United States District Court, District of Columbia
CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE
Davis, Jr. is a federal inmate who wants records relating to
his investigation and prosecution. He submitted Freedom of
Information Act (“FOIA”) and Privacy Act requests
to the Federal Bureau of Investigation (“FBI”),
the United States Secret Service (“Secret
Service” or “Service”), and the Executive
Office of United States Attorneys (“EOUSA”).
Dissatisfied with the agencies' responses, he filed this
suit, challenging the adequacy of their searches and the
legitimacy of their withholdings. All three agencies moved
for summary judgment in November 2018. But after a long delay
in the briefing-owing in part to the lapse in federal
appropriations-EOUSA moved to withdraw its motion. The Court
granted that motion, leaving only the FBI's and Secret
Service's motions for resolution. For the reasons that
follow, the Court will grant each of them.
2015, Mr. Davis was found guilty of various federal fraud
offenses stemming from his participation in a Ponzi scheme
and is currently serving a 204-month prison sentence at the
Federal Correctional Complex in Coleman, Florida. See
United States v. Davis, 767 Fed.Appx. 714, 722 (11th
Cir. 2019); Complaint, ECF No. 1, ¶ 4. On October 14,
2016, Davis filed separate FOIA and Privacy Act requests with
the FBI and Secret Service seeking “any and all records
under [his] name and/or identifier assigned to [his] name,
” including anything related to his arrest,
investigation, and prosecution. See Declaration of
David M. Hardy (“First Hardy Decl.”), Ex. A, ECF
No. 11-4 at 51 (FBI request); Declaration of Kim E. Campbell
(“First Campbell Decl.”), Ex. A, ECF No. 11-7 at
19 (Secret Service request).
responded to Davis's request in August 2017. Compl.
¶ 22; First Hardy Decl. ¶ 10. It informed Davis
that it had reviewed 149 potentially responsive pages and
provided 72 of those pages. First Hardy Decl. ¶ 10. The
FBI also explained that, although many of the documents were
exempt from disclosure in their entirety under the Privacy
Act, 5 U.S.C. § 552(a)(j)(2), it processed Davis's
request under FOIA because it “afforded the greatest
degree of access authorized by both laws.” Id.
The FBI did not, however, provide Davis with a
Vaughn index detailing its withholdings. Compl.
¶ 22. Davis appealed the FBI's response to the
Department of Justice's Office of Information Policy
(“OIP”) on August 29, 2017; OIP affirmed the
FBI's response in November 2017. See First Hardy
Decl. ¶¶ 13, 15.
Secret Service, for its part, responded to Davis in May 2017,
noting that it had conducted a search and was reviewing
documents for withholding determinations. First Campbell
Decl. ¶ 9. Before any production occurred, in September
2017, the Secret Service told Davis that he could retrieve an
external hard drive it had taken from Davis pursuant to a
grand jury subpoena issued in 2009. Compl. ¶ 31. But
when Davis's wife arranged to do so, she was informed
that the drive had been erased. Id. ¶ 33. Davis
alleges that after his wife retrieved the hard drive, she had
it tested by a forensic expert, who concluded that the hard
drive had been erased sometime after the Secret
Service received Davis's FOIA request. Id.
filed suit in January 2018. See Compl. After the
suit was filed, the FBI supplemented its earlier production
while the Secret Service provided its first. As for the FBI,
it reviewed an additional seven pages and released to Davis
four of them; it also determined that certain segregable
information on already-produced documents could be released
in full. First Hardy Decl. ¶¶ 17-18. The Secret
Service, meanwhile, provided Davis 228 pages of responsive
records-74 in full and another 154 with redactions-and
withheld completely another 79 pages. First Campbell Decl.
¶ 12. At the same time, the Secret Service determined
that other potentially responsive records originated with the
EOUSA and the Internal Revenue Service and referred the
documents to them for processing. Id. ¶¶
and Secret Service believe that their responses have
fulfilled their FOIA obligations and move for summary
judgment, which Davis opposes.
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 warranted 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).
agency must carry two general burdens to earn summary
judgment in a FOIA case. First, it must show “beyond
material doubt that its search was reasonably calculated to
uncover all relevant documents.” Ancient Coin
Collectors Guild v. U.S. Dep't of State, 641 F.3d
504, 514 (D.C. Cir. 2011) (quoting Valencia-Lucena v.
U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999))
(internal quotation marks omitted). In reviewing an
agency's search, courts examine the methods, not the
fruits, of the search. CREW v. U.S. Gen. Servs.
Admin., No. 18-CV-377, 2018 WL 6605862, at *3 (D.D.C.
Dec. 17, 2018); Rodriguez v. U.S. Dep't of Def.,
236 F.Supp.3d 26, 34 (D.D.C. 2017). 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.”
Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68
(D.C. Cir. 1990). That showing can be made through
declarations that detail “what records were searched,
by whom, and through what process.” Steinberg v.
U.S. Dep't of Justice, 23 F.3d 548, 552 (D.C. Cir.
1994). Agency declarations are “accorded a presumption
of good faith” and “cannot be rebutted by purely
speculative claims about the existence and discoverability of
other documents.” SafeCard Servs., Inc. v.
SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal
quotation marks omitted).
addition to demonstrating that it conducted an adequate
search, an agency must also justify any withholdings it has
made pursuant to a FOIA exemption. See, e.g.,
Larson v. Dep't of State, 565 F.3d 857, 862
(D.C. Cir. 2009). An agency may justify its withholdings
through sufficiently detailed declarations, see,
e.g., id., which will often be paired with
so-called Vaughn indices that describe a withheld
document and the reason the agency believes it qualified for
a particular exemption, Vaughn v. Rosen, 484 F.2d
820 (D.C. Cir. 1973). However, because the primary purpose of
FOIA is disclosure, courts construe exemptions narrowly.
