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Nolen v. Department of Justice

United States District Court, D. Columbia

November 19, 2015

Austin Nolen, Plaintiff,
Department of Justice, Defendant

          For AUSTIN NOLEN, Plaintiff: Jeffrey Louis Light, LEAD ATTORNEY, LAW OFFICES OF JEFFREY LIGHT, Washington, DC.

         For DEPARTMENT OF JUSTICE, Defendant: Alexander Daniel Shoaibi, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.


         Amit P. Mehta, United States District Judge.


         Plaintiff Austin Nolen brings this suit under the Freedom of Information Act (" FOIA" ) challenging the adequacy of the Federal Bureau of Investigation's (" FBI" ) search in response to his extraordinarily detailed, ten-page FOIA request. In sum, Plaintiff requested " any and all records . . . relating or referring" to Martin Droll, a deceased socialist writer and organizer. In response to Plaintiff's request, the FBI searched both the index of its Central Records System (" CRS" ) using its Universal Index (" UNI" ) application, as well as the indices of its Electronic Surveillance (" ELSUR" ) records system, for files relating to Droll. Each database was searched using a seven-way phonetic breakdown of Droll's name. Each search included Droll's date and place of birth, and date and place of death. But the FBI found no records.

         After Plaintiff filed this lawsuit, the FBI again searched the CRS index, but this time searched for any cross-references to Droll that might exist in other files. This follow-up search employed the same terms used in the initial search, as well as Droll's alias, " Marty Rifles," which was identified for the first time in Plaintiff's Complaint. Applying these same terms, the FBI also searched the Sentinel Index of the CRS. In all, the FBI conducted four searches of two different databases on two separate occasions. None of these searches returned any responsive records.

         Before the court are Defendant's Motion for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment. Defendant Department of Justice (" DOJ" ) argues that the FBI's searches, as described above, were adequate because they were reasonably likely to identify records responsive to Plaintiff's FOIA request. Plaintiff counters that the FBI's search was inadequate because the FBI: (1) did not search the case files of Droll's known associates and affiliated organizations; (2) did not search the Electronic Case File (" ECF" ), a separate index that can be used to conduct text-based searches of the FBI's records; and (3) failed to contact relevant field offices and divisions to determine whether those offices possessed responsive records.

         Having reviewed the record, the court grants Defendant's Motion for Summary Judgment and denies Plaintiff's Cross-Motion for Summary Judgment.


         A. Factual Background

         Martin Andrew Droll was a socialist writer and organizer involved in several " leftist movements and organizations." Compl., ECF No. 1, ¶ ¶ 7, 9. According to Plaintiff's Complaint, on April 17, 2014, Droll made a Freedom of Information Act (" FOIA" ) request to the FBI, seeking records about himself that the FBI had in its possession. Id. ¶ 16. Droll made the request after one of his associates, Shane Madonna, told Droll that the FBI possessed material indicating that Droll was a religious extremist. Id. ¶ ¶ 14-16. Droll allegedly received a response from the FBI on May 13, 2014, though the Complaint does not specify the response's contents. Id. ¶ 16. That same day, Droll committed suicide. Id. ¶ 17.

         On June 6, 2014, Plaintiff Austin Nolen submitted a FOIA request to the FBI. See generally Def.'s Mot. for Summ. J., ECF No. 9 [hereinafter Def.'s Mot.], Ex. A, ECF No. 9-1. Plaintiff's request was unusually lengthy and elaborate, spanning ten, single-spaced pages with more than 33 different paragraphs of instructions. See generally id. In those ten pages, Plaintiff sought " any and all records . . . relating or referring to the deceased person Martin Andrew Droll." Id. at 14.

         Plaintiff also made a number of specific search requests, only a few of which are pertinent to this litigation. First, he asked that the FBI conduct a text-based search of the Electronic Case File (" ECF" ). Id. at 17. The ECF is an application of the Automated Case Support System (" ACS" ). Def.'s Mot., Attachment A, Decl. of David M. Hardy, ¶ 16 [hereinafter Hardy Decl.]. ACS allows the FBI to search the Central Records System (" CRS" ), which contains " administrative, applicant, investigative, personnel, and other files complied for law enforcement purposes," using several different methods. Id. ¶ ¶ 12, 16. Plaintiff's request also asked the FBI to search at least 98 other indices, including the Electronic Surveillance (" ELSUR" ) indices. Def.'s Mot., Ex. A, at 18-19. ELSUR " maintain[s] information on subjects whose electronic and/or voice communications have been intercepted as the result of a consensual electronic surveillance or a court-ordered (and/or sought) electronic surveillance conducted by the FBI." Hardy Decl. ¶ 18. Finally, Plaintiff also requested a search of " any and all FBI field offices and/or resident agencies, and any and all FBI and/or Joint task force offices." Def.'s Mot., Ex. A, at 15.

         In addition to spelling out these expansive search requests, Plaintiff provided additional information on Droll, such as his date and place of birth (April 14, 1989, in Guernsey County, Ohio) and his date and place of death (May 13, 2014, in Philadelphia County, Pennsylvania). Id. at 14. The request also stated that Droll's associate, Shane Madonna, was questioned by at least one FBI agent on the " existence and nature of his relationship with Mr. Droll." Id.

         On June 30, 2014, the FBI responded to Plaintiff's FOIA Request. Def.'s Mot., Ex. B, ECF No. 9-1, at 27. The FBI informed Plaintiff that, after searching the CRS and the ELSUR indices, the FBI was " unable to identify [any] main file records responsive to [Plaintiff's] FOIA [request]." Id. at 27. David M. Hardy, the FBI's Section Chief of the Record/Information Dissemination Section of the Records Management Division in Winchester, Virginia, provided a declaration describing the FBI's initial searches. According to Hardy, the FBI initially searched " the automated indices to the CRS to identify all potentially responsive files indexed to FOIA subject Martin Andrew Droll." Hardy Decl. ¶ 22. In its search, using the Universal Index (" UNI" ) application, the FBI employed a " [seven]-way phonetic breakdown" of Droll's name including: " Droll, Martin, Andrew" ; " Droll, Martin, A" ; " Droll, M, A" ; " Droll, Martin" ; " Droll, M" ; " Droll, Andrew" ; and " Droll, A." Def.'s Reply to Pl.'s Cross-Mot., Second Declaration of David M. Hardy, ECF No. 13-1, ¶ 6(a) [hereinafter Second Hardy Decl.]; Hardy Decl. ¶ ¶ 22-23. The search also included Droll's " date of birth, date of death, and places of birth and death to facilitate the identification of responsive records." Id. ¶ 22. Employing the same terms used to perform the index search of the CRS, the FBI also searched the ELSUR indices for any main files relating to Droll. Id. ¶ 23. This search, like the CRS search, did not reveal any responsive documents. Id.

         Plaintiff appealed the FBI's failure to find records to the Office of Information Policy (" OIP" ) on July 7, 2014, claiming that the FBI had failed to conduct an adequate search for responsive material. Def.'s Mot., Ex. C, ECF No. 9-1, at 31. OIP sent Plaintiff an initial response on July 11, 2014, informing him that it had received his request. Def.'s Mot., Ex. D, ECF No. 9-1, at 48. On September 16, 2014, OIP affirmed the FBI's ...

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