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White v. Department of Justice

United States District Court, District Circuit

July 9, 2013

ANTHONY G. WHITE, SR., Plaintiff,


RICHARD J. LEON United States District Judge

Plaintiff, proceeding pro se, challenges the Department of Justice's ("DOJ's") response to his request under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, for records pertaining to him. On September 26, 2012, the Court denied defendant's Motion to Dismiss or for Summary Judgment and directed it to supplement the record with regard to the search for responsive records and the claimed exemptions. White v. DOJ, 893 F.Supp.2d 24 (D.D.C. 2012). Defendant renewed its motion for summary judgment, Def's Renewed Mot. for Summ. J., Dec. 6, 2012 [Dkt. # 19], and plaintiff opposed the motion. Pl.'s Mem. in Response to Def's Renewed Mot. for Summ. J. ("Pl.'s Opp'n"), Jan. 7, 2013 [Dkt. # 20]; Pl.'s Mem. in Response to the Court's Order of Jan. 9, 2013 ("Pl.'s Supp. Opp'n"), Jan. 15, 2013 [Dkt. # 23]. Upon consideration of the parties' submissions and the entire record, the Court GRANTS defendant's Motion for Summary Judgment.


By letter dated January 16, 2010 and received by DOJ's Mail Referral Unit, plaintiff requested "all records pertaining to [himself]." White, 893 F.Supp.2d at 26. The request was forwarded to the Criminal Division for processing. In response to the Criminal Division's request for additional information, plaintiff completed a form indicating that he was requesting searches of the following sections: Appellate, Asset Forfeiture and Money Laundering, Fraud, Gang, Narcotic and Dangerous Drug (NDDS), Electronic Surveillance Unit, Organized Crime and Racketeering, Executive Office for Organized Crime Drug Enforcement Task Force (OCDETF), and National Gang Targeting, Enforcement & Coordination Center (GangTECC). Id.

Defendant's ''search of the appropriate indices of Criminal Division records" located no responsive records. Id, While plaintiffs request was pending, OCDETF became an independent DO J component, and that "portion of [plaintiff s] request was referred to OCDETF for processing and a direct response to plaintiff Id, OCDETF, in tum, referred three documents totaling 23 pages to DOJ's Executive Office for United States Attorneys ("EOUSA"). EOUSA withheld the pages in full under FOIA exemptions 2, 6, 7(C), 7(D), 7(E), and 7(F), see 5 U.S.C. § 552(b), and Privacy Act exemption Q){2), Id,


Summary judgment must be granted when the movant demonstrates "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). "When assessing a motion for summary judgment under FOIA, the Court shall determine the matter de novo'' Judicial Watch, Inc. v. U.S. Dep't of Homeland Sec, 598 F.Supp.2d 93, 95 (D.D.C. 2009) (citing 5 U.S.C. § 552(a)(4)(B)).

In a FOIA action, the Court may award summary judgment based solely on information provided in affidavits or declarations if 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." Safe Card Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation and internal quotation marks omitted). To rebut the presumption, a plaintiff "must point to evidence sufficient to put the Agency's good faith into doubt." Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible[, ]" is adequately supported, and is not contradicted by the record. Larson v. Dep't of State, 565 F.3d 857, 862, 864-65 (D.C. Cir. 2009) (citation and internal quotation marks omitted).

The agency to which a FOIA request is submitted is required to "make a good faith effort to conduct a search for the requested records, using methods which can reasonably be expected to produce the information requested." Int'l Trade Overseas, Inc. v. Agency for lntl Dev, , 688 F.Supp. 33, 36 (D.D.C. 1988) (quoting Marrera v. DOJ, 622 F.Supp. 51, 54 (D.D.C. 1985)) (other citations omitted). ''In determining the adequacy of a [FOIA] search, the Court is guided by principles of reasonableness." Id, (citing Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). Because the agency is the possessor of the records and is responsible for conducting the search, the Court may rely on "[a] reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched." Valencia-Lucena v. United States Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (citations omitted). ''Once the agency has shown that its search was reasonable, the burden is on [the plaintiff] to rebut [the defendant's] evidence by a showing that the search was not conducted in good faith." Moore v. Aspin, 916 F.Supp. 32, 35 (D.D.C. 1996) (citing Miller v. U.S. Dep't of State, 779 F.2d 1378, 1383 (8th Cir. 1985)).

Summary judgment is inappropriate "if a review of the record raises substantial doubt" about the adequacy of the search. Valencia-Lucena, 180 F.3d at 326 (citing Founding Church of Scientology v. Natl Sec, Agency, 610 F.2d 824, 837 (D.C. Cir. 1979)). However, the mere fact that a particular record was not found does not render the search inadequate. Boydv, Crim, Div. Of U.S. DOJ, 475 F.3d 381, 390-91 (D.C. Cir. 2007) (citing Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)) (other citation omitted). "The adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search." Santana v. DOJ, 828 F.Supp.2d 204, 209 (D.D.C. 2011) (quoting Iturralde, 315 F.3d at 315) (internal quotation marks and other citation omitted).


Plaintiff contests two elements of defendant's response to his FOIA request. First, he suspects that more responsive material should have been discovered in response to his FOIA request. See Pl.'s Opp'n at 2-3. Second, he contests the justification for withholding the 23 pages from the EOUSA referral. Id, at 3-4. Unfortunately, for plaintiff, defendant has shown that it satisfied its search obligation and properly withheld the 23 pages. As such, I must grant defendant's renewed motion for summary judgment.

L Defendant's Search for Records

To demonstrate the adequacy of its search, defendant proffers the second Declaration of David Luczynski, Dec. 6, 2012 [Dkt. # 19-3], Attorney Advisor for EOUSA, and the Declaration of John E. Cunningham III, Dec. 5, 2012 [Dkt. # 19-4], Trial Attorney in DOJ's Criminal Division. Both declarants state that they work in their respective FOIA units and have acquired personal knowledge about the processing of plaintiffs request during the performance of their official duties. See Luczynski Decl. ¶¶ 1-3; Cunningham Decl. ¶¶ 1-4. "A declarant in a FOIA case satisfies the personal knowledge requirement in Rule 56[(c)(4)] if in his declaration, he attests to his personal knowledge of the procedures used in handling a FOIA request and his familiarity with the documents in question." Barnard v. Dep't of Homeland Sec, 531 F.Supp.2d 131, 138 (D.D.C. 2008) (citations, internal quotation ...

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