UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANTHONY G. WHITE, SR., )
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Plaintiff, )
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v. ) Civil Action No. 11-2045 (RJL)
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DEPARTMENT OF JUSTICE, )
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Defendant. )
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MEMORANDUM OPINION
(September U,
2012) [# 11]
In this action filed pro se under the Freedom oflnformation Act ("FOIA"), 5
U.S.C. § 552, plaintiff, a federal prisoner, challenges defendant Department of Justice's
("DOJ's") response to his request for records pertaining to him. Specifically, plaintiff
questions the adequacy of defendant's search that located just 23 responsive records and
defendant's justification for withholding those records in their entirety under certain
FOIA exemptions. Defendant moves to dismiss under Rule 12(b)(6) ofthe Federal Rules
of Civil Procedure for failure to state a claim upon which relief may be granted or for
summary judgment under Rule 56 [Dkt. # 11]. Upon consideration of the parties'
submissions and the entire record, the Court DENIES defendant's motion and directs it to
supplement the record.
BACKGROUND
By letter dated January 16, 2010 and received by DOJ's Mail Referral Unit,
plaintiff requested "all records pertaining to [himself]." Decl. of Kristin Ellis ("Ellis
Decl.") [Dkt. # 11-5], Ex. 1. The request was forwarded to the Criminal Division for
processing. !d.~ 8. In response to the Criminal Division's letter acknowledging the
request and seeking additional information, plaintiff returned a form the Criminal
Division had provided indicating that he was requesting searches of the following
sections: Appellate, Asset Forfeiture and Money Laundering, Fraud, Gang, Narcotic and
Dangerous Drug (NDDS), Electronic Surveillance Unit, Organized Crime and
Racketeering, Executive Office for Organized Crime Drug Enforcement Task Force
(OCDETF), and National Gang Targeting, Enforcement & Coordination Center
(GangTECC). !d., Ex. 3.
By letter of October 27, 2010, the Criminal Division informed plaintiff that "a
search of the appropriate indices of Criminal Division records" located no responsive
records. !d., Ex. 7. It further informed plaintiff that, since OCDETF was no longer a part
of the Criminal Division and had become an independent DOJ component, that "portion
of [plaintiffs] request" was being referred to OCDETF for processing and a direct
response to plaintiff. !d. The Criminal Division also advised plaintiff about his right to
appeal "this denial of your request" to the Office oflnformation Policy ("OIP") within 60
days "of the date of this letter." !d. "Plaintiff did not appeal [the Criminal Division's]
'no records' response to OIP." !d. ~ 19.
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The Criminal Division forwarded responsive pages to OCDETF, !d., Ex. 8, which,
in tum, referred three documents totaling 23 pages to DOJ's Executive Office for United
States Attorneys ("EOUSA") by letter dated December 23, 2010. Decl. ofDavid
Luczynski ("Luczynski Decl.") [Dkt. 11-4], Ex. A. By letter of January 18, 2011,
EOUSA informed plaintiff that it was withholding the 23 referred pages under FOIA
exemptions 2, 6, 7(C), 7(D), 7(E), and 7(F), see 5 U.S.C. § 552(b), and Privacy Act
exemption U)(2). !d., Ex. B.
Plaintiff appealed EO USA's decision to the Office oflnformation Policy ("OIP")
allegedly by letter dated on January 21, 2011, see Luczynski Decl. ~ 6 & Ex. C, but OIP,
having no record of that appeal letter, later denied plaintiffs appeal it purportedly
received on September 13, 2011, as untimely. !d., Ex. H. Plaintiff filed this action on
November 17, 20 11. Compl. [Dkt. # 1].
STANDARD OF REVIEW
Summary judgment shall be granted when the movant demonstrates "that there is
no genuine dispute as to any material fact and that the movant is entitled to judgment as a
matter oflaw." Fed. R. Civ. P. 56( a). When, as will become apparent here, "a party fails
to properly support an assertion of fact ... the court may: (1) give an opportunity to
properly support or address the fact .... " Fed. R. Civ. P. 56( e).
In a FOIA action, the Court may award summary judgment based solely on
information provided in affidavits or declarations if they "describe the documents and the
justifications for nondisclosure with reasonably specific detail, demonstrate that the
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information withheld logically falls within the claimed exemption, and are not
controverted by either contrary evidence in the record nor by evidence of agency bad
faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such
affidavits or declarations "are accorded a presumption of good faith, which 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) (citation
and internal quotation marks omitted). To rebut the presumption, a plaintiff"must point
to evidence sufficient to put the Agency's good faith into doubt." Ground Saucer Watch,
Inc. v. CIA, 692 F.2d 770,771 (D.C. Cir. 1981). "Ultimately, an agency's justification
for invoking a FOIA exemption is sufficient if it appears logical or plausible[,]" is
adequately supported, and is not contradicted by the record. Larson v. Dep't of State, 565
F .3d 857, 862, 870 (D.C. Cir. 2009) (citation and internal quotation marks omitted).
