United States District Court, District of Columbia
P. Mehta United States District Judge
Kenneth Buholtz, proceeding pro se, brings this action under
the Freedom of Information Act (“FOIA”) against
the United States Marshals Service (“USMS” or
Defendant),  seeking medical, phone, and
disciplinary records created during his incarceration at a
USMS contract facility in Fannin County, Texas. 5 U.S.C.
§ 552. Defendant now moves for summary judgment,
asserting that the documents Plaintiff seeks are not in its
on the parties' submissions and the record evidence, the
court grants Defendant's Motion for Summary Judgment.
June 2011 to March 2013, Plaintiff was a prisoner at the
Fannin County Detention Center, which operates as a contract
facility for USMS. Compl., ECF No. 1 [hereinafter Compl.],
¶ 4.01; Mem. in Supp. of Def's Mot. for Summ. J.,
ECF No. 7, at 6-12 [hereinafter Def's Mem.], at 1, 6. On
June 19, 2014, Plaintiff sent a request to USMS seeking all
records pertaining to him. Def.'s Stmt. of Undisputed
Material Facts, ECF No. 7, at 2-5 [hereinafter Def's
Stmt.], ¶ 1; Pet's Opp. to Summ. J., ECF No. 10
[hereinafter Pl.'s Opp.], at 1. The June 2014 FOIA
Request is nowhere mentioned in Plaintiffs Complaint-and thus
does not appear to be a subject of this action-but the court
discusses it by way of background.
conducted a search for records, which yielded 51 pages of
material. Def.'s Stmt. ¶¶ 2-4; Decl. of William
Bordley, ECF No. 7-1 [hereinafter Bordley Decl.],
¶¶ 4, 6; Bordley Decl., Ex. A, ECF No. 7-2, at 1-2.
On July 16, 2014, USMS released 50 pages of material to
Plaintiff-33 pages in full and 17 pages with some information
withheld pursuant to FOIA Exemptions 7(C) and 7(E), which
protect from disclosure certain law enforcement records.
Bordley Decl. ¶ 6; Bordley Decl., Ex. C, ECF No. 7-2
[hereinafter Bordley Decl., Ex. C], at 4-7; 5 U.S.C. §
552(b)(7). The remaining page originated with the Executive
Office for U.S. Attorneys (EOUSA) and was referred to that
agency for a response to Plaintiffs request. Bordley Decl.
¶ 6; Bordley Decl., Ex. C. When it turned over the
records, USMS advised Plaintiff that he could appeal
USMS' partial denial to the Department of Justice Office
of Information Policy within 60 days. Id.
however, filed his appeal on October 8, 2014, after the
60-day period expired. Bordley Decl. ¶ 7; Bordley Decl.,
Ex. D, ECF No. 7-2, at 8. Thereafter, the Office of
Information Policy denied Plaintiffs appeal as untimely.
Bordley Decl. ¶¶ 7-8; Bordley Decl., Ex. E. ECF No.
7-2 [hereinafter Bordley Decl., Ex. E], at 10. In its letter
denying the appeal, the Office of Information Policy
instructed Plaintiff, “you are free to make a new
request to USMS for any records that you might wish to
receive.” Bordley Decl., Ex. E, at 10.
that invitation, Plaintiff filed a series of follow-on FOIA
requests starting in January 2015. On January 12, 2015, he
sought from USMS his inmate phone account records and
disciplinary records from the period he was held at the
Fannin County Detention Center. Bordley Decl. ¶¶
9-10; Bordley Decl., Ex. F, ECF No. 7-2 [hereinafter Bordley
Decl., Ex. F], at II. USMS advised Plaintiff that
“[t]he records you seek are under the jurisdiction of
Fannin County” and “to direct your request to the
appropriate agency in that facility.” Bordley Decl.,
Ex. G, ECF No. 7-2, at 12.
unsatisfied with that response, Plaintiff submitted
additional requests for the same records in April and June
2015, which USMS treated as duplicate requests and took no
action. Bordley Decl. ¶¶ 11-12; Bordley Decl., Exs.
H & I, ECF No. 7-2 at 13-14. Plaintiff then filed a
complaint in this court on May 19, 2016. See Compl.
FOIA cases are appropriately decided on motions for summary
judgment. See Defenders of Wildlife v. U.S. Border
Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). A court may
award summary judgment in a FOIA case by relying on the
agency's affidavits or declarations if they are
“relatively detailed and non-conclusory, ”
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200
(D.C. Cir. 1991) (internal quotation marks omitted), and 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). The court affords such
declarations “substantial weight” if they meet
these requirements. Judicial Watch v. U.S. Dep't of
Def., 715 F.3d 937, 940-41 (D.C. Cir. 2013).
seeks summary judgment on a simple ground-it does not possess
the records that Plaintiff seeks. Def.'s Mem. at 6. It
contends that, if the records are to be found anywhere, they
would be in the possession of the state or local agency that
operates the Fannin County Detention Center. Id.
Plaintiff responds that Defendant's lack of physical
possession of the records does not absolve it of the
obligation to produce them. Pl.'s Opp. at 3-5. As he puts
it, because the Fannin County Detention Center was a USMS