RUDOLPH CONTRERAS, District Judge.
Pro se Plaintiff Jeremy Pinson has filed multiple Freedom of Information Act (FOIA), 5 U.S.C. § 552, requests with various components of the U.S. Department of Justice (DOJ). At issue here are certain requests she
Now before the Court is the DOJ's third motion for summary judgment as to the five remaining FOIA requests,
This Court has explained the factual background in detail in its prior Memorandum Opinions. See 1st Mem. Op., Pinson v. DOJ, 145 F.Supp.3d 1, 5-7 (D.D.C. 2015), ECF No. 246; 2d Mem. Op., Pinson v. DOJ, 189 F.Supp.3d 137, 141-45 (D.D.C. 2016), ECF No. 291. The Court therefore confines its discussion to the facts most relevant to the five requests at issue in the present motion.
Request No. 12-1754 sought the "production of all documents, emails, [and] records" related to Case No. SACR 07-202(A)-DOC in the Central District of California. See 3d Luczynski Decl. ¶ 3, ECF No. 332-3;
After the Court denied the DOJ's second motion for summary judgment concerning this request,
Although the EOUSA has previously asserted that FOIA Exemption 7(A) justified withholding some responsive documents while the underlying case was pending appeal, see ECF No. 254-2 at 7-8, the case is now closed and the Court understands that the EOUSA searched for all responsive records and did not withhold any documents from the results of the current search. See Rhedrick Decl. ¶ 9 ("Case View is the computer case tracking system used by the USA . . . to locate any and all corresponding files." (emphasis added)); Rhedrick Decl. ¶ 11 ("[A]ll documents concerning closed cases are to be stored [within the twenty boxes searched]." (emphasis added)); Rhedrick Decl. ¶¶ 13-14 ("I personally searched through twenty boxes of documents . . . Due to the large number of documents in the 20 boxes of records relating to this case, it took me approximately two hours to search them by hand."). The DOJ now moves for summary judgment on the grounds that it conducted a search reasonably calculated to identify all responsive records and it has released all responsive records in full. See Defs.' Mem. Supp. 3d Mot. for Summ. J. (Defs.' 3d MSJ) at 5, ECF No. 332-2.
Request No. 12-1757 sought the "production of all documents, emails, or records" for cases 11-cv-1906,
After the Court denied the DOJ's second motion for summary judgment,
The EOUSA subsequently released 200 pages of records
Request No. 12-1758 sought the "production of all documents, emails, or records" regarding cases 11-cv-140-KSF, 11-cv-96-HRW, and 10-cv-299-HRW in the Eastern District of Kentucky. See 3d Luczynski Decl. ¶ 14; Freedom of Information Act Request, ECF No. 254-4, Ex. Y.
After the Court denied the DOJ's second motion for summary judgment,
Although the EOUSA has previously argued that FOIA Exemption 7(C) would justify withholding some or all of the records responsive to this request, see ECF No. 254-4 at 4-7, the Court now understands that the EOUSA undertook to search for all responsive records and did not withhold any identified records. See Long Decl. ¶ 11 ("[Case number 10-cv-299] consists of 4 volumes of pleadings, 2 volumes of correspondence, and numerous [Redwelds]."); Long Decl. ¶ 12 ("I forwarded all documents in these files to EOUSA on disc. . . . I included Court Filed Public Records in the documents provided to EOUSA."). The DOJ now again moves for summary judgment, contending that its search was reasonably calculated to identify all responsive records without withholdings. See Defs.' 3d MSJ at 9.
Request No. 12-1760 sought "copies [of] all documents, email[s], or records in . . . Northern District of West Virginia Case No. 11-CR-51." See 2d Zumpetta-Parr Decl. ¶ 6, ECF No. 332-3, Ex. G; Freedom of Information Act Request, ECF No. 254-4, Ex. Y.
