United States District Court, District of Columbia
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE
Darryl Burke, proceeding pro se, alleges that on
July 26, 2015, he submitted a Freedom of Information Act
(“FOIA”) request to the United States Department
of Justice (“the Department”) seeking information
from the U.S. Attorney's Office for the Southern District
of Florida. After the Department failed to respond to his
request, Burke filed this action. See Dkt. 1. The
Department now moves for summary judgment, asserting that it
never received the FOIA request Burke describes in his
complaint and that, accordingly, Burke has failed to exhaust
his administrative remedies before bringing suit.
See Dkt. 13.
reasons explained below, the Court agrees. The Court will,
therefore, grant the Department's motion for summary
brings this action under FOIA, see 5 U.S.C. §
552, and the Privacy Act, see 5 U.S.C. § 552a,
and alleges that he submitted a FOIA request to the Office of
the United States Attorney for the Southern District of
Florida, requesting “cop[ies] of all case names and
case numbers for cases involving one or more Brady
violations in the Southern District of Florida that were
overturn[ed] by the Appeal Courts, granted retrial, remanded,
[or] dismissed” and the case names and numbers of all
matters on which “U.S. Attorney Jerrob Duffy
participate[d] or [was] involved.” Dkt. 1 at 2
(Compl.). The complaint further alleges that “the
Defendant . . . has failed to deliver [his] FOIA request,
” and that, accordingly, he “has exhausted his
administrative remedies under” FOIA. Id. at 3.
The complaint twice references an “Exhibit A”
(presumably the FOIA request), see Id. at 1, 2, but
no exhibit was actually filed along with the complaint. To
date, moreover, Burke has not filed a copy of his FOIA
request, any correspondence with the Department regarding
FOIA or the Privacy Act, or any other evidence that the FOIA
request was actually sent or received.
the Department was served with Burke's complaint in this
case, a “[l]egal [a]dministrative [s]pecialist”
at the Executive Office for the United States Attorneys
(“EOUSA”) searched EOUSA's “records for
any FOIA requests it had received from”
Burke. Dkt. 13-4 at 2 (Luczynski Decl. ¶ 6).
To do so, the specialist searched both of the
“[c]omputer database systems” that EOUSA uses
“to track all FOIA files” and from which
“[i]nformation can be retrieved . . . by names, court
case numbers, dates of requests, and subjects of
requests.” Id. at 3 (Luczynski Decl. ¶
7). The search “located a total of four FOIA requests
submitted by” Burke, but the search “did not
locate any record of receiving the FOIA request described in
[his] complaint.” Id. (Luczynski Decl. ¶
8). In addition to searching EOUSA's two computer
database systems, the specialist also “consulted with
the staff from the United States Attorney's Office for
[the] Southern District of Florida, ” EOUSA
“intake staff, a paralegal supervisor who also
conducted a search, and [s]enior [l]itigation [c]ounsel
regarding whether any additional FOIA requests submitted by
[Burke] had been received, ” but “[n]o additional
requests were identified.” Id.
light of its “determin[ation] that it did not receive
the FOIA request described in [Burke's] complaint,
” the Department moved for summary judgment, arguing
that Burke “failed to exhaust the FOIA administrative
procedures regarding his alleged FOIA request.” Dkt.
13-2 at 4. On April 5, 2017, the Court issued an order
advising Burke that he was “entitled to file a
memorandum and supporting evidence in response” to the
Department's motion, and cautioning him that, “if
[he] fail[ed] to file a response, the Court [could] decide
the motion without considering [his] arguments.” Dkt.
14 at 1. The Court also informed Burke that it would
“accept as true any factual assertion supported
by” the Department's declarations “or other
documentary evidence submitted with [its] motion”
unless he “submit[ted] [his] own . . . documentary
evidence contradicting the factual assertion.”
Id. On June 21, 2017, the Court extended the time
for Burke to respond to the Department's motion up to
July 14, 2017, see June 21, 2017 Minute Order.
Burke, however, has not responded to the Department's
motion or to the Court's order directing that he respond.
cases are typically resolved on motions for summary judgment
under Federal Rule of Civil Procedure 56. See, e.g.,
Shapiro v. U.S. Dep't of Justice, 153 F.Supp.3d
253, 268 (D.D.C. 2016). To prevail on a summary judgment
motion, the moving party must demonstrate that there are no
genuine issues of material fact and that he or she is
entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). “In a FOIA action, the Court may award
summary judgment to an agency solely on the basis of
information provided in affidavits or declarations that
describe ‘ . . . the justifications for nondisclosure
[of records] with reasonably specific detail . . . and are
not controverted by either contrary evidence in the record
nor by evidence of agency bad faith.'” Thomas
v. FCC, 534 F.Supp.2d 144, 145 (D.D.C. 2008) (quoting
Military Audit Project v. Casey, 656 F.2d 724, 728
(D.C. Cir. 1981)). The Court reviews the agency's
decision de novo, and the agency bears the burden of
sustaining its action. 5 U.S.C. § 552(a)(4)(B).
agency's disclosure obligations [under FOIA] are not
triggered . . . until it has received a proper FOIA request
in compliance with its published regulations.”
