United States District Court, District of Columbia
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
ΒΆΒΆ 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
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