United States District Court, District of Columbia
CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE.
October 2016, pro se plaintiff Elester Middlebrook
submitted a Freedom of Information Act ("FOIA")
request to the Executive Office for United States Attorneys
("EOUSA") seeking a single document:
A copy of the FDIC Certificate for Wachovia Atlanta Money
Center loacated [sic] at 4745 Aviation parkway in Clayton
County Georgia that is a part of AUSA Thomas A. Delvin's
Case file in the Northern District of Georgia in my No.
Ex. 1, ECF No. 1, at 9. In December 2016, EOUSA requested
that the U.S. Attorney's Office ("USAO") for
the Northern District of Georgia search for any responsive
records. Smith Decl. ¶ 7. In February 2017, Middlebrook
sent EOUSA a "notice of tardiness" in responding to
his request, Compl. Ex. 4, at 13, and, the next month, EOUSA
requested a status report from the USAO. Smith Decl.
Comer is a legal assistant responsible for preparing that
office's responses to FOIA requests. Decl. of Yvette
Comer ("Comer Decl"), ECF No. 9-1, at ¶ 1.
Spurred by the EOUSA's March 2017 request for a status
report, Comer requisitioned Middlebrook's closed criminal
case file, Id. ¶ 6, which consisted of four
banker's boxes of paper records, Id. ¶ 7.
with waiting, Middlebrook filed this civil action in November
2017. He challenges EOUSA's improper withholding of
agency records, Compl. ¶¶ 16-19, and failure to
meet FOIA deadlines, id ¶¶2-23.
additional nudging from EOUSA in November 2017, Smith Decl.
¶ 13, Comer reviewed every page in the boxes but did not
find the document Middlebrook sought, Comer Decl. ¶ 7.
She also contacted the Assistant U.S. Attorney who prosecuted
Middlebrook's case; he too searched the boxes and came up
empty. Id. At the time Middlebrook was prosecuted,
the USAO maintained only paper files. Id. ¶ 8.
Comer communicated the results of her search to EOUSA on
January 11, 2018. Id. ¶ 9-10. EOUSA in turn
informed Middlebrook that his record request produced no
responsive documents or records. Smith Decl. ¶ 15.
then moved for summary judgment in February 2018 on the basis
that the agency conducted a reasonably adequate search for
responsive documents, even though none were located. See
Def's Mot. Summ. J. ("MSJ"), ECF No. 8, at 3.
When Middlebrook did not timely respond by August 2018, the
Court issued a standard "Fox/Neal" Order,
advising Middlebrook that if he did not respond by September
21, 2018, the Court may deem the matter as conceded.
See Order, ECF No. 10. Still, Middlebrook did not
file an opposition. Instead, he sought an extension until
October 9, 2018, to file his response to the government's
motion. See PL's Mot. Extension Time, ECF No.
11. Because Middlebrook has had more than seven months to
respond to DOJ's motion for summary judgment, the Court
will deny his request for an extension.
Middlebrook's failure to respond permits the Court to
treat the motion as conceded, the Court will instead reach
the merits and determine whether DOJ is entitled to summary
judgment. The Court concludes that it is.
requester who is dissatisfied with an agency's no-records
response "may . . . challenge the adequacy of the
agency's search." Oglesby v. U.S. Dep't of
Army, 920 F.2d 57, 67 (D.C. Cir. 1990). To obtain
summary judgment and establish the adequacy of its search
under FOIA, the agency must simply "show that it 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." Id. at 68.
A declaration that "adequately describe[s] the
search" with "reasonable detail" will satisfy
this burden. Id.
done that here. It has submitted declarations from an EOUSA
Attorney-Advisor, Theodore B. Smith, who handles FOIA
requests for EOUSA, and the legal assistant, Yvette Comer,
who conducted the search in the U.S. Attorney's Office
for the Northern District of Georgia. Smith and Comer recount
the search described above, which strikes the Court as both
reasonable and thorough. In addition, according to Comer,
there is nowhere else to search: at the time Middlebrook was
prosecuted, the Northern Georgia AUSO maintained only paper
case files and both she and the AUSA in Middlebrook's
case have put eyes on each page.
declarations are "accorded a presumption of good
faith," SafeCard Servs., Inc. v. SEC. 926 F.2d
1197, 1200 (D.C. Cir. 1991), unless "called into
question by contradictory evidence in the record or by
evidence of agency bad faith," Consumer Fed'n of
Am. v. Dep't of Agric. 455 F.3d 283, 287 (D.C. Cir.
2006). There is no such evidence here.
the Court will grant DOJ's motion for summary judgment
and enter judgment in its favor. An Order ...