Strunk v. U.S. Department of State ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
CHRISTOPHER EARL STRUNK, )
)
Plaintiff, )
)
v. ) Civil Action No. 08-2234 (RJL)
)
UNITED STATES DEPARTMENT )
OF STATE, et al., )
)
Defendants. )
--------------------------)
MEMORANDUM OPINION
March~l
Plaintiff brings this action under the Freedom oflnformation Act ("FOIA), see 5 U.S.C. §
552, seeking information from the United States Departments of State ("DOS") and Homeland
Security ("DHS") about Stanley Ann Dunham, President Obama's deceased mother. This matter
is before the Court on defendants' motion for summary judgment, and for the reasons discussed
below, the motion will be granted in part and denied in part without prejudice. 1
I. BACKGROUND
A. FOIA Requests to the State Department
1. Request No. 200806553
Plaintiff submitted a FOIA request to the DOS, Am. Compi. ~ 12, seeking the following:
The Court will grant defendants' motion for summary judgment with respect to
the DOS's response to plaintiffs FOIA request, and plaintiffs "Notice of Motion for an Order of
the Department of State to Release the FOIA Requested Information of Stanley-Ann Dunham"
will be denied.
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[I]nformation or records related to Stanley Ann Dunham born
November 29, 1942 at Fort Leavenworth KS. U.S.,a.k.a. Stanley Ann
Dunham Obama ... who died on November 7, 1995 under the name
Stanley Ann Dunham Soetoro (a.k.a. Sutoro) for any and or all exit
and entry records for travel outside ofthe USA for the period between
1960 through 1963.
Id., Ex. A (Letter to the DOS from plaintiff dated October 16, 2008). The DOS assigned the
request a control number, Request No. 200806553, and notified plaintiff that this information
likely would be maintained by the Bureau of Customs and Border Protection ("CBP"), a
component of the DHS. Mem. of Law in Supp. of Defs.' Mot. for Summ. J. ("Defs.' Mem."),
Decl. of Alex Galovich ("Galovich Decl.") ~ 5. The DOS provided plaintiff the address to which
he could submit a FOIA request directly to the CBP, and closed the matter. Id., Ex. 2 (Letter to
plaintiff from Patrick Scholl, Chief, Requester Communications Branch, DOS, dated January 12,
2009).
2. Request No. 200807238
Plaintiff submitted a separate request "electronic [ally] via the [State] Department's FOIA
website," Galovich Decl. ~ 6, for the following:
[D]ocuments on ... Stanley Ann Dunham, a/kIa Ann Dunham a/kIa
Stanley Ann Obama a/kJa Ann Obama a/kJa Stanley Ann Soetoro
a/kJa Ann Soetoro a/kJa Stanley Ann Sutoro a/kJa Ann Sutoro a/kIa
Stanley Ann Dunham Obama a/kIa Ann Dunham Obama, born
November 28, 1942 at Fort Leavenworth KS U.S., a.k.a. Stanley Ann
Dunham Obama and who died on November 7, 1995 under the name
Stanley Ann Dunham Soetoro (a.k.a. Sutoro)
Am. CompI., Ex. E (FOIA request dated November 22,2008, Ref. No. B8475).2 Specifically,
2 The Court already has resolved the portion ofplaintiffs FOIA request for records
pertaining to then-President-Elect Barack Obama. See Strunk v. Us. Dep't a/State, 693 F. Supp.
2d 112 (D.D.C. 2010).
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plaintiff sought:
a. applications for a u.s. Passport;
b. entry and exit passport Records pertaining to the United
States and Kenya from January 1, 1960 to December 31, 1975
and from January 1,1979 to December 31, 2005;
c. entry and exit passport records pertaining to the United States
and Indonesia from January 1,1960 to December 31,1973,
and from January 1,1979 to December 31,1985;
d. travel records . . . on aU. S. passport, Kenyan passport,
Indonesian passport, or any other foreign passport or visa;
e. foreign birth certificate registered or filed with the U.S.
Embassy in Kenya or Indonesia for Barack H. Obama;
f. foreign birth registry filed by Stanley Ann Dunham with the
U.S. Embassy in Kenya or Indonesia for Barack H. Obama;
and
g. adoption records or other government records acknowledging
Barack H. Obama as Lolo Soetoro's son.
