United States District Court, District of Columbia
DAVID W. LINDER, Plaintiff,
EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, Defendant.
MEMORANDUM OPINION AND ORDER
N. MCFADDEN UNITED STATES DISTRICT JUDGE.
David W. Linder, appearing pro se, filed this action
under the Freedom of Information Act (“FOIA”) to
compel the Executive Office for United States Attorneys
(“EOUSA”) to produce the “evidence book,
” which he characterizes as “essentially trial
exhibits” used during his criminal trial. Compl. 1, 3.
Mr. Linder's subsequent filings reiterate his focus on
“the evidence book.” See Traverse to
Gov't Return, ECF No. 13; Pl.'s Mot. for Summary J.
on the Pleadings, ECF No. 17. The EOUSA filed a motion for
partial summary judgment that goes well beyond the scope of
Mr. Linder's claim. See Def.'s Mem. of P.
& A. in Supp. of Def.'s Mot. for Partial Summary J.
(“Def.'s Mot. for Summary J.”), ECF No. 21
(seeking judgment on all but one of 12 FOIA requests
submitted between 2014 and 2017).Because the agency's
affidavits do not sufficiently explain the adequacy of the
search methodology or why the exemptions claimed are proper,
the Court will hold the EOUSA's motion in abeyance
pending more fulsome explanation. Mr. Linder's pending
“Motion for Summary Judgment on the Pleadings, ”
ECF No. 17, will be denied as moot given the Court's
reliance on the summary judgment record. See Langley v.
Napolitano, 677 F.Supp.2d 261, 263 (D.D.C. 2010) (noting
that “the standards for review are the same” on a
motion for judgment on the pleadings under Federal Rule of
Civil Procedure 12(c) and on motion to dismiss under Rule
12(b)(6)); Fed.R.Civ.P. 12(d) (requiring summary judgment
analysis when “matters outside the pleadings are
presented to and not excluded by the court”).
federal jury in the Eastern District of Virginia convicted
Mr. Linder “of all twenty-seven counts of the
indictment against him, ” consisting of various drug
distribution offenses and related charges. United States
v. Linder, 200 Fed. App'x 186, 187 (4th Cir. 2006).
Mr. Linder's conviction and sentence, including a life
sentence on a drug conspiracy count, were affirmed.
2014 or earlier and 2017, Mr. Linder submitted dozens of FOIA
requests to the EOUSA for various records pertaining to his
and others' criminal prosecutions. See
Def.'s SOMF ¶¶ 1-98. His current complaint does
not reference any request number(s) in particular, but
describes his action as seeking “essentially trial
exhibits, ” which he believes is contained within an
“evidence book, ” and includes “a number of
PowerPoints, CV's and of great interest, a photocopy of
Ex 800, an Express Envelope, alleged to have carried
substances from Nevada to New York.” Compl. 1, 3. He
also believes that he previously paid $70 for the duplication
of these requested documents. Id. at 1-2.
requests described in the EOUSA's motion and accompanying
affidavit, two pertain to an “evidence book.”
Request 2014-03816, submitted by letter on July 28, 2014,
sought “the cost to copy the evidence book with all of
the entered exhibits.” Decl. of Tricia Francis
(“Francis Decl.”) Ex. G, ECF No. 21-3; see
also id. ¶ 17. On September 10, 2014, the EOUSA
informed Mr. Linder that a search of the U.S. Attorney's
Office for the Eastern District of Virginia “revealed
no responsive records.” Id. Ex. I; see
also Id. ¶ 21.
2015-02765, submitted by letter on May 7, 2015, requested the
“Evidence Book” which he stated to be
“[a]pproximately 120 pages.” Id. Ex. X,
ECF No. 21-4; see also id. ¶ 51. On September
3, 2015, the EOUSA informed Mr. Linder that the Eastern
District of Virginia “estimate approximately 1, 500
pages of potentially responsive records have been
located” but as the search was ongoing, they did not
know “how many total responsive pages would be
found.” Id. Ex. Z; see also Id.
