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Pinson v. U.S. Department of Justice

United States District Court, District of Columbia

August 31, 2017

JEREMY PINSON, Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, et al., Defendants. Re Document Nos. 332, 336

          MEMORANDUM OPINION

          RUDOLPH CONTRERAS United States District Judge

         Granting in Part and Denying in Part Defendants' Motion for Summary Judgment; Denying Plaintiff's Motion to Strike

         I. INTRODUCTION

         Pro se Plaintiff Jeremy Pinson has filed multiple Freedom of Information Act (FOIA), 5 U.S.C. § 552, requests with various components of the U.S. Department of Justice (DOJ). At issue here are certain requests she[1] submitted to the Executive Office of the United States Attorneys (EOUSA). Although the EOUSA responded to the requests, Pinson challenged its responses. This Court has already granted in part and denied in part two motions for summary judgment concerning these requests. See generally 1st Mem. Op., Pinson v. DOJ, 145 F.Supp.3d 1 (D.D.C. 2015), ECF No. 246; 2d Mem. Op., Pinson v. DOJ, 189 F.Supp.3d 137 (D.D.C. 2016), ECF No. 291.

         Now before the Court is the DOJ's third motion for summary judgment as to the five remaining FOIA requests, [2] Def.'s 3d Mot. Summ. J., ECF No. 332, as well as a motion by Pinson to strike the DOJ's motion, Mot. Strike, ECF No. 336. For the reasons stated below, the Court will again grant in part and deny in part the DOJ's motion for summary judgment, and deny Pinson's motion to strike.

         II. BACKGROUND

         This Court has explained the factual background in detail in its prior Memorandum Opinions. See 1st Mem. Op., Pinson v. DOJ, 145 F.Supp.3d 1, 5-7 (D.D.C. 2015), ECF No. 246; 2d Mem. Op., Pinson v. DOJ, 189 F.Supp.3d 137, 141-45 (D.D.C. 2016), ECF No. 291. The Court therefore confines its discussion to the facts most relevant to the five requests at issue in the present motion.

         A. Request No. 12-1754

          Request No. 12-1754 sought the “production of all documents, emails, [and] records” related to Case No. SACR 07-202(A)-DOC in the Central District of California. See 3d Luczynski Decl. ¶ 3, ECF No. 332-3;[3] Freedom of Information Act Request, ECF No. 254-4, Ex. P.[4] Pinson did not specifically limit the amount of search time or pages produced by this request. Freedom of Information Act Request, ECF No. 254-4, Ex. P. Pinson later clarified as part of an appeal that this request included public records. Freedom of Information Act Appeal (Oct. 31, 2013), ECF No. 254-4, Ex. T (complaining that the agency “failed to release public records”).[5]

         After the Court denied the DOJ's second motion for summary judgment concerning this request, [6] the DOJ performed another search for “responsive records, including public records.” 3d Luczynski Decl. ¶ 6. The FOIA coordinator interpreted the (A) at the end of the case number to refer to the records concerning one of the defendants in the overall case, Jesse Vasquez. Rhedrick Decl. ¶ 7, ECF No. 332-3, Ex. A. The FOIA coordinator determined that the case was closed, and obtained twenty physical boxes of records relating to Case No. SACR 07-202. Rhedrick Decl. ¶¶ 11-12. The FOIA coordinator performed a manual search of all twenty boxes by looking for Jesse Vasquez's name in the caption or header of documents. Rhedrick Decl. ¶¶ 13-14. This search resulted in 78 responsive pages, which the FOIA coordinator transmitted to the EOUSA. Rhedrick Decl. ¶ 15. The EOUSA released all of the pages-in full and without redactions-to Pinson. See 3d Luczynski Decl. ¶ 7; Letter from Thomas Anderson to Jeremy Pinson (Oct. 27, 2016), ECF No. 332-3, Ex. B.[7]

