Richardson v. United States Department of Justice ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BOBBY RICHARDSON,
Plaintiff,
v. Civil Action No. 17-1181 (JDB)
U.S. DEPARTMENT OF JUSTICE, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Bobby Richardson brought this action pro se under the Freedom of Information
Act (FOIA), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, against defendants Department
of Justice (DOJ) and the Executive Office for United States Attorneys (EOUSA) seeking
documents pertaining to his 2009 felony convictions. The government now moves for summary
judgment, asserting that it has conducted an adequate and reasonable search for documents
responsive to his request and has provided all available relevant records, excepting certain
materials withheld pursuant to exemptions asserted under FOIA. In opposition, Richardson
directly challenges neither the adequacy of the search nor the appropriateness of the government’s
redactions. Instead, he alleges that the records produced contain falsified information and requests
“deposition[s] by written questions” to test their veracity. For the reasons explained below, the
Court will grant the government’s motion for summary judgment.
BACKGROUND
On August 6, 2008, a confidential informant made a controlled buy of heroin from
Richardson on behalf of the Petersburg Bureau of Police. United States v. Richardson, No. 3:09-
CR-15, 2013 WL 3991474, at *1 (E.D.Va. Aug. 2, 2013). Richardson was arrested for charges
1
relating to this event, including drug possession and distribution, firearm possession by a convicted
felon, and multiple counts of counterfeiting U.S. currency. Id. at *2. In 2009, he was convicted
by a jury of all counts. Id. The Fourth Circuit denied his appeal, and in 2013, the Eastern District
of Virginia denied his habeas petition under 28 U.S.C. § 2255. See id. at *2, *19.
On March 19, 2015, Richardson submitted a FOIA request to EOUSA seeking information
about his criminal case. See Decl. of Vinay J. Jolly (“Jolly Decl.”), Ex. 5 to Defs.’ Mot. for Summ.
J. [ECF No. 15-5] ¶ 4; see also Ex. A to Jolly Decl. at 7–8. 1 He specifically requested all “records,”
“files,” “recordings,” “surveillance,” “cell phone records,” “[b]ills,” and “[a]ny and [a]ll witnesses
that may have been paid in the aid of . . . prosecution [of him].” Ex. A to Jolly Decl. at 7–8. After
being informed that the request was procedurally deficient, he filed a new request with EOUSA
on April 28, 2015, this time requesting from the U.S. Attorney’s Office for the Eastern District of
Virginia (USAO-EDVA) copies of witness interviews with law enforcement personnel and all
“pre-trial and post-trial discovery” pertaining to his criminal case. See Exs. B & C. to Jolly Decl.
at 9–14. On June 5, 2015, EOUSA notified Richardson that it had received his request and denied
it insofar as it sought information concerning third parties, the disclosure of which would violate
the Privacy Act. See Ex. E. to Jolly Decl. at 19–20. In response, on August 31, 2015, Richardson
modified his request to seek from the USAO-EDVA only certain police and computer aided
dispatch reports relating to his criminal case. See Ex. F. to Jolly Decl. at 22. 2 The request was
then referred to the Richmond USAO office. See Decl. of Ann S. Helms (“Helms Decl.”), Ex. 4
to Defs.’ Mot. for Summ. J. [ECF No. 15-4] ¶¶ 2–3.
1
The declarations proffered by the government include attached exhibits. For ease of reference, the Court’s
citations refer to the page of the declaration PDF rather than the page of the individual declaration exhibit.
2
Richardson also alleges that he filed a FOIA request with USAO-EDVA on November 3, 2009 requesting
phone records, witness interviews, and other documents relating to his criminal case. Compl. [ECF No. 1] at 2; see
also Ex. 1 to Compl. [ECF No. 1-2]. Because the initial date of Richardson’s requests and the timeliness of the
government’s response are not relevant to the Court’s analysis of whether the government has now satisfied its
obligations under FOIA, the Court will only consider Richardson’s operative request made on August 31, 2015.
