Discepolo v. U.S. Department of Justice

          MEMORANDUM OPINION

          DABNEY L. FRIEDRICH UNITED STATES DISTRICT JUDGE

         Before the Court are the defendant's Renewed Motion for Summary Judgment, Dkt. 43, and the plaintiff's Cross-Motion for Summary Judgment, Dkt. 45.^[1] On November 15, 2018, Magistrate Judge G. Michael Harvey issued a Report and Recommendation, Dkt. 69, to which the plaintiff filed numerous objections, Dkt. 71. For the reasons that follow, the Court will adopt Judge Harvey's Report and Recommendation in its entirety. The Court will therefore grant the defendant's Renewed Motion for Summary Judgment and deny as moot the plaintiff's Cross-Motion for Summary Judgment.^[2]

         I. BACKGROUND

         Plaintiff Sara Discepolo, proceeding pro se, seeks information from the U.S. Department of Justice pursuant to the Freedom of Information Act, 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 522a (collectively, FOIA). On July 17, 2017, Judge Emmet Sullivan referred this matter to a Magistrate Judge for full case management, and Judge Harvey was assigned to this case. Judge Harvey's November 15, 2018 Report and Recommendation provides a thorough summary of the facts and procedural history, which the Court adopts and will not repeat here. See Dkt. 69 at 2-5.

         In brief, the plaintiff submitted two FOIA requests to the U.S. Attorney's Office for the District of Massachusetts (USAO-MA) and one FOIA request to the U.S. Attorney's Office for the District of Connecticut (USAO-CT) on April 17, 2017. See Dkt. 41 at 1-2. The Court previously described those requests as follows:

First, the plaintiff requested that USAO-MA produce all documents related to (1) “[a]ny criminal investigation of [the plaintiff] from January 1, 2000 through December 31, 2000 or until said investigation terminated”; (2) any “mention of [the plaintiff's] name in any criminal investigation of any other person from January 1, 2000 through December 31, 2000 or until said investigation terminated”; (3) “[i]nformation reflecting that [the plaintiff] was the subject or the target of any criminal activities occurring from anytime from January 1, 2000 through December 31, 2000”; and (4) the plaintiff's “report in August 2000 of having seen Whitey Bulger in person.” Dkt. 18-4 at 7.

Second, the plaintiff requested that USAO-MA produce all documents related to “[a]ny criminal investigation of [the plaintiff] (or the mention of [the plaintiff's] name in any criminal investigation of any other person) from January 1, 2012 through the present.” Dkt. 18-4 at 9.

Third, the plaintiff requested that USAO-CT produce information related to her communications with an Assistant United States Attorney, David X. Sullivan. The plaintiff requested “all documents in [USAO-CT's] possession relating in any way” to (1) the plaintiff's “report to Assistant United States Attorney David X. Sullivan in August of 2000 that [the plaintiff] was the target of criminal activities in South Boston, Massachusetts”; and (2) the plaintiff's “report to Assistant United States Attorney David X. Sullivan sometime in August of 2000 that [the plaintiff] had seen Whitey Bulger in person in South Boston, Newton, or the Greater Boston area.” Dkt. 18-4 at 12.

Id. at 2. On May 8, 2018, the Court-adopting Judge Harvey's previous Report and Recommendation in its entirety-granted in part and denied in part the defendant's motion for summary judgment.^[3] Id. at 15. Specifically, the Court granted summary judgment for the defendant with respect to the requests submitted to USAO-MA, but it denied summary judgment without prejudice with respect to the request submitted to USAO-CT. Id.

         Regarding the request to USAO-CT, the Court reasoned that the office's search of its “CaseView” system might not have identified responsive material because the reports referenced by Discepolo “were not strictly case-related.” Id. at 12. The Court noted that AUSA Sullivan's email would be a “reasonable place to search for responsive documents.” Id. (quoting Dkt. 33 at 22). Thus, the Court adopted Judge Harvey's recommendation that “USAO-CT be instructed to supplement its declaration to fill” a single “gap in its demonstration of the adequacy of its search, either by searching AUSA Sullivan's email or by explaining why such a search is unnecessary.” Id. (quoting Dkt. 33 at 22).