After the Court denied the DOJ's second motion for summary judgment,
Although the EOUSA has previously argued that FOIA Exemption 7(C) would justify withholding some or all of the records responsive to this request, see Mem. P. & A. Supp. Defs.' 2d Mot. Summ. J. at 4-7, ECF No. 254-2, the Court now understands that the EOUSA undertook to search for all responsive records and did not withhold any identified records. See Zumpetta-Parr Decl. ¶ 10 ("I performed a search of all public records . . . and scanned the entire file and provided those records to USAEO."); Zumpetta-Parr Decl. ¶ 10
Pinson submitted a FOIA request seeking "copies of all discovery material" in case number 11-cr-68-EJL, in the District of Idaho, and 12-cr-236-IEG, in the Southern District of California. Freedom of Information Act Request, ECF No. 332-3, Ex. I; 3d Luczynski Decl. ¶ 26. Pinson limited her request to "no more than 150 pages, per case, of information and no more than 2 hours search time per district." Freedom of Information Act Request, ECF No. 332-3, Ex. I. After the EOUSA informed Pinson that it could not release the information because such third-party information was protected under the Privacy Act and FOIA Exemptions 6 and 7(C), Pinson agreed to limit the scope of her request to "seek only public records." Letter from Jeremy Pinson (Apr. 22. 2013), ECF No. 170-5, Ex. UUU (emphasis added); see also 1st Luczynski Decl. ¶¶ 82-83, ECF No. 170-4.
After this Court denied its second motion for summary judgment,
The EOUSA provides a declaration from an Assistant United States Attorney involved in the 12-cr-236 case stating that the case is ongoing and that all of the discovery material is subject to a protective order. See McGrath Decl. ¶ 5, ECF No. 332-3, Ex. M ("Discovery material in the [12-cr-236] case cannot be released under FOIA at this time. There is a protective order in place, which prevents release of any of the discovery material."); see also Defs.' 3d MSJ at 11 ("Because here is a protective order in [12-cr-236], . . . the USAO is unable to release discovery material therefrom."). Although the EOUSA does not submit a similar declaration relating to the 11-cr-68 case, it points to the docket for 11-cr-68, which it argues establishes that "discovery is subject to a protective order." Defs.' 3d MSJ at 12. The DOJ now again moves for summary judgment, this time on the grounds that all records responsive to this request are properly withheld under Exemption 7(A). See Defs.' 3d MSJ at 11-12.
As discussed above, the DOJ asserts that it has released documents to Pinson under each of the five FOIA requests at issue here. Pinson initially argued in her opposition to the instant motion for summary judgment that she had not received any of the releases. Pl.'s Response, ECF No. 340 ("[T]his plaintiff never received the releases on FOIA requests 12-1754, 12-1757, 12-1758, 12-1760, 13-1085. Nor did plaintiff's counsel
The Court finds that the discrepancy between Pinson's and the DOJ's account may be explained by their missives crossing in the mail, given that both filings were received by this Court on December 19. In addition, the DOJ subsequently notified the Court that "Pinson has now signed for receipt" of the certified mail package containing the five FOIA releases. Notice Hand Delivery EOUSA Releases, ECF No. 350. Furthermore, Pinson has not reiterated any complaint concerning her receipt of the releases after December 19, 2016, despite filing several other documents with this Court. The Court therefore concludes that Pinson has now received the FOIA releases for these five requests.
"[T]o prevail in a Freedom of Information Act suit, `the defending agency must prove that each document that falls within the class requested either has been produced, is unidentifiable or is wholly exempt from the Act's inspection requirements.'" Weisberg v. U.S. Dep't of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980) (quoting National Cable Television Ass'n v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973)). At the summary judgment stage, the agency must do so by showing that no material facts remain in dispute. Id. at 367. This showing requires the agency to demonstrate both that its search was adequate and that all responsive records were either released or properly withheld.
Under FOIA, an adequate search is one that is "reasonably calculated to uncover all relevant documents." Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (internal quotation marks and citation omitted). The agency need not to search "every record system" for the requested documents, but it "must conduct a good faith, reasonable search of those systems of records likely to possess the requested records." Marino v. DOJ, 993 F.Supp.2d 1, 9 (D.D.C. 2013) (citing Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). In order to receive summary judgment, the agency must provide a "reasonably detailed" affidavit describing the scope of its search. See Iturralde v. Comptroller of Currency, 315 F.3d 311, 313-14 (D.C. Cir. 2003) (quoting Oglesby, 920 F.2d at 68). It is not enough, however, for the affidavit to state in conclusory fashion that the agency "conducted a review of [the files] which would contain information that [the plaintiff] requested" and did not find anything responsive to the request. Weisberg, 627 F.2d at 370. On the other hand, once the agency has provided a reasonably detailed affidavit describing its search, the burden shifts to the FOIA requester to produce "countervailing evidence" suggesting that a genuine dispute of material fact exists as to the adequacy of the search. Morley, 508 F.3d at 1116 (citation omitted).
