Flete-Garcia v. United States Marshals Service

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FULVIO FLETE-GARCIA,

Plaintiff,
Civil Action No. 18-2442 (RDM)
v.

UNITED STATES MARSHALS SERVICE,

Defendant.

MEMORANDUM OPINION AND ORDER

This case concerns the adequacy of the response by Defendant United States Marshals

Service (“USMS”) to two Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, records

requests submitted by Plaintiff Fulvio Flete-Garcia, a federal prisoner proceeding pro se. The

USMS previously moved for summary judgment, Dkt. 20, and the Court granted in part and

denied in part that motion, Flete-Garcia v. USMS, No. 18-2442, __ F. Supp. 3d__, 2020 WL

1695127, at *7 (D.D.C. Apr. 7, 2020) (“Flete-Garcia I”).1 In particular, the Court was

persuaded that the USMS properly invoked FOIA Exemption 7(C) to redact certain material but

was unpersuaded that the USMS had conducted an adequate search for responsive records. Id. at

*5. In the same decision, the Court denied Plaintiff’s cross-motion for summary judgment. Id.

at *1.

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Although the USMS characterized both its previous motion and this motion as “motion[s] to
dismiss Plaintiff’s complaint, or in the alternative, for summary judgment,” Dkt. 20; Dkt. 34, the
USMS filed an answer to the complaint prior to filing the motions, Dkt. 15, foreclosing dismissal
pursuant to Federal Rule of Civil Procedure 12(b), see Fed. R. Civ. P. 12 (b) (stating that
defenses “must be made before pleading if a responsive pleading is allowed”); see also Lockhart
v. Coastal Intern. Sec., Inc., 905 F. Supp. 2d 105, 112 (D.D.C. 2012). The Court therefore treats
the pending motion as one for summary judgment, as it did the previous motion. See Flete-
Garcia I, 2020 WL 1695127, at *2–3.
 The USMS subsequently conducted a new search and released a handful of additional

records to Plaintiff. Dkt. 34 at 5, 8 (SUMF ¶¶ 6, 16). In light of that further effort, the USMS

now renews its motion for summary judgment. Id. This time around, the USMS comes closer to

carrying its burden. One remaining question, however, will prevent the Court from entering

judgment in favor of the USMS. The Court will, accordingly, GRANT in part and DENY in

part the USMS’s motion.

I. BACKGROUND

In July 2018, Plaintiff sent “two duplicative [FOIA] requests to the USMS,” which

handles the transportation of federal detainees. Flete-Garcia I, 2020 WL 1695127, at *1. In

both requests, Plaintiff sought “the dates and times of Plaintiff’s transportation between

[Massachusetts Correctional Institution Cedar Junction at Walpole (“MCI Cedar Junction”)] and

the federal courthouse between May 4, 2015 and January 17, 2018.” Id. The only material

difference in the two requests is that the first request “specified that the records could be located

at MCI Cedar Junction,” while the second request specified that the records “were located at the

USMS’s office in Washington, D.C.” Id. After receiving no substantive response from the

USMS, Plaintiff brought this action in October 2018. Id at *2; Dkt. 1.

Shortly after this action was filed, the USMS conducted a search for responsive records,

treating the two duplicative requests as a single request, and it released a five-page, partially

redacted “USM-129 Individual Custody/Detention Report” to Plaintiff. Flete-Garcia I, 2020

WL 1695127, at *2. Then, “[i]n April 2019, the USMS moved . . . for summary judgment,

arguing that it [had] conducted an adequate search and that the redactions it made were

warranted under several FOIA exceptions.” Id.; see also Dkt. 20. Plaintiff opposed the motion

and cross-moved for summary judgment. Dkt. 23; Dkt. 24.

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 With respect to the one document that was located and released in part, the Court

concluded that the USMS’s redactions—which included “withhold[ing] the names and/or contact

information of law enforcement personnel and prisoners unrelated to Plaintiff, . . . including

those who were to be kept separate from [Plaintiff] while in custody,” Flete-Garcia I, 2020 WL

1695127, at *7 (quotation omitted)—were permissible pursuant to Exemption 7(C), which

exempts disclosures “that ‘could reasonably be expected to constitute an unwarranted invasion of

personal privacy,’” in records “‘compiled for law enforcement purposes.’” Campbell v. U.S.

