United States District Court, District of Columbia
VINCENT J. KROCKA, Plaintiff,
EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, et al., Defendants.
CHRISTOPHER R. COOPER, UNITED STATES DISTRICT JUDGE.
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.
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.
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
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.
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. ¶
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.
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.
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. 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.
parties have moved for summary judgment. Those motions are
ripe and ready for the Court's review.
Standard of Review
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).
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 ...