United States District Court, District of Columbia
ROSEMARY M. COLLYER, UNITED STATES DISTRICT JUDGE.
John Sarno, an incarcerated individual, submitted Freedom of
Information Act requests to several agencies, including the
Bureau of Alcohol, Tobacco and Firearms (ATF) and the Tax
Division of the Department of Justice (Tax). These requests
sought records related to the criminal case that led to his
incarceration. See Compl. [Dkt. 1] ¶ 11.
Dissatisfied with the response received from the agencies,
Mr. Sarno has sued to enforce his FOIA rights.
agencies have moved for summary judgment. For the reasons
stated below, the Court will grant Tax's Motion for
Summary Judgment and deny ATF's motion.
John Sarno is incarcerated at the Federal Corrections Center
in Petersburg, Virginia. After a jury trial, he was convicted
of conspiracy to violate the Racketeering and Corrupt
Organizations Act (RICO), 18 U.S.C. §1962(d) (2012), and
conducting an illegal gambling business, in violation of 18
U.S.C. § 1955. He was sentenced on March 15, 2012 to 240
months' incarceration on the RICO conviction and sixty
months, to run consecutively, on the illegal gambling
conviction. On September 23, 2014, Mr. Sarno submitted FOIA
requests to both ATF and Tax, seeking documents related to
his criminal case. Compl. ¶¶ 11, 13, 21.
Mr. Sarno's FOIA Request to ATF
a federal bureau that operates within the United States
Department of Justice. ATF received Mr. Sarno's FOIA
request on October 7, 2014. ATF's Partial Statement of
Material Facts Not in Genuine Dispute (ATF SOF) [Dkt. 11-1]
¶ 1. Receiving no response, Mr. Sarno requested status
updates from ATF on November 19, 2014 and January 29, 2015.
Compl. ¶¶ 14-15. On March 27, 2015, having received
no response from ATF to any of his inquiries, Mr. Sarno
appealed the constructive denial of his FOIA request to the
Department of Justice's Office of Information Policy
(OIP). ATF SOF ¶ 2. ATF thereafter
acknowledged receipt of Mr. Sarno's FOIA request on June
Mr. Sarno's criminal case was brought in the Northern
District of Illinois, ATF's Disclosure Division, which
handles FOIA requests, determined that its Chicago Field
Office would likely possess any records responsive to Mr.
Sarno's request. ATF MSJ Ex. 2, Decl. of Stephanie M.
Boucher (Boucher Decl.) [Dkt. 11-2] ¶ 8. The Disclosure
Division submitted a search request to the Chicago Field
Office on June 10, 2015, and the Chicago Field Office
responded six weeks later on July 28, 2015 that it had
reviewed Mr. Sarno's case file. It provided a categorical
description of the documents the file contained. Id.
2016, the Disclosure Division conducted a search in both the
“N-FORCE” and Treasury Enforcement Communications
System (TECS) databases to ascertain whether additional
responsive records existed. Id. ¶ 12. N-FORCE
is ATF's official case file database, which allows users
to run queries on a number of identifying characteristics
associated with a particular individual, including name, date
of birth, or properties or vehicles associated with that
person. Id. ¶ 14. Similarly, TECS is an
inter-departmental database maintained by the Bureau of
Customs and Border Protection “designed to identify
individuals and businesses suspected of or involved in
violation of Federal law.” Id. ¶ 15. The
Disclosure Division queried both databases using the
personally-identifying information of Mr. Sarno, including
his name, Social Security number, and date of birth.
Id. ¶ 17. The search of TECS produced no
results, and the search of N-FORCE identified only the case
file already identified by the Chicago Field Office.
Id. ¶ 18.
concluding its search, ATF identified the following
collections of documents: (1) approximately 21 bankers boxes
of material; (2) a file cabinet drawer; (3) a 500 GB hard
drive; (4) fourteen containers filled with computer discs;
and (5) physical evidence not subject to FOIA, such as
firearms and chemicals. Id. ¶ 19. This resulted
in the collection of between 32, 575-43, 370 paper documents,
as well as the contents of the 500 GB hard drive, 207 to 257
computer discs, 12 cassette tapes, and 2 VHS tapes.
Id. ¶ 34. In reviewing the documents, ATF
identified eight separate categories into which each document
fell. They are: (1) grand jury material; (2) tax return
information; (3) firearms trace reports; (4) wiretap, pen
register, and GPS tracking information; (5) pole camera and
consensual recording information; (6) reports of
investigations, operational plans, and supporting
investigative materials; (7) search warrants; and (8)
documents originating with the United States Attorney's
Office. Id. ¶¶ 34-42.
ATF concluded that all responsive documents were exempt from
disclosure, and released none to Mr. Sarno. Id.
¶ 20. ATF further concluded that no part of any of the
32, 575-43, 370 documents, nor any document found on any
electronic media, could be reasonably segregated from exempt
information. Id. ¶ 93.
no further contact from ATF after its June 2015
acknowledgment of his request, Mr. Sarno filed the immediate
lawsuit on April 8, 2016. On May 16, 2016, ATF informed Mr.
