UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
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ALVIN DORSEY, )
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Plaintiff, )
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v. ) Civil Action No. 12-0534 (EGS)
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EXECUTIVE OFFICE FOR UNITED )
STATES ATTORNEYS, )
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Defendant. )
_________________________________________ )
MEMORANDUM OPINION
This matter is before the Court on the defendant’s motion for summary judgment. For
the reasons discussed below, the motion will be granted in part and denied in part without
prejudice.
I. BACKGROUND
On or about June 16, 2011, Compl. at 2, pursuant to the Freedom of Information Act
(“FOIA”), see 5 U.S.C. § 552, plaintiff submitted to the Executive Office for United States
Attorneys (“EOUSA”) a request for “[s]urveillance video, video logs, handwritten call logs,
warrants D.E.A.-6, promises, agreements and any information that is required to be released
under [FOIA].” Def.’s Mem. of P. & A. in Supp. of Def.’s Mot. for Summ. J., Decl. of David
Luczynski (“Luczunski Decl.”), Ex. A (FOIA request). With his request plaintiff supplied a
Certificate of Identity. See id., Ex. A (Certification of Identity). EOUSA staff determined that
any responsive records would have been maintained in the United States Attorney’s Office for
the Middle District of Florida (“USAO/FLM”), and, accordingly, the request was forwarded to
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that office. Luczynski Decl. ¶ 10. Once a search for responsive records commenced, “it became
apparent that due to the number of records [and] the time spent searching,” there would be a fee
assessed for the processing of plaintiff’s request. Id. ¶ 6. The EOUSA so informed plaintiff, see
id., Ex. C (Letter to plaintiff from Susan B. Gerson, Acting Assistant Director, Freedom of
Information and Privacy Staff, EOUSA, dated July 18, 2001) at 1, and plaintiff paid the fees in
two installments. Compl. at 2; see id., Ex. B (Letters to Sean J. Vanek from plaintiff).
The EOUSA released 63 pages of records in full, released 2 pages of records in part, and
withheld approximately 1500 pages in full, pursuant to Exemptions 3, 5, 7(C) and 7(F).
Luczynski Decl. ¶ 9; see id., Ex. G (Letter to plaintiff from S.B. Gerson dated June 21, 2012) at
1. In addition, the EOUSA referred certain records to the Drug Enforcement Administration and
the Federal Bureau of Investigation, the DOJ components from which they originated. Id. ¶ 9.
According to plaintiff, however, the EOUSA “failed to release the 63 pages in full, and the 2
pages in part as the defendant claim[s] to have done.” Pl.’s Opp’n Mot. to Def.’s Summ. J. at 1.
As of the filing of his opposition, plaintiff had not received the documents. Id.
II. DISCUSSION
A. Summary Judgment in a FOIA Case
In a FOIA action to compel production of agency records, the agency “is entitled to
summary judgment if no material facts are in dispute and if it demonstrates ‘that each document
that falls within the class requested either has been produced . . . or is wholly exempt from the
[FOIA’s] inspection requirements.’” Students Against Genocide v. Dep’t of State, 257 F.3d 828,
833 (D.C. Cir. 2001) (quoting Goland v. Cent. Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir.
1978)). Summary judgment may be based solely on information provided in an agency’s
supporting affidavits or declarations if they are relatively detailed and when they describe “the
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documents and the justifications for nondisclosure with reasonably specific detail, demonstrate
that the information withheld logically falls within the claimed exemption, 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)).
B. The Search for Responsive Records Was Reasonable
Upon receipt of a request under the FOIA, an agency generally must search its records for
responsive documents. See 5 U.S.C. § 552(a)(3)(A). “The adequacy of an agency’s search is
measured by a standard of reasonableness and is dependent upon the circumstances of the case.”
Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983) (internal quotation
marks and citations omitted). An agency “fulfills its obligations under FOIA if it can
demonstrate 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) (citations and internal quotation marks omitted). To meet its burden, the agency
may submit affidavits or declarations that explain in reasonable detail the scope and method of
the agency’s search. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In the absence of
contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency’s
compliance with the FOIA. Id. at 127. On the other hand, if the record “leaves substantial doubt
as to the sufficiency of the search, summary judgment for the agency is not proper.” Truitt v.
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Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990); see also Valencia-Lucena v. U.S. Coast
Guard, 180 F.3d 321, 326 (D.C. Cir. 1999).
The EOUSA’s declarant explains that “[e]ach United States Attorney’s Office maintains
the case files for criminal matters prosecuted by that office.” Luczynski Decl. ¶ 10. ‘“LIONS’. .
. is the computer system used by United States Attorneys offices to track cases and to retrieve
files pertaining to cases and investigations.” Id. Using LIONS, one “can access databases which
can be used to retrieve information based on a defendant’s name, the USAO number (United
States[] Attorney’s Office internal administrative number), and the district court case number.”
Id. Using plaintiff’s name as a search term, a LIONS search located records maintained in the
USAO/FLM. Id. According to the declarant, “[a]ll responsive documents to [p]laintiff’s FOIA
request would have been located in the USAO/FLM,” and “no other records systems or locations
within EOUSA or DOJ in which other files pertaining to Plaintiff’s name were maintained.” Id.
Plaintiff does not address the EOUSA’s statements of fact with respect to its search for
responsive records, and, accordingly, the Court treats this argument as conceded. See Day v.
D.C. Dep’t of Consumer & Regulatory Affairs, 191 F. Supp. 2d 154, 159 (D.D.C. 2002) (“If a
party fails to counter an argument that the opposing party makes in a motion, the court may treat
that argument as conceded.”); see also Jewett v. U.S. Dep’t of State, No. 11-cv-1852, 2013 WL
550077, at *9 (D.D.C. Feb. 14, 2013) (treating as conceded defendants’ reliance on FOIA
exemption where plaintiff “offers no rebuttal”). Moreover, plaintiff’s FOIA request is properly
construed as one for records about himself and his criminal case. The use of plaintiff’s name as
a search term, and a search for responsive records in the only office where they were likely to be
maintained, are approaches reasonably calculated to locate the records plaintiff seeks.
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Defendant’s motion will be granted in part with respect to the adequacy of its search for records
responsive to plaintiff’s FOIA request.
Based on plaintiff’s representation that he had not received copies of the documents
purportedly released to him, the Court declines to proceed further at this time. Plaintiff will have
an opportunity to review the records released by the EOUSA before the Court considers
defendant’s arguments on the claimed exemptions and segregability.
III. CONCLUSION
The EOUSA demonstrates that its search for records responsive to plaintiff’s FOIA
request was reasonable under the circumstances, and in this respect, its motion for summary
judgment will be granted in part. Defendant will be ordered to send copies of the records
previously released in full and in part to plaintiff at his current address of record and at no cost to
plaintiff. Further, defendant will be ordered to renew its motion for summary judgment, to
which plaintiff will have an opportunity to respond.
An Order accompanies this Memorandum Opinion.
DATE: March 1, 2013 EMMET G. SULLIVAN
United States District Judge
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