2
After two inquiries from Richardson regarding the status of his request, see Jolly Decl.
¶¶ 11, 16—as well as one failed attempt to obtain the documents through the administrative appeal
process, see id. ¶¶ 13–14—on May 10, 2017, USAO-EDVA initiated a search for documents
responsive to his FOIA request, see Helms Decl. ¶ 4. Ann S. Helms, who serves as the FOIA
coordinator at the USAO-EDVA office in Richmond, searched the Legal Information Office
Network System (“LIONS”), which is an electronic “case management database that allows each
USAO to maintain, track, and report information” on its cases. Id. ¶¶ 1, 4. Using Richardson’s
first and last name, Helms identified his criminal case record, which was linked to a physical case
file. Id. ¶ 4. Helms then retrieved his physical case file from USAO-EDVA’s archives and
reviewed it for responsive documents. See id. ¶¶ 4–5.
One month later, Richardson filed the instant action. Thereafter, on August 16, 2017,
USAO-EDVA sent 36 pages of potentially responsive documents from Richardson’s case file to
EOUSA for final processing. Helms Decl. ¶ 6. EOUSA then notified Richardson that his FOIA
request had been processed and EOUSA had identified potentially responsive documents within
USAO-EDVA’s records, all originating from the Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF). See Ex. N. to Jolly Decl. at 39–40. EOUSA referred the records to ATF for
review, see Ex. O to Jolly Decl. at 41–42, and on September 15, 2017 ATF released, in part, the
responsive records to Richardson. Decl. of Peter J. Chisholm, Acting Chief, Disclosure Div., ATF
(“Chisholm Decl.”), Ex. 3 to Defs.’ Mot for Summ. J. [ECF No. 15-3] ¶ 5; Ex. C to Chisholm
Decl. at 18. ATF withheld portions of 34 of the 36 documents pursuant to 5 U.S.C. § 552(b)(6),
which exempts from disclosure certain information contained in personnel and medical files, and
(b)(7)(C), which exempts certain information contained in records compiled for law enforcement
purposes. See ATF Vaughn Index (“Vaughn Index”), Ex. 6 to Mot. for Summ. J. [ECF No. 15-6].
3
The government then moved for summary judgment, asserting that it had conducted an adequate
and reasonable search and had produced all responsive documents not subject to applicable FOIA
exemptions. See Mem. of P. & A. in Supp. of Defs.’ Mot. for Summ. J. [ECF No. 15-1].
After receiving materials from ATF, Richardson filed a notice with the Court asking
EOUSA for supplemental discovery, arguing that “in some material respect, the [agency’s]
disclosure or response is incomplete or incorrect.” See Pl.’s Supplementing Disclosures & Resp.
Fed R. Civ. P. 26 (“Rule 26 Stmt.”) [ECF No. 14] at 1. He asserted that EOUSA failed to disclose
requested CDs and documents pertaining to two dispatch calls and one incident report and
challenged the withholding of the names of certain police officers. Id. at 2–3; see also Failure to
Make Disclosures or to Cooperate in Disc.; Mot. for Sanctions Under Rule 37 (“Mot. to Compel”)
[ECF No. 21] at 1 (asking the Court to compel EOUSA to produce investigative report).
Richardson also moved the Court for leave to depose by written questions personnel at the
Petersburg Police Department, USAO-EDVA in Richmond, and ATF. See Pl.’s Mot. for Deps.
by Written Questions Fed. R. Civ. P. 31 [ECF No. 16] at 2. The Court denied Richardson’s
motions for discovery and issued an order informing him of his obligation to respond to the
government’s pending motion for summary judgment, pursuant to Fox v. Strickland, 837 F.2d 507,
509 (D.C. Cir. 1988), and Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992). See Nov. 6, 2017
Order [ECF No. 17] at 1–4; Mar. 23, 2018 Min. Order.
Richardson filed an opposition to the government’s motion, asserting again that he is
entitled to depose certain law enforcement individuals who were involved in his criminal case.