         Following this instruction, the defendant filed a Renewed Motion for Summary Judgment, Dkt. 43, which it supported with a declaration from AUSA Sullivan describing a search of his email for responsive documents, including the terms used and the email systems searched, see Dkt. 43-2, ¶¶ 7-9. The plaintiff filed an opposition and Cross-Motion for Summary Judgment, Dkt. 45, on July 26, 2018, in which she raised various objections to the adequacy and reasonableness of the agency's search. That same day, the plaintiff also filed a Motion to Take Discovery, Dkt. 44. On September 19, 2018, the defendant filed its reply, Dkt. 59, which included supplemental declarations from David Luczynski, an Attorney Advisor to the Executive Office for U.S. Attorneys (EOUSA), Dkt. 59-3, and Elisha Biega, a legal assistant to USAO-CT, Dkt. 59-2. The plaintiff then sought and was granted leave to file a surreply. See Dkts. 57, 58. On October 19, 2018, the plaintiff filed her surreply, Dkt. 62, along with a motion to strike the supplemental declarations attached to the defendant's reply and a request that the defendant be sanctioned for filing the declarations, Dkt. 61.

         On November 15, 2018, Judge Harvey issued a 15-page Memorandum Opinion and Order, Dkt. 68, denying the plaintiff's motion to take discovery, her motion to strike, and her motion for sanctions. On November 29, 2018, the plaintiff timely filed 34 objections to Judge Harvey's decision. Dkt. 70. On January 18, 2019, the Court resolved those objections and affirmed Judge Harvey's decision in its entirety. Dkt. 74.

         Also on November 15, 2018, Judge Harvey issued a 19-page Report and Recommendation regarding the defendant's Renewed Motion for Summary Judgment and the plaintiff's Cross-Motion for Summary Judgment. Dkt. 69. On November 29, 2018, the plaintiff timely filed 38 objections to Judge Harvey's Report and Recommendation. Dkt. 71.

         As the procedural history makes clear, the plaintiff has received extensive judicial process since filing this action in 2016. Her numerous objections-72 in total-to Judge Harvey's November 15, 2018 opinions mark the latest development in that process.

         II. LEGAL STANDARDS

         Under Local Civil Rule 72.3(b), “[a]ny party may file for consideration by the district judge written objections to the magistrate judge's proposed findings and recommendations . . . within 14 days.” Local Civ. R. 72.3(b). Proper objections “shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for the objection.” Id. Pursuant to Local Civil Rule 72.3(c), “a district judge shall make a de novo determination of those portions of a magistrate judge's findings and recommendations to which objection is made.” Local Civ. R. 72.3(c); see also Means v. District of Columbia, 999 F.Supp.2d 128, 132 (D.D.C. 2013) (“District courts must apply a de novo standard of review when considering objections to, or adoption of, a magistrate judge's Report and Recommendation.”). But “objections which merely rehash an argument presented and considered by the magistrate judge are not properly objected to and are therefore not entitled to de novo review.” Hall v. Dep't of Commerce, No. 16-cv-1619, 2018 WL 2002483, at *2 (D.D.C. Apr. 30, 2018); see also Shurtleff v. EPA, 991 F.Supp.2d 1, 8 (D.D.C. 2013). The district judge “may accept, reject, or modify, in whole or in part, the findings and recommendations of the magistrate judge, or may recommit the matter to the magistrate judge with instructions.” Local Civ. R. 72.3(c).

         In accordance with Local Civil Rule 72.3, the Court must assess the parties' summary judgment motions. As Judge Harvey and this Court have previously explained, FOIA cases are generally resolved on motions for summary judgment. See Brayton v. Off. of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). The agency has the burden of justifying its response to the FOIA request it received, and the federal court reviews the agency's response de novo. 5 U.S.C. § 552(a). “To prevail on summary judgment, an agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested, which it can do by submitting [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.” Reporters Comm. for Freedom of Press v. FBI, 877 F.3d 399, 402 (D.C. Cir. 2017) (internal quotation marks 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. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks omitted). And although “an affidavit must explain in reasonable detail the scope and method of the search conducted, ” it “need not set forth with meticulous documentation the details of an epic search for the requested records.” Reporters Comm., 877 F.3d at 404 (internal quotation marks omitted). In addition, a defendant may seek summary judgment based on searches performed after the inception of litigation in federal court. See, e.g., Ray v. Fed. Bureau of Prisons, 811 F.Supp.2d 245, 247-48, 250 (D.D.C. 2011).

