released under [FOIA]." Def.'s Mem. of P. & A. in Supp. of Def.'s Mot. for Summ. J., Decl. of David Luczynski (" Luczunski Decl." ), Ex. A (FOIA request). With his request plaintiff supplied a Certificate of Identity. See id., Ex. A (Certification of Identity). EOUSA staff determined that any responsive records would have been maintained in the United States Attorney's Office for the Middle District of Florida (" USAO/FLM" ), and, accordingly, the request was forwarded to that office. Luczynski Decl. ¶ 10. Once a search for responsive records commenced, " it became apparent that due to the number

Page 255

of records [and] the time spent searching," there would be a fee assessed for the processing of plaintiff's request. Id. ¶ 6. The EOUSA so informed plaintiff, see id., Ex. C (Letter to plaintiff from Susan B. Gerson, Acting Assistant Director, Freedom of Information and Privacy Staff, EOUSA, dated July 18, 2001) at 1, and plaintiff paid the fees in two installments. Compl. at 2; see id., Ex. B (Letters to Sean J. Vanek from plaintiff).

The EOUSA released 63 pages of records in full, released 2 pages of records in part, and withheld approximately 1500 pages in full, pursuant to Exemptions 3, 5, 7(C) and 7(F). Luczynski Decl. ¶ 9; see id., Ex. G (Letter to plaintiff from S.B. Gerson dated June 21, 2012) at 1. In addition, the EOUSA referred certain records to the Drug Enforcement Administration and the Federal Bureau of Investigation, the DOJ components from which they originated. Id. ¶ 9. According to plaintiff, however, the EOUSA " failed to release the 63 pages in full, and the 2 pages in part as the defendant claim[s] to have done." Pl.'s Opp'n Mot. to Def.'s Summ. J. at 1. As of the filing of his opposition, plaintiff had not received the documents. Id.

II. DISCUSSION

A. Summary Judgment in a FOIA Case

In a FOIA action to compel production of agency records, the agency " is entitled to summary judgment if no material facts are in dispute and if it demonstrates ‘ that each document that falls within the class requested either has been produced ... or is wholly exempt from the [FOIA's] inspection requirements.’ " Students Against Genocide v. Dep't of State,257 F.3d 828, 833 (D.C.Cir.2001) (quoting Goland v. Cent. Intelligence Agency, 607 F.2d 339, 352 (D.C.Cir.1978)). Summary judgment may be based solely on information provided in an agency's supporting 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 [or] by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). " To successfully challenge an agency's showing that it complied with the FOIA, the plaintiff must come forward with ‘ specific facts' ...


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