United States District Court, District of Columbia
CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE
January 2014, Plaintiff Henry Francis submitted a Freedom of
Information Act (“FOIA”) request to the Executive
Office for United States Attorneys (“EOUSA”),
seeking specific information pertaining to his federal
prosecution and sentence. EOUSA's failure to locate
responsive records forms the basis of this lawsuit. The
Department of Justice (“DOJ”), of which EOUSA is
a component, has moved for summary judgment on the basis that
it fulfilled its FOIA obligations by conducting a reasonably
adequate search for responsive records. Because EOUSA's
declaration supports its contention, and Francis has offered
nothing to doubt the reasonableness of the search, the Court
will grant DOJ's motion for the reasons explained more
1994, a jury in the U.S. District Court for the Middle
District of Florida convicted Francis of conspiring to kill a
federal official and of using interstate commerce facilities
in the commission of a murder for hire. As a result, Francis
is serving a life sentence. See United States v.
Francis, No. 8:16-cv-1656-T-23TGW, 2016 WL 3501303, at
*1 (M.D. Fla. June 27, 2016); Compl. 12. In January 2014,
Francis submitted a FOIA request to EOUSA seeking:
[T]he evidence that the United States probation officer Mr.
Chris Castellano relied upon to make his factual
determination to based [sic] my offense level, as he asserted
that, the guideline for an 18 U.S.C. 1117 is found in section
2A1.5. That section provides for a base offense level of 28
[citing paragraphs 45 and 51 of his presentence investigation
[T]he evidence that the United States probation officer . . .
Castellano relie d upon to make his factual determination
that I violated 1111, 1114, 1116 or 1119 [citing paragraph 1
of his PSR][;] . . . the evidence Special Task Force Agent
Mr. U.K. Miller, presented to the Jamaican government seeking
the arrest of two Jamaican native[s], Mr. Collin Rose, Bull
and Mr. Wayne, to stand trial in the United States in an
indictment filed in the Middle District of Florida . . . by a
Grand Jury for an 18 U.S.C. 1117 conspiracy between them,
Henry Francis and Jacqueline Dennis, to murder ASUA [sic]
Darken and Task Force Agent Bahnsen [citing pages eight and
nine of his PSR][;] and the Actual documents of what date
[Agent Miller] made contact with the Jamaican government,
what transpired between agent Miller and the Jamaican
government, and what was the response that he received from
the Jamaican government [citing trial transcripts].
Compl. Ex. E, ECF No. 1 at pp. 20-21 (“FOIA
March 20, 2015, EOUSA informed Francis that his
“request seeks records which may be available from the
U.S. Probation Office in Florida” and suggested that he
“contact their offices directly to seek possible
release of the records.” Gov't Ex. B, ECF No. 31-1.
Francis appealed EOUSA's determination to the Office of
Information Policy (“OIP”), claiming that it was
non-responsive to his request. Gov't Ex. C. On July 13,
2015, OIP affirmed EOUSA's action “on modified
grounds.” Id., Ex. D. The Chief of the
Administrative Appeals Staff wrote that “EOUSA
conducted [a reasonably adequate] search and could locate no
responsive records subject to the [FOIA] in its files.”
filed this civil action in October 2015. A “further
search of the records relating to Mr. Francis” located
no responsive records. Gov't's Stmt. of Material
Facts ¶ 8.
imposes a general obligation on the government to provide
agency records to the public. 5 U.S.C. § 552(a). The
statute carves out explicit exceptions to this disclosure
obligation, id. § 552(b), but “[t]he
basic purpose of FOIA is to ensure an informed citizenry,
vital to the functioning of a democratic society, needed to
check against corruption and to hold the governors
accountable to the governed, ” NLRB v. Robbins Tire
& Rubber Co., 437 U.S. 214, 242 (1978). Congress did
not intend, however, “to reduce government agencies to
full-time investigators on behalf of requesters.”
Judicial Watch v. Export-Import Bank, 108 F.Supp.2d
19, 27 (D.D.C. 2000). As a result, “FOIA creates only a
right of access to records, not a right to personal services,
” Hudgins v. IRS, 620 F.Supp. 19, 21 (D.D.C.
1985), aff'd, 808 F.2d 137 (D.C. Cir. 1987), and
it confers jurisdiction in the district court only to enjoin
an agency from improperly withholding records that are in its
possession and control at the time of the FOIA request.
“Accordingly, when an agency does not possess or
control the records a requester seeks, the agency's
non-disclosure does not violate FOIA because it has not
‘withheld' anything.” DiBacco v. U.S.
Army, 795 F.3d 178, 192 (D.C. Cir. 2015) (citing
Kissinger v. Reporters Committee for Freedom of the
Press, 445 U.S. 136, 150 (1980)). Nevertheless, a FOIA
requester who is dissatisfied with the agency's
no-records response “may . . . challenge the adequacy
of the agency's search.” Oglesby v. U.S.
Dep't of Army, 920 F.2d 57, 67 (D.C. Cir. 1990).
cases are appropriately resolved on summary judgment. See
Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527
(D.C. Cir. 2011). When an agency's search is questioned,
it must show “beyond material doubt that its search was
reasonably calculated to uncover all relevant
documents.” Ancient Coin Collectors Guild v. U.S.
Dep't of State, 641 F.3d 504, 514 (D.C. Cir. 2011)
(quoting Valencia-Lucena v. U.S. Coast Guard, 180
F.3d 321, 325 (D.C. Cir. 1999)) (internal quotation marks
omitted). An agency's search is judged by the individual
circumstances of each case. See Truitt v. Dep't of
State, 897 F.2d 540, 542 (D.C. Cir. 1990). The central
question is whether the search itself was reasonable,
regardless of the results. See Cunningham v. U.S.
Dep't of Justice, 40 F.Supp.3d 71, 83-84 (D.D.C.
2014). Therefore, “[t]he adequacy of a FOIA search is
generally determined not by the fruits of the search, but by
the appropriateness of the methods used to carry out the
search.” Iturralde v. Comptroller of Currency,
315 F.3d 311, 315 (D.C. Cir. 2003). Agencies need not scour
every database, but rather should conduct a “good
faith, reasonable search of those systems of records likely
to possess requested records.” Cunningham, 40
F.Supp.3d at 83. Agency declarations, especially from
individuals coordinating the search, are accorded “a
presumption of good faith, which cannot be rebutted by purely
speculative claims about the existence and discoverability of
other documents.” SafeCard Servs., Inc. v.
SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation and
internal quotation marks omitted).
can decide-and award-summary judgment solely based on agency
affidavits and declarations that are “relatively
detailed and non-conclusory.” Id. Important
details include what records were searched, who did the
search, and what search terms or processes were used. See
Judicial Watch., Inc. v. Dep't of the Navy, 971
F.Supp.2d 1, 2 (D.D.C. 2013). A plaintiff can rebut an agency
declaration by raising “substantial doubt[s] as to the
reasonableness of the search, especially in light of
‘well-defined requests and positive indications of