See Opp’n to Summ. J. (“Pl.’s Opp’n”) [ECF No. 18] at 1. Unlike in his motions for discovery,
he does not contest the adequacy of the government’s search or challenge the withholdings. He
instead disputes the veracity of the contents of the produced documents, alleging that the records
4
were fraudulently created by the Petersburg Police Department and provided to ATF during
Richardson’s criminal case. See id. at 3. “In summary,” Richardson asserts he is “fighting against
elements of the Petersburg Police Department [and ATF] which have gone above and beyond to
take preventative measures to conceal the truth.” Id. at 11. Noting that “defendant[s] . . . simply
cannot provide any more discovery,” he asks the Court to review the documents ATF produced in
camera and grant him leave to take written depositions. Id. at 4–5, 10–11. The government’s
motion for summary judgment is now fully briefed and ripe for decision.
LEGAL STANDARD
Summary judgment is only appropriate “if 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.” Fed. R.
Civ. P. 56(a). A dispute is “genuine” only if a reasonable fact-finder could find for the non-moving
party and a fact is “material” only if it can affect the outcome of the litigation. Holcomb v. Powell,
433 F.3d 889, 895 (D.C. Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–
48 (1986)). In determining whether a genuine issue of material fact exists, the Court must “view
the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the
[summary judgment] motion.’” Scott v. Harris, 550 U.S. 372, 378 (2007) (citation omitted). If,
however, the movant shows that “there is an absence of evidence to support the nonmoving party’s
case,” judgment should be entered in the movant’s favor. Durant v. D.C. Gov’t, 875 F.3d 685,
696 (D.C. Cir. 2017) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)), cert. denied
sub nom., Durant v. District of Columbia, 138 S. Ct. 2608 (2018). Even where the nonmovant
party fails to respond to the motion for summary judgment, or portions thereof, the Court “must
determine for itself that there is no genuine dispute as to any material fact and that the movant is
5
entitled to judgment as a matter of law.” Winston & Strawn, LLP v. McLean, 843 F.3d 503, 509
(D.C. Cir. 2016).
DISCUSSION
Although Richardson does not contest in his opposition the sufficiency of the government’s
response to his request, the Court will not treat the issues of the adequacy of the agency search and
the appropriateness of the redactions as conceded. First, “[a] document filed pro se is ‘to be
liberally construed.’” Hill v. Assocs. for Renewal in Educ., Inc., 897 F.3d 232, 237 (D.C. Cir.
2018) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Although Richardson does not dispute
the adequacy of USAO-EDVA’s search for responsive documents or challenge the redactions
made by ATF pursuant to FOIA exemptions in his opposition brief—and indeed appears to
concede that EOUSA is unable to provide any additional “discovery”—he did challenge the
sufficiency of the agencies’ production in motions and documents he filed with the Court
requesting additional discovery. See, e.g., Mot. to Compel at 2–3; Rule 26 Stmt. at 2. Second, the
government bears the burden of demonstrating that summary judgment is warranted. See
Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). Hence, the Court will
consider both the adequacy of USAO-EDVA’s search and whether ATF properly withheld
responsive records pursuant to applicable exemptions under FOIA.
I. USAO-EDVA’S SEARCH FOR RESPONSIVE DOCUMENTS WAS ADEQUATE
To satisfy its burden on a motion for summary judgment, the government “agency must
demonstrate that it has conducted a search reasonably calculated to uncover all relevant
documents.” Peavey v. Holder, 657 F. Supp. 2d 180, 187 (D.D.C. 2009) (quoting Weisberg, 745
F.2d at 1485). It must show that its search for responsive records “us[ed] methods which can be
reasonably expected to produce the information requested.” Campbell v. U.S. Dep’t of Justice,
