Bloeser v. United States Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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CARL BLOESER, )
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Plaintiff, )
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v. ) Civil Action No. 09-02168 (ABJ)
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UNITED STATES DEPARTMENT OF )
JUSTICE, )
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Defendant. )
___________________________________ )
MEMORANDUM OPINION
Plaintiff Carl Bloeser, proceeding pro se, brought this action against the defendant U.S.
Department of Justice seeking the release of the documents he requested – “all records under my
name or social security number and/or any other form of identification” – under the Freedom of
Information Act, 5 U.S.C. § 552 (2006) (“FOIA”) and the Privacy Act, 5 U.S.C. § 552(a) (2006).
Defendant has moved for summary judgment on the grounds that its searches have been adequate
but have failed to bear any fruit. [Dkt. #14]. Plaintiff opposes the motion, asserting his belief
that records about him have been relocated or destroyed. [Dkt. #34]. For the reasons stated
below, the Court will grant defendant’s motion.
I. Background
Plaintiff Carl Bloeser, a resident of Arizona, seeks review under FOIA and the Privacy
Act of defendant’s response to a FOIA request submitted by plaintiff to the Office of Information
Policy (“OIP”) at the Department of Justice on January 24, 2009. Attachment 4 to Compl.
(“FOIA Request”). In his request, plaintiff sought “all records” under his name and social
security number maintained by either the Office of the Inspector General (“OIG”) or the Office
of the Attorney General between January 1998 and January 24, 2009 – the date of the request.
Id.The Departmental Executive Secretariat is the official repository for records from the
Office of the Attorney General. Def.’s Statement of Material Facts (“Def.’s SMF”) ¶ 3; Pustay
Decl. ¶ 5. OIP used two different database systems to search the Departmental Executive
Secretariat – one encompassing all records between 1982 and 2000, and the other encompassing
all records between 2001 and the present. Def.’s SMF ¶ 4; Pustay Decl. ¶ 6. OIP first conducted
a search of both databases using plaintiff’s name on January 28 and 29, 2009, pursuant to a prior
FOIA request submitted by plaintiff, dated November 28, 2008. 1 Def.’s SMF ¶¶ 5–6; Pustay
Decl. ¶ 7, n. 3. Upon receipt of plaintiff’s FOIA request dated January 24, 2009, OIP again
searched both databases on February 11 and 18, 2009. Def.’s SMF ¶ 7; Pustay Decl. ¶¶ 8–9.
OIP wrote to the plaintiff in a letter dated February 20, 2009, that neither search using plaintiff’s
name had located any records identifiable to the plaintiff. Def.’s SMF ¶ 9; Pustay Decl. ¶¶ 9;
10–11.
OIP also interpreted plaintiff’s letter broadly as to include a similar FOIA request of OIG
– a separate and distinct federal agency – and forwarded plaintiff’s request to OIG for that
agency to examine. Def.’s SMF ¶ 11. The files maintained by OIG are electronically searchable
by the name of the subject or individual complainant. Def.’s SMF ¶ 13; Waller Decl. ¶ 3. OIG
conducted a search of its records using plaintiff’s name and successfully located five pages of
documents from prior correspondence with plaintiff and released those documents to the plaintiff
in a letter dated March 6, 2009. Def.’s SMF ¶¶ 13–14; Waller Decl. ¶¶ 8–9.
1 This first search was conducted pursuant to separate FOIA request submitted by the
Plaintiff dated November 28, 2008, requesting DOJ records pertaining to himself that had been
released to the public. That first request is not at issue in the present litigation.
2
On April 8, 2009, plaintiff filed an administrative appeal with the Director of OIP, stating
his belief that records pertaining to him either existed or were destroyed. Attachment 2 to
Compl. (“FOIA Appeal”). Janice Galli McLeod, an OIP administrator, wrote to plaintiff on July
13, 2009, denying the appeal and finding that OIP had conducted an adequate and reasonable
search. Attachment 1 to Compl. (“McLeod Letter”). Plaintiff subsequently filed a complaint in
the instant case and attached as evidence copies of five letters he has addressed to prior
Attorneys General of the United States, with accompanying certified mail receipts showing
confirmed delivery of each letter at the Department of Justice. Compl. at 16–43. 2
Defendant has subsequently moved for summary judgment pursuant to Fed. R. Civ. P. 56.