If responsive records are located, the agency must either disclose them or justify its withholding through one of the FOIA's nine exclusive statutory exemptions. See 5 U.S.C. § 552(b); see also Elliott v. U.S. Dep't of Agric., 596 F.3d 842, 845 (D.C. Cir. 2010) ("[A]gencies may withhold only those documents or portions thereof that fall under one of nine delineated statutory exemptions."). In a case such as this one, where the requester initially challenges the agency's response but does not consistently articulate specific objections to the agency's releases, the Court is mindful that summary judgment cannot be granted as conceded and that it must independently evaluate whether any issues of material fact exist. See Winston & Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016) ("Under the Federal Rules of Civil Procedure, a motion for summary judgment cannot be `conceded' for want of opposition. `The burden is always on the movant to demonstrate why summary judgment is warranted. The nonmoving party's failure to oppose summary judgment does not shift that burden.' The District Court `must always determine for itself whether the record and any undisputed material facts justify granting summary judgment.'" (quoting Grimes v. District of Columbia, 794 F.3d 83, 97 (D.C. Cir. 2015) (Griffith, J., concurring))).
The DOJ's instant motion for summary judgment argues that it has performed an adequate search with respect to each of the five requests and released all non-exempt documents. Pinson initially objected that she had not received the releases, but, as discussed supra Part II.F, the Court concludes that Pinson has now received them. Pinson raises several collateral objections, which this Court rejects.
The DOJ asserts that the EOUSA adequately searched and properly released records responsive to Request No. 12-1754, Defs.' 3d MSJ at 4-5, and the Court agrees. The Rhedrick declaration sufficiently explains that all record systems likely to contain responsive records were searched, and describes how the FOIA coordinator searched the applicable boxes of physical files by hand using the name of the defendant. See generally Rhedrick Decl., ECF No. 332-3, Ex. A. This description includes the search term used and sufficiently explains that the agency's search was reasonably calculated to uncover all responsive documents. Nor has Pinson challenged the agency's assertion that its search was adequate.
Although the FOIA coordinator exercised a small amount of judgment in concluding that the (A) at the end of the case number referred to defendant Jesse Vasquez, that is proper because an agency may reasonably interpret an ambiguous FOIA request. 5 U.S.C. § 552; see also Wilson v. U.S. Dep't of Transp., 730 F.Supp.2d 140, 153 (D.D.C. 2010) (finding that once a plaintiff agrees to an agency's interpretation of an ambiguous request, "plaintiff cannot allege that the agency failed to produce responsive records when the records he now identifies fall outside the scope of his appropriately narrowed request" (quoting Kenney v. DOJ, 603 F.Supp.2d 184, 189 (D.D.C. 2009)). Here, Pinson has not clarified her request or objected to the EOUSA's interpretation.
All of the 78 responsive pages that were identified were released in full to Pinson. See 3d Luczynski Decl. ¶ 7; Letter from Thomas Anderson to Jeremy Pinson (Oct. 27, 2016), ECF No. 332-3, Ex. B. The Court therefore need not consider the propriety of any FOIA exemptions. Having determined that no genuine issues of material fact exist, the Court thus grants the DOJ summary judgment as to Request No. 12-1754.
The DOJ asserts that the EOUSA adequately searched and properly released records responsive to Request No. 12-1757. Defs.' 3d MSJ at 5-8. However, because the EOUSA has not explained how the searches were conducted with sufficient detail, summary judgment is inappropriate.
The EOUSA's declaration provides a general description of the search, including describing all of the records systems that were searched and explaining why those systems were likely to contain all responsive records. See generally 2d Matuszewski Decl. ¶ 14, ECF No. 332-3, Ex. C.
However, although the declaration makes some reference to using case numbers, it is not clear precisely how the searches were conducted. For example, the FOIA coordinator states that the case files for 11-cv-1906 and 10-cv-949 were obtained, and then simply concludes that "[a] second search of 11-CV-1906 produced 22 pages of correspondence [and other documents]" and "[a] second search of 10-CV-949 produced 14 pages of correspondence [and other documents]." 2d Matuszewski Decl. ¶¶ 17-18. The Court does not know how the search "produced" those results. Were additional search terms applied, or does the EOUSA's accounting represent all documents in the case files? The D.C. Circuit has emphasized that, in order to justify summary judgment, an agency must explain the search in detail. See Aguiar v. DEA, ___ F.3d ___, No. 16-5029, 2017 WL 3318758, at *6 (D.C. Cir. Aug. 4, 2017) ("The DEA's declarations explain how it found the two case files, but not how it searched within those files. . . . That description, we held, was `not sufficiently detailed to support a summary judgment because it does not disclose the search terms . . . and the type of search performed.'" (quoting DeBrew v. Atwood, 792 F.3d 118 (D.C. Cir. 2015))); 1st Mem. Op., Pinson v. DOJ, 145 F.Supp.3d 1, 13 (D.D.C. 2015), ECF No. 246 ("Furthermore, the Declaration's claim that each U.S. Attorney's Office conducted a `systematic search for records' is merely conclusory and fails to clearly define any iteration of the search methods used, or the search terms employed, to locate responsive documents."). Likewise, although the declarations state that electronic records were searched, they do not explain how or what search terms were used. See 2d Matuszewski Decl. ¶ 19 ("An additional computer search of the USAO MDPA files was performed and no documents were located for neither [sic] civil numbers 11-CV-1906 nor 10-CV-949.").
