United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. Mehta United States District Judge.
Victor Rodriguez filed this pro se action pursuant to the
Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552, against the Criminal Division of the Department
of Justice (“Criminal Division”), the Executive
Office for U.S. Attorneys (“EOUSA”), the Federal
Bureau of Investigation (“FBI”), and the Office
of Information Policy (“OIP”).
Defendants Criminal Division, EOUSA, and OIP (collectively,
“Defendants”) have moved for summary judgment on
the ground that they have satisfied all of their FOIA
obligations in response to Plaintiff's request for
records. Because Defendants' declarations are
insufficient to support a finding that the search conducted
by Defendants to locate responsive records was adequate, the
court denies Defendants' motion for summary judgment
is a federal prisoner serving a sentence of life imprisonment
without possibility of parole. By letter dated July 7, 2014,
Plaintiff submitted a FOIA request to the FBI and Criminal
Division, requesting: “All records maintain[ed] in your
office from (Victor Rodriguez) Criminal Case (98-362-12)
....... (Eastern District of Pennsylvania) Pertaining to the
(Death Pen[a]lty Case).” See Defs.' Mot.
for Summ. J., ECF No. 23 [hereinafter Defs.' Mot.],
Attach. 1, ECF No. 23-1 [hereinafter Sprung Decl.], Ex. 1;
Compl., ECF No. 1, ¶¶ 1-2.
Criminal Division responded to Rodriguez on June 27, 2016,
stating that it had located 574 pages of records.
See Sprung Decl., Ex. 2. Of those 574 pages, the
Criminal Division withheld 97 pages in full pursuant to FOIA
Exemptions 5, 6, and 7(C). Id. Moreover, the
Criminal Division explained, because 473 pages of the
responsive records originated with the U.S. Attorney's
Office, those pages were referred to EOUSA. Id.;
Defs.' Mot., Attach. 2, ECF No. 23-2 [hereinafter Jolly
Decl.] ¶ 4. In turn, by letter dated August 4, 2016,
EOUSA notified Rodriguez that it was withholding all 473
pages in full pursuant to FOIA Exemptions 3, 5, 6, 7(C),
7(D), 7(F), and the Privacy Act, 5 U.S.C. §
552a(b)(j)(2). Jolly Decl., Ex. A, ECF No.
appealed the Criminal Division's decision to OIP, which
affirmed the decision to withhold the 97 pages in full.
Compl., Ex. D, ECF No. 1-5; Sprung Decl. ¶ 9. Plaintiff
also appealed EOUSA's decision to OIP. Compl., Ex. C, ECF
No. 1-4. Rodriguez subsequently filed a Complaint in this
court on December 19, 2016. Defendants moved for summary
judgment on August 16, 2017, arguing that they conducted
adequate searches for responsive records and properly applied
FOIA exemptions to withheld records. Defs.' Mot.,
Defs.' Mem. of Points & Authorities in Support of Mot.
for Summ. J. [hereinafter Defs.' Mem.], at 1. In support
of their motion, Defendants attached: (1) the declaration of
Peter C. Sprung, a trial attorney in the Criminal Division
who reviewed the Criminal Division documents collected in
response to Plaintiff's FOIA request, see Sprung
Decl.; (2) the declaration of Vinay J. Jolly, an
Attorney-Advisor of the FOIA/Privacy Act Unit of EOUSA who
reviewed records referred to EOUSA by the Criminal Division,
see Jolly Decl; and (3) Vaughn indices,
see Sprung Decl., Ex. 3; Jolly Decl., Attach. A.
Plaintiff opposed Defendants' Motion. Pl.'s Opp'n
to Defs.' Mot. for Summ. J., ECF No. 27 [hereinafter
Pl.'s Opp'n]. The motion is now ripe for
FOIA cases are appropriately decided on motions for summary
judgment. See Defs. of Wildlife v. U.S. Border
Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). A court may
award summary judgment in a FOIA case to the government if
“the agency proves that it has fully discharged its
obligations under the FOIA, after the underlying facts and
the inferences to be drawn from them are construed in the
light most favorable to the FOIA requester.”
