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Richardson v. U.S. Department of Justice

United States District Court, District of Columbia

September 27, 2018

U.S. DEPARTMENT OF JUSTICE, et al., Defendants.



         Plaintiff 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.


         On 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.

         On 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.[1] 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 22.[2] 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.

         After 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.

         One 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].

         After 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.

         Richardson 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.


         Summary 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).


         Although 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.

         I. USAO-EDVA's Search for Responsive ...

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