6
164 F.3d 20, 27 (D.C. Cir. 1998) (quoting Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C.
Cir. 1990)). A search does not have to be exhaustive, and an agency may limit its search to those
locations where responsive documents are likely maintained. See Porter v. CIA, 778 F. Supp. 2d
60, 69 (D.D.C. 2011) (citing Oglesby, 920 F.2d at 68). “[W]hether a search is adequate is
determined by methods, not results[;] [a]n agency's failure to locate a specific responsive document
will not, on its own, render an otherwise reasonable search inadequate.” Nance v. FBI, 845
F. Supp. 2d 197, 201 (D.D.C. 2012).
An agency may demonstrate it has conducted an adequate search through affidavits or
declarations that explain in reasonable detail the scope and method of the search and that are
submitted in good faith. See Morley v. CIA, 508 F.3d 1108, 1116 (D.C. Cir. 2007). “Agency
declarations . . . are afforded a presumption of good faith” that “can be rebutted only ‘with
evidence that the agency’s search was not made in good faith.’” Defs. of Wildlife v. U.S. Dep’t
of Interior, 314 F. Supp. 2d 1, 8 (D.D.C. 2004) (citation omitted). “In the absence of contrary
evidence, such affidavits or declarations are sufficient to demonstrate an agency’s compliance with
FOIA.” North v. U.S. Dep’t of Justice, 774 F. Supp. 2d 217, 222 (D.D.C. 2011) (citing Perry v.
Block, 684 F.2d 121, 127 (D.C. Cir. 1982)). However, “if the record leaves substantial doubt as
to the sufficiency of the search, summary judgment for the agency is not proper.” Beltranena v.
Clinton, 770 F. Supp. 2d 175, 183 (D.D.C. 2011) (quoting Truitt v. U.S. Dep’t of State, 897 F.2d
540, 542 (D.C. Cir. 1990)).
Here, there is no doubt as to the adequacy of USAO-EDVA’s search. In support of its
motion, the government submitted the declaration of Helms, who personally searched USAO-
EDVA’s database for records responsive to Richardson’s August 31, 2015 request. As the FOIA
coordinator for the Richmond office of USAO-EDVA, Helms had previously used and was
7
familiar with the LIONS electronic case management database. Helms Decl. ¶ 4. LIONS
maintains information on cases prosecuted by USAO-EDVA, but does not itself contain any
documents from a particular case. See id. Helms avers that therefore Richardson’s “physical case
file was the only location [in which] responsive records were likely to be found.” Id. Using
Richardson’s first and last name, Helms located his case number on LIONS and pulled the
corresponding physical case file from USAO-EDVA’s archives. Id. ¶¶ 4–5. She reviewed each
item in his physical file and identified police and ATF reports that were responsive to Richardson’s
FOIA request, but did not locate any recordings. Id. ¶ 5. Helms then “forwarded all potentially
responsive documents to EOUSA[].” Id. ¶ 6.
Helm’s declaration is sufficient to establish that USAO-EDVA conducted searches
reasonably calculated to return all relevant information. It describes USAO-EDVA’s LIONS
database and the information it contained, and explains why any documents responsive to
Richardson’s request would be in the physical file for his case. Id. ¶ 4. The affidavit also describes
Helm’s acquisition and review of the physical case file. Id. ¶ 5. The affidavit is reasonably
detailed, and the Court finds that it adequately describes USAO-EDVA’s search process.
Richardson fails to “offer evidence of circumstances sufficient to overcome [this] adequate
agency affidavit.” Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003).
Although he has alleged that EOUSA failed to disclose an incident report and recordings and
documents related to two dispatch calls, see Mot. to Compel at 1–2; Rule 26 Stmt. at 2, he does
not allege that USAO-EDVA “failed to search particular offices or files where the document[s]
might well have been found,” Iturralde, 315 F.3d at 315. USAO-EDVA could appropriately limit
its search to Richardson’s case file, where it was likely the responsive documents would be found.
See Porter, 788 F. Supp. 2d at 69. Richardson has offered neither any basis nor any evidence to
8
conclude that the search was inadequate or that the affidavit was submitted in bad faith.3
Therefore, the Court finds that USAO-EDVA’s search was reasonable.