Dep’t of Justice, 164 F.3d 20, 33 (D.C. Cir. 1998) (quoting 5 U.S.C. § 552(b)(7)(C)); id. at 31

(quoting 5 U.S.C. § 552(b)(7)(A)-(F)). The Court, accordingly, granted summary judgment in

favor of the USMS as to the lawfulness of the redactions. Flete-Garcia I, 2020 WL 1695127, at

*7.

The Court was unpersuaded, however, that the “barebones declaration [that] the USMS

proffer[ed] in support of its motion” satisfied the agency’s burden of showing that it had

conducted an adequate search for other records. Id. at *5. As explained in the declaration that

the agency submitted in support of its motion, USMS personnel had contacted the agency’s

Prisoner Operations Division (“POD”), which oversees federal detainees, and that office was

unable to locate any records relating to Plaintiff. Id. at *4. In addition, USMS FOIA personnel

searched the Justice Detainee Information Population Management/Prisoner Tracking System

database (“JDIS”), which itself contains more than one database, including the USMS Warrant

Information Network System and the Prisoner Population Management/Prisoner Tracking

System. Id. That search located the five pages responsive to Plaintiff’s request. Id. The

declarant, USMS Associate General Counsel Clifford R.R. Kreiger, also contacted the USMS

District Office for the District of Massachusetts, which indicated that it did not keep records

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indexed by names of prisoners and that any records it maintained on Plaintiff would be related to

accounting data. Id.

The Court concluded that the USMS was not entitled to summary judgment with respect

to the adequacy of its search because the Krieger declaration had failed to describe “‘in

reasonable detail the scope and method of the search[es]’” that the agency conducted. Id.

(quoting Abdeljabbar v. Bureau of Alcohol, Tobacco and Firearms, 74 F. Supp. 3d 158, 168

(D.D.C. 2014)). The declaration omitted “any detail regarding search terms or methodologies,

possible custodians, or whether additional databases or files might contain the requested

records.” Id. It also did not specify whom Krieger contacted at the USMS District Office in

Massachusetts or what he asked that person to do, and it did not explain why the fact that the

District Office does not “keep records indexed by name of prisoners” meant that the office had

no records responsive to Plaintiff’s FOIA request. Id. As the Court summarized:

Overall, the USMS’s evidence merely shows that (1) someone contacted the
POD, which conducted a search of unidentified files using unidentified search
criteria; (2) someone searched the Detainee Information System database, using
unidentified search terms and specifications; and (3) Krieger “contacted”
someone in the agency’s Massachusetts office, and that person indicated that the
office did not keep records indexed by names of prisoners and, instead, only had
accounting data.

Id. at *5. The Court accordingly denied the USMS’s motion for summary judgment, but also

denied Plaintiff’s cross-motion for summary judgment, noting that the USMS could supplement

the Krieger declaration with additional information or conduct additional searches in response to

Plaintiff’s FOIA request. Id.

The USMS opted to conduct a new search. Dkt. 34 at 5 (SUMF ¶ 6). That new search

located “additional and more responsive data.” Dkt. 34-1 at 3 (2d Krieger Decl. ¶ 9). In addition

to the five-page USM-129 Individual Custody/Detention Report that the USMS’s first search had

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identified, the new search found a one-page database printout logging twenty-three occasions

when Plaintiff was transported by the USMS between May 4, 2015 and January 17, 2018, id. at

6–7 (2d Krieger Decl. ¶ 20); Dkt. 36-1 at 1 (Ex. A). That is precisely the information that

Plaintiff sought in his FOIA requests. In addition, the USMS’s supplemental search located two

documents that the agency deemed “not responsive” but nonetheless released to Plaintiff “out of

an abundance of caution:” (1) a “USMS Subject Report” and (2) a “USM-312” Personal History

record, Dkt. 34-1 at 8 (2d Krieger Decl. ¶ 25); Dkt. 36-2 at 5–7, 13–15 (Ex. B). The USMS

redacted parts of these documents pursuant to FOIA Exemptions 6, 7(C), (E), and (F). Dkt. 34 at

14; 5 U.S.C. § 552(b)(6), (7)(C), (E) & (F). “On April 22, 2020, the USMS, Office of General

Counsel, sent the updated search results to the USMS District Office for the District of

Massachusetts with a request that they mail them to” Plaintiff. Dkt. 34-1 at 8 (2d Krieger Decl.

