United States District Court, District of Columbia
BERMAN JACKSON, UNITED STATES DISTRICT JUDGE.
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.
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
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.
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 ¶
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.
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 ¶
April 2, 2015, EOUSA also referred the pages to ATF.
Def.'s Ex. 3, Chisholm Declaration (“Chisholm
Decl.”) at ¶ 3. Meanwhile, plaintiff filed another
administrative appeal with the OIP on April 13, 2015.
Def.'s Stmt. at ¶ 8; Jolly Decl. at ¶ 16; Jolly
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.
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.
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.
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.
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.
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.
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.
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.
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).
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).
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).
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)).
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)).
The defendant's searches were adequate.
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.
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.