Mingo v. United States Department of Justice Bureau of Alcohol, Tobacco, Firearms and Explosives

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Kemuel Mingo, :
:
Plaintiff, :
v. : Civil Action No. 08-2197 (CKK)
:
United States Department :
of Justice et al., :
:
Defendants. :

MEMORANDUM OPINION

In this action brought pro se under the Freedom of Information Act (“FOIA”), 5 U.S.C.

§ 552, plaintiff challenges the response of the Department of Justice’s Bureau of Alcohol,

Tobacco, Firearms and Explosives (“ATF”) to his request for records about himself. ATF moves

for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Upon

consideration of the parties’ submissions and the entire record, the Court will grant defendant’s

motion and enter judgment accordingly.1

I. BACKGROUND

By letter of July 19, 2007, plaintiff requested “any and all” ATF records pertaining to

himself. Def.’s Mot., Declaration of Marilyn R. LaBrie (“LaBrie” Decl.”), Ex. A. By letter of

October 30, 2007, ATF released to plaintiff 89 pages of responsive records with redactions made

pursuant to FOIA exemptions 2, 7(C) and 7(E), see 5 U.S.C. § 552(b). Id., Ex. E. The letter

further informed plaintiff of his right to appeal the decision to the Department of Justice’s Office

of Information and Privacy (“OIP”), which plaintiff did by letter of November 6, 2007. Id., Ex.

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Because a FOIA action is properly brought against the agency, here the Department of
Justice, the Court refers to the defendants in the singular.
G. By letter of March 17, 2008, OIP affirmed ATF’s decision “on partly modified grounds.” Id.,

Ex. I. OIP omitted exemption 7(E) as a basis for withholding material and added exemptions 5

and 7(D), thereby determining that ATF “properly withheld certain information” under FOIA

exemptions 2, 5, 7(C) and 7(D).2 Id. Plaintiff filed this action on December 18, 2008.

II. LEGAL STANDARD

Summary judgment is appropriate upon a showing that there is “no genuine issue as to

any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). “[A] material fact is ‘genuine’ . . . if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party” on an element of the claim. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).

The FOIA requires a federal agency to release all records responsive to a properly

submitted request except those protected from disclosure by one or more of nine enumerated

exemptions. See 5 U.S.C. § 552(b). In a FOIA case, the Court may award summary judgment to

an agency solely on the information provided in affidavits or declarations that describe “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 nor by evidence of agency bad faith.” Military Audit Project v. Casey,

656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir.

1973), cert. denied, 415 U.S. 977 (1974). In opposing a summary judgment motion, plaintiff

may not “replace conclusory allegations of the complaint or answer with conclusory allegations

of an affidavit,” Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990), but rather must

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Defendant does “not invoke [e]xemption (b)(5) for this litigation.” LaBrie Decl. at 3
n.1.

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“set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at

248.

III. DISCUSSION

Plaintiff does not dispute defendant’s properly documented bases for redacting

information from the released records. See LaBrie Decl. ¶¶ 13-16 (exemption 2); ¶¶ 17-24

(exemption 7(C)); ¶¶ 25-29 (exemption 7(D)) & accompanying Vaughn index. In addition, the

Court finds from the LaBrie declaration and its review of the Vaughn index that defendant

released “all non-exempt, reasonably segregable information.” Id. ¶ 36; see Trans-Pacific

Policing Agreement v. United States Customs Service, 177 F.3d 1022, 1027-28 (D.C. Cir. 1999)

(requiring segregability finding).

Plaintiff asserts that a genuine issue of material fact exists with regard to defendant’s

search for records “and that the Defendants are deliberately withholding exculpatory records.”

Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment (“Pl.’s Opp’n.”) [Dkt. No.

12] at 1. Plaintiff points to his Exhibit 5 (an unredacted two-page police property report) and his

Exhibit 6 (a redacted copy of the first page of the same property report) as evidence “that the

Defendants are deliberately withholding exculpatory records that is [sic] suppose [sic] to be

released unto Plaintiff by way of the United States Constitution, Amendment V.”3 Id at 2

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Plaintiff’s reliance on the exhibits is unclear, but he does not claim that the redacted
material in Exhibit 6 is exculpatory material nor does he in any way challenge said redactions.
Rather, plaintiff cites Exhibits 5, 6 and 7 (a crime laboratory report) seemingly to support his
claim of an inadequate search by speculating about the absence from the released records of any
written reports by “unknown ATF” agents who allegedly examined the gun referenced in the
proffered exhibits. See Pl.’s Opp’n. at 2-3 (questioning why the unknown ATF agent “conducted
an examination on said gun, did not place in writing or in a report as to what type of examination
he or she conducted on said gun, and why he or she needed to conduct another examination when
it had already gone through an examination,” and concluding that “law enforcement officials
acted outside the course of investigative practice and procedure or the Defendants did not
conduct an adequate search for records Plaintiff sought”).

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¶ 3. But this argument mistakenly conflates the government’s statutory obligation to disclose

records under the FOIA with its separate constitutional obligation established by Brady v.

Maryland, 373 U.S. 83 (1963), to disclose exculpatory material to a defendant in a criminal

proceeding. See Boyd v. Criminal Div. of U.S. Dep’t of Justice, 475 F.3d 381, 390 (D.C. Cir.