II. ATF PROPERLY WITHHELD INFORMATION EXEMPTED FROM DISCLOSURE
A. Withholding Information Subject to Exemption § 552(b)(6) and (b)(7)(C)
The government has also established that it properly withheld records pursuant to 5 U.S.C.
§§ 552(b)(6) (“Exemption 6”) and (b)(7)(C) (“Exemption 7(C)”). 4 Exemption 6 applies to
“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). Exemption 7(C) protects against
the disclosure of “records or information compiled for law enforcement purposes” if such
disclosure “could reasonably be expected to constitute an unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(7)(C). Although the Exemptions differ in “the magnitude of the
public interest that is required to override the respective privacy interests protected by the
exemptions,” “the privacy inquiry for each is ‘essentially the same.’” Seized Prop. Recovery Corp.
v. U.S. Customs & Border Prot., 502 F. Supp. 2d 50, 56 (D.D.C. 2007) (emphasis and citations
omitted). Because Exemption 7(C) is “somewhat broader” than Exemption 6, “[if] the information
withheld here was ‘compiled for law enforcement purposes,’” the Court need not “consider
Exemption 6 separately because all information that would fall within the scope of Exemption 6
would also be immune from disclosure under Exemption 7(C).” Roth v. U.S. Dep’t of Justice, 642
F.3d 1161, 1173 (D.C. Cir. 2011).
3
Richardson avers that the produced documents were originally falsified by the Petersburg Police
Department and provided to ATF in the course of his criminal case. See Pl.’s Opp’n at 3. These allegations do not
bear on whether USAO-EDVA’s search for these documents was made and attested to in good faith. Moreover,
these allegations are premised on the fact that USAO-EDVA produced certain records which he claims are absent
from the Petersburg Police Department’s database—not that USAO-EDVA failed to produce responsive records that
it should have released. See id. at 4–5.
4
Richardson also sought records under the Privacy Act. Because, as described below, the Court finds that
the records here were properly withheld pursuant to FOIA exemptions, it will not address any exemptions that could
have theoretically been invoked under the Privacy Act.
9
In determining whether withholding the information is proper, a court must balance the
privacy interests in nondisclosure against the public interest in “shed[ding] light on an agency’s
performance of its statutory duties.” U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 773 (1989) (citation omitted). Information need not be particularly intimate
to merit protection. The exemption “has been construed broadly to cover essentially all
information sought from Government records that ‘appl[y] to a particular individual,’” Pinson v.
U.S. Dep’t of Justice, 202 F. Supp. 3d 86, 99 (D.D.C. 2016) (quoting U.S. Dep’t of State v. Wash.
Post Co., 456 U.S. 595, 602 (1982)), including “bits of personal information, such as names and
addresses,” that, if released, “would ‘create[ ] a palpable threat to privacy,’” Prison Legal News v.
Samuels, 787 F.3d 1142, 1147 (D.C. Cir. 2015) (citation omitted).
Where substantial privacy issues are present, to overcome the invoked exemption a plaintiff
“must show that the public interest sought to be advanced is a significant one,” and that “the
information is likely to advance that interest.” Nat’l Archives & Records Admin. v. Favish, 541
U.S. 157, 172 (2004). The only relevant public interest “is one that focuses on ‘the citizens’ right
to be informed about “what the government is up to.”’” Davis v. U.S. Dep’t of Justice, 968 F.2d
1276, 1282 (D.C. Cir. 1992) (citation omitted).
Here, the government has shown that the withheld information falls well within the ambit
of Exemption 7(C). ATF originally compiled the records in Richardson’s criminal case for law
enforcement purposes, thus satisfying the first requirement of Exemption 7(C). ATF redacted
from these records (1) the names of federal and local law enforcement agents and employees, as
well as information by which those individuals could be identified; (2) the names of third parties,
as well as information by which those individuals could be identified; and (3) information relating
10
to the serial numbers of handguns associated with the criminal investigation. See Vaughn Index
at 1–4; Chisholm Decl. ¶ 12. 5
Law enforcement personnel and third parties included in investigatory files have a well-
recognized and substantial privacy interest in withholding information about their identities. See,
e.g., Nation Magazine, Wash. Bureau v. United States Customs Serv., 71 F.3d 885, 894 (D.C. Cir.
