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Davis v. Federal Bureau of Investigation

United States District Court, District of Columbia

July 3, 2019

DONOVAN DAVIS, JR., Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.

          MEMORANDUM OPINION

          CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE

         Donovan 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.

         I. Background

         In May 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).

         The FBI 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.

         The 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. ¶ 37.

         Davis 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. ¶¶ 10-11.

         The FBI and Secret Service believe that their responses have fulfilled their FOIA obligations and move for summary judgment, which Davis opposes.

         II. Legal Standards

         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 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).

         An 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).

         In 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).

         III. Analysis

         The Court will assess the adequacy of the searches the FBI and Secret Service conducted before turning to the legitimacy of their withholdings.

         A. FBI Search

         Davis 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.

         Because 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.

         The 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.

         The FBI 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”).

         Further 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.

         Undeterred, 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 [him].” Id.

         These 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 ...


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