¶ 26); see also Dkt. 36-2 (Ex. B).

Having completed its supplement search, the USMS renewed its motion for summary

judgment in July 2020, Dkt. 34, and the Court issued a Fox/Neal Order instructing Plaintiff to

respond to the motion on or before August 11, 2020, Dkt. 35, a date also specified in the Court’s

June minute order setting the briefing schedule, Minute Order (June 22, 2020). If Plaintiff failed

to respond, the order explained, the Court would “accept as true any factual assertion supported

by . . . evidence submitted with [the USMS’s] motion.” Dkt. 35 at 2. Over six months have now

passed, and Plaintiff has not complied with the Court’s order and has not responded to the

USMS’s renewed motion.

II. LEGAL STANDARD

The Freedom of Information Act “embodies a ‘general philosophy of full agency

disclosure.’” Flete-Garcia I, 2020 WL 1695127, at *2 (quoting U.S. Dep’t of Def. v. FLRA, 510

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U.S. 487, 494 (1994)). “The law, accordingly, requires that agencies engage in reasonably

robust searches for potentially responsive records and that they disclose the records they find

unless those records fall within one of nine exclusive statutory exemptions.” Id. “[T]he vast

majority of FOIA cases can be resolved on summary judgment.” Brayton v. Off. of U.S. Trade

Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). Under Federal Rule of Civil Procedure 56(a), a

summary judgment is appropriate when “the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” A fact is “material”

if it is capable of affecting the outcome of a dispute, see Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986), and a dispute is “genuine” if the evidence is such that a reasonable

factfinder—here, the Court—could find in favor of the nonmoving party, see Scott v. Harris, 550

U.S. 372, 380 (2007). “In a FOIA action, the agency may meet its burden by submitting

declarations that are ‘relatively detailed and non-conclusory.’” Flete-Garcia I, 2020 WL

1695127, at *3 (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)).

Although an agency need not “‘search every record system,’ it must search those systems ‘that

are likely to turn up the information requested.’” Id. (quoting Oglesby v. U.S. Dep’t of Army,

920 F.2d 57, 68 (D.C. Cir. 1990)). Even if a plaintiff does not oppose a motion for summary

judgment, “the Court cannot deem [the] motion . . . ‘conceded’ due to lack of opposition and

must, instead, evaluate ‘for itself whether the record and any undisputed material facts justify

granting summary judgment.’” Id. at *6 (quoting Winston & Strawn LLP v. McLean, 843 F.3d

503, 505 (D.C. Cir. 2016)).

III. ANALYSIS

In considering the USMS’s motion, the Court will first consider the adequacy of the

supplemental search, will then consider the redactions, and, finally, will address segregability.

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A. Adequacy of the Search

“An agency fulfills its obligations under FOIA to conduct an adequate search ‘if it can

demonstrate beyond material doubt that its search was reasonably calculated to uncover all

relevant documents.’” Canning v. U.S. Dep’t of State, 346 F. Supp. 3d 1, 13 (D.D.C. 2018)

(quoting Valencia-Lucena v. U.S. Coast Guard, 180 F. 2d 321, 325 (D.C. Cir. 1999)). “[T]he

adequacy of a search is not determined by the initial results, but rather, by the totality of [a]

defendant’s efforts to locate and respond to a FOIA request.” Airaj v. United States, No. 15-983,

2016 WL 1698260, at *7 (D.D.C. Apr. 27, 2016); see also Hodge v. FBI, 703 F.3d 575, 580

(D.C. Cir. 2013). “Although no single formula governs every case, the required details often

‘include search methods, locations of specific files searched, descriptions of searches of all files

likely to contain responsive documents, and names of agency personnel conducting the search.’”

Shem-Tov v. U.S. Dep’t of Justice, No. 17-2452, 2020 WL 2735613, at *5 (D.D.C. May 25,

2020) (quoting Ferranti v. ATF, 177 F. Supp. 2d 41, 47 (D.D.C. 2001)).

