United States District Court, District of Columbia
D. BATES UNITED STATES DISTRICT JUDGE
Bobby Richardson brought this action pro se under
the Freedom of Information Act (FOIA), 5 U.S.C. § 552,
and the Privacy Act, 5 U.S.C. § 552a, against defendants
Department of Justice (DOJ) and the Executive Office for
United States Attorneys (EOUSA) seeking documents pertaining
to his 2009 felony convictions. The government now moves for
summary judgment, asserting that it has conducted an adequate
and reasonable search for documents responsive to his request
and has provided all available relevant records, excepting
certain materials withheld pursuant to exemptions asserted
under FOIA. In opposition, Richardson directly challenges
neither the adequacy of the search nor the appropriateness of
the government's redactions. Instead, he alleges that the
records produced contain falsified information and requests
“deposition[s] by written questions” to test
their veracity. For the reasons explained below, the Court
will grant the government's motion for summary judgment.
August 6, 2008, a confidential informant made a controlled
buy of heroin from Richardson on behalf of the Petersburg
Bureau of Police. United States v. Richardson, No.
3:09-CR-15, 2013 WL 3991474, at *1 (E.D.Va. Aug. 2, 2013).
Richardson was arrested for charges relating to this event,
including drug possession and distribution, firearm
possession by a convicted felon, and multiple counts of
counterfeiting U.S. currency. Id. at *2. In 2009, he
was convicted by a jury of all counts. Id. The
Fourth Circuit denied his appeal, and in 2013, the Eastern
District of Virginia denied his habeas petition under 28
U.S.C. § 2255. See id. at *2, *19.
March 19, 2015, Richardson submitted a FOIA request to EOUSA
seeking information about his criminal case. See
Decl. of Vinay J. Jolly (“Jolly Decl.”), Ex. 5 to
Defs.' Mot. for Summ. J. [ECF No. 15-5] ¶ 4; see
also Ex. A to Jolly Decl. at 7-8. He specifically
requested all “records, ” “files, ”
“recordings, ” “surveillance, ”
“cell phone records, ” “[b]ills, ”
and “[a]ny and [a]ll witnesses that may have been paid
in the aid of . . . prosecution [of him].” Ex. A to
Jolly Decl. at 7-8. After being informed that the request was
procedurally deficient, he filed a new request with EOUSA on
April 28, 2015, this time requesting from the U.S.
Attorney's Office for the Eastern District of Virginia
(USAO-EDVA) copies of witness interviews with law enforcement
personnel and all “pre-trial and post-trial
discovery” pertaining to his criminal case.
See Exs. B & C. to Jolly Decl. at 9-14. On June
5, 2015, EOUSA notified Richardson that it had received his
request and denied it insofar as it sought information
concerning third parties, the disclosure of which would
violate the Privacy Act. See Ex. E. to Jolly Decl.
at 19-20. In response, on August 31, 2015, Richardson
modified his request to seek from the USAO-EDVA only certain
police and computer aided dispatch reports relating to his
criminal case. See Ex. F. to Jolly Decl. at
The request was then referred to the Richmond USAO office.
See Decl. of Ann S. Helms (“Helms
Decl.”), Ex. 4 to Defs.' Mot. for Summ. J. [ECF No.
15-4] ¶¶ 2-3.
two inquiries from Richardson regarding the status of his
request, see Jolly Decl. ¶¶ 11, 16-as well
as one failed attempt to obtain the documents through the
administrative appeal process, see id. ¶¶
13-14-on May 10, 2017, USAO-EDVA initiated a search for
documents responsive to his FOIA request, see Helms
Decl. ¶ 4. Ann S. Helms, who serves as the FOIA
coordinator at the USAO-EDVA office in Richmond, searched the
Legal Information Office Network System
(“LIONS”), which is an electronic “case
management database that allows each USAO to maintain, track,
and report information” on its cases. Id.
¶¶ 1, 4. Using Richardson's first and last
name, Helms identified his criminal case record, which was
linked to a physical case file. Id. ¶ 4. Helms
then retrieved his physical case file from USAO-EDVA's
archives and reviewed it for responsive documents. See
id. ¶¶ 4-5.
month later, Richardson filed the instant action. Thereafter,
on August 16, 2017, USAO-EDVA sent 36 pages of potentially
responsive documents from Richardson's case file to EOUSA
for final processing. Helms Decl. ¶ 6. EOUSA then
notified Richardson that his FOIA request had been processed
and EOUSA had identified potentially responsive documents
within USAO-EDVA's records, all originating from the
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).
See Ex. N. to Jolly Decl. at 39-40. EOUSA referred
the records to ATF for review, see Ex. O to Jolly
Decl. at 41-42, and on September 15, 2017 ATF released, in
part, the responsive records to Richardson. Decl. of Peter J.
Chisholm, Acting Chief, Disclosure Div., ATF (“Chisholm
Decl.”), Ex. 3 to Defs.' Mot for Summ. J. [ECF No.
15-3] ¶ 5; Ex. C to Chisholm Decl. at 18. ATF withheld
portions of 34 of the 36 documents pursuant to 5 U.S.C.
