Whitmore v. United States Department of Justice Executive Office for United States Attorneys

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
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TORENDA WHITMORE, )
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Plaintiff, )
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v. ) Civil Action No. 14-986 (RBW)
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U.S. DEPARTMENT OF JUSTICE, et al., )
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Defendants. )
___________________________________ )
MEMORANDUM OPINION
This matter is before the Court on the Defendants’ Motion for Summary Judgment
[ECF No. 13]. For the reasons discussed below, the motion will be granted.
I. BACKGROUND
In the United States District Court for the Southern District of Mississippi, the plaintiff
was tried and found guilty of the kidnapping of Byron Kelsey McCoy and Rahman Anderson
Mogilles. See Complaint Under the Freedom of Information Act (“Compl.”) at 1-2. On
September 26, 2009, that court imposed a sentence of life imprisonment. See id. However, her
sentence was modified on July 12, 2011, id. at 2, and the plaintiff now is serving a 292-month
term of imprisonment. Id.
The plaintiff submitted the following initial request to the Executive Office for United
States Attorneys (“EOUSA”) for certain information pertaining to her criminal case:
1. Plea Agreement for Whitmore prepared on April 15, 2009[,] from
[Assistant United States Attorney] AUSA Golden ([Document] 250
[at] p.3)
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2. Any and all other Pleas prepared for Whitmore from [the]
AUSA[’s] Office given to Whitmore’s counsel, including letters
about the plea ([Document] 240-2)
3. Police Records from Jackson County[, Mississippi,] in regards to
the arrest of Torenda Whitmore, Eddie Pugh, [and] Barron Borden
on October 8, 2008, including but not limited to [Exhibit] D-6
([Document] 192 [at] p. 28).
4. Audio Recordings for interviews conducted by [the] Federal
Bureau of Investigation[] in listening format such as MP3 for
Torenda Whitmore, James Pugh, Barron Borden, and Ramone
Mogilles, along with written transcripts.
5. Gas receipt from the Chevron Station in Long Beach, Mississippi,
Government Exhibit 76. ([Document] 186 [at] p. 229).
6. Any and all evidence associated with the Chevron Gas Station
obtained by the Federal Bureau of Investigation or any other Police,
Sherriff’s [sic] Office, [the Bureau of Alcohol, Tobacco, Firearms
and Explosives], or other agency local or federal. Including any
video or audios, interviews, and names of witnesses and [the] owner
of the Chevron Gas Station to verify video footage provided to any
police [officer] or agency.
7. Any and all email communication[s] regarding investigation of
this criminal case between [the] Federal Bureau of Investigation and
any other police [officer] or agency.
Id., Ex. (Freedom of Information Request dated July 3, 2013) at 1-2. The EOUSA assigned the
matter a tracking number, Request Number 13-2519. Defendant[s’] Memorandum of Points and
Authorities in Support of its Motion for Summary Judgment (“Defs.’ Mem.”), Declaration of
John F. Boseker (“Boseker Decl.”); id., Exhibit (“Ex.”) D (Letter to the plaintiff from Susan B.
Gerson dated July 30, 2013). The plaintiff’s subsequent inquiry as to the status of her request,
see Boseker Decl., Ex. E (Freedom of Information Request dated January 14, 2014), was treated
as if it were a new request, and was assigned a new tracking number, Request Number FOIA-
2014-01406, id., Ex. F (Letter to the plaintiff from Susan B. Gerson dated March 11, 2014).
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Only during this litigation did the EOUSA staff discover that Request Numbers 13-
2519 and FOIA-2014-01406 were similar requests. Id. ¶ 12. “Moreover, it was discovered that
the [United States Attorney’s Office for the Southern District of Mississippi (“USAO/SDMS”)]
actually had responded to EOUSA [Request Number 13-2519] through an EOUSA FOIA system
e-mail portal on or about September 16, 2013.” Id. Yet “[f]or reasons unknown this response
was not received by [the] EOUSA FOIA and therefore had not been united with the 2013 FOIA
file for processing.” Id. Further complicating matters, the processing of the plaintiff’s FOIA
request took place not only during a government shutdown in 2013, but also while the “EOUSA
FOIA was transitioning to a computerized system (‘Access Pro’).” Id. Access Pro assigned
2014 numbers to 2013 cases in error, and presumably this error occurred in the plaintiff’s case.