To support its motion, the USMS proffers a second declaration from USMS Associate

General Counsel Clifford R.R. Krieger. Dkt. 34-1. The second Krieger declaration directly

addresses the lacuna in his first declaration, which formed the basis of the Court’s previous

opinion. To begin, Krieger describes the relevant databases that the USMS maintains.2

According to Krieger, “[t]he primary electronic database used by the USMS to track information

2
Krieger describes each of the databases determined to be potentially responsive by the
contacted divisions, which were in turn identified by the Office of General Counsel Government
Information Specialist as housing potentially responsive records. Krieger’s database description
is sufficient, given that “[t]here is no requirement that an agency search every record system,” so
long as the agency demonstrates, “with reasonable detail, that the search method [including
databases searched]. . . was reasonably calculated to uncover all relevant documents.” Oglesby,
920 F.2d at 68; see also Campbell, 164 F.3d at 28; Hodge, 764 F. Supp. 2d 134, 141 (D.D.C.
2011). Here, the Court concludes that the USMS has credibly shown “that no other record
system was likely to produce responsive documents.” Oglesby, 920 F.2d at 68.
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about prisoners is” the Justice Detainee Information Population Management/Prisoner Tracker

System or “JDIS,” id. at 2 (2d Krieger Decl. ¶ 6), which is the same system the USMS searched

the first time around, Flete-Garcia I, 2020 WL 1695127, at *2. “These records pertain to USMS

prisoners who are in USMS custody or have a federal arrest warrant issued[] or are scheduled for

a move between detention facilities.” Dkt. 34-1 at 2 (2d Krieger Decl. ¶ 6). “If an individual

was [or is] in USMS custody, there will be a corresponding record in JDIS,” which catalogs each

prisoner by his “Prisoner Number” or “USMS Number[],” “a unique identifier . . . only

associated with one person.” Id. at 3 (2d Krieger Decl. ¶¶ 6–7). In addition to JDIS, the USMS

also uses the Justice Prisoner and Alien Transportation System or “JPATS” Management

Information System (“JMIS”) “database to manage prisoners’ movements.” See id. at 3–4 (2d

Krieger Decl. ¶¶ 8, 11).

In light of the Court’s previous opinion, Krieger “asked the Office of General Counsel,

FOIA/[Privacy Act] Unit [(“OGC”)] to conduct a new search for records responsive to

[Plaintiff’s] requests.” Id. at 3 (2d Krieger Decl. ¶ 10). Because the “Government Information

Specialist with the OGC Freedom of Information Act/Privacy Act . . . Unit” who handled the

first search for Plaintiff’s FOIA request was no longer with the USMS, a new Government

Information Specialist was assigned to process Plaintiff’s requests, and she “identified three

divisions . . . within the USMS which had the potential to have” responsive records: POD,

JPATS, and the District Office for the District of Massachusetts.” Id. at 2, 4 (2d Krieger Decl.

¶¶ 5, 11). Kreiger’s declaration describes each office and explains why it was identified as

possibly housing responsive records.

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 1. POD

The Prisoner Operations Division often fields prisoner FOIA requests “because it is the

division within the USMS which is responsible for the oversight of prisoner operations and

therefore, has a heightened likelihood of having . . . a recorded interaction with a prisoner.” Id.

at 4 (2d Krieger Decl. ¶ 12). POD conducted an unfruitful search as part of the USMS’s original

search. Id. (2d Krieger Decl. ¶ 13). “On April 14, 2020, the OGC Government Information

Specialist sent an [email] to the POD FOIA inbox inquiring how the original search was

conducted,” and in response, the Executive Assistant to the Deputy Assistant Directors of POD

explained that “the data sought is not the sort of data maintained by POD and that the USMS

District Office for the District of Massachusetts would have records regarding dates of prisoner

transport for court productions.” Id. at 4–5 (2d Krieger Decl. ¶ 15) (quotation omitted). As a

result, POD did not conduct a new search, but Krieger exchanged emails between April 17 and

21, 2020 with a Chief Inspector in the Office of Detention Operations, POD “to establish how

they conduct FOIA searches.” Id. at 5 (2d Krieger Decl. ¶ 16). He learned that MCI Cedar

Junction, although “owned and operated by the Massachusetts Department of Correction,” has an

agreement with the USMS allowing it to house USMS prisoners and that “USMS District Offices

are generally responsible for the records of the prisoners they have or have had in custody when

those prisoners are or were going through the judicial process.” Id.