See id at 1. "[A]n automated response acknowledging and summarizing Plaintiffs request was
E-mailed to [him]." Galovich Decl. ~ 7; see id, Ex. 3 (E-mail message to plaintiff dated
November 22, 2008).
Acknowledging that Ms. Dunham "is widely known as a matter of public record to be
deceased," Galovich Decl. ~ 9, the DOS "process[ed] the request for records in category (a) of
[plaintiffs FOIA] request under ... control number 200807238." Id; see id, Ex. 5 (Letter to
plaintiff from P. Scholl dated January 12,2009) at 1-2. A search of records maintained by the
Office of Passport Services located six documents, all of which were released to plaintiff in full.
Id. ~ 12. The "other aspects of his FOIA request were assigned case control number
200807272." Id ~ 10. Records responsive to categories (b), (c), and (d) ofplaintiffs request
"would be with the [DHS' s] Bureau of Customs and Border Protection or with the National
Archives," and the DOS provided plaintiff with addresses of those agencies. Id
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B. FOIA Request to the Department of Homeland Security
In a separate FOIA request to CBP, see Am. Compl. ~ 22, plaintiff sought the same
information as that listed in his request to the DOS, id, Ex. I (Letter to Mark Hanson, Director,
FOIA Division, CBP, from plaintiff dated December 23,2008) at 1-2. A search of the TECS
electronic database yielded "[o]ne page of responsive records for Stanley Ann Dunham." Defs.'
Mem., Decl. of Dorothy Pullo ("Pullo Decl.") ~ 6. After redacting certain information under
FOIA Exemptions 2 and 7(E), the CBP released the document to plaintiff. Id ~ 7; see id, Ex. A
(Letter to plaintiff from M. Hanson dated February 3, 2009).
II. DISCUSSION
A. Summary Judgment in a FOIA Case
"[T]he court may ... grant summary judgment if the motion and supporting materials -
including the facts considered undisputed - show that the movant is entitled to it." FED. R. CIV.
P.56(e). The moving party bears the burden of demonstrating the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[A] material fact is 'genuine'
... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party"
on an element of the claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Factual
assertions in the moving party's affidavits or declarations may be accepted as true unless the
opposing party submits his own affidavits, declarations or documentary evidence to the contrary.
Neal v. Kelly, 963 F.2d 453,456 (D.C. Cir. 1992).
In a FOIA case, the Court may grant summary judgment based solely on information
provided in an agency's affidavits or declarations if they are relatively detailed and when they
describe "the documents and the justifications for nondisclosure with reasonably specific detail,
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demonstrate that the information withheld logically falls within the claimed exemption, and are
not controverted by either contrary evidence in the record nor by evidence of agency bad faith."
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or
declarations are accorded "a presumption of good faith, which cannot be rebutted by 'purely
speculative claims about the existence and discoverability of other documents. '" SafeCard
Servs., Inc. v. Sec. & Exch. Comm 'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground
Saucer Watch, Inc. v. Cent. Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).
B. Searches for Records Responsive to Plaintiff's FOIA Requests
"An agency fulfills its obligations under FOIA if it can demonstrate beyond material
doubt that its search was 'reasonably calculated to uncover all relevant documents. ,,, Valencia-
Lucena v. Us. Coast Guard, 180 F.3d 321,325 (D.C. Cir. 1999) (quoting Truitt v. Dep't of
State, 897 F.2d 540,542 (D.C. Cir. 1990)); Campbell v. us. Dep't ofJustice, 164 F.3d 20,27
(D.C. Cir. 1998) (FOIA requires agency to conduct search using methods reasonably expected to
produce requested information). The agency bears the burden of showing that its search was
calculated to uncover all relevant documents. Steinberg v. Us. Dep 't ofJustice, 23 F.3d 548,
551 (D.C. Cir. 1994). To meet its burden, the agency may submit affidavits or declarations that
explain in reasonable detail the scope and method of the agency's search. Perry v. Block, 684
F.2d 121, 126 (D.C. Cir. 1982). In the absence of contrary evidence, such affidavits or
declarations are sufficient to demonstrate an agency's compliance with the FOIA. Id. at 127. If
the record "leaves substantial doubt as to the sufficiency of the search, summary judgment for the
agency is not proper." Truitt, 897 F.2d at 542.