Id.
A paralegal specialist at the USAO/SDMS conducted a search of the case tracking
system (“LIONS”) using the plaintiff’s name as a search term. Defs.’ Mem., Declaration of
Elisa G. Skinner (“Skinner Decl.”) ¶¶ 1, 5. The search yielded twelve pages of records, four of
which were redacted by withholding only the identities of special agents and the direct telephone
number of the prosecutor under FOIA Exemption 7(C). Boseker Decl. ¶¶ 13, 18; see id.,
Attachment (“Attach.”) H. Because the criminal case file had been “stripped” on February 14,
2011, no records responsive to items 2-4 of the plaintiff’s request were found. Skinner Decl. ¶¶
6-7, 13; Boseker Decl. ¶ 13. Lastly, the EOUSA “advised [the plaintiff] to write directly to the
named law enforcement entities in her request to obtain the records identified to them.” Boseker
Decl. ¶ 13; see id., Ex. G (Letter to plaintiff from Susan B. Gerson, Assistant Director, Freedom
of Information & Privacy Staff, EOUSA, dated July 30, 2014) at 2.
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The plaintiff asks this Court to “[o]rder that defendants promptly release all materials
requested . . . , specifically items 1-7,” in addition to “a Vaughn Index.” Compl. at 8. 1
II. DISCUSSION
A. Summary Judgment in a FOIA Case
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citation
omitted). Courts will grant summary judgment to an agency as the movant if it shows that there
is no genuine dispute as to any material fact and if the agency is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a). More specifically, in a FOIA action to compel production of
agency records, the agency “is entitled to summary judgment if no material facts are in dispute
and if it demonstrates ‘that each document that falls within the class requested either has been
produced . . . or is wholly exempt from the [FOIA’s] inspection requirements.’” Students
Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. CIA,
607 F.2d 339, 352 (D.C. Cir. 1978)).
Summary judgment in a FOIA case may be based solely on information provided in an
agency’s supporting affidavits or declarations if they are “relatively detailed and non-
conclusory,” Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal
quotations and citations omitted), and when they
[d]escribe the documents and the justifications for nondisclosure
with reasonably specific detail, demonstrate that the information
withheld logically falls within the claimed exemption, and are not
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Generally, neither a requester’s identity nor the intended use of the requested records is relevant in a FOIA case.
See, e.g., North v. Walsh, 881 F.2d 1088, 1096 (D.C. Cir. 1989). Although the plaintiff asserts that “the documents
she is requesting will help prove her innocence,” Compl. at 3, the Court will not address the plaintiff’s FOIA request
from that perspective, see Dugan v. DOJ, __ F. Supp. 3d __, __, 2015 WL 1090323, at *5 (D.D.C. Mar. 12, 2015)
(declining to “address plaintiff’s arguments concerning his criminal prosecution or his purported innocence”).
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controverted by either contrary evidence in the record [or] by
evidence of agency bad faith.
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). “To successfully challenge
an agency’s showing that it complied with the FOIA, the plaintiff must come forward with
‘specific facts’ demonstrating that there is a genuine issue with respect to whether the agency has
improperly withheld extant agency records.” Span v. DOJ, 696 F. Supp. 2d 113, 119 (D.D.C.
2010) (quoting DOJ v. Tax Analysts, 492 U.S. 136, 142 (1989)).
B. The USAO/SDMS Conducted a Reasonable Search for Responsive Records
“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. DOJ, 705 F.2d 1344, 1351 (D.C.
Cir. 1983) (internal quotation marks and citations omitted). 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.” Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641
F.3d 504, 514 (D.C. Cir. 2011) (internal quotation marks and citations omitted). A search need
not be exhaustive. See Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1383 (8th Cir. 1995). As
long as the agency conducts a reasonable search, it fulfills its obligations under the FOIA even if
the search yields no responsive records. See Iturralde v. Comptroller of the Currency, 315 F.3d
311, 315 (D.C. Cir. 2003) (stating that “the failure of an agency to turn up one specific document
in its search does not alone render a search inadequate”).
To meet its burden, the agency may submit affidavits or declarations that explain in
reasonable detail the scope and method of its 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
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demonstrate an agency’s compliance with the FOIA. Id. at 127. If, on the other hand, the record
“leaves substantial doubt as to the sufficiency of the search, [then] summary judgment for the
agency is not proper.” Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990); see also
Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999).