¶ 54. The EOUSA estimated the duplication cost for the
1, 500 pages to be $70, and asked Mr. Linder to agree to pay
the fee or select another option set out in the letter.
Id. Ex. Z. By a form signed on September 10, 2015,
Mr. Linder requested that the search be discontinued, the
first 100 pages be released, and the request be closed.
Id. Ex. AA.
Linder filed his complaint on October 12, 2016. On February 13,
2017, during the course of this litigation, the EOUSA
informed Mr. Linder that his request number 2015-02765 had
been processed and released in full 453 of 502 responsive
pages. It released the remaining 49 pages in part,
withholding information under FOIA exemptions 6 and 7(C).
Traverse to Resp't's Opp. to Pl.'s Mot. for
Summary J. 21, ECF No. 30; see also Francis Decl.
¶ 57. On April 10, 2017, EOUSA received a letter from
Mr. Linder, stating: “The release looks to be the first
half. When can I expect the second half of the
evidence?” Id. Ex. BB, ECF No. 21-4; see
also Id. ¶ 58. The record contains no reply to Mr.
requires federal agencies to “disclose information to
the public upon reasonable request unless the records at
issue fall within specifically delineated exemptions.”
Judicial Watch, Inc. v. FBI, 522 F.3d 364, 365-66
(D.C. Cir. 2008); see also 5 U.S.C. §
552(a)(3)(A) (records sought must be “reasonably
describe[d]”). In FOIA cases, the district court
reviews the record de novo, 5 U.S.C. §
552(a)(4)(B), and views the facts and draws all inferences
“in the light most favorable to the requester.”
Weisberg v. U.S. Dep't of Justice, 745 F.2d
1476, 1485 (D.C. Cir. 1984).
“vast majority” of FOIA cases can be decided on
motions for summary judgment. See Brayton v. Office of
U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir.
2011). To prevail on summary judgment, the movant must show
an absence of a genuine issue of material fact. Fed.R.Civ.P.
56(a); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). This means that an agency must
demonstrate that no material facts are in dispute, that it
has conducted an adequate search for responsive records, and
that each responsive record has either been produced to the
requestor or is exempt from disclosure. See Weisberg v.
U.S. Dep't of Justice, 627 F.2d 365, 368 (D.C. Cir.
1980). To demonstrate an adequate search, an agency can
submit a “reasonably detailed affidavit, 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.”
Oglesby v. U.S. Dep't of the Army, 920 F.2d 57,
68 (D.C. Cir. 1990). Although agency declarations are given
“a presumption of good faith, ” SafeCard
Servs. Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C. Cir.
1991), they must also describe the agency's search with
“specificity.” Reporters Comm. for
Freedom of the Press & Assoc. Press v. FBI, 877
F.3d 399, 403 (D.C. Cir. 2017).
also have the burden of demonstrating that the withheld
document falls into one of the enumerated exemptions. 5
U.S.C. § 552(a)(4)(B); see also Natural Res. Defense
Council, Inc. v. Nuclear Regulatory Comm'n,
216 F.3d 1180, 1190 (D.C. Cir. 2000). This includes providing
a sufficiently detailed description of the exemption, the
portion(s) of documents to which it applies, and
justification as to why the exemption is relevant, such that
the district court can conduct a de novo review of
the agency's determination. See Church of Scientology
of Cal, Inc. v. Turner, 662 F.2d 784, 786 (D.C.
Cir. 1980); Mead Data Cent., Inc. v. U.S. Dep't of
the Air Force, 566 F.2d 242, 251 (D.C Cir.
1977). In summary:
If an agency's affidavit describes the justifications for
withholding the information with specific detail,
demonstrates that the information withheld logically falls
within the claimed exemption, and is not contradicted by
contrary evidence in the record or by evidence of the
agency's bad ...