1995); Jett v. FBI, 139 F. Supp. 3d 352, 360 (D.D.C. 2015). “Public identification of [law
enforcement personnel] could conceivably subject them to harassment and annoyance in the
conduct of their official duties and in their private lives.” Banks v. U.S. Dep’t of Justice, 813 F.
Supp. 2d 132, 144 (D.D.C. 2011) (citation omitted). Disclosure of the personal information of
third parties included in law enforcement records would pose similar risks. See Nation Magazine,
71 F.3d 885, 894 (noting third parties, witnesses, and informants mentioned in investigatory
reports have substantial privacy interests).
The disclosure of the names of individuals mentioned in law enforcement files is only
warranted if it serves a significant public interest. When, as here, “governmental misconduct is
alleged as the justification for disclosure, the public interest is ‘insubstantial’” unless there is
“compelling evidence that the agency denying the FOIA request is engaged in illegal activity” and
the information sought “is necessary in order to confirm or refute that evidence.” Davis, 968 F.2d
at 1282 (citation omitted). Such a showing requires “more than a bare suspicion” of official
misconduct: “the requester must produce evidence that would warrant a belief by a reasonable
person that the alleged Government impropriety might have occurred.” Nat’l Archives, 541 U.S.
at 174. Only when such evidence is produced “will there exist a counterweight on the FOIA scale
5
Richardson primarily challenges the withholding of the names of law enforcement personnel. See Rule
26 Stmt. at 2. Although he also objects to the redaction of “dates/times” in the reports, see id., the government has
not identified any dates or times that were in fact withheld, see Chishold Decl. ¶ 12.
11
for the court to balance against the cognizable privacy interests in the requested records.” Id. at
174–75.
Here, Richardson has failed to present “compelling evidence” that ATF is engaged in
misconduct. He primarily asserts that records were fraudulently created by the Petersburg Police
Department in the course of the investigation and prosecution of his criminal case. Pl.’s Opp’n at
3. To substantiate his assertion, he submits affidavits from individuals who state that they spoke
via telephone with personnel at the Petersburg Police Department regarding its files and that the
Department was unable to locate certain records. See Decl. of Latoya Flowers, Ex. D to Pl.’s
Opp’n [ECF No. 18-1] at 45; Decl. of Kenneth Allen, Ex. E to Pl.’s Opp’n [ECF No. 18-1] at 47.
But the Petersburg Police Department’s alleged failure to locate documents in response to an
informal request does not suggest that the produced records were fabricated. Moreover, the
allegations against the Petersburg Police Department are unrelated to the question of whether
ATF—the withholding agency here—is engaged in illegal activity. Richardson has not offered
any reason to believe ATF or local law enforcement mishandled discovery in his criminal case,
“and under circuit law a bald accusation to that effect does not persuade.” Oguanju v. United
States, 378 F. 3d. 1115, 1117 (D.C. Cir. 2004). Hence, the Court finds that the asserted individual
privacy interests outweigh any potential public interest, and the government is justified in
withholding the redacted information pursuant to Exemptions 6 and 7(C).
B. Segregability
Under FOIA, “even if [the] agency establishes an exemption, it must nonetheless disclose
all reasonably segregable, nonexempt portions of the requested record(s).” Roth, 642 F.3d at 1167
(citation omitted). “[I]t has long been the rule in this Circuit that non-exempt portions of a
document must be disclosed unless they are inextricably intertwined with exempt portions.”
12
Wilderness Soc’y v. U.S. Dep’t of Interior, 344 F. Supp. 2d 1, 18 (D.D.C. 2004) (emphasis
omitted) (quoting Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir.