The declarant’s search for records responsive to the plaintiff’s FOIA request began with a
query of LIONS, the case tracking system, under the plaintiff’s name. Skinner Decl. ¶ 5. This
search disclosed that the plaintiff “was a co-defendant prosecuted by the [USAO/SDMS] in
United States District Court Case No. 1:08cr00130, USAO Case No. 2008R00796, and Case No.
1:11cv423WJG, LIONS 2011V00395.” Id. At that point, the declarant notified the Assistant
United States Attorney to whom the case had been assigned and a paralegal, whose offices were
“in the Gulfport branch of the Southern Division of Mississippi, United States Attorney’s
Office,” that a FOIA request had been made and that, “until . . . notified to the contrary, nothing,
either electronic or physical, may be destroyed.” Id. In response, the paralegal sent the declarant
files pertaining to the plaintiff. Id. The declarant “copied the file jackets of the criminal case
file, 1:08cr00130 WJG, LIONS 2008R0079; the appeal case file, 09-60400, LIONS
2008R00796; and the civil case file, 1:11cv423WJG, LIONS 2011V00395,” and copied
“discovery correspondence and correspondence from AUSA Jay Golden to James L. Davis III,
Esq., dated April 15, 2009, referring to an Amended Plea Agreement with the attached unsigned
Plea Agreement for Torenda Whitmore’s signature.” Id. ¶ 7. 2 The declarant prepared a FOIA
Form No. 10B to accompany the requested records to the EOUSA for further processing, see id.
2
“There was no plea agreement, but only a proposed plea agreement[] (which document was released in full to [the
plaintiff]).” Boseker Decl. ¶ 15.
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¶¶ 7, 13, noting that she “enclosed [a] response to Whitmore’s Request No. 1 . . . for a Plea
Agreement,” id. ¶ 7. However, the file had been “stripped,” which resulted in “all unnecessary
documents in that file [having been] disposed of in accordance with the practices of the
[USAO/SDMS].” Id. ¶ 6. Thus, the declarant found that “no records existed that were
responsive to Whitmore’s Request Nos. 2, 3, and 4.” Id. ¶ 7. Nor were there records responsive
to any other item in the request. Id.
When the declarant became aware of a separate FOIA request submitted through Access
Pro (Request Number FOIA-2014-01406), notwithstanding its similarity to Request Number 13-
2519, she “again searched the USAO Case Tracking System, LIONS, under the name of Torenda
Whitmore[,]” notified the AUSA of the existence of this additional FOIA request, and had the
paralegal at the Gulfport Branch forward that office’s files pertaining to the plaintiff. Id. ¶ 10.
The declarant’s LIONS search and review of the files from the Gulfport Branch yielded the same
results, yet “[o]ut of an abundance of caution [she] reviewed the files to satisfy [herself] that the
request was indeed virtually duplicative of [the plaintiff’s] earlier request.” Id. ¶ 11. The
declarant copied her response to Request Number 13-2519, prepared a new FOIA Form 10B, and
forwarded the responsive records to the EOUSA. Id. ¶¶ 11-13.
The plaintiff contends that the agency’s search “was not a ‘comprehensive search.’”
Plaintiff’s Response to Defendant’s Motion for Summary Judgment (“Pl.’s Opp’n”) at 7. She
faults the EOUSA for restricting its search to LIONS, see id. at 4, and for only “attempt[ing] to
contact the United States Attorney’s Office in the Gulfport branch of the Southern Division of
Mississippi,” id. at 7. Because the plaintiff “is incarcerated, and does not have the resources
necessary to hunt down her criminal records,” she puts the burden on the defendant to “conduct a
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more extensive search than a database.” Id. at 4. 3 For example, the plaintiff argues that the
defendant could have requested the documents she sought from other agencies, see id. at 5,
presumably referring to the Federal Bureau of Investigation, the Bureau of Alcohol, Tobacco,
Firearms and Explosives (“BATFE”), and the local sheriff’s office, each having been mentioned
in her FOIA request.
An agency may rely on the plain language of the request itself and proceed accordingly.