         Although the EOUSA has previously asserted that FOIA Exemption 7(A) justified withholding some responsive documents while the underlying case was pending appeal, see ECF No. 254-2 at 7-8, the case is now closed and the Court understands that the EOUSA searched for all responsive records and did not withhold any documents from the results of the current search. See Rhedrick Decl. ¶ 9 (“Case View is the computer case tracking system used by the USA . . . to locate any and all corresponding files.” (emphasis added)); Rhedrick Decl. ¶ 11 (“[A]ll documents concerning closed cases are to be stored [within the twenty boxes searched].” (emphasis added)); Rhedrick Decl. ¶¶ 13-14 (“I personally searched through twenty boxes of documents . . . Due to the large number of documents in the 20 boxes of records relating to this case, it took me approximately two hours to search them by hand.”). The DOJ now moves for summary judgment on the grounds that it conducted a search reasonably calculated to identify all responsive records and it has released all responsive records in full. See Defs.' Mem. Supp. 3d Mot. for Summ. J. (Defs.' 3d MSJ) at 5, ECF No. 332-2.

         B. Request No. 12-1757

         Request No. 12-1757 sought the “production of all documents, emails, or records” for cases 11-cv-1906, [8] 11-cv-1346, and 10-cv-949 in the Middle District of Pennsylvania. See 3d Luczynski Decl. ¶ 8; Freedom of Information Act Request, ECF No. 254-4, Ex. Y.[9] Pinson did not explicitly limit the number of pages produced or search time occupied by this request. Freedom of Information Act Request, ECF No. 254-4, Ex. Y. Pinson later clarified during an appeal that this request also sought public records. Freedom of Information Act Appeal (Oct. 31, 2013), ECF No. 254-4, Ex. T (complaining that the agency “failed to release public records”).

         After the Court denied the DOJ's second motion for summary judgment, [10] the EOUSA conducted a new search. See 2d Matuszewski Decl. ¶ 14, ECF No. 332-3, Ex. C. The FOIA coordinator used the Middle District of Pennsylvania's electronic case management system to identify records relating to case 11-cv-1906 and 10-cv-949, [11] and obtained those case files from the National Archives. 2d Matuszewski Decl. ¶ 15. A search of the case files produced a total of 197 responsive pages of documents, which were forwarded to the EOUSA. 2d Matuszewski Decl. ¶¶ 17-18. The EOUSA's declaration does not explain what type of search was performed on the files, or how examining the files “produced” the stated number of pages. See 2d Matuszewski Decl. ¶¶ 16-18 (“A request to the Federal Records Center was made to retrieve case files 11-CV-1906 and 10-CV-949. A second search of 11-CV-1906 produced 22 pages of correspondence, e-mails, declarations and inmate data from the Bureau of Prisons as well as 67 pages of court-filed documents. . . . A second search of 10-CV-949 produced 14 pages of correspondence and e-mails as well as 94 pages of court-filed documents.”). Similarly, while the EOUSA's declaration states that “[a]n additional computer search of the USAO MDPA files was performed and no documents were located for neither [sic] civil numbers 11-CV-1906 nor 10-CV-949, ” the declaration does not explain how the search was performed, or what search terms were used. 2d Matuszewski Decl. ¶ 19.

         The EOUSA subsequently released 200 pages of records[12] in full to Pinson. 3d Luczynski Decl. ¶ 13, ECF No. 332-3; Letter from Thomas Anderson to Jeremy Pinson (Oct. 27, 2016), ECF No. 332-3, Ex. D. This 200 pages appears to have included both the 67 and 94 pages of “court-filed documents” identified from the two cases as well as 22 and 14 pages of correspondence, emails, and other Bureau of Prisons documents. 2d Matuszewski Decl. ¶¶ 17-18. It is unclear from the EOUSA's filings if the search was intended to produce all responsive documents, or the search was only for public records (or, alternatively, if non-public records were withheld from the release). See 2d Matuszewski Decl. ¶ 14 (“I was directed . . . to perform a second search of the files located . . . and to provide all documents contained within the files.”); 2d Matuszewski Decl. ¶ 20 (“All systems of records located within USAO/MDPA that were likely to contain records responsive to Pinson's request have been searched. The searches were reasonably calculated to uncover all relevant records responsive to Pinson's request.”). But see 3d Luczynski Decl. ¶ 13 (“A new search for publicly filed responsive records . . . has revealed 200 pages of responsive public records to plaintiff's request.”). The DOJ now again moves for summary judgment, this time on the basis that its search was reasonably calculated to identify all responsive records without withholdings. See Defs.' 3d MSJ at 8.