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 2. JPATS

JPATS “is the unit within [the] USMS which is responsible for long[-]distance

transportation of prisoners.” Id. at 6 (2d Krieger Decl. ¶ 17). As Krieger explains, Plaintiff’s

“FOIA request was specific to his transportation as a prisoner in USMS custody” and, thus, the

OGC Government Information Specialist contacted JPATS and requested that the unit search its

records. Id. at 5–6 (2d Krieger Decl. ¶ 17). The Assistant Chief of Scheduling for JPATS

responded the same day certifying that the unit had searched JMIS, “the database which JPATS

uses to store records of the names of prisoners they transport and other information associated

with transfers,” using Plaintiff’s Prisoner Number as the search term, and found no responsive

documents. Id. at 6 (2d Krieger Decl. ¶ 17).

3. District Office for the District of Massachusetts

“USMS District Offices are responsible for carrying out the day-to-day operations of the

USMS, including housing prisoners and transporting them to and from local courts.” Id. (2d

Krieger Decl. ¶ 19). The OGC Government Information Specialist sent Plaintiff’s FOIA request

to the USMS District Office for the District of Massachusetts “because [Plaintiff] was housed in

[that] [d]istrict during the relevant time frame[,] and” the office was “responsible for any

transportation of him to and from the District Court, which is the subject of his FOIA request.”

Id. (2d Krieger Decl. ¶ 19).

The Administrative Officer for the USMS District Office in the District of Massachusetts

returned a search memorandum on April 14, 2020 “indicating that his office had searched two

systems of records using the search term ‘Fluvio Flete-Garcia.’” Id. (2d Krieger Decl. ¶ 20).

The search, which included efforts to locate both electronic and paper records, identified a

database spreadsheet listing in chronological order twenty-three times that Plaintiff was

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transported to court between May 4, 2015 and January 17, 2018. Id. at 6–7 (2d Krieger Decl.

¶ 20); Dkt. 36-1 (Ex. A); Dkt. 36-2 at 4 (Ex. B). On April 17, 2020, Krieger called the District

Administrative Officer to discuss what the office’s search had entailed. Id. at 7 (2d Krieger

Decl. ¶ 21). The District Administrative Officer informed Krieger that an Investigative Analyst

had searched the JDIS database and the Criminal Desk records, “the records . . . under their

control [that] were likely to have responsive records.” Id. Three days later, Krieger called the

assigned Investigative Analyst to discuss his search. Id. (2d Krieger Decl. ¶ 22). The

Investigative Analyst had searched the JDIS database, “limiting his query by the relevant date

range and [Plaintiff’s] USMS [N]umber,” and that search uncovered the transportation

spreadsheet. Id. (2d Krieger Decl. ¶ 23). The Investigative Analyst had also searched “[email]

records for the Operations Desk,” which “is responsible for processing prisoner appearance

requests and scheduling transportation to the court,” and found no emails related to Plaintiff. Id.

(2d Krieger Decl. ¶ 22). When Krieger noted that the transportation spreadsheet suggested that

information relevant to one of Plaintiff’s trips had been transmitted via email, the Investigative

Analyst reaffirmed that no such record was found in the Operations Desk inbox, notwithstanding

that the spreadsheet’s notation did suggest that an email should have been transmitted to that

inbox. Id. at 7–8 (2d Krieger Decl. ¶ 24).

4. Additional Searches by OGC Government Information Specialist

The OGC Government Information Specialist also searched the JDIS database herself,

using “Fluvio Flete-Garcia” and Plaintiff’s “Fugitive Identification [N]umber” as the search

terms. Id. at 8 (2d Krieger Decl. ¶ 25). The search located “the previously disclosed USM-129”

from the USMS’s original search, as well as a “USMS Subject Report and a USM-312 [Personal

History] related to” Plaintiff. Id.; see Dkt. 36-2 at 5–15 (Ex. B). Although these documents do

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not concern Plaintiff’s transport to the courthouse and are therefore not responsive to his request,

the documents were, “out of an abundance of caution,” included in the response to Plaintiff. Dkt.

34-1 at 8 (2d Krieger Decl. ¶ 25); see Dkt. 36-2 at 5–15 (Ex. B).