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1. State Department
The DOS's Office of Information Programs and Services ("IPS") responds to FOIA
requests. Galovich Decl. `` 1-2. Upon receipt of a FOIA request, IPS staff "evaluate[] the
request and determine[] which offices, overseas posts, or other records systems ... may
reasonably be expected to contain" responsive records. Id ~ 13. The "description of the records
requested ... [and] the nature, scope, and complexity of the request" are considered in
determining whether or where responsive records might be maintained. Id
With respect to plaintiffs Request No. 200807238 for Ms. Dunham's passport
applications, IPS staff "determined that the Office of Passport Services would be the only office
that would reasonably be expected to maintain the records requested" because "Passport Services
is charged with issuing passports to U.S. citizens." Id ~ 14. Its Passport Information Electronic
Records System ("PIERS") is an electronic database containing "the records of some 144 million
passports that have been issued from 1978 to the present." Id The DOS "also maintains paper
records of some passport applications." Id Using variations of Ms. Dunham's name, including
those variations plaintiff supplied in his FOIA request, IPS staff searched both PIERS and paper
records. Id ~ 15. The search yielded six responsive passport records, id, all of which were
released to plaintiff in full, id, Ex. J (Letter to plaintiff from Jonathan M. Rolbin, Director,
Office of Legal Affairs and Law Enforcement Liaison, Bureau of Consular Affairs, Passport
Services, dated July 29,2010). The records themselves were not submitted with the agency's
declaration. 3 However, the DOS's response to plaintiffs FOIA request indicated that "a 1965
3 It appears that the DOS released 12 pages of records, copies of which plaintiff
submits in his opposition as attachments to the Jacobsen Affidavit. See Pl.'s Decl. in Opp'n to
(continued ... )
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passport application referenced in an application for amendment of passport that is included in
the released documents" was not located, likely because "[m]any passport applications ... from
that period were destroyed during the 1980s in accordance with guidance from the General
Services Administration." Id, Ex. J at 1. In addition, it was explained that "passport records
typically consist of applications for United States passports and supporting evidence of United
States citizenship," and therefore they "do not include evidence oftravel such as entrance/exit
stamps, visas, residence permits, etc., since this information is entered into the passport book
after issuance." Galovich Decl. ~ 12; see id, Ex. J at 1.
Plaintiff responds with the affidavit of Philip Hans Jacobsen, whose FOIA request for
passport records about his deceased mother "dated from May 26, 1953 through October 28, 1985
... generally coincide[ s] with the same time frame of Plaintiff[']s request[] of Stanley Ann
Dunham." Pl.'s Decl. in Opp'n to Def.'s Mot. for Summ. J. to Dismiss [Dkt. #39] (" Strunk
Decl.") ~ 4; see id, Ex. 1 (Jacobsen Aff.) `` 8-10. The DOS apparently searched records "from
1945 to present" and located five documents pertaining to Mr. Jacobsen's mother, including
passport applications from 1953, 1956, 1957 and 1985, and applications for amendment of a
passport from 1957. Id, Jacobsen Aff., Ex. B (Letter from Marionette Pleasant, Team Leader,
Law Enforcement Liaison Division, Office of Legal Affairs, Passport Services, dated January 25,
2010). From Mr. Jacobsen's review of the DOS and the National Archives and Records
Administration websites and the Federal Register, see Jacobsen Aff. `` 16-19, he concludes that
"the U.S. Government either at the DOS, or the ... Washington National Records Center,
\ .. continued)
Def.'s Mot. for Summ. 1. to Dismiss [Dkt. #39], Ex. 1 (Jacobsen Aff. and Letter to plaintiff from
J.M. Rolbin dated July 29,2010 with attachments).
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Suitland, Maryland[,] must maintain passport applications and related records for 100 years," id.~ 21. Mr. Jacobsen further concludes that the government maintains paper records of passport
issuances from 1909 to 1978, and "an electronic index of all passport application records created
since 1978 and some passport application records from 1962 to 1978." Id.Relying on this affidavit, plaintiff contends that Mr. Jacobsen's success in obtaining
records about his mother, which had been generated during the same time period as Ms.
