Sandy v. Executive Office of the United States Attorneys , 170 F. Supp. 3d 186 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
KESTER SANDY, )
)
Plaintiff, )
)
v. ) Civil Action No. 15-0628 (CKK)
)
EXECUTIVE OFFICE FOR )
UNITED STATES ATTORNEYS, )
)
Defendant. )
___________________________________ )
MEMORANDUM OPINION
This matter is before the Court on the parties’ cross-motions for summary judgment [ECF
Nos. 14 and 16]. For the reasons discussed below, the Court will enter judgment for the
defendant.
I. BACKGROUND
Plaintiff, a prisoner who is currently incarcerated at the Coxsackie Correctional Facility
in New York, brings this action under the Freedom of Information Act (“FOIA”), see 5 U.S.C. §
552, against the Executive Office for United States Attorneys (“EOUSA”), a component of the
United States Department of Justice (“DOJ”). See Compl. ¶¶ 1, 4-6.
In August 2013, plaintiff submitted a FOIA request to the United States Attorney’s Office
for the Eastern District of Pennsylvania (“USAO/EDPA”), id. ¶ 7, for the following information:
Special Assistant US Attorney Lisa R. Cipoletti[’s] proof of
appointment, oath of office for such title, when she was appointed
such title, was she appointed in the year of 2004 and who appointed
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her such title and was she acting under the direction and supervision
of the U.S. Attorney during the above said year, particularly 04-cr-
324TJS U.S. v. Sandy; and any further information
Id., Ex. A (Freedom of Information Request dated August 12, 2013). The request was forwarded
to the EOUSA’s Freedom of Information Act Unit in Washington, D.C. for processing. Id. ¶ 8;
see id., Ex. B (Letter to plaintiff from Susan Falken, FOIA Contact, EDPA, dated August 21,
2013). The EOUSA acknowledged receipt of plaintiff’s request, which was assigned Request
No. 13-3142. 1 Id. ¶ 9; see id., Ex. C (Letter to plaintiff from Susan B. Gerson, Assistant
Director, Freedom of Information & Privacy Staff, EOUSA, dated September 12, 2013).
A search of EOUSA personnel records produced no information about Ms. Cipoletti.
Def.’s Mem. of P. & A. in Support of its Mot. for Summ. J. [ECF No. 14-1] (“Def.’s Mem.”),
Ex. A (“Richardson Decl.”) ¶ 11. Although the EOUSA was notified of this result by email on
January 29, 2014, Richardson Decl. ¶ 12, plaintiff was not informed of this “no records” result
until May 22, 2015, see Def.’s Mem., Ex. K (Letter to plaintiff from Susan B. Gerson dated May
22, 2015) at 1.
Meanwhile, and in error, the EOUSA notified plaintiff that it denied his request in full,
id. ¶ 9, relying on Exemptions 6 and 7(C), id., Ex. H (Letter to plaintiff from Susan B. Gerson
dated June 30, 2014) at 1. Plaintiff appealed the EOUSA’s determination administratively to the
DOJ’s Office of Information Policy (“OIP”). Id. ¶ 10. OIP affirmed “on partly modified
grounds,” that is, relying on Exemption 6 alone. Id., Ex. L (Letter to plaintiff from Matthew
Hurd, Senior Attorney, Administrative Appeals Staff, dated March 6, 2015) at 1.
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The EOUSA later assigned the request a new tracking number, FOIA-2014-02861. See Compl. ¶ 9.
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After plaintiff initiated this lawsuit, staff reviewed the EOUSA’s files and “discovered
that on January 29, 2014, it received a notification from the [United States Attorney’s Office for
the Eastern District of Pennsylvania] that the [office] no longer employed . . . Cipoletti and it no
longer possessed records related to her oath.” Def.’s Mem., Ex. J (Motion for Extension of Time
to Respond to Plaintiff’s Complaint, Sandy v. Exec. Office of United States Attorneys, No. 15-cv-
628 (D.D.C. filed May 29, 2015)) at 2. On the belief that Ms. Cipoletti had been an Assistant
United States Attorney, plaintiff was informed that responsive records had been transferred to the
General Service Administration’s National Personnel Records Center (“NPRC”). See id., Ex. J.
at 2.
Plaintiff submitted a FOIA request to the NPRC, see Notice of Motion [ECF No. 16]
(“Pl.’s Mot. for Summ. J.”) at 4 (page numbers designated by ECF); see id., Ex. (Freedom of
Information Request dated August 10, 2015). 2 NPRC informed plaintiff that he should submit
his request directly to the subject’s last or current employing agency. Id., Ex. (Returned Request
Form).
Counsel for defendant explains that Ms. Cipoletti was not a federal government
employee; at the time of plaintiff’s criminal prosecution in the Eastern District of Pennsylvania,
she “was ‘cross-designated’ as a [Special Assistant United States Attorney] under the Project
Safe Neighborhoods Initiative while simultaneously holding the position of Assistant District
Attorney employed with the Lehigh County District Attorney’s Office.” Reply to Pl.’s Opp’n to
Defs.’ Mot. for Summ. J. [ECF No. 17] at 4. Counsel further explains that the EOUSA would
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The Court construes plaintiff’s “Notice of Motion” as his cross-motion for summary judgment.
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not have maintained a personnel file for Ms. Cipoletti, and the personnel file “is the most likely
location for information responsive to [p]laintiff’s FOIA request.” Id.Plaintiff emphasizes that he seeks Ms. “Cipoletti’s oath of office, etc., which is public
information,” but not personal information about her. Compl. ¶ 15. He demands release of the
records he requested, among other relief. See id. at 4 (page number designated by ECF); Pl.’s
Mot. for Summ. J. at 4.