Mitchell v. Samuels, 160 F.Supp.3d 8, 11 (D.D.C.
2016) (quoting Antonelli v. Fed. Bureau of Prisons,
591 F.Supp.2d 15, 26 (D.D.C. 2008)); see also
Thomas, 145 F.Supp.2d at 145 (“An agency's
obligation under the FOIA does not arise . . . until a proper
request is received.”). “If no FOIA request is
received, an agency has no reason to search” for or to
produce records. Mitchell, 160 F.Supp.3d at 12
(quoting Carbe v. Bureau of Alcohol, Tobacco &
Firearms, 13-cv-1658, 2004 WL 2051359, at *8 (D.D.C.
Aug. 12, 2004)). A FOIA plaintiff's “failure to
file a perfected request, ” moreover,
“constitutes [a] failure to exhaust administrative
remedies.” Walsh v. FBI, 905 F.Supp.2d 80, 84
(D.D.C. 2012) (quoting Rodriguez-Cervantes v. Dep't
of Health & Human Servs., 853 F.Supp.2d 114, 117
(D.D.C. 2012)); see also Antonelli, 591 F.Supp.2d at
26 (“As a general rule, a FOIA requester must exhaust
administrative remedies prior to seeking judicial
review.”). Simply put, an agency cannot respond to a
FOIA request it never received, and a plaintiff cannot
maintain an action premised on a FOIA request he never
cases like this one-“where agencies allege that they
were unable to find . . . plaintiffs' requests for
information”-the “agencies must demonstrate that
they conducted searches reasonably calculated” to
locate the request or any evidence that it was received.
Walsh, 905 F.Supp.2d at 84. Agencies can satisfy
this obligation by submitting declarations describing their
search efforts that “contain sufficient detail”
and “are not controverted by contrary evidence.”
Id. (citations omitted). Those declarations
“are ‘accorded a presumption of good
faith.'” Borda v. Exec. Office for the U.S.
Attorney, 125 F.Supp.3d 196, 198 (D.D.C. 2015) (quoting
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200
(D.C. Cir. 1991)).
in support of its motion for summary judgment, the Department
has submitted a declaration from David Luczynski, an EOUSA
attorney advisor responsible for “acting as liason with
other divisions and offices [within the Department] in
responding to” FOIA requests. See Dkt. 13-4 at
1 (Luczynski Decl. ¶ 1). Luczynski's declaration
describes the Department's standard FOIA procedures,
noting that incoming FOIA requests are “assign[ed] . .
. a FOIA reference number, ” “date-stamped,
” and “entered in a mail log book, ” and it
explains that all “FOIA correspondence” is
“entered in [two] computer database systems by
EOUSA's intake staff” that can be searched by
“names, court case numbers, dates of requests, and
subjects of requests.” Id. (Luczynski Decl.
¶¶ 4, 7). Luczynski attests that when the
Department received Burke's complaint, a legal specialist
employed by EOUSA searched both of EOUSA's FOIA databases
“for any FOIA requests pertaining to [Burke].”
Id. (Luczynski Decl. ¶ 8). Although the search
“located a total of four FOIA requests” Burke had
previously submitted, it failed to locate the FOIA request
described in his complaint. Id. The legal specialist
then took additional steps to locate Burke's request,
consulting with staff at the U.S. Attorney's Office
identified in the complaint and checking with intake staff, a
paralegal supervisor, and a senior litigation counsel to
verify “whether any additional FOIA requests submitted
by [Burke] has been received.” Id. “No
additional requests were identified.” Id.
Because “[t]here [wa]s no other location or file . . .
where any other records related to [Burke] would be located
other than the locations and files which ha[d] already been
searched, ” Luczynski concludes that EOUSA did
“not receive the FOIA request described in
[Burke's] complaint. Id. (Luczynski Decl.
¶¶ 9- 10).
declaration is sufficient to establish that the Department
“conducted [a] search reasonably calculated” to
locate the FOIA request described in Burke's complaint.
Walsh, 905 F.Supp.2d at 84. Luczynski observes that
he is “familiar with [EOUSA's] procedures [for]
responding to” FOIA requests, Dkt. 13-4 at 2 (Luczynski
Decl. ¶ 3), and that he is unaware “of any other
method or means by which an additional search could be
conducted that would be likely to locate any other FOIA