Dunham's records, "conflicts with the [DOS's] allegations and partial provision of records."
Strunk Decl. ~ 9. According to plaintiff, defendants' agents "have not made a good faith effort to
search for and disclose records" responsive to his request and "have spoliated records associated
with the commission of high crimes and misdemeanors" committed by Barack Hussein Obama
and others, resulting in Obama's "having taken the oath of office to uphold the U.S. Constitution
and protect the [U]nited States of America and the People against all enemies foreign or
domestic ... who at birth has multiple allegiances simultaneously to Great Britain and Kenya ...
and ... is an Indonesian Citizen." Id. ~ 2.
Next, plaintiff attacks the DOS's suggestion that responsive records may have been
destroyed pursuant to a GSA directive. Plaintiff notes that the DOS provided no authority for the
alleged destruction of responsive records, an index or chain of custody for such documents, or
confirmation that such documents were indeed destroyed. Strunk Dec!. `` 10, 30; see generally
P!"s Second Supp. Dec!. in Opp'n to Def.'s Mot. for Summ. J. to Dismiss [Dkt. #40]; see id., Ex.
11 (Richardson Aff.) `` 15,18. In support of his argument, plaintiff submits the declaration of
William A. Richardson, who describes himself as "a business system quality manager." Id.,Richardson Aff. ~ 3. According to Mr. Richardson, "the GSA has Never, Ever, issued a directive
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to the [DOS] on record retentions to US citizens." Id. ~ 15. 4 Based on Mr. Richardson's
findings, plaintiff contends that individuals conspired to "break[] ... into the [DOS's] passport
database to effect spoliation of documents in criminal violation oflaw," Strunk Decl. ~ 14, such
that government officials are "withhold[ing] facts essential ... for proving that [Obama] is not a
natural-born citizen [of the United States]," id. ~ 18. 5 Further, plaintiff accuses the DOS of
"being disingenuous with the Court in bad faith," id. ~ 29, and he "will not believe the records
were somehow eaten by the dog without the DOS provision of proof that the GSA backed up a
forklift to put them into a dumpster," id. ~ 30.
Plaintiff s opinion and speculation as to the existence or wrongful destruction of
responsive records are not relevant considerations in this FOIA action. "The adequacy of an
agency's search is measured by a standard of reasonableness, and is dependent upon the
circumstances of the case." Weisberg v. Us. Dep't a/Justice, 705 F.2d 1344, 1351 (D.C. Cir.
1983) (internal citations and quotation marks omitted). It is "determined not by the fruits of the
search, but by the appropriateness of the methods used to carry out the search." Iturralde v.
Comptroller a/Currency, 315 F.3d 311,315 (D.C. Cir. 2003)(citing Steinberg, 23 F.3d at 551).
4 It appears that one page ofMr. Richardson's affidavit, which presumably sets
forth paragraphs 8 through 13, is missing.
Plaintiff also recounts the efforts of another FOIA requester who sought Ms.
Dunham's passport records for the period from January 1, 1959 through December 31, 1962, and
the denial of her request for expeditious handling of the request. Pl.'s Supp. Dec!. in Opp'n to
Def.'s Mot. for Summ. J. to Dismiss [Dkt. #41] ~ 3. Apparently plaintiff believes that
expeditious handling of that individual's request is essential because Obama's presidency is itself
a "grave matter of national security." Id. ~ 2. Indeed, he claims that Ms. Dunham's
"whereabouts ... is crucial as a matter of law," because it determines whether President Obama
is a United States citizen. Id. ~ 26.
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"The [mere] fact that a particular document was not found does not demonstrate the inadequacy
of a search." Boyd v. Criminal Div. o/US. Dep't 0/Justice, 475 F.3d 381, 391 (D.C. Cir.)
(citations omitted), cert. denied, 552 U.S. 1007 (2007). Plaintiff s "assertion that an adequate
search would have yielded more documents is mere speculation." Baker & Hostetler LLP v. Us.