Sarno that it had determined that all records responsive to
Mr. Sarno's request were subject to withholding and
therefore would not produce any documents to him.
Id. ¶ 5.
Mr. Sarno's FOIA Request to Tax
Sarno sent Tax a substantively similar FOIA request on
September 23, 2014. Compl. ¶ 13. Tax received this
request on October 6, 2014, and ran its initial searches that
day. Tax MSJ Ex. 1, Decl. of Carmen M. Banerjee (Banerjee
Decl.) [Dkt. 19-1] ¶¶ 8, 17. Tax also sent Mr.
Sarno an initial response shortly thereafter, on October 22,
2014. Id. ¶ 10.
performed its initial search using its TaxDoc database for
civil or criminal matters associated with Mr. Sarno's
personally-identifying information, including his name and
Social Security number. Id. ¶ 18. This search
yielded one paper criminal file that contained records
pertaining to Mr. Sarno. Id. ¶ 19. Having found
this paper file, Tax also searched its electronic Document
Management System for any records associated with that file.
Id. ¶ 23. This search yielded no records.
Id. ¶ 24.
Mr. Sarno filed this lawsuit, Tax again searched its
electronic Document Management System using somewhat broader
search terms. See Id. ¶ 30. It also searched
records of its Outlook Exchange entries to identify any
electronic calendar items that may have been associated with
Mr. Sarno. Id. ¶ 32. These additional searches
returned no additional unique responsive documents.
Id. ¶¶ 31, 33.
total, Tax identified 29 pages of responsive documents. Tax
found that ten of these pages originated within Tax itself;
of those ten, it withheld five in part, withheld three in
total, and wholly released two to Mr. Sarno. Id.
¶ 35. Tax referred six of the pages to the Internal
Revenue Service, which withheld all six pages as exempt.
Id. ¶¶ 39, 41. Tax also referred eight
pages to the Executive Office of U.S. Attorneys (EOUSA).
Id. ¶42. EOUSA withheld six of those pages as
exempt, and referred the two remaining pages to the IRS; the
IRS partially released one of the pages to Mr. Sarno.
Id. ¶ 45; 53. Finally, Tax referred five pages
to the FBI, which withheld all five. Id. ¶ 56.
VENUE AND JURISDICTION
552(a)(4)(B) of the U.S. Code grants this Court subject
matter jurisdiction over all actions brought under FOIA, and
makes this an appropriate forum for venue purposes. 5 U.S.C.
§ 552(a)(4)(B) (“On complaint, the district court
of the United States in the district in which the complainant
resides, or has his principal place of business, or in which
the agency records are situated, or in the District of
Columbia, has jurisdiction to enjoin the agency from
withholding agency records and to order the production of any
agency records improperly withheld from the
complainant.”); see Jones v. Nuclear Regulatory
Comm'n, 654 F.Supp. 130, 131 (D.D.C. 1987).
Court's jurisdiction under FOIA extends only to claims
arising from the improper withholding of agency records.
See 5 U.S.C. § 552(a)(4)(B); see also
Lazaridis v. U.S. Dep't of Justice, 713 F.Supp.2d
64, 66 (D.D.C. 2010) (citing McGehee v. CIA, 697
F.2d 1095, 1105 (D.C. Cir. 1983)).
cases are typically and appropriately decided on summary
judgment. See Sanders v. Obama, 729 F.Supp.2d 148,
154 (D.D.C. 2010). Under Rule 56 of the Federal Rules of
Civil Procedure, summary judgment must be granted when
“the pleadings, the discovery and disclosure materials
on file, and any affidavits, show that there is no genuine
issue as to any material fact and that the movant is entitled
to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986). The party moving for summary judgment “bears
the initial responsibility . . . [to] demonstrate the absence
of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a
motion for summary judgment, a court must draw all
justifiable inferences in favor of the nonmoving party and
accept the nonmoving party's evidence as true. See
Anderson, 477 U.S. at 255. The nonmoving party, however,
must provide more than a “mere existence of a scintilla
of evidence . . . . [T]here must be evidence on which the
jury could reasonably find for the [nonmoving party].”
Id. at 252.
“represents a balance struck by Congress between the
public's right to know and the government's
legitimate interest in keeping certain information
confidential.” Ctr. for Nat'l Sec. Studies v.
U.S. Dep't of Justice, 331 F.3d 918, 925 (D.C. Cir.
2003). Under FOIA, federal agencies must release records to
the public upon request, unless one-or more-of nine statutory
exemptions applies. See NLRB v. Sears, Roebuck &
Co., 421 U.S. 132, 136 (1975); 5 U.S.C. § 552(b).
To prevail in a FOIA case, a plaintiff must show that an
agency has improperly withheld agency records. See Odland
v. FERC, 34 F.Supp.3d 1, 13 (D.D.C. 2014). The defending
agency must demonstrate that its search for responsive
records was adequate, that any invoked exemptions actually
apply, and that any reasonably segregable non-exempt
information has been disclosed after redaction of exempt
information. See id.
Mr. Sarno's FOIA requests involve multiple government
agencies, all of which assert varied FOIA exemptions, a brief