II. DISCUSSION
A. Summary Judgment in a FOIA Case
“FOIA cases are typically and appropriately decided on motions for summary judgment.”
Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009). On a motion for summary judgment, the
Court generally “must view the evidence in the light most favorable to the nonmoving party,
draw all reasonable inferences in his favor, and eschew making credibility determinations or
weighing the evidence.” Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir. 2008); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Ordinarily, where the agency
moves for summary judgment, it must identify materials in the record to demonstrate the absence
of any genuine issue of material fact. See Fed. R. Civ. P. 56(c)(1). Plaintiff as the non-moving
party then must point to specific facts in the record to show that there remains a genuine issue
that is suitable for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
B. The EOUSA’s Search for Responsive Records
“A requester dissatisfied with the agency’s response that no records have been found
may challenge the adequacy of the agency’s search by filing a lawsuit in the district court after
exhausting any administrative remedies.” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321,
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326 (D.C. Cir. 1999) (citations omitted). In this circumstance “[t]he Court applies a
reasonableness test to determine the adequacy of search methodology . . . consistent with the
congressional intent tilting in favor of disclosure.” Campbell v. U.S. Dep’t of Justice, 164 F.3d
20, 27 (D.C. Cir. 1998) (citations and internal quotation marks omitted). An agency “fulfills its
obligations under [the] FOIA if it can demonstrate beyond material doubt that its search was
reasonably calculated to uncover all relevant documents.” Ancient Coin Collectors Guild v. U.S.
Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (citations and internal quotation marks
omitted). The agency may submit affidavits or declarations to explain the method and scope of
its search, see Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982), and 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, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks and citation
omitted). However, if the record “leaves substantial doubt as to the sufficiency of the search,
summary judgment for the agency is not proper.” Truitt v. Dep’t of State, 897 F.2d 540, 542
(D.C. Cir. 1990).
The EOUSA’s declarant identifies herself as an Administrative Services Assistant who
“serve[s] as a liaison to the FOIA/PA staff for the [EOUSA] in Washington, D.C. Richardson
Decl. ¶¶ 1-2. In this capacity, she has access to “records maintained by or located on the
Electronic Official Personnel Folders (eOPF) system.” Id. ¶ 3. “The eOPF provides electronic,
web-enabled access for all Federal agency personnel to view and manage employment
documents.” Id. ¶ 9.
The declarant searched eOPF using Ms. Cipoletti’s name as a search term. Id. ¶¶ 8-9.
She also searched “Microsoft Outlook Office, Global Address Book, [and] Global Address
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Listings,” described as “a database within the Microsoft Exchange Server account . . .
contain[ing] the names and email addresses . . . of every employee within DOJ.” Id. ¶ 10. “The
searches did not produce any records related to Ms. Cipoletti.” Id. ¶ 11. According to the
declarant, “[a]ll systems of records located within eOPF [deemed] likely to contain records
responsive to [p]laintiff’s [FOIA] request have been searched.” Id. ¶ 13. Further, she stated, she
is “not aware of any other locations within EOUSA” where potentially responsive records “are
likely to be located,” or “of any other method or means by which a further search could be
conducted that would likely uncover additional responsive records.” Id. ¶ 14.
Plaintiff responds by referring to the NPRC’s response to his FOIA request, namely its
instruction “to submit [his] request to the last or current employing agency.” Pl.’s Mot. for
Summ. J. ¶ 13. 3 “NPRC never had . . . information” about Ms. Cipoletti, id. ¶ 14, and he asserts
that “EOUSA and/or [the United States Attorney’s Office for the Eastern District of
Pennsylvania] should have Ms. Cipoletti’s information[.]” Id. ¶ 14.
“[T]he issue to be resolved is not whether there might exist any other documents possibly
responsive to the request, but rather whether the search for those documents was adequate.”
Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983) (citing Perry, 684 F.2d
at 128). Here, the EOUSA’s declarant indicates “which files were searched, by whom those files
were searched, and . . . a systematic approach to document location.” Toensing v. U.S. Dep’t of
Justice, 890 F. Supp. 2d 121, 142 (D.D.C. 2012) (quoting Weisberg v. U.S. Dep’t of Justice, 627
F.2d 365, 371 (D.C. Cir. 1980)) (internal quotation marks omitted). The EOUSA’s supporting
declaration is “accorded a presumption of good faith,” SafeCard Servs., 926 F.2d at 1200, and
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Any further inquiry about Ms. Cipoletti should be directed to the Lehigh County District Attorney’s Office, not to
a federal agency.
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plaintiff can overcome it only by supplying evidence of bad faith, see Elec. Privacy Info. Ctr. v.
Dep’t of Homeland Sec., 384 F. Supp. 2d 100, 107 (D.D.C. 2005). Here, plaintiff offers “purely
speculative claims about the existence and discoverability of other documents,” SafeCard Servs.,
926 F.2d at 1200 (internal quotation marks and citation omitted), and “the fact that a particular
document was not found does not demonstrate the inadequacy of a search.” Boyd v. Criminal
Div. of U.S. Dep’t of Justice, 475 F.3d 381, 391 (D.C. Cir. 2007) (citations omitted).
III. CONCLUSION
The Court concludes that the EOUSA conducted a search reasonably calculated to locate
records responsive to plaintiff’s FOIA request. Even though it located no responsive records, the
EOUSA demonstrates not only compliance with its obligations under the FOIA, but also
entitlement to a judgment in its favor. Accordingly, the Court will grant defendant’s motion for
summary judgment and deny plaintiff’s cross-motion. An Order is issued separately.
/s/
DATE: March 18, 2016 COLLEEN KOLLAR KOTELLY
United States District Court Judge
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