Dep't o/Commerce, 473 F.3d 312,318 (D.C. Cir. 2006).
The DOS establishes that it looked for responsive records in the systems of records most
likely to contain Ms. Dunham's passport applications, using several variations of the subject's
name as search terms, for the time period set forth in plaintiff s request. Its failure to locate a
document to which another responsive record referred does not render its search inadequate. No
agency is required to produce records that it does not possess. See Rothschild v. Dep't 0/ Energy,
6 F. Supp. 2d 38, 40 (D.D.C. 1998) (concluding that plaintiff who identified two responsive
documents which may be in the agency's possession but were not released merely "demonstrates
that the government's search was not perfect," however "[p]erfection ... is not the standard");
Jones v. Fed Bureau o/Investigation, 41 F.3d 238,249 (6th Cir. 1994) (finding that the court
cannot order an agency "to make amends for any documents destroyed prior to the request").
The Court concludes that the DOS has conducted a reasonable and adequate search for
responsive records, notwithstanding the agency's lack of success in locating the particular
documents plaintiff sought. Accordingly, defendants' motion will be granted in part with respect
to plaintiffs FOIA request to the DOS.
2. Customs and Border Protection
The CBP uses the TECS electronic database to "conduct enforcement checks on
individuals seeking to enter or depart the United States." Defs.' Mem., Pullo Decl. ~ 6. "TECS
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includes combined databases of over 20 federal agencies," and since January 1982, TECS has
captured "traveler arrivals and departures into and out of the United States." Id. Paper records
predating TECS "no longer exist and are no longer archived." Id.Because TECS maintains arrival and departure records, it was considered "the system ...
mostly likely to have entry and exit data pertaining to Ms. Dunham." Id. "Working with the
CBP Office of Chief Counsel, the FOIA Division conducted a search in the TECS database," and
that search yielded "[0 ]ne page of responsive records for Stanley Ann Dunham." Id. This
cursory description of the CBP's search provides no basis from which the Court can determine
whether the search was adequate under the circumstances. See Schoenman v. Fed. Bureau of
Investigation, No. 04-2202,2009 WL 763065, at *15 (D.D.C. Mar. 19,2009) (finding that
agency's search was inadequate where the declarant "fails to include sufficient reasonable detail
as to the specific search conducted in response to Plaintiffs FOIA[] Request"); Prison Legal
News v. Lappin, 603 F. Supp. 2d 124, 126-27 (D.D.C. 2009) (noting supporting affidavit's
failure to "outline the search methods undertaken ... , who would have conducted the searches,
and ... how [the affiant] is personally aware of the search procedures or that he knows they were
followed by each of the [Federal Bureau ofPrisons']s entities tasked with responding to this
request"). Accordingly, the defendants' motion will be denied in part without prejudice, and the
Court will set a schedule for the filing of a renewed motion. See McKinley v. Fed. Deposit Ins.
Corp., No. 10-420,2010 WL 5209337 (D.D.C. Dec. 23, 2010) (inviting the agency to "either (1)
conduct a new search (or searches) for the records sought by the plaintiff to ensure the search is
adequate consistent with governing caselaw; or (2) provide the Court with declarations from
which the Court can find that the declarants have personal knowledge that the search
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methodology, procedures, and searches actually conducted were reasonably designed to locate
documents responsive to plaintiffs requests").
III. CONCLUSION
The State Department has demonstrated its full compliance with the FOIA. Its declarant
describes a search for records responsive to plaintiffs FOIA request that was reasonable under
the circumstances, and that the records it located have been released to plaintiff in full.
Plaintiff s speculation as to the existence of additional records and collusion or bad faith among
government officials to wrongfully withhold or destroy responsive records is not sufficient to
rebut the presumption of good faith accorded to DOS's supporting declaration. For these
reasons, the defendants' motion for summary judgment is GRANTED IN PART. However,
because the CBP has not demonstrated that its search for responsive records was adequate,
defendants' motion will be DENIED IN PART without prejudice. The Court defers
consideration of the CBP's decision to withhold records under Exemptions 2 and 7(E) and
segregability. An Order is issued separately.
Q"
Rl``
United States District Judge
DATE:
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