See Maynard v. CIA, 986 F.2d 547, 560 (1st Cir. 1993) (noting that “there is no general
requirement that an agency search secondary references or variant spellings,” or that “an agency
conduct further searches on the basis of unspecified ‘clues’ in released documents”). As the
defendant points out, the EOUSA limited its search to the Southern District of Mississippi
“because that was the district identified by Plaintiff in her FOIA request letter.” Defs.’ Reply to
Pl.’s Opp’n to Summ. J. at 5. And the plaintiff identified her criminal case by number and by
court – the United States District Court for the Southern District of Mississippi. Based on this
information, the EOUSA’s decisions to refer the matter to the United States Attorney’s Office
for the Southern District of Mississippi, and to limit its searches to records maintained by this
office, were reasonable. Furthermore, the EOUSA’s obligation was to search for records it
maintained at the time it received the plaintiff’s FOIA request. Thus, it was not required to
search for records maintained by other federal government agencies and therefore its failure to
forward the plaintiff’s request to the FBI or the BATFE does not render the searches inadequate.
See Gordon v. Courter, __ F. Supp. 2d __, __, 2015 WL 4602588, at *5 (D.D.C. July 31, 2015)
3
The plaintiff followed the defendant’s recommendation and “has requested those documents from the local
arresting District of Attorney’s office, to no avail.” Pl.’s Opp’n at 6.
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(finding that the Criminal Division of the Department of Justice was not obligated to search
databases maintained by the FBI and the EOUSA); Allen v. U.S. Secret Serv., 335 F. Supp. 2d
95, 98 (D.D.C. 2004) (finding that search was adequate even though certain records had been
destroyed pursuant to the agency’s document retention policy); see also Jones-Edwards v.
Appeal Bd. of NSA, 196 F. App’x 36, 38 (2d Cir. 2006) (concluding that an “agency is not
obliged to conduct a search of records outside its possession or control”).
The plaintiff’s next challenge to the EOUSA’s searches pertains to the purging of her
criminal case file. Because the file was purged on February 14, 2011, before the date on which
her sentence was reduced, the plaintiff asks, “What did DOJ rely on to reduce her sentence if her
records were purged ‘before’ the resentencing date?” Pl.’s Opp’n at 6. Accordingly, she
“contends that there must be documents pertaining to her case which were not purged” before
resentencing. Id. However, the plaintiff offers nothing but mere speculation as to the existence
of responsive records, and this unsupported assertion does not overcome the defendants’
showing. See Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 318 (D.C. Cir.
2006) (finding the requester’s “assertion that an adequate search would have yielded more
documents is mere speculation” and affirming district court’s decision that agency’s search
procedure was “reasonably calculated to generate responsive documents”); Concepción v. FBI,
606 F. Supp. 2d 14, 30 (D.D.C. 2009) (finding that the plaintiff’s “speculation as to the existence
of additional records . . . does not render the search[] inadequate”).
C. The EOUSA Properly Withheld Information Under FOIA Exemption 7(C)
FOIA Exemption 7 protects from disclosure “records or information compiled for law
enforcement purposes,” but only to the extent that disclosure would cause an enumerated harm.
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5 U.S.C. § 552(b)(7); see FBI v. Abramson, 456 U.S. 615, 622 (1982). “To show that . . .
documents were compiled for law enforcement purposes, the [agency] need only establish a
rational nexus between [an] investigation and one of the agency’s law enforcement duties and a
connection between an individual or incident and a possible security risk or violation of federal
law.” Blackwell v. FBI, 646 F.3d 37, 40 (D.C. Cir. 2011) (internal quotation marks and citations
omitted). Here, it is apparent from the plaintiff’s FOIA request itself that the responsive records
were compiled for law enforcement purposes, namely, the criminal prosecution of the plaintiff.
FOIA Exemption 7(C) protects from disclosure information in law enforcement records
that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(7)(C). In determining whether this exemption applies to particular information,
the Court must balance the interest in privacy of individuals mentioned in the records against the
public interest in disclosure. See ACLU v. DOJ, 655 F.3d 1, 6 (D.C. Cir. 2011). The privacy
interest at stake belongs to the individual, not the government agency, see DOJ v. Reporters
Comm. for Freedom of the Press, 489 U.S. 749, 763-65 (1989), and “individuals have a strong
interest in not being associated unwarrantedly with alleged criminal activity,” Stern v. FBI, 737
F.2d 84, 91-92 (D.C. Cir. 1984). When balancing an individual’s privacy interest against the
public interest in disclosure, “the only public interest relevant for purposes of Exemption 7(C) is
one that focuses on ‘the citizens’ right to be informed about what their government is up to.’”
