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Francis v. United States Department of Justice

United States District Court, District of Columbia

August 21, 2017




         In 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 fully below.

         I. Background

         In 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 report (“PSR”)].

         Francis also requested:

[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 Request”).

         On 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.” Id.

         Francis 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.

         II. Legal Standard

         FOIA 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).

         FOIA 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).

         Courts 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 overlooked ...

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