United States District Court, District of Columbia
BERMAN JACKSON District Judge.
Vernon Earle brought this action against defendants, the
United States Department of Justice C'DOD and the United
States Attorney for the District of Columbia, under the
Freedom of Information Act ("FOIA"), 5 U.S.C §
552 et seq. Compl. [Dkt. # 1] at I. Plaintiff seeks
to compel defendants to produce "the Grand Jury's
Tax Number for District of Columbia criminal felony Case
Number# F.4396-85, concerning any indictment issued for that
case." Id. Defendants have moved to dismiss the
case for lack of subject matter jurisdiction or in the
alternative, for summary judgment, on the ground that grand
jury tax numbers have never existed. Defs.' Mot. to
Dismiss or Alternatively for Summ. J. [Dkt. # 10]
("Defs.' Mot.") at 1; Attach. 3 to Defs.'
Mot., Defs.' Mem. of P. & A. in Supp. of Defs.'
Mot. [Dkt. # 10-3] ("Defs.' Mem.") at 1.
According to defendants, since grand jury tax numbers do not
exist, there was no need to conduct a futile search to find
them. Defs.'Mem. at 1.
these circumstances, there is case law that would support the
dismissal of the action on the basis that this Court lacks
jurisdiction. But in the event the Court is required to
assess the adequacy and/or the futility of the search based
on the evidentiary record, the Court will enter judgment in
favor of defendants because there is no genuine dispute of
material fact concerning the existence of the records and the
lack of any obligation to search for them.
facts are not in dispute. Plaintiff was convicted of several
crimes during the 1980s. Compl. at 1-2. He was also charged
in the Superior Court for the District of Columbia in felony
case number F.4396-85. Id. at 2. The charge was
dismissed during the grand jury phase of the investigation on
or around April 10, 1986. Attach. 2 to Defs.' Mot., Decl.
of David Luczynski [Dkt. # 10-2] ("Luczynski
Decl.") ¶ 9. By letter dated July 2, 2015,
plaintiff sent a FOIA request to the Tax Division of the DOJ
asking for the tax number of the grand jury from that case.
Ex. 1 to Compl; Luczynski Decl. ¶4.
August 4, 2015, the Executive Office of the United States
Attorneys ("EOUSA") responded on the DOJ's
behalf, explaining that "[g]rand jury material is exempt
from mandatory release" because it is "specifically
exempted from disclosure by statute." Ex. 2 to Compl.;
Luczynski Decl. ¶ 5. Plaintiff filed an appeal with the
DOJ's Office of Information Policy ("OIP"). Ex.
3 to Compl.; Luczynski Decl. ¶ 6. OIP affirmed the
EOUSA's determination, but instead of relying on the
statutory disclosure prohibition exemption, it stated that
the "EOUSA does not maintain any information concerning
the type of records . . . described in [Earle's] request
letter." Ex. 4 to Compl.; Luczynski Decl. ¶ 8.
Additionally, OIP explained that it "has never found any
indication that this type of record has ever existed within
any component of the Department of Justice." Ex. 4 to
Compl.; Luczynski Decl. ¶ 8.
seeks review of OIP's decision. See Compl.
at2-4. Defendants take the position that the Court lacks
jurisdiction to review a FOIA request for material that does
not exist since the statute would not apply in that
circumstance and, in the alternative, they argue that
judgment should be entered in favor of defendants since they
have complied with their FOIA obligations. Defs.' Mem. at
1. In support of their motion, defendants rely upon the
declaration of David Luczynski, an attorney in the EOUSA, who
coordinated the DOJ's response to plaintiffs FOIA
request. See Luczynski Decl. ¶3.
Luczynski searched for plaintiffs first and last name using
the District of Columbia's court cases online webpage.
Id. ¶ 9. He found felony case # F-4396-85, but
the online system did not contain a tax ID number.
Id. Mr. Luczynski states, based on his experience as
an Attorney Advisor with the EOUSA, that "there are no
'tax numbers' associated with grand juries in D.C.
Superior Court." Id.
Luczynski also contacted Christina Troiani, an
Attorney-Advisor of the DOJ's Office of Information
Policy. Id. Her responsibilities include reviewing,
verifying, and adjudicating FOIA requestors' appeals,
id., and she adjudicated plaintiffs appeal.
See Ex. 4 to Compl. at 2. Ms. Troiani informed Mr.
Luczynski that, to her knowledge, "there is no record
system anywhere within DOJ in which responsive records would
be located" because grand jury tax numbers do not exist.
Luczynski Decl. ¶ 9.
Luczynski also contacted Richard Tischner, who is the Chief
of the Superior Court Division at the United States
Attorney's Office for the District of Columbia.
Id. The United States Attorney for the District of
Columbia prosecutes federal offenses, as well as most of the
local crimes within the District, and the Superior Court
Division handles those prosecutions. Id. Mr.
Tischner has worked in that office since October 1985, a time
period that includes the period when felony case # F-4396-85
was dismissed. Id. According to Mr. Tischner, grand
juries in D.C. Superior Court "do not - and never have
had - tax numbers." Id.
on his interviews with Mr. Tischner and Ms. Troiani, his
search using the District of Columbia's webpage, and his
own experience as an Attorney Advisor with the EOUSA, Mr.
Luczynski concluded that "the requested information does
not exist, " so "there is no record system in which
responsive records are likely to be located."
filed a timely opposition to defendants' motion, and in
it, he asserts that he was told by a jailhouse lawyer that
all indictments must be filed with the Tax Division of the
DOJ and be given a tax number to be valid. Aff in Supp., Ex.
1 to PL's Mot. of Opp. to Defs.' Mot. with