The Court must therefore deny the EOUSA summary judgment as to its response to Request No. 12-1757.
The DOJ asserts that the EOUSA adequately searched and properly released records responsive to Request No. 12-1758, Defs.' 3d MSJ at 8-9, and the Court agrees. The EOUSA's declarations clearly explain how the search was performed, including that the record systems selected were reasonably calculated to contain all responsive records, and that the case numbers were used as search terms to locate the appropriate files. See generally Long Decl., ECF No. 332-3, Ex. F. Nor has Pinson challenged the adequacy of the EOUSA's search.
Although the EOUSA's declarations could be more clear, the Court understands that all responsive records, and not merely public records, were searched for and released, despite the EOUSA's prior reference to withholding documents, 3d Luczynski Decl. ¶ 15. See 3d Luczynski Decl. ¶ 18 ("Declaration . . . explaining the search for responsive records, including public records, is attached . . . ."); Long Decl. ¶ 12 (I forwarded all documents in these files to EOUSA on disc. . . . I included Court Filed Public Records in the documents provided to EOUSA.").
The DOJ released 100 pages to Pinson—in full—for free and offered to release an additional 1000 pages after receiving an appropriate fee. See 3d Luczynski Decl. ¶ 18; Letter from Thomas Anderson to Jeremy Pinson (Oct. 27, 2016), ECF No. 332-3, Ex. E. The Court therefore need not consider the propriety of any FOIA exemptions. Having determined that no genuine issues of material fact exist, the Court thus grants the DOJ summary judgment as to Request No. 12-1758.
The DOJ asserts that the EOUSA adequately searched and properly released records responsive to Request No. 12-1757, Defs.' 3d MSJ at 10-11, and the Court agrees. The EOUSA provided a declaration that sufficiently describes its search. See generally Zumpetta-Parr Decl., ECF No. 332-3, Ex. G. The FOIA coordinator searched for the relevant case number using the electronic case management system and PACER, and then sent the entire resulting file to the EOUSA, which released the first 100 pages to Pinson and offered the remaining pages after payment of a fee. Zumpetta-Parr Decl. ¶¶ 10-11; 3d Luczynski Decl. ¶ 25; Letter from Thomas Anderson to Jeremy Pinson (Oct. 27, 2016), ECF No. 332-3, Ex. H. This explanation adequately describes the records systems searched and the search terms used, and Pinson has not challenged the adequacy of the EOUSA's search.
Although the FOIA coordinator did exercise judgment in selecting which case of the three sharing the same case number was responsive to Pinson's request, that decision was reasonable, especially in light of Pinson's lack of subsequent objection or clarification. 5 U.S.C. § 552; see also Wilson v. U.S. Dep't of Transp., 730 F.Supp.2d 140, 153 (D.D.C. 2010) (finding that once a plaintiff agrees to an agency's interpretation of an ambiguous request, "plaintiff cannot allege that the agency failed to produce responsive records when the records he now identifies fall outside the scope of his appropriately narrowed request" (quoting Kenney v. DOJ, 603 F.Supp.2d 184, 189 (D.D.C. 2009)). Given that all responsive documents were released to Pinson, there is no question of the applicability of FOIA exemptions. Having determined that no genuine issues of material fact exist, the Court thus grants the DOJ summary judgment as to Request No. 12-1760.
The DOJ asserts that the EOUSA adequately searched and properly released records responsive to Request No. 12-1757. Defs.' 3d MSJ at 11-12. Although the Court agrees that summary judgment is appropriate for the materials related to 12-cr-236, it disagrees as to the materials concerning 11-cr-68 because the agency does not provide an affidavit explaining why it believes no responsive records exist. As an initial matter, although the EOUSA apparently released 200 pages in total to Pinson, because these documents do not respond to Pinson's request for discovery materials they cannot satisfy the agency's FOIA burden.
