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Michael v. United States Department of Justice

United States District Court, District of Columbia

September 27, 2018




         This case brought under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act (“Privacy Act” and “PA”), 5 U.S.C. § 552(a), is before the Court on defendant's motion for summary judgment (“Defs.' Mot.”) [ECF No. 18]. The Court has considered the matters set forth in defendant's memorandum in support of the motion (“Def.'s Mem.”) [ECF No. 18-1], statement of material facts (“Def.'s Stmt.”) [ECF No. 18-2], and exhibits in support (“Def.'s Exs.”) [collectively, ECF No. 18-3], as well as the plaintiff's opposition, (“Pl.'s Opp.”) [ECF No. 21], and plaintiff's motion for discovery [21-1]. Since the agency has conducted an adequate search and any withholdings were proper under the statutory exemptions, defendant's motion will be granted. Plaintiff's motion for discovery will be denied.


         Plaintiff Gerald Eugene Michael, proceeding pro se, is a federal prisoner designated to Butner Low Federal Correctional Institution, located in Butner, North Carolina. Complaint (“Compl.”) at 1 ¶ 1. He is serving a 240-month sentence stemming from a 2011 felony conviction. See U.S. v. Michael, et al., No. 1:10-cr-00379 (CCE-1) (M.D. N.C. ), at ECF Nos. 77, 103. Plaintiff was found guilty by a jury on charges relating to drug distribution, possession of a firearm by a convicted felon, and conspiracy and solicitation to kill and attempt to kill another person, with the intent to prevent his attendance and testimony in an official proceeding. Id.; Compl. at 1 ¶ 7; Def.'s Stmt. at 13 ¶ 43.

         In this case, plaintiff is suing the United States Department of Justice (“DOJ”), seeking materials he requested pursuant to FOIA/PA from the Executive Office for United States Attorneys (“EOUSA”). The search for records also involved the United States Attorney's Office for the Middle District of North Carolina (“USAO/NCM”), the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), and the Federal Bureau of Investigation (“FBI”). Compl. at caption; Def.'s Mem. at 1-2.

         Plaintiff submitted his FOIA/PA request (“Request”) to EOUSA on April 9, 2014. Def.'s Stmt. at ¶ 1; Def.'s Ex. 1, Jolly Declaration (“Jolly Decl.”) at ¶ 4. The Request sought “[a]ll documents, tape recordings, correspondence, and communications in the criminal matter pertaining to Gerald Eugene Michael, No. 1:10CR379--1 for the Middle District of North Carolina.” Id. at ¶ 2; Jolly Decl. at ¶ 4; Jolly Exhibit (“Jolly Ex.”) A; Pl.'s Opp. at 2 ¶ 2. By letter dated May 20, 2014, EOUSA acknowledged the Request (No. 2014-02290) and indicated that it would begin its processing. Jolly Decl. at ¶ 6; Jolly Ex. C. EOUSA referred the Request to USAO/NCM, the office that prosecuted plaintiff, to conduct a search for responsive records. Id.; Def.'s Stmt. at ¶ 3.

         On July 8, 2014, plaintiff filed an administrative appeal with the Office of Information Policy (“OIP”), asserting that EOUSA had failed to timely respond to his Request. Def.'s Stmt. at ¶ 4; Jolly Decl. at ¶ 8; Jolly Ex. E. EOUSA responded to plaintiff on July 18, 2014, though, notifying him that a search was conducted by USAO/NCM that revealed potentially responsive records, but that DOJ regulations required him to pay a fee. Def.'s Stmt. at ¶ 5; Jolly Decl. At ¶ 7. Plaintiff paid the fee, and it was received by EOUSA on August 1, 2014, Def.'s Stmt. at ¶ 5; Jolly Decl. at ¶ 10; Jolly Ex. G, but the fee was later waived. Def.'s Stmt. at ¶ 6 n.1.

         On April 2, 2015, EOUSA notified plaintiff that the USAO/NCM search for Request No. 2014-02290 had revealed that all of the potentially responsive, releasable records originated with ATF. Def.'s Stmt. at ¶ 6; Jolly Decl. at ¶ 14; Jolly Exs. K, L. Pursuant to 28 C.F.R. § 16.4 and § 16.42, USAO/NCM located and retrieved 804 pages of responsive documents in plaintiff's case file and returned the records to EOUSA's FOIA/PA unit for further processing. Def.'s Stmt. at ¶ 7; Jolly Decl. at ¶¶ 13-22, 24. Of those, EOUSA withheld approximately 100 pages of records that had been filed under seal in the District Court for the Middle District of North Carolina. Def.'s Stmt. at ¶ 7; Jolly Decl. at ¶ 14. Referral

         On April 2, 2015, EOUSA also referred the pages to ATF. Def.'s Ex. 3, Chisholm Declaration (“Chisholm Decl.”) at ¶ 3.[1] Meanwhile, plaintiff filed another administrative appeal with the OIP on April 13, 2015. Def.'s Stmt. at ¶ 8; Jolly Decl. at ¶ 16; Jolly Ex. N.