Def.’s Mem. at 4.
II. Standard of Review
“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) (citations omitted). To prevail
in a FOIA action, an agency must demonstrate that it has made “a good faith effort to conduct a
search for the requested records, using methods which can be reasonably expected to produce the
information requested.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). At
the summary judgment phase, “an agency must set forth sufficient information in its affidavits
for a court to determine if the search was adequate.” Nation Magazine, Washington Bureau v.
U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995), citing Oglesby, 920 F.2d at 68. Such
agency affidavits attesting to a reasonable search “are afforded a presumption of good faith,”
Defenders of Wildlife v. Dep’t of Interior, 314 F. Supp. 2d 1, 8 (D.D.C. 2004), and “can be
2 The Court cites page numbers in the complaint because plaintiff did not label or
distinguish certified mail receipts and letters attached as exhibits.
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rebutted only ‘with evidence that the agency’s search was not made in good faith.’” Id., quoting
Trans Union LLC v. Fed. Trade Comm’n, 141 F. Supp. 2d 62, 69 (D.D.C. 2001).
To survive a motion for summary judgment, a plaintiff must set forth “specific facts
showing a genuine issue for trial.” Fed. R. Civ. P. 56(e). In the FOIA context, “the sufficiency
of the agency’s identification or retrieval procedure” must be “genuinely in issue.” Weisberg v.
Dep’t of Justice, 627 F.2d 365, 370 (D.C. Cir. 1980) (internal quotation marks omitted). Where
the action is brought by a plaintiff proceeding pro se, “the court must take particular care to
construe plaintiff’s filings liberally, for such complaints are held ‘to less stringent standards than
formal pleadings drafted by lawyers.” Cheeks v. Fort Myer Constr., 722 F. Supp. 2d 93, 107
(D.D.C. 2010) (internal quotation marks omitted). However, plaintiff “cannot rebut the good
faith presumption” afforded to an agency’s supporting affidavits “through purely speculative
claims about the existence and discoverability of other documents.” Brown v. U.S. Dep’t of
Justice, 742 F. Supp. 2d 126, 130 (D.D.C. 2010) (citation and internal quotation marks omitted).
In any motion for summary judgment, the Court “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). However, where a plaintiff has not provided evidence that an agency has acted in bad
faith, “a court may award summary judgment solely on the basis of information provided by the
agency in declarations.” Moore, 601 F. Supp. 2d at 12.
The district court must “determine the matter de novo, and . . . the burden is on the
agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B); Military Audit Project v. Casey, 656 F.2d
724, 738 (D.C. Cir. 1981).
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III. Analysis
The purpose of FOIA is to require the release of government records upon request and to
“ensure an informed citizenry, vital to the functioning of a democratic society, needed to check
against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins
Tire & Rubber Co., 437 U.S. 214, 242 (1978). “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. U.S. 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). To meet this 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, 127 (D.C. Cir. 1982).
However, “the 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. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984).
In the instant case, the defendant submitted a six page declaration of Melanie Pustay, the
Director of OIP, that outlines the steps the agency took in response to plaintiff’s request to
comply with its obligations under FOIA. Pustay Decl. ¶¶ 1–11. In the absence of contrary
evidence, such agency declarations are given a presumption of good faith and are generally
sufficient to demonstrate an agency’s compliance with its obligations under FOIA. Perry, 684
F.2d at 127. Here, OIP conducted keyword searches of multiple electronic databases on two
separate occasions, due to the agency’s receipt of at least two FOIA requests from plaintiff
within a six month period, despite informing plaintiff that, in general, the Office of the Attorney
General does not maintain files on individuals. OIP Letter to Plaintiff, February 20, 2009,
Attachment 3 to Compl.
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OIP also interpreted plaintiff’s mention of OIG in his FOIA letter as a request to forward
his letter to OIG for a similar search. Def.’s SMF ¶ 11; Putsay Decl. ¶ 3. And OIG, upon receipt
of plaintiff’s request from OIP, conducted a search of its investigatory records. Def.’s SMF ¶¶
12–13; Waller Decl. ¶ 7. OIG successfully located five pages of material that relate to a
complaint that plaintiff had submitted to OIG in May of 2008 and released all of the pages to
plaintiff in full. Def.’s SMF ¶ 14; Waller Decl. ¶¶ 8–9.