The EOUSA argues that it possesses no materials responsive to Pinson's request. Pinson first requested discovery materials, Freedom of Information Act Request, ECF No. 332-3, Ex. I, and later narrowed her request to "only public records," Letter from Jeremy Pinson (Apr. 22. 2013), ECF No. 170-5, Ex. UUU. According to the EOUSA, no records that meet both descriptions exist because both cases are subject to protective orders such that there are no public discovery materials.
An agency need not perform a search when the agency has sufficiently established that it would be fruitless. See All Party Parliamentary Grp. on Extraordinary Rendition v. U.S. Dep't of Def., 134 F.Supp.3d 201, 205-06 (D.D.C. 2015) (holding that "no search [was] required" when the agency's affidavits established that "a search for the documents requested would be futile" because the topic of the request was not within the agency's role); Reyes v. EPA, 991 F.Supp.2d 20, 27 (D.D.C. 2014) ("An agency is not required to expend its limited resources on searches for which it is clear at the outset that no search will produce the records sought."); see also Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983) ("The adequacy of an agency's search is measured by a standard of reasonableness and is dependent upon the circumstances of the case." (internal quotation marks and citations omitted)).
In this case, the EOUSA has adequately demonstrated that a search for public discovery materials in 12-cr-236 would be fruitless because of the protective order. See McGrath Decl. ¶ 5 ("Discovery material in [12-cr-236] cannot be released under FOIA at this time. There is a protective order in place, which prevents release of any of the discovery material."). The EOUSA therefore need not perform a search relating to 12-cr-236, and summary judgment is therefore appropriate for the DOJ. However, the EOUSA has not provided a similarly persuasive affidavit relating to 11-cr-68. Instead, the EOUSA points this Court toward the docket entry for c11-cr-68. Cf. Defs.' 3d MSJ at 12, ECF No. 332-2 ("[11-cr-68], however, also remains pending, and discovery is subject to a protective order." (citing the docket sheet for 11-cr-68)). This falls short of the agency's obligation to produce a "reasonably detailed" affidavit. Iturralde, 315 F.3d at 313-14 (quoting Oglesby, 920 F.2d at 68). Therefore, rather than attempting to interpret the docket entries itself, the Court will deny summary judgment as related to 11-cr-68 until the agency produces an affidavit from a person with knowledge explaining why a search for public discovery materials would be futile.
For the foregoing reasons, the DOJ's third motion for summary judgment with respect to the EOUSA (ECF No. 332) is
The EOUSA subsequently filed a second motion for summary judgment. Defs.' 2d Mot. for Summ. J., ECF No. 254. In resolving that motion, the Court granted the EOUSA summary judgment as to Request Nos. 11-3289, 11-4508, 12-1748, 12-1764, 12-3095, and 12-3097. See generally 2d Mem. Op., Pinson v. DOJ, 189 F.Supp.3d 137 (D.D.C. 2016), ECF No. 291; 2d Order, ECF No. 290. Five numbered requests, therefore, remain at issue here—Nos. 12-1754, 12-1757, 12-1758, 12-1760, and 13-1085.
Second, Pinson moves to strike the DOJ's third motion for summary judgment because she asserts she did not receive it. See Pl.'s Mot. Strike, ECF No. 336. Pinson also objects in light of the Fox/Neal order that she received on November 4, 2016, Pl.'s Mot. Strike, which the Court interprets as an objection to the time limit for her response provided in the Fox/Neal order based on the alleged non-receipt of the DOJ's motion. The Court understands that Pinson has now received the third motion for summary judgment—indeed, she has filed an opposition—and she has not articulated any prejudice resulting from any delay. See generally Pl.'s Resp., ECF No. 340; see also Defs.' Opp'n at 1, ECF No. 337 (noting Pinson signed for legal mail on November 4, 2016 at MCFP Springfield, and ECF Nos. 332 and 333 are "the only documents that . . . [were] mailed to Pinson at that facility"); see also Defs.' Opp'n at 3 (indicating that the DOJ mailed an additional copy of the third motion for summary judgment along with its opposition to Pinson on November 17, 2016). In any event, striking a filing is an extreme remedy that is not appropriate for a failure to serve. Cf. Riddick v. Holland, 134 F.Supp.3d 281, 285 (D.D.C. 2015) ("Motions to strike are `drastic remed[ies] that courts disfavor, and the decision to grant or deny a motion to strike is vested in the trial judge's sound discretion.'" (quoting United States ex rel. Landis v. Tailwind Sports Corp., 308 F.R.D. 1 (D.D.C. 2015))).
