United States District Court, District of Columbia
RICHARD W. ROSE, Plaintiff,
U.S. DEPARTMENT OF JUSTICE, Defendant.
S. CHUTKAN UNITED STATES DISTRICT JUDGE
appearing pro se, challenges the alleged refusal of
the Bureau of Alcohol, Tobacco, Firearms and Explosives
(“ATF”) to expedite his request for documents
under the Freedom of Information Act (“FOIA”).
The Department of Justice, of which ATF is a component, has
moved for summary judgment under Federal Rule of Civil
Procedure 56, ECF No. 10. For the reasons explained below,
the motion will be GRANTED.
alleges that in letters to ATF dated May 28, 2018, and June
27, 2018, he requested the release of “all firearms
trace summary reports as well as aggregated information
obtained from trace summary reports on a Smith & Wesson,
357 Model 27, Revolver, Serial No.” S269365.”
Compl. for Declaratory and Injunctive Relief ¶ 10
(citing Attach. A). Plaintiff included “a time frame of
(2) working days for ATF to answer, ” id.
¶ 11, but he did not formally request expedited
processing. See 28 C.F.R. § 16.5(e)(3)
(“A requester who seeks expedited processing must
submit a statement, certified to be true and correct,
explaining in detail the basis for making the request for
expedited processing.”). In the complaint dated
September 18, 2018, Plaintiff states: “To date,
defendants have not responded to plaintiff's request for
expedited processing of its FOIA request.” Compl.
response to this lawsuit, ATF's Disclosure Division
searched its databases first to determine if Plaintiff had
submitted a FOIA request, but located no such request.
Consequently, DOJ contends that it is entitled to judgment as
a matter of law. Plaintiff has opposed the motion, ECF No.
14, and Defendant has replied, ECF No. 17.
judgment is appropriate where the record shows there is no
genuine issue of material fact and the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Waterhouse v. District of Columbia, 298 F.3d
989, 991 (D.C. Cir. 2002). “FOIA cases typically and
appropriately are decided on motions for summary
judgment.” Georgacarakos v. FBI, 908 F.Supp.2d
176, 180 (D.D.C. 2012) (citation omitted).
provides a ‘statutory right of public access to
documents and records' held by federal government
agencies.” Citizens for Responsibility & Ethics
in Washington v. DOJ, 602 F.Supp.2d 121, 123 (D.D.C.
2009) (quoting Pratt v. Webster, 673 F.2d 408, 413
(D.C. Cir. 1982)). FOIA requires that federal agencies comply
with requests to make their records available to the public,
unless such “information is exempted under [one of
nine] clearly delineated statutory language.”
Id. (internal quotation marks omitted); see
also 5 U.S.C. § 552(a), (b). Upon complaint, a
plaintiff prevails “only if he has demonstrated that an
agency has (1) improperly (2) withheld (3) agency
records.” Johnson v. United States, 239
F.Supp.3d 38, 44 (D.D.C. 2017) (citation and internal
quotation marks omitted).
deciding whether an agency has fulfilled its obligations
under FOIA, “the court shall determine the matter
de novo . . . and the burden is on the agency to
sustain its action.” 5 U.S.C. § 552(a)(4)(B). The
court may rely solely on information provided in an
agency's supporting affidavits or declarations if they
are relatively detailed and “are not controverted by
either contrary evidence in the record [or] by evidence of
agency bad faith.” Military Audit Project v.
Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). “To
successfully challenge an agency's showing that it
complied with the FOIA, ” the plaintiff “must
come forward with ‘specific facts' demonstrating
that there is a genuine issue with respect to whether the
agency has improperly withheld extant agency records.”
Span v. U.S. Dep't of Justice, 696 F.Supp.2d
113, 119 (D.D.C. 2010) (quoting Dep't of Justice v.
Tax Analysts, 492 U.S. 136, 142 (1989)).
agency is generally required to disclose only those records
that are in its custody and control at the time of the FOIA
request, McGehee v. Central Intelligence Agency, 697
F.2d 1095, 1110 (D.C. Cir. 1983), and only upon receiving a
“request for records which (i) reasonably describes
such records and (ii) is made in accordance with published
rules stating the time, place, fees (if any), and procedures
to be followed[.]” 5 U.S.C. § 552(a)(3)(A). But if
the agency receives no FOIA request, or one that does not
comply with its published rules, it “has no reason to
search or produce records[.]” Johnson, 239
F.Supp.3d at 44 (citation and internal quotation marks
declarant, Chief of ATF's Disclosure Division, explains
that the Disclosure Division “learn[ed] about this
lawsuit” in early November 2018, upon notification from
ATF's Office of Chief Counsel. Decl. of Adam C. Siple
¶¶ 5-6, ECF No. 10-2. Thereafter, staff at the
Disclosure Division, utilizing Plaintiff's name and
prison register number, searched “its electronic FOIA
databases to determine if the alleged FOIA requests [dated
May 28, 2018, and June 27, 2018] were received by our
office.” Siple Decl. ¶¶ 6-7. The searched
databases “track incoming [FOIA] requests,
consultations, and referrals received by ATF from the time
period covering fiscal year 2014 to the present.”
Id. ¶ 6. The search located no request from
Plaintiff. Id. ¶ 7.
the initial and follow-up requests were addressed to
ATF's National Tracing Center (“NTC”) in West
Virginia, albeit at different addresses. See
Def.'s Stmt. of Material Facts ¶ 4, ECF No. 10-1.
Therefore, the Disclosure Division staff also asked
“NTC personnel . . . whether the NTC had received any
FOIA requests from Mr. Rose.” Siple Decl. ¶ 9.
“NTC had no record of receiving any [such] requests . .
. or of forwarding any such FOIA request to ATF
headquarters.” Id. In addition, NTC staff
“confirmed” that the facility in Falling Waters,
West Virginia, where Plaintiff addressed the initial request,
“has not been at that location for approximately the
last ten years.” Id.
has proffered nothing to rebut ATF's evidence of
nonreceipt of the two FOIA requests identified in and
attached to the complaint. Plaintiff contends instead
“that his initial FOIA request was made in October
2009” and was denied by ATF in 2010 “because the
situation was a[n] on-going investigation[.]” Pl.'s
Resp. at 1. Plaintiff posits that ATF should have expanded
its search to include “fiscal years 2009 and
2010.” Id. at 3. But the complaint does not
mention any other FOIA requests, much less one from 2009, and
it is “well settled law that a plaintiff cannot amend
his . . . complaint by the briefs in opposition to a motion
to dismiss.” Kingman Park Civic Ass'n v.
Gray, 27 F.Supp.3d 142, 160 n.7 (D.D.C. 2014) (citing
cases); see Manna v. U.S. Dep't of Justice, 106
F.Supp.3d 16, 19 (D.D.C. 2015) (noting that “Plaintiff
never moved to amend his complaint to add claims based on
other [FOIA] requests, and he cannot expand the scope of this
litigation by merely referring to other requests in his
opposition to Defendants' motion”); see also
Detar v. United States Gov't, 174 F.Supp.3d 566, 571
(D.D.C. 2016) (a plaintiff “must plead ...