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Garcia v. Executive Office For United States Attorney

United States District Court, District of Columbia

March 14, 2018




         Plaintiff Santos Maximino Garcia, proceeding pro se, brought this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, against defendant, the Executive Office for United States Attorneys (“EOUSA”), Compl. [ECF No. 1] at 1. Plaintiff seeks “disclosure of all information germane to prosecution witness Noe Cruz, ” a cooperating witness who testified for the government in Garcia's federal criminal trial. Id. Asserting that it has satisfied its disclosure obligations under FOIA, EOUSA moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Def.'s Mot. for Summ. J. [ECF No. 18] at 1. The Court advised plaintiff of the need to respond to EOUSA's motion and granted him an extension to file a response. See Oct. 11, 2017 Order [ECF No. 19]. Plaintiff, however, has failed to respond, and his time to do so expired over four months ago.

         The Court finds that EOUSA's search for the requested documents was adequate, and that the agencies sufficiently justified withholding responsive documents under the relevant statutory exemptions. Hence, for the reasons explained below, the Court will grant EOUSA's motion for summary judgment.


         On November 16, 2014, plaintiff submitted a request to EOUSA for the release of documents pursuant to FOIA. See Compl. Ex. A. In his request, plaintiff sought the disclosure of “all information germane to prosecution witness Noe Cruz” relating to plaintiff's criminal case, United States v. Garcia, No. 05-0393 (D. Md. judgment issued May 13, 2009). Id. He claimed that the prosecution “never attempted to ascertain the scope of [Cruz's] criminal history” and was “deliberately ignorant” as to Cruz's rape charge, for which he was indicted in 2013, five years after plaintiff's trial. Compl. at 5.

         On January 5, 2015, EOUSA notified plaintiff that his request was received. Compl. Ex. B. EOUSA's response informed plaintiff that records pertaining to a third party generally cannot be released absent (1) “express authorization and consent of the third party, ” (2) “proof that the subject of the request is deceased, ” or (3) “a clear demonstration that the public interest in disclosure outweighs the third party's personal privacy interest and that significant public benefit would result from the disclosure of the requested records.” Id. Since plaintiff did not provide a release, death certificate, or public justification for release, EOUSA explained that the release of records concerning Noe Cruz would result in an unwarranted invasion of personal privacy. Id.

         On January 14, 2015, plaintiff appealed EOUSA's decision to the Office of Information Policy (“OIP”). Compl. Ex. C. He claimed that all documentation involving Cruz should be disclosed, citing the D.C. District Court's decision in Marino v. Drug Enforcement Administration, 15 F.Supp.3d 141 (D.D.C. 2014). Id. OIP informed plaintiff on February 10, 2015 that his appeal had been received a week earlier. Compl. Ex. D. On June 30, 2015, OIP notified plaintiff that it had “affirm[ed], on partly modified grounds, EOUSA's action on [plaintiff's] request.” Compl. Ex. E. OIP explained that, because any non-public records responsive to plaintiff's request would be categorically exempt from disclosure, EOUSA properly asserted FOIA Exemption 7(C) and was not required to conduct a search for the requested records. Id.

         Blocked from receiving his requested information, plaintiff filed a complaint in this Court on January 15, 2016, seeking the disputed materials. See Compl. EOUSA filed a motion to dismiss on the same grounds provided in OIP's denial of plaintiff's FOIA request. See Mot. to Dismiss [ECF No. 3] at 1. The Court denied the government's motion, stating that “EOUSA's Exemption 7(C) claims are best considered as to specific documents, rather than in the abstract.” See June 21, 2016 Order [ECF No. 7] at 2. EOUSA then forwarded plaintiff's request to EOUSA's FOIA contact for the United States Attorney's Office for the District of Maryland (“USAO-MD”) and asked it to search for any records related to plaintiff's prosecution. See Def.'s Mot. for Summ. J. at 4. All systems within the USAO-MD likely to contain records responsive to plaintiff's request were searched, and EOUSA claims that “[t]here are no other records systems or locations within EOUSA in which other files pertaining to Garcia were maintained.” Id.

         In the course of processing plaintiff's request, EOUSA determined that certain records originated from other agencies and, accordingly, referred those records to the Department of Justice's Criminal Division (“DOJ”), the Department of Homeland Security's Immigration and Customs Enforcement (“ICE”), and DOJ's Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”). Each agency prepared a declaration and a Vaughn index addressing all documents withheld pursuant to an applicable FOIA exemption, in accordance with Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). See Decl. of David Luczynski (“Luczynski Decl.”) and Luczynski Decl. Ex. H (“EOUSA Vaughn Index”) [ECF No. 18-2]; Decl. of John E. Cunningham III (“Cunningham Decl.”) and DOJ Vaughn Index [ECF No. 18-3]; Decl. of Matthew Riley (“Riley Decl.”) and Riley Decl. Ex. 1 (“ICE Vaughn Index”) [ECF No. 18-4]; Decl. of Stephanie M. Boucher (“Boucher Decl.”) and Boucher Decl. Ex. E (“ATF Vaughn Index”) [ECF No. 18-5].

