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Pubien v. Executive Officer for United States Attorneys

United States District Court, District of Columbia

November 13, 2018

MICKEY PUBIEN, Plaintiff,
v.
EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, Defendant.

          MEMORANDUM OPINION

          JAMES E. BOASBERG, UNITED STATES DISTRICT JUDGE

         For at least two years, pro se Plaintiff Mickey Pubien has been seeking information about the grand jury that indicted him. His most recent Freedom of Information Act request, from September 2017, sought the dates the grand jury was in session. The Executive Office for United States Attorneys, in conjunction with the United States Attorney's Office for the Southern District of Florida (USAO-SDFL), searched for responsive records and turned up a single document: a Memorandum that contained only the dates on which the grand jury was empaneled and discharged. EOUSA produced the Memo to Pubien, redacting only the names of the author and recipient. It now moves for summary judgment. Plaintiff opposes, contending primarily that the search was inadequate and the withholdings improper. Finding for the Government on both issues, the Court will grant Defendant's Motion for Summary Judgment.

         I. Background

         The backdrop for this case begins in 2016, with a FOIA request not at issue here. On September 13 of that year, Pubien submitted to EOUSA a request seeking “the dates the grand jury was impaneled and expired.” See ECF No. 9-2 (Declaration of Princina Stone), ¶¶ 5-9, 14, 15; see also Def. Mot., Exh. A (2016 FOIA Request) at 1. In response to that request, EOUSA and USAO-SDFL contacted the United States District Court for the Southern District of Florida (USDC-SDFL) “to seek information responsive to Plaintiff's FOIA request, ” which the U.S. Attorney's Office no longer had because it would have “been purged in accordance with USAO-SDFL record retention schedule.” Stone Decl., ¶ 8; ECF No. 16-1 (Declaration of Francys Marcenaros), ¶ 9. The USDC-SDFL Court Clerk provided the U.S. Attorney's Office with a one-page Memorandum specifying the dates the grand jury was impaneled and discharged. See Stone Decl., ¶ 8. EOUSA released the Memo, with redactions, to Plaintiff on July 20, 2017, two months before he submitted his next request - the one at issue here. Id., ¶ 9.

         On September 28, 2017, EOUSA received that FOIA request. Id., ¶ 10. It sought “the (exact dates) . . . grand jury [number 06-0403 (FL)] was in session for the month of December 2006.” ECF No. 9 (Def. MSJ), Exh. E (2017 FOIA Request) at 1. The scope of the 2017 request was thus more targeted: rather than seeking only the beginning and end dates, Plaintiff seeks every date the grand jury was in session.

         Even though this request technically sought information rather than records - and the Government is not required to answer questions or provide non-record information under FOIA, see Evans v. Federal Bureau of Prisons, 2018 WL 707427, at *3 (D.D.C. 2018) - EOUSA nonetheless renewed its search in response to that request. Not surprisingly, the Government did not have the more specific information Pubien sought. EOUSA - in conversation with USAO-SDFL - again determined that it would not have responsive records in its control; rather, any relevant material would be in the Court Clerk's office. See Stone Decl., ¶ 16. The USAO Grand Jury Clerk further explained that the Court Clerk had already indicated that the Memo previously provided “was the only information available” and that “[a]ny other information related to [the] [g]rand [j]ury . . . no longer existed.” Marcenaros Decl., ¶ 3. The Court Clerk confirmed that “[her office] would not know the specific dates on which that particular [g]rand [j]ury met, ” so that a search for in-session dates “yielded no records.” Id. On June 6, 2018, Defendant sent Pubien a letter advising him that it had determined that his 2017 FOIA request duplicated his 2016 request. See Stone Decl., ¶ 17. It re-sent Pubien another copy of the Memo, id., again redacting pursuant to FOIA Exemptions 6 and 7(C) the names of USAO-SDFL and USDC-SDFL personnel appearing in its “To ” and “From” lines. Id., ¶¶ 22-23, 25. EOUSA now moves for summary judgment.

         II. Legal Standard

         Summary judgment may be granted 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion” by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         FOIA cases typically and appropriately are decided on motions for summary judgment. See Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case, a court may grant summary judgment based solely on information provided in an agency's affidavits or declarations when they “describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citation omitted). Such affidavits or declarations “are accorded a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.'” 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)). “Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to sustain its action' and directs the district courts to ‘determine the matter de novo.'” Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)).

         III. Analysis

         Congress enacted FOIA “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (quotation marks and citation omitted). “The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (citation omitted). The statute provides that “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order the production of records that an agency improperly withholds. See id. § 552(a)(4)(B); Reporters Comm., 489 U.S. at 754-55. “At all times courts must bear in mind that FOIA mandates a ‘strong presumption in favor of disclosure.'” Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Dep't of State v. Ray, 502 U.S. 164, 173 (1991)).

         Plaintiff contends that EOUSA erred in two essential respects. He maintains first that, for a variety of reasons, the search was inadequate. See ECF No. 14 (Pl. Opp.) at 3-6, 8, 9. He next argues that the Government's withholdings were improper. Id. at 10-11. The Court addresses each point in turn.

         A. Adequacy of Search

         “An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.'” Valencia-Lucena v. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990)); see also Steinberg v. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). “[T]he issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.” Weisberg v. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). The adequacy of an agency's search for documents requested under FOIA “is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case.” Id. To meet its burden, the agency may submit affidavits or declarations that explain the scope and method of its search “in reasonable detail.” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). Absent ...


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