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Burke v. United States Department of Homeland Security

United States District Court, District of Columbia

August 8, 2017

DARRYL BURKE, Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant.

          MEMORANDUM OPINION

          RANDOLPH D. MOSS, UNITED STATES DISTRICT JUDGE

         Plaintiff Darryl Burke, proceeding pro se, brings this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, against the U.S. Department of Homeland Security. Burke alleges that he served a FOIA request dated October 26, 2014, on the Transportation Security Agency (“TSA”), a Department component, and that the TSA has “failed to respond” to that request. Dkt. 1 at 2 (Compl. ¶¶ 4-5). The Department contends that the TSA did not receive Burke's FOIA request until June 6, 2016, nearly two years later. Ultimately, however, the Department did conduct a search for records, and it represents that it was unable to locate any responsive records. On that basis, the Department contends that it has done all that FOIA requires of it.

         The matter is now before the Court on the Department's motion to dismiss or, in the alternative, for summary judgment. Dkt. 11. Burke has failed to respond to that motion despite receiving warnings from the Court, Dkt. 13, and the Department, Dkt. 11 at 1-2, that the Court “will accept as true any factual assertion supported by the affidavits (or declarations) or other documentary evidence submitted with the [Department's] motion, unless the plaintiff submits his . . . own” controverting evidence, Dkt. 13 at 2. See also Minute Order (Jan. 6, 2017) (absent a timely opposition, the Court “may consider only defendant's arguments”). Although the Court must still consider the legal merits of the Department's defense, see Winston & Strawn, LLP v. McLean, 843 F.3d 503, 507-08 (D.C. Cir. 2016), Burke's failure to respond to the Department's evidence leaves the Court with an undisputed factual record.

         Against this backdrop, and for the reasons explained below, the Court concludes that the Department is entitled to summary judgment. The Court will, accordingly, grant the Department's motion.

         I. BACKGROUND

         Darryl Burke is an inmate at a federal corrections facility in South Carolina. Dkt. 1 at 1 (Compl. ¶ 2). This is one of three FOIA cases filed by Burke pending before the Court. See also Burke v. U.S. Dep't of Justice, No. 16-cv-2082-RDM (filed Oct. 20, 2016); Burke v. U.S. Dep't of Homeland Security, No. 16-cv-1670-RDM (filed Aug. 17, 2016). Because the declaration submitted in support of the Department's motion for summary judgment is uncontroverted, the Court will accept the facts set forth in that declaration as admitted for purposes of resolving the Department's motion. See Fed. R. Civ. P. 56(e)(2); LCvR 7(h)(1); see also Waterhouse v. District of Columbia, 298 F.3d 989, 992 (D.C. Cir. 2002).

         In his complaint, Burke alleges that “[b]y Freedom of Information Act Request dated 10/26/2014, [he] requested that the . . . TSA[] provide him with a copy of all agency records pertaining to” either him or his wife, Vicki Garland, and that the TSA has not responded to that request. Dkt. 1 at 2 (Compl. ¶¶ 4-5). Notably, Burke does not allege that he actually sent the FOIA request to the TSA on October 26, 2014, or that it was received on that day, but only that the request is “dated” October 26, 2014. Although it is unclear whether Burke intends to distinguish between the date indicated on the face of the FOIA request and the date it was actually sent to, or received by, the TSA, the Department perceives precisely that distinction. According to the uncontroverted declaration of Teri Miller, the operations manager for the TSA's FOIA Branch, the FOIA Branch did not receive a request for records from Burke until June 6, 2016. Dkt. 11-1 at 2 (Miller Decl. ¶ 6).

         That request did not take the usual form, but rather included a copy of the complaint that was subsequently filed in this matter, with three attachments: a FOIA request dated October 26, 2014; a second request dated September 23, 2015; and a subpoena to produce documents in a bankruptcy proceeding dated February 17, 2016. Id. at 2-4 (Miller Decl. ¶¶ 6-10); see also Dkt. 11-2 (attaching these documents). As Miller explains, TSA's “FOIA Branch does not have a record of ever having received [Burke's] purported October 2014 Request or [his] September 2015 Request, other than what was attached to [the] June 2016 Request.” Dkt. 11-1 at 4 (Miller Decl. ¶ 12).