2007) (“The disclosure obligation that Brady imposes at a defendant's criminal trial based on

constitutional considerations is not the same disclosure obligation imposed under FOIA by

Congress. . . . In other words, the disclosure requirements are not coextensive.”)

The fact that plaintiff may have received a document during discovery in a criminal

proceeding is not material to the issue of whether ATF fulfilled its statutory obligations under the

FOIA. Unlike a Brady disclosure made only to the individual defendant, “‘a disclosure made to

any FOIA requester is effectively a disclosure to the world at large.’” Id. (quoting Students

Against Genocide v. Dep’t of State, 257 F.3d 828, 836 (D.C. Cir. 2001)) (other citation omitted).

Hence, the FOIA exemptions are Congress’s acknowledgment that “[w]hen disclosure touches

upon certain areas defined in the exemptions, . . . [there are] limitations that compete with the

[FOIA’s] general interest in disclosure[.]” Nat’l Archives and Records Admin. v. Favish, 541

U.S. 157, 172 (2004). Brady does not foreclose the government from asserting FOIA

exemptions even as to information that may have been previously disclosed to a defendant in a

criminal proceeding. See Cottone v. Reno, 193 F.3d 550, 556 (D.C. Cir. 1999) ("To the extent

Cottone seeks Title III-wiretapped recordings that were not played in court but were simply

provided to [counsel] as Brady material, Exemption 3 remains inviolate."); Cucci v. Drug

Enforcement Admin., 871 F. Supp. 508, 514 (D.D.C. 1994) (“Plaintiff may not trump the

agencies' invocation of the FOIA exemptions by arguing that the exempted information should be

provided as exculpatory evidence.”)

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 Turning to the remaining issue properly before the Court, an inadequate search for

records constitutes an improper withholding under the FOIA. See Maydak v. U.S. Dep’t of

Justice, 254 F. Supp.2d 23, 44 (D.D.C. 2003). Thus, when, as here, an agency's search for

records is challenged, “the agency must show beyond material doubt [] that it has conducted a

search reasonably calculated to uncover all relevant documents.” Weisberg v. U.S. Dep’t of

Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). For purposes of this showing, the agency "may

rely upon affidavits . . . , as long as they are relatively detailed and nonconclusory and . . .

submitted in good faith." Id. (citations and quotation marks omitted). The required level of

detail "set[s] forth the search terms and the type of search performed, and aver[s] that all files

likely to contain responsive materials (if such records exist) were searched. . . ." Oglesby v.

United States Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990); accord Valencia-Lucena v.

U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999). "Once the agency has shown that its

search was reasonable, the burden shifts to [plaintiff] to rebut [defendant's] evidence by a

showing that the search was not conducted in good faith." Moore v. Aspin, 916 F. Supp. 32, 35

(D.D.C. 1996) (citing Miller v. U.S. Dep't of State, 779 F.2d 1378, 1383 (8th Cir. 1985)).

Summary judgment is inappropriate “if a review of the record raises substantial doubt” about the

adequacy of the search. Valencia-Lucena, 180 F.3d at 326 (citing Founding Church of

Scientology v. Nat’l Sec’y Agency, 610 F.2d 824, 837 (D.C. Cir. 1979)).

In determining the adequacy of a FOIA search, the court is guided by principles of

reasonableness, Campbell v. United States Dep't of Justice, 164 F.3d 20, 27-8 (D.C. Cir. 1998),

mindful that an agency is required to produce only those records 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). Because “the adequacy of a FOIA search is generally determined not by the fruits of

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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), “the fact that a particular

document was not found does not demonstrate the inadequacy of a search.” Boyd, 475 F.3d at

391.

Utilizing plaintiff’s full name, ATF staff searched its TECS and N-Force databases and

located “all records related to Mr. Mingo . . . in the ATF Charlotte Field Division and retrievable

under Criminal Investigation Number [].” LaBrie Decl. ¶ 34. LaBrie’s detailed descriptions of

the foregoing databases demonstrate why they were most likely to contain records responsive to

plaintiff’s request. See id. ¶¶ 31-33. ATF “is a principal criminal and regulatory enforcement

agency within [DOJ] . . . responsible for, among other things, enforcing Federal firearms laws[.]”

Id. ¶ 17. Plaintiff requested records maintained by ATF as part of its criminal enforcement

function. See id., Ex. A (FOIA request). In general, the TECS system is a comprehensive

database used “to locate records within [DOJ’s] Privacy Act system of records entitled ‘Criminal

Investigation Report System,’” id. ¶ 31, and “N-Force is ATF’s official case file of record for

documenting investigative activity and information, creating reports, tracking investigative leads

and linking data,” id. ¶ 33. N-Force “acts as a single-point of data entry system, which enables

users to store, utilize, and query investigative information, and to prepare investigative

documents.” Id. Plaintiff has not proffered any evidence that creates a triable issue on

defendant’s search, which the Court finds was reasonably calculated to locate all records

responsive to plaintiff’s FOIA request.

For the foregoing reasons, the Court grants defendant’s motion for summary judgment. A

separate Order accompanies this Memorandum Opinion.

__________s/s__________________
COLLEEN KOLLAR-KOTELLY
United States District Judge
Date: August 24, 2009

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