"When assessing a motion for summary judgment under FOIA, the Court shall determine
the matter de novo." Judicial Watch, Inc. v. US. Dep 't ofHomeland Sec., 598 F. Supp.
2d 93, 95 (D.D.C. 2009) (citing 5 U.S.C. § 552(a)(4)(B)).
ANALYSIS
Defendant seeks dismissal of the complaint on the ground that plaintiff failed to
exhaust his administrative remedies with regard to the Criminal Division's response.
"[A]s a jurisprudential doctrine, failure to exhaust precludes judicial review" if a merits
determination would undermine the purpose of permitting an agency to review its FOIA
determinations in the first instance. Hidalgo v. FBI, 344 F.3d 1256, 1258-59 (D.C. Cir.
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2003). Since plaintiffs administrative appeal of the Criminal Division's "no records
response" would be untimely and exhaustion is not jurisdictional, the Court finds it more
prudent to resolve the merits of this action. Hence, it will deny defendant's motion to
dismiss the complaint for failure to exhaust administrative remedies.
Plaintiff first challenges DOJ's search for records, contending that "[l]ogic would
dictate that given the fact Plaintiff went to trial, there would be an abundance more than
the twenty three pages which has thus far been acknowledged." Pl.'s Opp 'n to De f.'s
Mot. to Dismiss or Alternatively for Summ. J. ("Pl.'s Opp'n") at 1-2 [Dkt. # 13]. The
agency to which a FOIA request is submitted is required "to make a good faith effort to
conduct a search for the requested records, using methods which can reasonably be
expected to produce the information requested." Int'l Trade Overseas, Inc. v. Agency for
Intern. Dev., 688 F. Supp. 33, 36 (D.D.C. 1988) (quoting Marrera v. Dep 't ofJustice,
622 F. Supp. 51, 54 (D.D.C. 1985)) (other citations omitted). As a general rule, "the
adequacy of a FOIA search is generally determined not by the fruits of the search, but by
the appropriateness of the methods used to carry out the search." Iturralde v.
Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (citation omitted).
When an agency's search for responsive records is questioned, the Court must
determine whether it was adequate. This presupposes, however, that the agency has
proffered "[a] reasonably detailed affidavit, setting forth the search terms and the type of
search performed, and averring that all files likely to contain responsive materials (if such
records exist) were searched." Valencia-Lucena v. US. Coast Guard, 180 F.3d 321, 326
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(D.C. Cir. 1999) (citations omitted); see Morley v. CIA, 508 F.3d 1108, 1116 (D.C. Cir.
2007) ("[I]n adjudicating the adequacy of the agency's identification and retrieval efforts,
the trial court may be warranted in relying upon agency affidavits . . . . However, such
reliance is only appropriate when the agency's supporting affidavits are relatively
detailed and nonconclusory and ... submitted in good faith.") (citations and internal
quotation marks omitted) (alteration and ellipses in original). DOJ's declarant states only
that "the FOIA/PA Unit initiated searches" ofthe Criminal Division sections plaintiffhad
checked as wanting to be searched. Ellis Decl. ~ 14. This conclusory statement provides
no useful information for the Court to assess defendant's search and determine its
adequacy.
Plaintiff next challenges defendant's invocation ofFOIA exemptions to justify its
withholding completely of the located responsive records. He correctly contends that
defendant has failed to articulate the "basis for the exemption(s) claimed." Pl.'s Opp'n at
5; see Luczynski Decl. ~ 5 (summarizing release letter listing FOIA exemptions 2, 6,
7(C), 7(D), 7(E), 7(F)). It is established that "when an agency seeks to withhold
information, it must provide 'a relatively detailed justification, specifically identifying the
reasons why a particular exemption is relevant and correlating those claims with the
particular part of a withheld document to which they apply[.]' " Morley, 508 F.3d at
1122 (quoting King v. Dep 't ofJustice, 830 F.2d 210, 219 (D.C. Cir. 1987)) (other
citation omitted). Since defendant's declarant has provided neither a detailed explanation
for the asserted exemptions nor an index consistent with the requirements of Vaughn v.
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Rosen, 484 F.2d 820 (1973), the Court has no basis to rule on the propriety of the asserted
exemptions and to make a so-called segregability finding with regard to defendant's
withholding of the responsive records in their entirety. See Trans-Pacific Policing
Agreementv. US. Customs Service, 177 F.3d 1022, 1027 (D.C. Cir. 1999) (explaining
the district court's "affirmative duty to consider the segregability issue sua sponte")
(internal citations omitted).
CONCLUSION
For the foregoing reasons, the Court DENIES defendant's motion to dismiss
without prejudice. A separate Order accompanies this Memorandum Opinion.
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I~RICHA J. EON
United States District Judge
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