         The three documents attached to Burke's June 6, 2016, submission all sought certain TSA records (including video records) relating to travel in July 2009 by Burke (using the names “Darryl Burke, ” “Jeffery Burke, ” “Jeffrey Burke”) or his son, Lorin Burke. Id. at 3-4 (Miller Decl. ¶¶ 8-10). None of these documents-including the FOIA request dated October 26, 2014, which forms the gravamen of Burke's current complaint-refer to Burke's wife, Vicki Garland. Along with his June 6, 2016, request to the TSA, however, Burke submitted seven pages of materials relating to FOIA requests either submitted or purportedly submitted to the agency by Vicki Garland. Id. at 5 (Miller Decl. ¶ 13). Some of those materials relate to a 2015 FOIA request in which Garland sought certain TSA records (including video records) relating to her or her son, Lorin Burke. Darryl Burke's own submission to the TSA includes the TSA's response to Garland's FOIA request informing Garland that “no records responsive to [her] request” were located. Id. (Miller Decl. ¶ 14); see also Dkt. 11-3 at 1. Other portions of the materials included an unsigned, putative FOIA request from Garland dated October 26, 2014, and a copy of a second subpoena from the bankruptcy court proceeding seeking certain travel records for Garland. Dkt. 11-1 at 5 (Miller Decl. ¶¶ 15-16); see also Dkt. 11-3 at 2-4.

         Despite its unusual format, the TSA treated Burke's submission as a FOIA request. Dkt. 11-1 at 2 (Miller Decl. ¶ 6). In response to that request, TSA's FOIA Branch searched for “any TSA travel or passenger records pertaining to . . . Darryl Burke and his son, Lorin Burke, for the time period of July 1 through 31, 2009.” Id. at 7 (Miller Decl. ¶ 19). As explained in the Miller declaration, at the relevant time, the TSA did “not maintain a centralized repository of all flight information, all passengers' travel information, or all passengers' movement through airport security screening, ” nor did it “generally maintain printouts or paper records of all passengers' travel information.” Id. at 7 (Miller Decl. ¶ 20). Rather, “the only centralized repository” that might have contained “information about a particular passenger's travel” was the TSA's Performance Results Information System (“PARIS”), which includes information relating to “regulatory investigations, security incidents, and enforcement actions” and records “the details of security incidents involving passenger and property screening.” Id. The FOIA Branch, accordingly, requested that the TSA's Office of Security Operations (“OSO”) search the PARIS database “for all TSA records . . . on Darryl Burke or Lorin Burke for their travel during July of 2009.” Id. at 7-8 (Miller Decl. ¶ 20).

         That search did not yield any responsive records, and the FOIA Branch notified Burke that “it located no records responsive to his request.” Id. at 8 (Miller Decl. ¶¶ 21-22). Although the Department now asserts that its search encompassed records on both Burke and his son, Lorin Burke, see Id. at 7-8 (Miller Decl. ¶¶ 19-21), the TSA's letter to Burke merely reported that the agency had searched for records “maintained on [him]” during the relevant period, see Dkt. 11-5 (TSA “no records” response).

         Burke filed an administrative appeal of that determination, arguing that the TSA had failed to search for records using Burke's alias-Jeffery Burke-and for records regarding his son, Lorin Burke, or his wife, Vicki Garland. Dkt. 11-6. In response, the TSA's FOIA Branch requested OSO to search the PARIS database “for records pertaining to Darryl Burke, Jeffrey D. Burke, Jeffery D. Burke, and Lorin Burke.” Dkt. 11-1 at 8-9 (Miller Decl. ¶ 24). In addition, the FOIA Branch asked the airports that Burke “indicated he [might] have traveled through” to search for these same names. Id. (Miller Decl. ¶ 24).

         Again, OSO located no responsive records and, after searching their “local electronic databases most likely to contain records responsive to [Burke's] request, ” the airports also failed to locate any responsive records. Id. at 9 (Miller Decl. ¶ 25). On this basis, the TSA's Assistant Administrator for Civil Rights & Liberties, Ombudsman and Traveler Engagement “affirm[ed] the search conducted by TSA.” Dkt. 11-7. Unlike the TSA's earlier letter, this correspondence clarified that the agency understood Burke's request to seek records on both himself and his son Lorin. Id. The correspondence explained that it was unsurprising that the TSA's search failed to locate any responsive records because, “[i]n order to protect traveler[s'] privacy, [the] TSA generally only retains flight reservation information for seven days following completion of the flight.” Id. Potentially responsive video footage, moreover, “is controlled by the airport authorit[ies] and [is] generally deleted after 30 days.” Id.

         In responding to Burke's appeal, the TSA also concluded that, in the agency's view, Burke's “original request letter did not include a request for records pertaining to [his] wife, so a search was not conducted for records as to her.” Id. The TSA nonetheless decided to treat Burke's submissions as a new FOIA request for records pertaining to Garland's travel during the relevant period of time and to “conduct a search accordingly.” Id. In processing that request, however, the TSA-once again-found no responsive records. Dkt. 11-1 at 9 (Miller Decl. ¶ 27). As explained in the Miller declaration, the TSA had already searched the PARIS database in response to Garland's August 2015 request and had found no responsive records. Id. at 8 (Miller Decl. ¶ 20 n.3). Following the agency's decision to treat Burke's submission as a request for records relating to Garland's travel, the TSA took the additional step of requesting that the relevant airports “search for any travel records, video recordings, or flight information ...


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