Plaintiff insists that records containing his name or social security number either exist
within the agency’s files or have been “relocated or destroyed.” Pl.’s Reply at 1. Plaintiff has
provided certified mail receipts accompanying copies of a number of letters he has written to
past Attorneys General of the United States and stated his belief that such a letter “becomes part
of the records of the offices to which it was sent.” Id. at 3. Plaintiff further speculates that it is
“reasonable . . . to assume . . . there might have been notations on what was received.” Id. at 4.
However, an agency’s “failure to turn up a particular document, or mere speculation that
as yet uncovered documents might exist, does not undermine the determination that the agency
conducted an adequate search for the requested records.” Wilbur v. CIA, 355 F.3d 675, 678
(D.C. Cir. 2004). See also Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C.
Cir. 2003) (holding that “the failure of an agency to turn up one specific document in its search
does not alone render a search inadequate”). The fact that plaintiff has written on numerous
occasions to senior management offices at the Department of Justice has no bearing on the issue
of good faith on the part of the agency conducting the search. See Yeager v. DEA, 678 F.2d 315,
321 (D.C. Cir. 1982) (noting that “[a] requester is entitled only to records that an agency has in
fact chosen to create and retain”).
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To the extent that plaintiff can identify documents which he believes exist in a particular
office within the Department of Justice, such identifying information should have been included
as part of his original FOIA request in order to narrow the scope of the search requested.
Because “FOIA was not intended to reduce government agencies to full-time investigators on
behalf of requesters,” Assassination Archives & Research Ctr., Inc. v. CIA, 720 F. Supp. 217,
219 (D.D.C. 1989), “it is the requester’s responsibility to frame requests with sufficient
particularity to . . . enable the searching agency to determine precisely what records are being
requested.” Id., citing Yeager, 678 F.2d at 315. As a general matter, “FOIA requests for all
documents concerning a requester are too broad.” Dale v. I.R.S., 238 F. Supp. 2d 99, 104
(D.D.C. 2002). And FOIA does not provide individuals with the right to demand “an all-
encompassing fishing expedition” of files in every office within every federal law enforcement
agency “at taxpayer expense.” Id. at 105; see also Mason v. Callaway, 554 F.2d 129, 131 (4th
Cir. 1977) (request for “all correspondence . . . pertaining to the atrocities committed against
plaintiffs . . . including, but not limited to, the files of [various government offices] . . . typifies
the lack of specificity that Congress sought to preclude in the requirement of 5 U.S.C. §
552(a)(3) that records sought be reasonably described”).
Plaintiff further contends that defendant has failed to identify statutory exemptions
excusing the Attorney General from compliance with plaintiff’s FOIA request. Pl.’s Reply at 4.
Plaintiff argues that Attorney General’s internal guidelines – limiting the range of cases in which
DOJ will defend an agency’s denial of a FOIA request to those in which disclosure is either
prohibited by law or where disclosure would result in foreseeable harm – support his case against
DOJ. Id. at 5. But those guidelines concern the grounds for the denial of FOIA requests and are
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not relevant to the instant motion, which concerns requests that have been complied with through
an adequate and reasonable search.
The Court is mindful that plaintiff is a pro se litigant whose arguments are to be
construed liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Lasko v. U.S.
Dept. of Justice, 684 F. Supp. 2d 120, 127 (D.D.C. 2010). However, speculative and conclusory
assertions do not amount to “contradictory evidence in the record . . . of agency bad faith.”
Judicial Watch, Inc. v. Bd. of Governors of the Fed. Reserve Sys., 773 F. Supp. 2d 57, 60
(D.D.C. 2011); see also SafeCard Serv., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991)
(noting that “[m]ere speculation that as yet uncovered documents may exist does not undermine
the finding that the agency conducted a reasonable search”). The Court concludes that the
methods by which defendant has searched for responsive records were reasonable, appropriate,
and fully in compliance with its obligations under FOIA, and that plaintiff has offered nothing
more than mere speculation that additional records should have been uncovered. See, e.g., Pl.’s
Reply at 1 (“[T]here might have been notations on what was received.”).
IV. Conclusion
For the foregoing reasons, the Court grants defendant’s motion for summary judgment.
A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: September 19, 2011
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