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Krocka v. Executive Office for United States Attorneys

United States District Court, District of Columbia

February 19, 2019




         Federal inmate Vincent Krocka brings this action against the Executive Office for United States Attorneys (“EOUSA”) and its Assistant Director for alleged violations of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and breach of contract. Krocka lodged a FOIA request with EOUSA in November 2015 for documents maintained by the United States Attorney's Office for the Middle District of Florida related to his criminal case and a related habeas action. He seeks transcripts and other materials that he says will prove his innocence, or at least show that he did not receive a fair trial. Krocka Opp'n, ECF No. 24, ¶ 1. EOUSA provided Krocka 787 pages of responsive records, including 354 pages of transcripts. Not satisfied, Krocka sued and both parties have now moved for summary judgment. For the reasons that follow, the Court will grant the government summary judgment regarding its withholdings and reserve judgment regarding the adequacy of the search.

         I. Background

         In October 2008, a jury in the Middle District of Florida convicted Mr. Krocka of ten counts of sending threatening or extortionate communications to his ex-wife, and six counts of witness tampering. Gov't Statement of Undisputed Material Facts (“SUMF”), ECF No. 22-5, ¶ 1. After the district court set aside two of the convictions and the Eleventh Circuit reversed two others, id. ¶¶ 2-3, Krocka was sentenced to 121 months in prison, id. ¶ 4. In June 2014, he filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, which was denied. Id. ¶ 5.

         In November 2015, Krocka submitted a FOIA request to EOUSA for all investigative documents, communications, and other records related to his federal criminal and habeas cases maintained by either EOUSA or the United States Attorney's Office for the Middle District of Florida (“USAO”). Compl. Ex. C, ECF No. 1. His briefing clarifies that he is particularly focused on the “complete and unredacted hard copies of the entire trial transcript and both pre-trial and post-trial transcripts as well as the so called ‘missing' trial audio tape of the actual trial in his criminal case . . ., and the audio tapes of any hearings and proceedings occurring in 2012 and thereafter.” Krocka Opp'n ¶ 6.

         In response to Krocka's request, EOUSA asked the USAO to search for responsive records. Smith Decl., ECF No. 22-3, ¶ 7. The USAO did so, and found Krocka's physical and electronic files. Hoobler Decl., ECF No. 22-4, ¶ 10. It recovered two § 2255 case files; neither contained responsive documents. Id. ¶ 12. Krocka's criminal case file yielded three boxes (around 6, 000 pages) of potentially responsive records. Id. ¶ 13. Finally, the four Assistant U.S. Attorneys (“AUSAs”) who worked on Krocka's case were directed to search their e-mail for any responsive documents. Id. ¶ 17.

         In December 2015, EOUSA informed Krocka by letter that he must make an advance payment of $295 before it would continue processing his FOIA request. Smith Decl. Ex. 1, ECF No. 22-3, at 15. The office also explained that Krocka could instead opt to receive the first 100 pages of responsive documents for free. Id. EOUSA closed Mr. Krocka's request when he did not respond to the letter within 30 days. Smith Decl. ¶ 10. In May 2016, EOUSA received a letter signed by “Michael Sperber POA for Vincent Krocka, ” enclosing a check for $295. Id. ¶ 11. EOUSA then reopened Krocka's FOIA request. Id. ¶ 12.

         EOUSA staff asked the USAO to submit potentially responsive materials. Id. ¶ 13. Pursuant to internal policy, EOUSA “directed the USAO not to submit grand jury records, records sealed by court order, or public records other than trial or sentencing transcripts.” Hoobler Decl. ¶ 15. The USAO sent EOUSA 676 pages of non-public records, a 116-page sentencing transcript, and twelve discs-one containing 238 pages of excerpted trial transcripts and the rest containing audio files of jail calls made by Krocka. Id. ¶ 16. Pursuant to the EOUSA directive, “[m]ore than 2, 000 pages of public records, including routine district court motions, briefs, and appellate court records, were not submitted to the FOIA staff” at EOUSA. Id. The USAO also withheld “presentence reports, grand jury materials, and records sealed by order of the district court.” Id.

         EOUSA then processed the records and released responsive, non-exempt materials. Krocka received 787 pages, which included 433 pages of non-public records and 354 pages of public records consisting of the trial and sentencing transcripts. Smith Decl. ¶ 21. EOUSA also released twelve pages of records that were partially redacted. Id. The agency withheld seven categories of documents-231 pages-as exempt. Id. ¶ 231.

         After Krocka filed suit, the USAO discovered eleven additional discs that it had not previously provided to EOUSA. Id. ¶ 27. Those discs were marked as government exhibits and contain recorded jail calls. Three were admitted during Krocka's trial. An attorney-advisor for EOUSA has contacted the Bureau of Prisons to determine whether Krocka may have those discs where he is incarcerated or whether there is someone who can accept them on his behalf. Id. ¶ 28.[1] EOUSA withheld the remaining eight discs, which were marked but not admitted at his trial, for the same reason as the original eleven: privacy and safety concerns for the third parties recorded on the calls. Id. ¶ 29.

         Both parties have moved for summary judgment. Those motions are ripe and ready for the Court's review.

         II. Standard of Review

         FOIA cases are typically resolved on summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). Summary judgment is appropriate if “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).

         FOIA requires an agency to conduct an adequate search for responsive documents. An adequate search is one “reasonably calculated to uncover all relevant documents.” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Weisberg v. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). In assessing the adequacy of the search, a court focuses on the methods and scope of the search, not its fruit. Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). To obtain summary judgment on the adequacy of its search, the 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.” Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Agencies can make this showing through affidavits describing the search with “reasonable detail.” Id. Such affidavits are “accorded a ...

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