On April 22, 2020, the USMS OGC sent the updated search results—consisting of the

transportation spreadsheet, the previously disclosed USM-129, the USMS Subject Report, and

the USM-312 Personal History—to the USMS District Office for the District of Massachusetts

with a request that the office mail the documents to Plaintiff. Dkt. 34-1 at 8 (2d Krieger Decl.

¶ 26). On May 18, 2020, the Administrative Officer in the District Office sent an email to the

OGC Government Information Specialist stating that the response was sent to Plaintiff on April

24, 2020 via first class mail without a tracking number. Id.; see Dkt. 36-2 (Ex. B).

5. Analysis of Adequacy

In most respects, the Krieger declaration “demonstrate[s] beyond material doubt that [the

USMS’s supplemental] search was reasonably calculated to uncover all relevant documents,”

Canning, 346 F. Supp. 3d at 13 (quotation omitted). In contrast to the record that accompanied

the USMS’s previous motion for summary judgment, the current record describes the nature and

location of the records systems searched. The record also identifies the personnel who

conducted the searches, albeit not by name, and explains why the particular divisions contacted

were identified as potentially possessing responsive records. The Krieger declaration also offers

sufficient detail for the Court to determine the nature of his communications with the divisions

that conducted searches and their answers to his inquiries. These details address the deficiency

that the Court highlighted in its previous decision. Flete-Garcia I, 2020 WL 1695127, at *4;

Shem-Tov, 2020 WL 2735613, at *5.

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 In one respect, however, the Court remains unsure whether the supplement search was

adequate, and this shortcoming highlights the importance of requiring agencies to disclose the

search terms they use. See Flete-Garcia I, 2020 WL 1695127, at *4. As the careful reader might

have noticed by now, the Plaintiff in this case is Fulvio Flete-Garcia, but, according to the

Krieger declaration, the USMS District Office in the District of Massachusetts and the OGC

Government Information Specialist used the name “Fluvio Flete-Garcia” when they conducted

their searches. Dkt. 34-1 at 6, 8 (2d Krieger Decl. ¶¶ 20, 25) (emphasis added). The Court

cannot discern whether the Krieger declaration merely contains an error, or whether the searches

were also incorrect. Nor can the Court determine whether Plaintiff’s last name was sufficiently

unique that use of it, alone, would have located any responsive records or whether only those

records containing his entire name (first and last) were called for by the search. And, although

use of Plaintiff’s prisoner or fugitive number might have been sufficient for the searches of the

JDIS database, other searches relied exclusively on Plaintiff’s name. This may explain why a

search of the email records for the Massachusetts “Operations Desk” failed to locate any emails

relating to Plaintiff, even though the one record that was located as a result of the supplemental

search included a notation reflecting that a movement request relating to Plaintiff was received

by email. Id. at 7–8 (2d Krieger Decl. ¶¶ 22, 24). In any event, the uncertainty regarding the

search term precludes the Court from entering summary judgment at this time.

Accordingly, the Court will deny the USMS’s motion for summary judgment with

respect to the adequacy of the search.

B. Withholdings

Turning to the redactions that the USMS made to the records that it did locate and

release, the Court is persuaded that the USMS acted within the bounds of FOIA. The USMS

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bears the burden of “describ[ing] the requested documents and ‘the justifications for

nondisclosure with reasonably specific detail [and] demonstrat[ing] that the information withheld

logically falls within the claimed exemption.’” Pronin v. Fed Bureau of Prisons, No. 17-1807,

2019 WL 1003598, at *3 (D.D.C. Mar. 1, 2019) (quoting Larson v. Dep’t of State, 565 F.3d 857,

862 (D.C. Cir. 2009)). An agency can prevail on summary judgment only if its declarations

“afford the FOIA requester a meaningful opportunity to contest, and the district court an

adequate foundation to review, the soundness of the withholding.” King v. U.S. Dep’t of Justice,

830 F.2d 210, 218 (D.C. Cir. 1987). As noted above, however, Plaintiff has failed to respond to

the motion, leaving the Court to decide whether the USMS’s uncontroverted evidentiary showing

suffices.

The USMS made redactions pursuant to FOIA Exemptions 6, 7(C), 7(E), and 7(F).

