United States District Court, District of Columbia
BERMAN JACKSON, United States District Judge
action filed pro se against the Department of
Justice, plaintiff alleges that DOJ's Office of
Professional Responsibility (“OPR”) improperly
withheld records that he requested, in violation of the
Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552. Pending are Plaintiff's Motion for Summary
Judgment [Dkt. # 16] and Defendant's Renewed Motion for
Summary Judgment, which was filed in light of plaintiff's
clarification of his FOIA request and OPR's subsequent
search and release of responsive records. See
Def.'s Mot. at 1 [Dkt. # 17]. Having considered the
entire record, and for the reasons explained below, the Court
will grant defendant's motion, deny plaintiff's
motion, and enter judgment accordingly.
result of an “investigation of a large-scale conspiracy
to traffic cocaine” in the area of Fort Lauderdale,
Florida, plaintiff and other individuals “were charged
in a 32-count indictment for various drug crimes.”
United States v. Pubien, 349 Fed. App'x 473, 475
(11th Cir. 2009). A jury in the U.S. District Court for the
Southern District of Florida convicted plaintiff, and he was
sentenced to “six concurrent terms of imprisonment for
life.” Id. at 476. AUSA Julia J. Vaglienti was
the prosecuting attorney.
February 2016, plaintiff mailed a FOIA request to OPR
captioned “Request for Information on a Complaint Filed
Against Assistant United States Attorney Julia J. Vaglienti
as to a Fraudulent Indictment, ” and seeking:
[A]ny and all documents which relates to any investigation
taken by this office. To be specific, my request is for:
(1) Any information pertaining to Assistant Attorney
Julia J. Vaglienti's involvement with the fraudulent
indictment. (2) Any information pertaining to any law
enforcement officials involved with Ms. Vaglienti. (3) Any
other individuals that may be part of this investigation. (4)
All documents as to the proceedings for obtaining the
indictment, if any exist, [attendance record of the grand
jury, polling sheet, transcripts of the grand jury's
return of a True Bill].
Def.'s Ex. A, FOIA Request at 2 [Dkt. # 17-1] (bold type
and bracket in original). Plaintiff prefaced the request with
a narrative in which he stated: “after about 33 months
of this office having possession of my complaint, I was sent
a correspondence dated February 1, 2016, stating that it was
without jurisdiction to investigate the
matter.” Id. at 1.
interpreted plaintiff's request as seeking
“investigative records relating to any . . .
investigations OPR may have conducted regarding AUSA
Vaglienti in connection with a fraudulent indictment or other
law enforcement agents” and refused to either confirm
or deny the existence of responsive records. Def.'s Ex.
B, Second Decl. of Ginae Barnett 4 [Dkt. # 17-2]. Such action
is commonly known as a Glomar
response. The Office of Information Policy, to which
FOIA decisions by DOJ components are appealed, affirmed
OPR's decision. First Decl. of Ginae Barnett Decl. ¶
11 [Dkt. #13-2] .
filed this lawsuit in September 2016, and defendant filed its
first summary judgment motion on November 13, 2016, based on
OPR's Glomar response. Plaintiff filed his own
summary judgment motion on January 3, 2017, asserting that
OPR's declarant had “misconstrued” his FOIA
request. Mot. at 2. Based on plaintiff's
“clarification, ” OPR determined that plaintiff
was “only seeking investigative records pertaining to
an investigation of AUSA Vaglenti's [sic] conduct in
response to Plaintiff's complaints to DOJ.” Second
Barnett Decl. ¶¶ 5-6. The declarant then conducted
a search by plaintiff's name of “OPR's
electronic Law Manager (LM) and Hummingbird DM (DM)
databases, ” which she avers “are the only
systems of records maintained by OPR likely to identify or
contain [responsive] records[.]” Id. ¶ 6.
The declarant located 126 pages and, on January 17, 2017,
released all but two pages to plaintiff in their entirety. A
few third-party names and a third-party's personal e-mail
address were redacted from the remaining two pages under FOIA
Exemption 6. Id. ¶ 12 and Ex. A. That same day,
defendant withdrew its initial summary judgment motion and
filed the pending renewed motion for summary judgment.
judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). In a FOIA action, the Court may award
summary judgment solely on the information provided in
affidavits or declarations that describe “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); see also
Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973),
cert. denied, 415 U.S. 977 (1974). Such affidavits
or declarations 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.
& Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir.
1991), quoting Ground Saucer Watch, Inc. v. CIA, 692
F.2d 770, 771 (D.C. Cir. 1981). Ultimately, an agency's
justification for invoking a FOIA exemption is sufficient if
it appears “ logical” or “plausible.”
Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007)
inadequate search may constitute an improper withholding
under the FOIA. See Maydak v. U.S. Dep't. of
Justice, 254 F.Supp.2d 23, 44 (D.D.C. 2003). So, when an
agency's search is questioned, the agency prevails on
summary judgment if it shows that it made “a good faith
effort to conduct a search for the requested records, using
methods which can be reasonably expected to produce the
information requested.” Oglesby v. U.S. Dep't
of Army, 920 F.2d 57, 68 (D.C. Cir. 1990).
opposition to defendant's renewed motion, plaintiff
contends that there “are material facts of misleading
statements, and the inadequate search of records pertaining
to AUSA Vaglienti's involvement in Plaintiff's
fraudulent claim.” Opp'n ...