         More generally, under Rule 56, a court grants summary judgment if the moving party “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). A “material” fact is one with the potential to change the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A dispute is “genuine” if a reasonable jury could determine that the evidence warrants a verdict for the nonmoving party. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. “If there are no genuine issues of material fact, the moving party is entitled to judgment as a matter of law if the nonmoving party ‘fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'” Holcomb, 433 at 895 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

         III. ANALYSIS

         The Court has carefully reviewed each of the plaintiff's objections and has undertaken a de novo review of the entirety of Judge Harvey's thorough Report and Recommendation. Based on its independent assessment of the record and the parties' cross-motions for summary judgment, the Court finds that the defendant's search was adequate and reasonable.

         The Court previously held that the defendant's response to the plaintiff's FOIA request to USAO-CT was deficient in only one respect: its failure to search AUSA Sullivan's email. Dkt. 41 at 12. Accordingly, USAO-CT was “instructed to supplement its declaration to fill this gap in its demonstration of the adequacy of its search, either by searching AUSA Sullivan's email or by explaining why such a search is unnecessary.” Id. (quoting Dkt. 33 at 22). The defendant filled this gap by filing a declaration from AUSA Sullivan that describes a search of his Outlook account and two email archive systems using the terms “Sara Discepolo, ” “South Boston, ” and “Massachusetts.” Dkt. 43-2, ¶¶ 8-9 (Sullivan Declaration). The Sullivan declaration reports that these searches produced no responsive records, id., and explains why a search of AUSA Sullivan's paper and electronic files was unnecessary, id. ¶ 10. The declaration further avers that all systems within USAO-CT likely to contain responsive records were searched. Id. ¶ 11.

         In addition, the defendant filed supplemental declarations explaining that the email databases searched included emails dating from March 1, 2010 to the present, Dkt. 59-2, ¶¶ 5-6 (Biega Declaration), that a legal assistant also searched the case management system used to track all matters handled by USAO-CT, id. ¶¶ 1, 7-9, and that EOUSA did not instruct USAO-CT to limit its search to first-party records or use any exemptions or exclusions to limit the scope of USAO-CT's search, Dkt. 59-3, ¶¶ 6, 8 (Luczynski Declaration).

         The searches described are adequate and reasonable. “There is no requirement that an agency search every record system.” Oglesby v. U.S. Department of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). An agency need only “show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Reporters Comm. for Freedom of Press, 877 F.3d at 402 (internal quotation marks omitted). An agency can make this showing “by submitting 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.” Id. (alteration adopted, internal quotation marks omitted). The declarations submitted by the defendant easily satisfy this standard. Given the scope of the plaintiff's request-which focused on her own reports to AUSA Sullivan, Dkt. 18-4 at 12-it was reasonable for the agency to organize its searches using her name. Further, the locations and time frames covered by the searches were reasonable in light of the narrow gap identified in the Court's May 8, 2018 ruling-namely, the need to search AUSA Sullivan's email records-and the documents in the defendant's possession.

         The plaintiff objects to nearly every detail of Judge Harvey's analysis. However, several of her 38 objections relate to her motion for discovery and motion to strike. See, e.g., Dkt. 71 (Objections 3, 34, 37). Others cover terrain addressed directly, and at length, by Judge Harvey, or seek to relitigate issues already determined by the Court's May 8, 2018 decision. See, e.g., id. (Objections 2, 23-24, 28). The plaintiff's remaining objections misconstrue Judge Harvey's decision, are beyond the scope of the plaintiff's FOIA request, are contrary to controlling legal authority or the factual record, or are irrelevant to the issues presented. See, e.g., id. (Objections 1, 4-22, 25- 27, 29-33, 35-36, 38).

         The Court notes specifically that Judge Harvey did not, as the plaintiff argues, draw a factual inference in favor of the defendant by concluding that the email databases searched were the only databases accessible to the agency, id. (Objection 10), or by assuming that the agency used the listed search terms separately and not in a compound search limited to records containing all three terms together, id. (Objection 11). To be sure, as Judge Harvey explained, “all reasonable inferences from the facts in the record must be made in favor of the non-moving party.” Dkt. 69 at 6-7 (citing Liberty Lobby, 477 U.S. at 255). But it was not an “inference” to accept at face value the agency's good-faith averment that it searched “[a]ll systems of records within the USAO-CT likely to contain responsive records.” Dkt. 43-2, ¶ 11; see also Dkt. 59-2, ¶¶ 10-12. And no reasonable juror could infer from this language that the agency declined to search accessible databases covering emails from before 2010. See Dkt. 43-2 ¶¶ 8-9, 11 (describing search of three email databases and declaring that all systems of records likely to contain responsive records were searched). Likewise, no reasonable juror could interpret AUSA Sullivan's declaration as describing a compound search connecting ...