Because the Court concludes that the USMS properly invoked Exemptions 6, 7(C) and 7(E), and

because those exemptions, taken together, cover all of the redactions, the Court need not address

Exemption 7(F).

Most of the material at issue was withheld under Exemptions 7(C) and 7(E), so the Court

starts there. As an initial matter, Exemption 7 applies only to records “compiled for law

enforcement purposes.” 5 U.S.C. § 552(b)(7); Campbell, 164 F.3d at 31; Flete-Garcia I, 2020

WL 1695127, at *6. In Flete-Garcia I, the Court noted that the USMS’s principal function is

law enforcement, and thus its assertions that redacted records were compiled for law

enforcement purposes deserve “some deference.” 2020 WL 1695127, at *6. And, here, as in

Flete-Garcia I, the USMS posits that the responsive records were compiled for law enforcement

purposes because the agency generated the records “during the [Department of Justice]’s

criminal investigation and prosecution of Plaintiff” and the records “pertain to the custody of

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Plaintiff.” Dkt. 34 at 11. The Court agrees that the records fall squarely within the definition of

records compiled for law enforcement. See McCall v. U.S. Marshals Serv., 36 F. Supp. 2d 3, 6

(D.D.C. 1999) (finding that documentation of Marshals escorting prisoners within a federal

courthouse were compiled for law enforcement purposes). The USMS, accordingly, easily clears

the first hurdle to invoking Exemption 7.

Exemption 7(C) protects records from disclosure if their release “‘could reasonably be

expected to constitute an unwarranted invasion of personal privacy.’” Campbell, 164 F.3d at 33

(quoting 5 U.S.C. § 552(b)(7)(C)). To make that determination, the Court “must balance the

public interest in disclosure against the [privacy] interest[s] Congress intended the Exemption to

protect.” U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 776

(1989). In this case, the USMS redacted (1) the names of law enforcement officials from the

transportation spreadsheet; (2) the names of associates of Plaintiff from the Subject Report; (3)

the names that the Court previously approved for redaction in the USM-129; and (4) the names

of several individuals in the USM-312 Personal History, including the names of persons to be

kept separate from Plaintiff, the name of a law enforcement official who administered a DNA

test, the name of an enforcement officer and contact information, an unidentified address and

phone number, and the name of one of Plaintiff’s associates. Dkt. 34-1 at 10–11 (2d Krieger

Decl. Vaughn index). Each of these redactions was permissible for the same reasons the Court

previously sustained the USMS’s redactions to the USM-129. “[T]he privacy interest of an

individual in avoiding the unlimited disclosure of his or her name and address is significant.”

Nat’l Ass’n of Ret. Fed. Emps. v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989). “On the other side

of the balance, Plaintiff does not identify any public interest in release of the withheld

information.” Flete-Garcia I, 2020 WL 1695127, at *7. “Where there is no asserted public

15
interest, even the slightest privacy interest will prevent disclosure under Exemption 7(C).” Willis

v. U.S. Dep’t of Justice, 581 F. Supp. 2d 57, 76 (D.D.C. 2008). Because the USMS has proffered

a legimate privacy interest supporting the redactions and because Plaintiff has failed to identify

any countervailing interest, the Court concludes that the Exemption 7(C) redactions were

permissible.

The USMS also invoked Exemption 7(E), which permits the withholding of law

enforcement records

[t]o the extent that the production of such law enforcement records or
information . . . would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure could reasonably be expected
to risk circumvention of the law.

5 U.S.C. § 552(b)(7)(E). This exemption “sets a relatively low bar for the agency to justify

withholding.” Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011). It does not “require[e] a

highly specific burden of showing how the law will be circumvented” but rather, “only requires

that the [agency] demonstrate logically how the release of the requested information might create

a risk of circumvention of the law.” Mayer Brown LLP v. IRS, 562 F.3d 1190, 1194 (D.C. Cir.

2009) (quotation omitted).