         C. Request No. 12-1758

         Request No. 12-1758 sought the “production of all documents, emails, or records” regarding cases 11-cv-140-KSF, 11-cv-96-HRW, and 10-cv-299-HRW in the Eastern District of Kentucky. See 3d Luczynski Decl. ¶ 14; Freedom of Information Act Request, ECF No. 254-4, Ex. Y.[13] Pinson did not limit the search time or number of pages generated by this request. Freedom of Information Act Request, ECF No. 254-4, Ex. Y. Pinson later clarified as part of an appeal that this request also sought public records. Freedom of Information Act Appeal (Oct. 31, 2013), ECF No. 254-4, Ex. T (complaining that the agency “failed to release public records”). After the Court denied the DOJ's second motion for summary judgment, [14] the EOUSA performed a new search for responsive records. Long Decl., ECF No. 332-3, Ex. F. The FOIA coordinator for the Eastern District of Kentucky searched the district's electronic case management system and PACER for records responsive to each of the case numbers. Long Decl. ¶¶ 8-9. The search of the case management system did not produce any records relating to 11-cv-96 or 11-cv-140. Long Decl. ¶ 11. A PACER search for the two cases revealed that “[the] office was never served or involved in [these] cases, ” Long Decl. ¶ 11, explaining the lack of records. The case management system did contain files relating to 11-cv-299. Long Decl. ¶ 11. According to the FOIA coordinator, these files comprised four volumes of pleadings, two volumes of correspondence, and several file folders. Long Decl. ¶ 11. The FOIA coordinator then “forwarded all documents in these files” to the EOUSA. Long Decl. ¶ 12. The EOUSA released 100 pages in full to Pinson free of charge and informed her that there were approximately 1, 000 additional pages available for a fee of $100. See 3d Luczynski Decl. ¶ 18; Letter from Thomas Anderson to Jeremy Pinson (Oct. 27, 2016), ECF No. 332-3, Ex. E.

         Although the EOUSA has previously argued that FOIA Exemption 7(C) would justify withholding some or all of the records responsive to this request, see ECF No. 254-4 at 4-7, the Court now understands that the EOUSA undertook to search for all responsive records and did not withhold any identified records. See Long Decl. ¶ 11 (“[Case number 10-cv-299] consists of 4 volumes of pleadings, 2 volumes of correspondence, and numerous [Redwelds].”); Long Decl. ¶ 12 (“I forwarded all documents in these files to EOUSA on disc. . . . I included Court Filed Public Records in the documents provided to EOUSA.”). The DOJ now again moves for summary judgment, contending that its search was reasonably calculated to identify all responsive records without withholdings. See Defs.' 3d MSJ at 9.

         D. Request No. 12-1760

          Request No. 12-1760 sought “copies [of] all documents, email[s], or records in . . . Northern District of West Virginia Case No. 11-CR-51.” See 2d Zumpetta-Parr Decl. ¶ 6, ECF No. 332-3, Ex. G; Freedom of Information Act Request, ECF No. 254-4, Ex. Y.[15] Pinson did not explicitly limit the search time or pages produced by this request. Freedom of Information Act Request, ECF No. 254-4, Ex. Y. Pinson later clarified as part of an appeal that this request included public records. Freedom of Information Act Appeal (Oct. 31, 2013), ECF No. 254-4, Ex. T (complaining that the agency “failed to release public records”).

