Summary
holding that a defendant agency was not responsible under the FOIA for accounting for previously possessed records because an agency “is responsible for releasing only those records it possessed and controlled at the time of the FOIA request”
Summary of this case from Nance v. Fed. Bureau of InvestigationOpinion
Civ. Action No. 03-2385 (RMC).
January 28, 2005
MEMORANDUM OPINION
In this action brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, plaintiff, Jack Ferranti, sues the United States Department of Justice's Executive Office for United States Attorneys ("EOUSA"). Before the Court is EOUSA's Motion for Summary Judgment, which Mr. Ferranti has opposed. Upon consideration of the parties' submissions and the entire record, the Court will grant EOUSA's motion.
I.
It is undisputed that in August 1999, Mr. Ferranti requested records from EOUSA pertaining to himself and his criminal prosecution in the Eastern District of New York. In May 2001, EOUSA released to Mr. Ferranti 170 pages of information in their entirety and 78 pages with redactions. In addition, EOUSA withheld 22 pages in their entirety. Declaration of Mary Beth Uitti ("Uitti Decl.") at 3, ¶ 8. EOUSA informed Mr. Ferranti that it withheld third-party information under FOIA exemption 7(C). In October 2002 and January 2003, Mr. Ferranti submitted a similar request to EOUSA, which he narrowed in March 2003. In December 2003, EOUSA informed Mr. Ferranti that it had previously provided all records to him in response to his 1999 request. Uitti at 6, ¶ 18. The complaint, filed in November 2003, arises from EOUSA's responses to Mr. Ferranti's requests dated August 11, 1999, October 23, 2002, January 2, 2003, and March 5, 2003.
II.
Summary judgment is appropriate if "there is no genuine issue as to any material fact" and "the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). When there are no material facts at issue and no facts "susceptible to divergent inferences bearing upon an issue critical to disposition of the case," Alyeska Pipeline Serv. v. EPA, 856 F.2d 309, 314 (D.C. Cir. 1988), summary judgment expeditiously resolves a lawsuit with a savings of time and money and no adversity to the litigants.
Summary judgment is the frequent vehicle for resolution of a FOIA action because in those cases the pleadings and declarations often, as here, provide undisputed facts on which the moving parties are entitled to judgment as a matter of law. Miscavige v. IRS, 2 F.3d 366, 360 (11th Cir. 1993); Alyeska Pipeline, 856 F.2d at 313; Weisberg v. DOJ, 627 F.2d 365, 368 (D.C. Cir. 1980). The burden is on the agency to justify all non-disclosures. 5 U.S.C. § 552(a)(4)(B); DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989). Agencies may rely on affidavits or declarations of government officials, as long as they are sufficiently clear and detailed and submitted in good faith. See Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990).
Mr. Ferranti "is not contesting any of the name or address redactions on any of the materials received so far." Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Pltf's Opp.") at 4. Rather, he questions EOUSA's search because it did not produce "thousands of pages of materials" he claims were generated during a three-year criminal investigation, id. at 3, and referenced in testimony during his criminal trial, nor did it yield materials Mr. Ferranti claims were provided to him by other law enforcement sources. See id at 6-9.
In determining the adequacy of a FOIA search, the Court is guided by principles of reasonableness. See Campbell v. United States Dep't of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998). The agency 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." Oglesby v. United States Dep't of the Army, 920 F.2d at 68. Because the agency is the possessor of the records and is responsible for conducting the search, the Court may rely on "[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. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (quoting Oglesby v. United States Dep't, 920 F.2d at 68). Summary judgment is inappropriate "if a review of the record raises substantial doubt" about the adequacy of the search. Id.
The Court is satisfied from Ms. Uitti's declaration that EOUSA conducted searches reasonably calculated to locate records responsive to Mr. Ferranti's requests. See Uitti Decl. at 10-11, ¶ 25. After adequately describing the search, Ms.Uitti avers that "[a]ll responsive documents to Plaintiff's FOIA request would have been located in the USAO/EDNY" and that "[t]here are no other record system[s] or location within EOUSA or DOJ in which other files pertaining to Plaintiff's criminal case . . . were maintained." Id. at 11. Mr. Ferranti faults EOUSA for "fail[ing] to assert (1) whether they, at one time had possession of the requested materials; and (2) if so, and they no longer possess material, where the material was returned to." Response to Defendant's Reply to Defendant's Motion for Summary Judgment at 5. This omission, however, is immaterial. EOUSA is responsible for releasing only those records it possessed and controlled at the time of the FOIA request. McGehee v. Central Intelligence Agency, 697 F.2d 1095, 1110 (D.C. Cir. 1983). Thus, Mr. Ferranti's contention that EOUSA should account for previously possessed records does not create a genuine issue with respect to EOUSA's obligations under the FOIA.
Although not material to the outcome of this case, the Court questions the accuracy of Ms. Uitti's statement as it pertains to the whole of DOJ. According to the United States Attorney's Manual referred to in EOUSA's reply brief, evidence from criminal cases remains in the custody of the investigating agency. Reply Memorandum in Support of Defendant's Motion for Summary Judgment at 3. This reasonably explains why EOUSA's search did not yield the volume of records Mr. Ferranti had expected. Mr. Ferranti's request, however, went beyond records maintained by EOUSA. For example, he requested Federal Bureau of Investigation Crime Lab records. The FBI is a DOJ component, and it is reasonable to conclude that it may have filing systems containing responsive records. Ms. Uitti's sweeping conclusion is of no consequence here because no other DOJ component, including the FBI, is named as a party to this lawsuit and the claims arise only from the processing of EOUSA records.
In the conclusion to his opposition brief, Mr. Ferranti questions whether EOUSA properly withheld records in their entirety. The Court is required to make a so-called segregability finding. See Trans-Pacific Policing Agreement v. United States Customs Service, 177 F.3d 1022, 1027-28 (D.C. Cir. 1999). Ms. Uitti avers that "[e]ach document was reviewed on a line-by-line basis" for segregability purposes. Uitti Decl. at 13, ¶ 31. Document Nos. 6, 7, and 8 of the Vaughn index contain the 22 pages of information withheld in their entirety. See Defendant's Exhibit N. Those pages "pertained to the restitution due third parties other than Plaintiff . . . the information . . . was inextricably interwoven with matters protected under Exemption (b)(7)(C)." Id. The Court is satisfied that EOUSA properly withheld those records in their entirety.
III.
For the preceding reasons, EOUSA's Motion for Summary Judgment is GRANTED. A separate Order consistent with this Memorandum Opinion will be issued contemporaneously.