Stoufer v. Federal Bureau of Investigation et al

Filing 45

ORDER granting 38 Motion for Summary Judgment. Signed by Judge Sharon L. Gleason on 4/27/21. (JLH, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

STEVEN STOUFER,
Plaintiff,
v.

Case No. 3:20-cv-00046-SLG

FEDERAL BUREAU OF
INVESTIGATION, et al.,
Defendants.

ORDER RE MOTION FOR SUMMARY JUDGMENT
Before the Court at Docket 38 is Defendants’ Motion for Summary
Judgment.1

Plaintiff Steven Stoufer responded in opposition at Docket 40.2

Defendants replied at Docket 41. Oral argument was not requested and was not
necessary to the Court’s decision. For the following reasons, Defendants’ Motion
for Summary Judgment will be granted.

Defendants are the Federal Bureau of Investigation (“FBI”); Department of Justice, Office of
Inspector General (“OIG”); Office of Information Policy (“OIP”) on behalf of the Office of the
Attorney General (“OAG”); United States Marshals Service (“USMS”); and the Department of
Justice (“DOJ”). Although the term “Defendants” is used throughout this order, the only proper
defendant is the Department of Justice because the FBI, OIG, OIP, OAG, and USMS are
components of DOJ and therefore are not agencies within the meaning of 5 U.S.C. § 552(f)(1).
1

Plaintiff styled his filing as a declaration. See Docket 40 (“Declaration of Steven Stoufer”).
The Court construes the filing as a response in opposition to Defendants’ Motion for Summary
Judgment and a request for discovery.
2

FACTUAL BACKGROUND
Pro se Plaintiff alleges that the “FBI or some other law enforcement
organization” attempted to “recruit” him to participate in an “interactive surveillance
team” and “in [a] tribal disruption.”3 Plaintiff contends that the “FBI or another law
enforcement organization retaliated” against him when he rebuffed these
“recruitment events.”4 Plaintiff reported the recruitment events and the retaliation,
which allegedly included assaults, threats, and harassment, to the Anchorage
Police Department, the FBI, and the office of Alaska Senator Dan Sullivan.5
Plaintiff sent Freedom of Information Act (“FOIA”) requests to the FBI, OIG, OIP
seeking records of OAG, and USMS in a purported effort to learn more about this
alleged conduct and to obtain any records concerning himself.6 Plaintiff initiated
this action on February 26, 2020, alleging that Defendants violated FOIA, 5 U.S.C.
§ 552, by failing to produce the requested records and, to the extent that
documents were produced, improperly invoking FOIA exemptions to redact the
records.7

Docket 29 at 2–3, ¶ 4–9 (Am. Compl.). Plaintiff’s amended complaint was originally submitted
at Docket 22; however, that docket entry was missing page 4 of 6. Accordingly, the Court cites
Docket 29 as the operative complaint.
3

4

Docket 29 at 3, ¶ 9 (Am. Compl.).

5

Docket 29 at 2, 4 ¶¶ 4, 23 (Am. Compl.); Docket 40 at 2–3 (Opp.).

6

Docket 29 at 3–6, ¶ 12–30 (Am. Compl.).

7

Docket 1 (Compl.); Docket 29 at 6, ¶ 34 (Am. Compl.).

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LEGAL STANDARD
“The basic purpose of FOIA is 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.”8 Accordingly, FOIA mandates the
disclosure of agency records upon request unless they fall within one of the nine
statutory exemptions.9
A court reviews an agency’s response to a FOIA request de novo.10 The
agency bears the burden of establishing the adequacy of its search for responsive
records and in proving the applicability of a statutory exemption to redact or
withhold documents.11

To meet these burdens, an agency may rely upon

“reasonably detailed, non-conclusory affidavits.”12

“Affidavits submitted by an

agency to demonstrate the adequacy of its response are presumed to be in good
faith.”13 “A court may rely solely on government affidavits so long as the affiants

8

NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).