See, e.g., DiBacco v. U.S. Army, 795 F.3d
178, 183 (D.C. Cir. 2015).
Court will assess the adequacy of the searches the FBI and
Secret Service conducted before turning to the legitimacy of
sought from the FBI “any and all records under [his]
name and/or identifier assigned to [his] name, ”
including anything related to his arrest, investigation, and
prosecution. See First Hardy Decl. at 51. Upon
receipt of Davis's request, the FBI searched its Central
Records System (“CRS”), which “spans the
entire FBI organization and encompasses the records [of all
FBI components].” Id. ¶ 19.
of the “enormous amount of information contained in the
CRS, ” its records are “indexed in a manner which
meets the FBI's investigative needs and priorities, and
allows FBI personnel to reasonably and adequately locate
pertinent files in the performance of their law enforcement
duties.” Id. ¶ 21. The FBI explains that
“[i]ndex searches of the CRS are reasonably expected to
locate responsive material within the vast CRS since the FBI
indexes pertinent information into the CRS to facilitate
retrieval based on operational necessity.” Id.
¶ 26. In other words, because indexing must be done
properly to ensure records are readily accessible to the
Bureau in carrying out its law enforcement mission, the FBI
says a search of CRS indices should turn up information
related to a one-time investigation target like Mr. Davis.
index search conducted here was comprehensive. First, the FBI
used a “three-way phonetic breakdown of”
Davis's name-“Davis, Donovan, George”-which
meant “the computer . . . searched the index for three
different breakdowns of the name entered, ” and then
searched for any “80% or greater phonetic
match[es]” with those three name breakdowns.
Id. ¶ 27 n.15. The agency also conducted
“on the nose searches, ” in which “the
computer will search exactly the name entered in the name
field and only that name.” Id. ¶ 27 n.17.
On top of that, the agency used Davis's “date of
birth, social security number, and other identifying
information to facilitate the identification of responsive
records.” Id. ¶ 27. The search turned up
149 potentially responsive pages, 72 of which were released
to Davis. Id. After Davis filed this suit, the FBI
conducted essentially the same search a second time.
Id. ¶ 29. This search yielded an additional
seven potentially responsive pages, four of which were
released to Davis. Id.
declaration describes a search that could “be
reasonably expected to produce the information
requested.” Oglesby, 920 F.2d at 68. Davis
wanted records relating to the FBI's investigation of
him. The FBI searched the system that contains its
investigation records for any records using a variety of
formulations of Davis's name, combined with other
identifying information unique to Davis. The declaration is
beyond “reasonably detailed, ” it “set[s]
forth the search terms and the type of search performed,
” and it “aver[s] that all files likely to
contain responsive materials (if such records exist) were
searched, ” thus providing a more than ample basis for
summary judgment. Id.; see also Steinberg,
23 F.3d at 552 (summary judgment on search claim may be
warranted where declaration explains “what records were
searched, by whom, and through what process”).
proof of the search's propriety is in the pudding.
Although courts cannot conclude that an agency's search
was inadequate solely by reference to its return,
Rodriguez, 236 F.Supp.3d at 34, the fact that a
search turned up the very documents the requester sought
provides strong evidence that the agency conducted an
appropriate search. Davis asked for “any and all
records under [his] name and/or identifier assigned to [his]
name, ” including anything related to his arrest,
investigation, and prosecution, see First Hardy
Decl. at 51, and the initial search returned records related
to various case files associated with Davis's name,
id. ¶¶ 27-28. Davis used those case file
numbers to supplement his FOIA request, but the FBI says that
“all records pertaining to [Davis] serialized in these
files numbers were processed and released” the first
time around. Id. ¶ 28. That the FBI's first
search located the case files associated with Davis, and that
even a request targeting those specific case file numbers did
not return any additional records, strongly supports the
adequacy of the Bureau's search.
Davis contends that the FBI's search was inadequate
because it “relied on a search of its own index system,
not of its records.” Opposition to Summary Judgment
(“Opp.”), ECF No. 12, at 3. He insists that
“if the personnel inputting the data did not happen to
use the same words or terms as contained in [his FOIA
request], then the documents would not be located.”
Id. Worse still, Davis says index searches are
“gameable, ” because the agency could ostensibly
index records in a manner that makes them difficult to
retrieve via FOIA requests. Id. What the FBI
should have done, according to Davis, is “to
notify [him] that an indexing search would be conducted, and
to have asked [him] for his input on appropriate search
terms.” Id. Alternatively, Davis says the
Bureau should have “notif[ed] the handful of agents
involved [in his investigation] to provide the
government's FOIA officers with copies . . . of all
documents [ ] related to the agents' investigation of
arguments fail. First, with respect to Davis's argument
that the FBI should have consulted with Davis to devise
appropriate search terms, nothing in law or logic compels
agencies to take such action in processing a FOIA request. As
the FBI observes, “[Davis] cites no legal support for
this argument because there is none.” Reply in Support
of Motion for Summary Judgment (“Reply”), ECF No.
21, at 2. Instead, case after case makes plain that “a
FOIA petitioner cannot dictate the search terms for his or
her FOIA request.” Bigwood v. U.S. Dep't of
Def., 132 F.Supp.3d 124, 140 (D.D.C. 2015); see
also, e.g., Johnson v. Exec. Office for U.S.
Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002)
(“FOIA, requiring as ...