Friends of Blackwater v. U.S. Dep't of Interior,
391 F.Supp.2d 115, 119 (D.D.C. 2005) (internal quotation
marks omitted); see Fed. R. Civ. P. 56. In granting
summary judgment, a court may rely solely on the information
included in the agency's affidavits or declarations if
they are “relatively detailed and non-conclusory,
” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197,
1200 (D.C. Cir. 1991) (internal quotation marks omitted), and
if they describe “the documents and 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).
this action is one brought by a plaintiff proceeding pro se,
the court “take[s] particular care to construe
plaintiff's filings liberally, for such [filings] are
held ‘to less stringent standards than formal pleadings
drafted by lawyers.'” Cheeks v. Fort Myer
Constr. Co., 722 F.Supp.2d 93, 107 (D.D.C. 2010)
(quoting Haines v. Kerner, 404 U.S. 519, 520-21
(1972)). In this case, Plaintiff appears to challenge the
adequacy of Defendants' search, the bases for their
withholdings, and the segregability of the documents
withheld. See generally Compl.; Pl.'s Opp'n.
court begins-and ends-its inquiry by analyzing the adequacy
of the search conducted by the Criminal Division and EOUSA.
An agency is entitled to summary judgment “only if it
‘show[s] beyond material doubt that it has conducted a
search reasonably calculated to uncover all relevant
documents.'” Aguiar v. Drug Enf't
Admin., 865 F.3d 730, 738 (D.C. Cir. 2017) (quoting
Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir.
2007)). To meet that burden, the agency may submit
“reasonably detailed affidavit[s], setting forth the
search terms and the type of search performed, and averring
that all files likely to contain responsive materials (if
such records exist) were searched.” Id.
(alteration in original) (quoting DiBacco v. U.S.
Army, 795 F.3d 178, 188 (D.C. Cir. 2015)). Agency
affidavits are accorded a presumption of good faith, which
cannot be rebutted through “‘purely speculative
claims about the existence and discoverability of other
documents.'” SafeCard Servs., Inc., 926
F.2d at 1200 (quoting Ground Saucer Watch, Inc. v.
CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). Summary
judgment, however, is inappropriate when the agency's
identification and retrieval procedure is genuinely in issue.
See Weisberg v. Dep't of Justice, 627 F.2d 365,
370-71 (D.C. Cir. 1980).
the Criminal Division offers the declaration of Peter Sprung,
an attorney in the FOIA/Privacy Act Unit, to describe the
search the Criminal Division undertook to respond to
Plaintiff's request. According to Sprung, “[b]ased
upon the nature of the records Plaintiff requested, a search
request was sent to the Criminal Division's Capital Case
Section (‘CCS').” Sprung Decl. ¶ 7. CCS
provides legal and policy guidance to U.S. Attorney's
Offices on capital cases and assists the Attorney
General's Review Committee on Capital Cases, which
advises the Attorney General on death penalty decisions.
Id. The search-presumably conducted by CCS- located
574 pages of responsive records, which fell into two
categories: (1) records “originating” with the
U.S. Attorney's Office for the Eastern District of
Pennsylvania, which prosecuted Plaintiff and twice requested
from DOJ permission to seek the death penalty against
Plaintiff; and (2) records “originating” with CCS
and the Office of the Attorney General relating to
deliberations and decisions regarding the death penalty in
Plaintiff's case. See Id. ¶ 8. As
discussed, 473 pages of those records were referred to EOUSA.
Jolly Decl. ¶ 4. EOUSA's declarant affirms that
EOUSA reviewed those records. Id.
assert that the Criminal Division and EOUSA's search for
records was adequate because “both searches w[ere]
comprehensive and reasonably calculated to identify all
records responsive to Plaintiff's request.”
Defs.' Mem. at 6. Maybe so. But the Sprung Declaration is
not sufficiently detailed to permit the court to share in
that assessment. Sprung states that the search request was
sent only to CCS “[b]ased upon the nature of
the records Plaintiff requested.” Sprung Decl. ¶
7. Sprung does not, however, explain why “the only
reasonable place to look for” the documents was within
CCS or why “no other record systems are reasonably
likely to contain” responsive records. Aguiar,
865 F.3d at 739. Moreover, although Sprung discloses the
number of responsive records that the agency located, he does
not set forth the search terms CCS used or the method and
type of search CCS performed to identify those records.
Sprung Decl. ¶ 7. As a result, neither Plaintiff nor the
court can adequately assess whether the agency's search
complied with FOIA. Cf. DeBrew v. Atwood, 792 F.3d
118, 122 (D.C. Cir. 2015) (“A reasonably detailed
affidavit, setting forth the search terms and the type of
search performed . . . is necessary to afford a FOIA
requester an opportunity to challenge the adequacy of the
search and to allow the district court to ...