United States District Court, District of Columbia
RANDOLPH D. MOSS, UNITED STATES DISTRICT JUDGE
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.
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.
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
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).
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).
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. ¶
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.
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).
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”
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.
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
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