         EOUSA moved for summary judgment on July 7, 2017, claiming it had fulfilled its obligations under FOIA. See Def.'s Mot. for Summ. J. at 1. A schedule issued by the Court required plaintiff to file a response to defendant's motion and any cross-motion for summary judgment by September 8, 2017. See June 6, 2017 Order [ECF No. 17]. On October 11, 2017, after no such response was filed, the Court advised plaintiff of the consequences of failing to respond to a dispositive motion under Fox v. Strickland, 837 F.2d 507, 509 (D.C. Cir. 1988), and ordered him to file any response to EOUSA's motion for summary judgment by November 10, 2017, see Oct. 11, 2017 Order. Plaintiff has still filed no response; therefore, pursuant to the October 11, 2017 Order and the D.C. Circuit's decision in Winston & Strawn, LLP v. McLean, 843 F.3d 503, 507-08 (D.C. Cir. 2016), the Court may accept as undisputed defendant's Statement of Undisputed Material Facts in Support of Defendant's Motion for Summary Judgment and may decide the motion without the benefit of any opposition brief from plaintiff.


         Summary judgment is appropriate “if 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). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by identifying those portions of “the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” which it believes demonstrate the absence of a genuine dispute of material fact. Fed.R.Civ.P. 56(c)(1)(A); see Celotex, 477 U.S. at 323.

         “FOIA cases typically and appropriately are decided on motions for summary judgment.” Georgacarakos v. FBI, 908 F.Supp.2d 176, 180 (D.D.C. 2012) (quoting Defs. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009)). FOIA is a means for citizens to “know ‘“what their Government is up to.”'” Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 171 (2004) (citation omitted). Accordingly, FOIA requires federal agencies to release their records to the public upon request, unless the requested information falls within one of nine statutory exemptions to disclosure. See 5 U.S.C. § 552(a)(3)(A), (b).

         District courts review de novo an agency's decision to withhold requested documents under a statutory exemption, and the agency withholding responsive documents bears the burden of proving the applicability of claimed exemptions. Am. Civil Liberties Union (ACLU) v. U.S. Dep't of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011). An agency is entitled to summary judgment “if no material facts are in dispute and if it demonstrates ‘that each document that falls within the class requested either has been produced . . . or is wholly exempt from [FOIA's] inspection requirements.'” Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)). “Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical' or ‘plausible.'” ACLU, 628 F.3d at 619 (citation omitted).

         Even if the nonmoving party fails to respond to the motion for summary judgment, “a motion for summary judgment cannot be ‘conceded' for want of opposition.” Winston & Strawn, 843 F.3d at 505. The burden is always on the movant to demonstrate why summary judgement is warranted, and “[t]he nonmoving party's failure to oppose summary judgment does not shift that burden.” Id. (quoting Grimes v. District of Columbia, 794 F.3d 83, 97 (D.C. Cir. 2015)). Pursuant to Federal Rule of Civil Procedure 56(e)(1), the district court can “give a party who has failed to address a summary judgment movant's assertions of fact ‘an opportunity to properly support or address' the fact.” Grimes, 794 F.3d at 92 (quoting Fed.R.Civ.P. 56(e)(1)). However, if the nonmovant fails to respond to a movant's factual submission and then fails to take advantage of the opportunity to rectify that failure, the district court may consider the facts undisputed for purposes of the motion. Winston & Strawn, 843 F.3d at 507; see Grimes, 794 F.3d at 94.


         I. EOUSA's Search for Requested Documents was Adequate Under FOIA

         An agency only fulfills its FOIA obligations if it can demonstrate beyond a material doubt that its search was “reasonably calculated to uncover all relevant documents.” Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). To prevail in a FOIA action, the agency must show that it has 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 the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). “The question is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.” Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (citation omitted). Adequacy is judged by a standard of reasonableness. Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). The agencies are not required to search every record system; rather, a search may be reasonable if it includes all systems “that are likely to turn up the information requested.” Ryan v. FBI, 174 F.Supp.3d 486, 491 (D.D.C. 2016) (quoting Oglesby, 920 F.2d at 68).

         The agency may meet its burden and show that the search was adequate by submitting reasonably “detailed and non-conclusory” affidavits or declarations that are submitted in good faith, SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation omitted), and an index of the information withheld, Vaughn, 484 F.2d at 827-28. For an affidavit to be “reasonably detailed, ” it must “set[] forth the search terms and the type of search performed, and aver[] that all files likely to contain responsive materials (if such records exist) were searched.” Oglesby, 920 F.2d at 68. Agency affidavits that “do not denote which files were searched or by whom, do not reflect any systematic approach to document location, and do not provide ...

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