         By letter dated May 6, 2016, ATF acknowledged receipt of the EOUSA referral, and assigned it No. 2015-0817. Def.'s Stmt. at ¶ 25; Chisholm Decl. at ¶ 4; Chisholm Ex. B. ATF deemed the responsive records to be exempt from the access provisions of the PA. Def.'s Stmt. at ¶¶ 28-30, 56-57; Chisholm Decl. at ¶ 8; Hardy Decl. at ¶ 8-10. Therefore, ATF processed the Request under FOIA to “achieve maximum disclosure.” Def.'s Stmt. at 56-57; Hardy Decl. at 9- 10. On August 21, 2017, ATF issued a final determination letter. Def.'s Stmt. at ¶ 26; Chisholm Decl. at ¶ 5; Chisholm Ex. C. As part of that final determination, ATF released 252 pages in part and 36 pages in full. Def.'s Stmt. at ¶ 27; Chisholm Decl. at ¶ 5; Chisholm Ex. C. ATF withheld 159 pages in full. Id. The majority of these withholdings fell under 5 U.S.C. § 522(b)(6) (“Exemption 6”) & 5 U.S.C. § 552(b)(7)(C) (“Exemption 7(C)”). Id. Of the remaining pages, 327 were withheld as duplicates of records already provided, and 30 were referred to the FBI pursuant to 28 C.F.R. § 16.4. Id.

         The materials ATF submitted to the FBI on August 23, 2017 included plaintiff's “FBI identification record, ” containing his arrest and conviction history. Def.'s Stmt. at ¶ 50; Def.'s Ex. 4, Hardy Declaration (“Hardy Decl.”) at ¶ 6; Hardy Ex. 5. The FBI reviewed this material and redacted some information pursuant to FOIA Exemptions 6 and 7(C). Def.'s Stmt. at ¶ 51; Hardy Decl. at ¶ 6.

         On September 11, 2015 and September 14, 2015, OIP issued decisions on plaintiff's appeals. Def.'s Stmt. at ¶¶ 9-10; Jolly Decl. at ¶¶ 18-19; Jolly Exs. P, Q. It affirmed EOUSA's referral to ATF, but it also remanded the Request to EOUSA and ordered that EOUSA confirm whether records it withheld remained under seal. Id. OIP also instructed EOUSA to release a five-page indictment that was located subsequent to the appeal. Id. Further, OIP also directed EOUSA to conduct an additional search for responsive records at the USAO/NCM. Id.

         Meanwhile, on November 17, 2016, FBI released some documents to plaintiff, of which 20 pages were released in part, and 10 pages were released in full. Def.'s Stmt. at ¶¶ 65-66; Hardy Decl. at ¶¶ 17-18; Hardy Ex. 5. Information was withheld pursuant to FOIA Exemptions 6 and 7, see Def.'s Stmt. at ¶¶ 58-63; Hardy Decl. at ¶¶ 17-18; Hardy Ex. 5, and the document was also found to be exempt from the access provisions of the PA, see Def.'s Stmt. at ¶ 52-56; Hardy Decl. at ¶¶ 17-18; Hardy Ex. 5.

         By letter dated October 7, 2015, EOUSA informed plaintiff that it was processing the request remanded by OIP, now administratively re-numbered 2015-03771. Def.'s Stmt. at ¶ 11; Jolly Decl. at ¶ 20; Jolly Ex. R. On June 24, 2016, EOUSA released the five-page indictment and notified plaintiff that the remaining withheld records remained under seal in the District Court for the Middle District of North Carolina. Def.'s Stmt. at ¶ 12; Jolly Decl. at ¶ 21; Jolly Ex. S.

         On January 31, 2017, plaintiff filed the complaint in this matter. See generally, Compl. Plaintiff alleges that he has attempted to obtain “evidence” and “discovery” relating to his criminal investigation and trial for many years. Pl.'s Opp. at 1-2. After sensing that he had come to the end of his efforts to deal directly with the Middle District of North Carolina and the attorneys involved in his trial, he began invoking FOIA and the Privacy Act. Id. He now alleges that defendant's response to his Request has been insufficient. Id. at 2, 4-5. Plaintiff believes that a number of materials have been unfairly withheld, and he is particularly focused on his efforts to obtain what he refers to as the “Walser and Bone tapes, ” and any documentation relating to them. Id. at 2-5.

         According to both parties, individuals named Tony Walser and Robert Bone cooperated with the government in the course of the criminal investigation. Id.; see also Def.'s Stmt. at ¶¶ 45- 47.; Def.'s Mem. at 16-18; Chisholm Decl. at ¶ 41-44. Plaintiff's conversations with both of them were recorded and used as evidence at trial. Id. Plaintiff contends that the government engaged in misconduct during the trial because only excerpts of the recordings were played, and the jury did not have the opportunity to hear them in full. Pl.'s Opp. at 2-5. Plaintiff submits that the recordings were therefore analyzed out of context, and that the jury was deprived of meaningful exculpatory information that would have assisted in proving his innocence. Id.