§ 552(b)(6), which exempts from disclosure certain
information contained in personnel and medical files, and
(b)(7)(C), which exempts certain information contained in
records compiled for law enforcement purposes. See
ATF Vaughn Index (“Vaughn
Index”), Ex. 6 to Mot. for Summ. J. [ECF No. 15-6]. The
government then moved for summary judgment, asserting that it
had conducted an adequate and reasonable search and had
produced all responsive documents not subject to applicable
FOIA exemptions. See Mem. of P. & A. in Supp. of
Defs.' Mot. for Summ. J. [ECF No. 15-1].
receiving materials from ATF, Richardson filed a notice with
the Court asking EOUSA for supplemental discovery, arguing
that “in some material respect, the [agency's]
disclosure or response is incomplete or incorrect.”
See Pl.'s Supplementing Disclosures & Resp.
Fed R. Civ. P. 26 (“Rule 26 Stmt.”) [ECF No. 14]
at 1. He asserted that EOUSA failed to disclose requested CDs
and documents pertaining to two dispatch calls and one
incident report and challenged the withholding of the names
of certain police officers. Id. at 2-3; see
also Failure to Make Disclosures or to Cooperate in
Disc.; Mot. for Sanctions Under Rule 37 (“Mot. to
Compel”) [ECF No. 21] at 1 (asking the Court to compel
EOUSA to produce investigative report). Richardson also moved
the Court for leave to depose by written questions personnel
at the Petersburg Police Department, USAO-EDVA in Richmond,
and ATF. See Pl.'s Mot. for Deps. by Written
Questions Fed.R.Civ.P. 31 [ECF No. 16] at 2. The Court denied
Richardson's motions for discovery and issued an order
informing him of his obligation to respond to the
government's pending motion for summary judgment,
pursuant to Fox v. Strickland, 837 F.2d 507, 509
(D.C. Cir. 1988), and Neal v. Kelly, 963 F.2d 453,
456 (D.C. Cir. 1992). See Nov. 6, 2017 Order [ECF
No. 17] at 1-4; Mar. 23, 2018 Min. Order.
filed an opposition to the government's motion, asserting
again that he is entitled to depose certain law enforcement
individuals who were involved in his criminal case.
See Opp'n to Summ. J. (“Pl.'s
Opp'n”) [ECF No. 18] at 1. Unlike in his motions
for discovery, he does not contest the adequacy of the
government's search or challenge the withholdings. He
instead disputes the veracity of the contents of the produced
documents, alleging that the records were fraudulently
created by the Petersburg Police Department and provided to
ATF during Richardson's criminal case. See id.
at 3. “In summary, ” Richardson asserts he is
“fighting against elements of the Petersburg Police
Department [and ATF] which have gone above and beyond to take
preventative measures to conceal the truth.”
Id. at 11. Noting that “defendant[s] . . .
simply cannot provide any more discovery, ” he asks the
Court to review the documents ATF produced in camera
and grant him leave to take written depositions. Id.
at 4-5, 10-11. The government's motion for summary
judgment is now fully briefed and ripe for decision.
judgment is only 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). A dispute is “genuine” only
if a reasonable fact-finder could find for the non-moving
party and a fact is “material” only if it can
affect the outcome of the litigation. Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-
48 (1986)). In determining whether a genuine issue of
material fact exists, the Court must “view the facts
and draw reasonable inferences ‘in the light most
favorable to the party opposing the [summary judgment]
motion.'” Scott v. Harris, 550 U.S. 372,
378 (2007) (citation omitted). If, however, the movant shows
that “there is an absence of evidence to support the
nonmoving party's case, ” judgment should be
entered in the movant's favor. Durant v. D.C.
Gov't, 875 F.3d 685, 696 (D.C. Cir. 2017) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)),
cert. denied sub nom., Durant v. District of
Columbia, 138 S.Ct. 2608 (2018). Even where the
nonmovant party fails to respond to the motion for summary
judgment, or portions thereof, the 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.” Winston & Strawn, LLP v.
McLean, 843 F.3d 503, 509 (D.C. Cir. 2016).
Richardson does not contest in his opposition the sufficiency
of the government's response to his request, the Court
will not treat the issues of the adequacy of the agency
search and the appropriateness of the redactions as conceded.
First, “[a] document filed pro se is ‘to
be liberally construed.'” Hill v. Assocs. for
Renewal in Educ., Inc., 897 F.3d 232, 237 (D.C. Cir.
2018) (quoting Erickson v. Pardus, 551 U.S. 89, 94
(2007)). Although Richardson does not dispute the adequacy of
USAO-EDVA's search for responsive documents or challenge
the redactions made by ATF pursuant to FOIA exemptions in his
opposition brief-and indeed appears to concede that EOUSA is
unable to provide any additional “discovery”-he
did challenge the sufficiency of the agencies' production
in motions and documents he filed with the Court requesting
additional discovery. See, e.g., Mot. to Compel at
2-3; Rule 26 Stmt. at 2. Second, the government bears the
burden of demonstrating that summary judgment is warranted.
See Weisberg v. U.S. Dep't of Justice, 745 F.2d
1476, 1485 (D.C. Cir. 1984). Hence, the Court will consider
both the adequacy of USAO-EDVA's search and whether ATF
properly withheld responsive records pursuant to applicable
exemptions under FOIA.
USAO-EDVA's Search for Responsive ...