         After the Court denied the DOJ's second motion for summary judgment, [16] the EOUSA performed a new search for responsive records. 2d Zumpetta-Parr Decl. ¶ 7. The FOIA coordinator for the district searched PACER for 11-cr-51. Zumpetta-Parr Decl. ¶ 9. This search identified three different cases with this number. Zumpetta-Parr Decl. ¶ 9. The FOIA coordinator consulted an “attorney for EOUSA” and decided to focus on the Hackett case, which “involved a prosecution of 6 co-defendants for a conspiracy to commit assault against fellow prison inmates, a type of case similar to the others on which Pinson sought records.” Zumpetta-Parr Decl. ¶ 9. The FOIA coordinator then searched all public records on two case management systems and PACER, and “located everything on PACER and in our case files themselves, which included three case files, and scanned the entire file and sent [it] to EOUSA, which consisted of more than 165 scanned files.” Zumpetta-Parr Decl. ¶¶ 10-11. According to the EOUSA, this comprised 900 pages of records. 3d Luczynski Decl. ¶ 24. Of those, 100 pages were released to Pinson for free in full, and Pinson was informed that the others could be obtained for an $80 fee. 3d Luczynski Decl. ¶ 25; Letter from Thomas Anderson to Jeremy Pinson (Oct. 27, 2016), ECF No. 332-3, Ex. H. Although the EOUSA has previously argued that FOIA Exemption 7(C) would justify withholding some or all of the records responsive to this request, see Mem. P. & A. Supp. Defs.' 2d Mot. Summ. J. at 4-7, ECF No. 254-2, the Court now understands that the EOUSA undertook to search for all responsive records and did not withhold any identified records. See Zumpetta-Parr Decl. ¶ 10 (“I performed a search of all public records . . . and scanned the entire file and provided those records to USAEO.”); Zumpetta-Parr Decl. ¶ 10[17] (“I interpreted [the request] to mean all documents, including publicly filed ones. Accordingly, I located everything in PACER and in our case files themselves . . . and sent to EOUSA . . . .”). The DOJ now again moves for summary judgment, this time on the grounds that its search was reasonably calculated to identify all responsive records without withholdings. See Defs.' 3d MSJ at 10-11.

         E. Request No. 13-1085

          Pinson submitted a FOIA request seeking “copies of all discovery material” in case number 11-cr-68-EJL, in the District of Idaho, and 12-cr-236-IEG, in the Southern District of California. Freedom of Information Act Request, ECF No. 332-3, Ex. I; 3d Luczynski Decl. ¶ 26. Pinson limited her request to “no more than 150 pages, per case, of information and no more than 2 hours search time per district.” Freedom of Information Act Request, ECF No. 332-3, Ex. I. After the EOUSA informed Pinson that it could not release the information because such third-party information was protected under the Privacy Act and FOIA Exemptions 6 and 7(C), Pinson agreed to limit the scope of her request to “seek only public records.” Letter from Jeremy Pinson (Apr. 22. 2013), ECF No. 170-5, Ex. UUU (emphasis added); see also 1st Luczynski Decl. ¶¶ 82-83, ECF No. 170-4.

         After this Court denied its second motion for summary judgment, [18] the EOUSA submitted with its renewed motion two FOIA response letters sent to Pinson. The letters appear to indicate that Pinson was sent 100 pages-in full-for free concerning each case, with the option to pay to receive an additional 16, 000 pages concerning the 11-cr-68 case and an additional 162 pages concerning the 12-cr-236 case. Letter from Thomas Anderson to Jeremy Pinson (Oct. 27, 2016), ECF No. 332-3, Ex. J; Letter from Thomas Anderson to Jeremy Pinson (Oct. 27, 2016), ECF No. 332-3, Ex. L. Although it is not precisely clear what the 100 pages comprised, for the 12-cr-236 case the EOUSA states that the 100 pages were “docket material.” 3d Luczynski Decl. ¶ 27.

         The EOUSA provides a declaration from an Assistant United States Attorney involved in the 12-cr-236 case stating that the case is ongoing and that all of the discovery material is subject to a protective order. See McGrath Decl. ¶ 5, ECF No. 332-3, Ex. M (“Discovery material in the [12-cr-236] case cannot be released under FOIA at this time. There is a protective order in place, which prevents release of any of the discovery material.”); see also Defs.' 3d MSJ at 11 (“Because here is a protective order in [12-cr-236], . . . the USAO is unable to release discovery material therefrom.”). Although the EOUSA does not submit a similar declaration relating to the 11-cr-68 case, it points to the docket for 11-cr-68, which it argues establishes that “discovery is subject to a protective ...


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