1977)). Thus, an agency must provide “‘a detailed justification’ and not just ‘conclusory
statements’ to demonstrate that all reasonably segregable information has been released.” Valfells
v. CIA, 717 F. Supp. 2d 110, 120 (D.D.C. 2010) (citation omitted). The provision of an affidavit
attesting that the agency performed a review of the documents and a Vaughn index describing each
document satisfies FOIA's segregability requirement. See Loving v. Dep’t of Defense, 550 F.3d
32, 41 (D.C. Cir. 2008); Johnson v. Exec. Office for U.S. Att’ys, 310 F.3d 772, 776 (D.C. Cir.
2002) (finding “combination of Vaughn index and affidavits” describing the review process was
sufficient). “Agencies are entitled to a presumption that they complied with the obligation to
disclose reasonably segregable material,” which must be overcome by some “quantum of
evidence” from the requester. Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir.
2007).
ATF’s representation that it reviewed the responsive documents and deemed that all non-
exempt and segregable information was produced is sufficient to satisfy this standard. See
Chisolm Decl. ¶ 17. Here, defendants provided a Vaughn index describing the withheld
documents, as well as an affidavit asserting that the documents have been reviewed and “that no
additional information could be released and that all releasable information has been provided to
Mr. Richardson.” Id. ¶ 17; see also Vaughn Index. Richardson has not provided any basis to
question the good-faith presumption afforded to these representations. Moreover, much of the
disputed withheld information is names and identifying information, which is unlikely to contain
further segregable, releasable material. Hence, the Court concludes that the government has
satisfied its segregability obligations under FOIA.
13
III. REQUEST FOR IN CAMERA REVIEW & DEPOSITIONS
In furtherance of his allegations that the produced documents were “fabricated,” plaintiff
seeks an in camera review. Pl.’s Opp’n at 3–6, 11. He requests that the Court examine the records
for inconsistencies and compare documents disclosed by defendants with those available from the
Petersburg Police Department. Id. Plaintiff additionally argues that he should be permitted to
depose by written questions law enforcement personnel who were involved in his criminal case.
Id. at 3–4, 11; Amend. to Pl.’s Resp. to Defs.’ Reply in Supp. of its Mot. for Summ. J. [ECF No.
23] at 3.
The Court has “broad discretion” over whether to conduct an in camera inspection. ACLU
v. U.S. Dep’t of Defense, 628 F.3d 612, 626 (D.C. Cir. 2011) (citation omitted). In exercising this
discretion, the Court may consider factors such as (1) judicial economy; (2) the conclusory nature
of the agency affidavits; (3) possible bad faith on the part of the agency; (4) whether the agency
proposes in camera review; (5) disputes as to the actual contents of the document; and (6) the
strong public interest in disclosure. Id. at 1298–1300. Considering these factors, including the
reasonably detailed nature of the government’s declarations and the absence of any evidence of
bad faith by the government, the request for in camera review shall be denied. See id.
Richardson’s request for leave to take depositions must also be denied. “Discovery in
FOIA is rare and should be denied where an agency’s declarations are reasonably detailed,
submitted in good faith and the court is satisfied that no factual dispute remains.” Baker &
Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006) (citation omitted).
The Court is so satisfied. Moreover, Richardson has not requested to depose individuals who were
involved in the FOIA search and review process. Instead, the proposed depositions pertain to the
14
validity of Richardson’s underlying conviction—an issue well beyond the appropriate scope of
this FOIA action. The Court will therefore deny Richardson’s requests for discovery.
CONCLUSION
For the foregoing reasons, the Court concludes that the government has provided sufficient
factual detail to establish it conducted a reasonable and adequate search of its records for
documents responsive to plaintiff's FOIA and Privacy Act request, and that it properly withheld
all documents pursuant to the applicable FOIA exemptions. DOJ and EOUSA have also satisfied
the segregability requirement under FOIA. Accordingly, the Court will grant the government’s
motion for summary judgment. Richardson’s requests for in camera inspection and leave to take
depositions are denied. A separate Order has been issued on this date.
/s/
JOHN D. BATES
United States District Judge
Dated: September 27, 2018
15