Davis v. DOJ, 968 F.2d 1276, 1282 (D.C. Cir. 1992) (quoting Reporters Comm., 489 U.S. at
773). It is a FOIA requester’s obligation to articulate a public interest sufficient to outweigh an
individual’s privacy interest, and the public interest must be significant. See Nat’l Archives and
Records Admin. v. Favish, 541 U.S. 157, 172 (2004).
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Under FOIA Exemption 7(C), the EOUSA withheld the “identities of special agents and
the direct phone number of the prosecutor.” Boseker Decl. ¶ 18. The declarant explains that the
release of this information “could subject [these individuals] to an unwarranted invasion of
personal privacy by efforts to gain further access to [these individuals] or to personal information
about them, leading to harassment, harm, or exposure to unwanted and/or derogatory publicity
and inferences arising from their connection to the case.” Id. Moreover, the declarant represents
that the agents’ and the prosecutor’s “[i]ndividual duties and assignments are not public and the
publicity that would likely arise from disclosure would seriously impede, if not totally jeopardize
law enforcement effectiveness in subsequent cases, even subjecting these individuals to
harassment or other harm.” Id. Lastly, the declarant states that these individuals have not
“consented to disclosure, nor has any public interest been asserted so as to overwhelm the
substantial privacy interests protected by application of this exemption.” Id.
The plaintiff has not referenced FOIA Exemption 7(C) or addressed the defendants’
legal arguments for withholding the agents’ identities and the prosecutor’s telephone number.
As to this ground for withholding information, the Court therefore will grant the defendants’
summary judgment motion as conceded. See, e.g., Neuman v. United States, 70 F. Supp. 3d 416,
422-23 (D.D.C. 2014). But even if the plaintiff had not conceded the matter, the Court finds
that, based on the EOUSA’s supporting declaration, the decision to withhold the special agents’
identities and the prosecutor’s direct telephone number is proper. See, e.g., Brown v. FBI, 873 F.
Supp. 2d 388, 405 (D.D.C. 2012) (approving the withholding under FOIA Exemption 7(C) of the
names and telephone numbers of government employees and other third parties); Sellers v. DOJ,
684 F. Supp. 2d 149, 158-59 (D.D.C. 2010) (approving the withholding under FOIA Exemption
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7(C) of the names and identifying information, including telephone numbers, about FBI Special
Agents).
D. The EOUSA Released All Reasonably Segregable Information
If a record contains some information that is exempt from disclosure, any reasonably
segregable information not exempt from disclosure must be released after deleting the exempt
portions, unless the non-exempt portions are inextricably intertwined with exempt portions. 5
U.S.C. § 552(b); see Trans-Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022,
1026-27 (D.C. Cir. 1999) (citation omitted). The Court errs if it “simply approve[s] the
withholding of an entire document without entering a finding on segregability, or the lack
thereof.” Powell v. U.S. Bureau of Prisons, 927 F.2d 1239, 1242 n.4 (D.C. Cir. 1991) (quoting
Church of Scientology of Cal. v. U.S. Dep’t of the Army, 611 F.2d 738, 744 (9th Cir. 1979)).
The declarant avers that each responsive record “was evaluated . . . to determine if any
information could be segregated and released.” Boseker Decl. ¶ 19. As a result of this review,
no documents have been withheld in full, and of the twelve pages of records released to the
plaintiff, only five pages were redacted. See generally id., Attach. H. Thus, based on the
supporting declarations and Vaughn Index filed in this case, the Court concludes that the
EOUSAs adequately specified “which portions of the document[s] are disclosable and which are
. . . exempt.” Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973).
III. CONCLUSION
The EOUSA has established that its searches for records responsive to the plaintiff’s
FOIA request were reasonable and that that it properly withheld information not provided to the
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plaintiff under FOIA Exemption 7(C). The defendants’ motion for summary judgment therefore
will be granted. An Order is issued separately.
DATE: September 25, 2015 /s/
REGGIE B. WALTON
United States District Judge
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