         In addition to any “information or evidence” provided during the course of his investigation and prosecution, plaintiff specifically seeks production of the Walser and Bone recordings. Id. at 6. Plaintiff assumes that, because these recordings existed at one point in time, or potentially exist in transcribed form, defendant must be withholding the original audio-recordings from him now. Id. at 3-4. Defendant states that its searches have uncovered no tapes, but they did unearth transcripts of certain recordings. Defendant's Reply (“Def.'s Reply”) at 3 ¶ 1, 6 ¶ 2, 6 ¶ 2. Based on the privacy interests protected by Exemptions 6 and 7(C), defendant will neither confirm nor deny that the transcripts it discovered and produced are those relating to Walser and Bone. Id. However, defendant has attested that it has produced all available transcripts of recordings in response to plaintiff's Request, and that they have been released to plaintiff with some redactions. See Def.'s Ex. D, Vaughn Index (“Vaughn Index”) at 8, Doc No. 16, pg. 223; Def.'s Reply at 2 ¶ 3, 3 ¶ 1, 4 ¶ 1, 6 ¶ 2; Defs.' Reply Ex. 6. In addition to the tape-recordings themselves, plaintiff contests defendant's reliance on FOIA exemptions, and he seeks the release of unredacted transcripts. Pl.'s Opp. at 4-5.


         In a FOIA case, a district court reviews the agency's decisions de novo and “the burden is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B); Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). “[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011); Defenders of Wildlife v. 77 U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009).

         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 informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must “designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted).

         The mere existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the non-moving party; a fact is “material” only if it can affect the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In the FOIA context, “the sufficiency of the agency's identification or retrieval procedure” must be “genuinely in issue” for summary judgment to be inappropriate. Weisberg v. DOJ, 627 F.2d 365, 371 n.54 (D.C. Cir. 1980) (internal quotation marks omitted). In assessing a defendant's motion, though, a court must “view the facts and draw reasonable inferences in the light most favorable to plaintiff.” Scott v. Harris, 550 U.S. 372, 378 (2007).

         In FOIA cases, “[s]ummary judgment may be granted on the basis of agency affidavit [, ]” when those affidavits “contain reasonable specificity of detail rather than merely conclusory statements, ” and when “they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (quoting Consumer Fed'n of Am. v. Dep't of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006)); see also Peavey v. Holder, 657 F.Supp.2d 180, 188 (D.D.C. 2009) (quoting Schrecker v. U.S. Dep't of Justice, 217 F.Supp.2d 29, 33 (D.D.C. 2002)). Agency declarations are afforded a “presumption of good faith” and can be rebutted only with evidence that the agency did not act in good faith. Defenders of Wildlife, 314 F.Supp.2d at 8. However, a plaintiff cannot rebut the good faith presumption afforded to an agency's supporting affidavits through “purely speculative claims . . . .” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).

         In a Privacy Act case, a court may similarly rely on agency affidavits or declarations to grant a motion for summary judgment. See Chambers v. U.S. Dep't of the Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009). At the summary judgment stage, where the agency has the burden to show that it acted in accordance with the statute, a court may rely on 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. Jimenez v. Executive Office for U.S. Attorneys, 764 F.Supp.2d 174, 179-80 (D.D.C. 2001) (citing Chambers, 568 F.3d at 1003). Even if the nonmoving party fails to respond to the motion for summary judgment, or portions thereof, a court cannot grant the motion for the reason that it was conceded. Winston & Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016). The burden is always on the movant to demonstrate why summary judgment is warranted. Id. A district court “must determine for itself that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law, and then ‘should state on the record the reasons for granting or denying the motion.' ” Id. at 508-09 (quoting Fed.R.Civ.P. 56(a)).


         I. The defendant's searches were adequate.

         Plaintiff does not explicitly challenge the sufficiency of defendant's searches, but the Court will address the issue because, on a motion for summary judgment, a defendant bears the initial burden of showing that its searches were adequate. Weisberg, 745 F.2d at 1485.

         The adequacy of an agency's search is measured by a standard of reasonableness under the attendant circumstances. Truitt v. U.S. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990). To satisfy its burden, the agency must show that it “has conducted a search reasonably calculated to uncover all relevant documents.” Elliott v. U.S. Dep't of Agric., 596 F.3d 842, 851 (D.C. Cir. 2010) (quoting Weisberg, 705 F.2d at 1344). It may base its showing on affidavits or declarations submitted in good faith, see Truitt, 897 F.2d at 542, provided that these affidavits or declarations explain in reasonable detail the scope and method of the search, see Morley v. CIA, 508 F.3d 1108, 1116 (D.C. Cir. 2007) (citations omitted). “In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency's compliance . . . .” North v. U.S. Dep't of Justice, 774 F.Supp.2d 217, 222 (D.D.C. 2011) (citing Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982)). Agencies must show that their searches for responsive records “us[ed] methods which can be reasonably expected to produce the information requested.” Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990); see also Campbell v. Dep't ...

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