Beyond any withholdings already covered by Exemption 7(C), the USMS employed

Exemption 7(E) to withhold “internal data encoding” in each of the responsive records. Dkt. 34-

1 at 10–11 (2d Krieger Decl. Vaughn index). The redactions include “information such as

internal URLs, codes, and internal identifying numbers [that] could assist unauthorized parties in

deciphering the meaning of the codes and numbers, aid in gaining improper access to law

enforcement databases, and assist in the unauthorized party’s navigation of these databases.” Id.

at 9 (2d Krieger Decl. ¶ 31). This information, the USMS contends “would not assist the public

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in understanding how the agency is carrying out its statutory responsibilities” but could “permit

people seeking to violate the law to gain sensitive knowledge and take preemptive steps to

counter actions taken by [the] USMS during investigatory operations.” Dkt. 34 at 15. That

explanation is sensible and, in the Court’s view, clears the “relatively low bar” of withholding

under Exemption 7(E). Blackwell, 646 F.3d at 42; see also Shem-Tov, 2020 WL 2735613, at *12

(finding that withholding “internal website/url network path” was justified under 7(E)).

Exemptions 7(C) and 7(E) cover all of the redactions at issue, save one: the USMS

withheld “[a]n unknown name” on the transportation spreadsheet pursuant to Exemptions 6 and

7(F). Dkt. 34-1 at 10 (2d Krieger Decl. Vaughn index). It is unclear why the USMS did not

invoke Exemption 7(C) with respect to this name, but, in any event, the Court is persuaded that

Exemption 6 also applies. That exemption shields “personnel and medical files and similar files

the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5

U.S.C. § 552(b)(6). In assessing withholdings under Exemption 6, the Court “must first

determine whether ‘disclosure would compromise a substantial, as opposed to a de minimis,

privacy interest.’” Pejouhesh v. U.S. Postal Serv., No. 17-1684, 2019 WL 1359292, at *5

(D.D.C. Mar. 26, 2019) (quoting Horner, 879 F.2d at 874)). “If the agency clears that first

hurdle, the Court must ‘balance the privacy interest in non-disclosure against the public interest’

in disclosure.” Id. (quoting Consumers’ Checkbook Ctr. for the Study of Servs. v. HHS, 554 F.3d

1046, 1050 (D.C. Cir. 2009)).

Here, the name at issue appeared on a printout of transportation dates. Although the

Court would have benefited from some additional information about the “unknown name,” it

would seem that the USMS lacks that information. But, even without the detail, it is safe to

assume that the unknown person, like everyone else identified on the transportation printout, has

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some non-de minimis privacy interest in his or her public association with the USMS

transportation log. And, once again, Plaintiff has failed to offer any countervailing interest in

public disclosure of this person’s name. Thus, although a closer question given the evidentiary

gap, the Court concludes that the USMS has also carried its burden of showing that this

disclosure would constitute “a clearly unwarranted invasion of personal privacy” and that the

agency permissibly invoked Exemption 6. See 5 U.S.C. § 552(b)(6).

The Court will, accordingly, grant summary judgment in favor of the USMS with respect

to these withholdings.

C. Segregability

As the Court observed in Flete-Garcia I, “[w]ith regard to any document an agency

believes falls under a FOIA exception, the agency must ‘separate[] the exempt from the non-

exempt portions of the document[] and produce[] the relevant non-exempt information.’” Flete-

Garcia I, 2020 WL 1695127, at *7 (quoting People for the Am. Way Found. v. Nat’l Park Serv.,

503 F. Supp. 2d 284, 296 (D.D.C. 2007)). “The Court, for its part, [must] ‘make specific

findings of segregability.’” Id. (quoting Stolt-Nielsen Transp. Grp., Ltd. v. United States, 534

F.3d 728, 734 (D.C. Cir. 2008)). In Flete-Garcia I, the Court held that the USMS had satisfied

the segregability requirement with respect to the records located and released in part because

“the only information withheld [was] the personal information discussed above.” Id. The same

reasoning leads the Court to conclude that all reasonably segregable information relating to the

newly discovered records was released. The redactions are limited to the personal information

and internal encoding analyzed and found to be permissible above.

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 CONCLUSION

The Court, accordingly, GRANTS in part and DENIES in part the USMS’s motion for

summary judgment, Dkt. 34. The Court hereby GRANTS summary judgment in favor of the

USMS in all respects, except the adequacy of those searches that misspelled Plaintiff’s name.

After repeating those searches using the correct spelling or confirming that the searches, in fact,

used the correct spelling, the USMS may renew its motion.

SO ORDERED.

/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge

Date: March 24, 2021

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