5 U.S.C. § 552(a)(3)(A), (b)(1)–(9); Pickard v. DOJ, 653 F.3d 782, 790 (9th Cir. 2011) (Wallace,
J., concurring) (“‘Congress established FOIA to strike a balance between the public’s interest in
knowing what [its] government is up to and the legitimate governmental or private interests in
withholding documents subject to FOIA’s exemptions.”) (internal quotation marks omitted).
9

10

5 U.S.C. § 552(a)(4)(B).

Hamdan v. DOJ, 797 F.3d 759, 770 (9th Cir. 2015); Lahr v. Nat’l Transp. Safety Bd., 569 F.3d
964, 973 (9th Cir. 2009).
11

Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985); Minier v. CIA, 88 F.3d 796, 800 (9th Cir.
1996).
12

13

Hamdan, 797 F.3d at 770.

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are knowledgeable about the information sought and the affidavits are detailed
enough to allow the court to make an independent assessment of the
government’s claim.”14 “If the affidavits contain reasonably detailed descriptions
of the documents and allege facts sufficient to establish an exemption, the district
court need look no further.”15

Courts also “accord substantial weight to an

agency’s declarations regarding the application of a FOIA exemption.”16
“FOIA requires an agency responding to a request to ‘demonstrate that it
has conducted a search reasonably calculated to uncover all relevant
documents.’”17 In evaluating the adequacy of a search, “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.”18 The
“failure to produce or identify a few isolated documents cannot by itself prove the
searches inadequate.”19

Lane v. Dep’t of Interior, 523 F.3d 1128, 1135 (9th Cir. 2008) (internal quotation marks
omitted).
14

15

Id. at 1135–36 (internal quotation marks omitted).

Shannahan v. IRS, 672 F.3d 1142, 1148 (9th Cir. 2012) (citing Hunt v. CIA, 981 F.2d 1116,
1119–20 (9th Cir. 1992)).
16

17

Lahr, 569 F.3d at 986 (quoting Zemansky, 767 F.2d at 571).

18

Id. at 987 (quoting Zemansky, 767 F.2d at 571 (emphasis omitted)).

Id. at 988; Wilbur v. C.I.A., 355 F.3d 675, 678 (D.C. Cir. 2004) (“Likewise, the 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.”).
19

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Because facts in FOIA cases are rarely in dispute, “[m]ost FOIA cases are
resolved by the district court on summary judgment.”20 Discovery is generally
unnecessary.21
DISCUSSION
Defendants move for summary judgment pursuant to Federal Rule of Civil
Procedure 56, asserting that each DOJ component conducted an adequate search
and, when documents were located, properly invoked FOIA exemptions to redact
the documents.22 Plaintiff questions the adequacy of Defendants’ searches and
requests discovery.23 The Court addresses each component in turn.
I.

FBI
On March 21, 2018, Plaintiff submitted a FOIA request to the FBI, seeking

(1) records pertaining to himself and (2) records related to surveillance and the
warrant process used by the FBI.24 The FBI administratively separated the request
into the two categories.25 As to the records request relating to Plaintiff himself, the
FBI informed Plaintiff by letter dated April 13, 2018 that it had conducted a search

20

Animal Legal Def. Fund v. FDA, 836 F.3d 987, 989 (9th Cir. 2016); see Fed. R. Civ. P. 56.

See Lane, 523 F.3d at 1134–35 (“Courts routinely delay discovery until after summary
judgment . . . .”).
21

22

Docket 38 at 1–3 (Mot. Summ. J.).

23

See Docket 40 (Opp.).

24

Docket 29 at 4, ¶ 17 (Am. Compl.); Docket 38-1 at 3, ¶ 5 (Decl. of Michael Seidel, FBI).

25

Docket 29 at 4, ¶ 18 (Am. Compl.); Docket 38-1 at 3, ¶ 6 (Decl. of Michael Seidel, FBI).

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of its Central Records System (“CRS”) and was unable to identify any responsive
records.26 Plaintiff appealed the FBI’s determination by letter received on July 17,
2018.27 OIP’s Administrative Appeals Staff denied Plaintiff’s appeal by letter dated
September 17, 2018.28 As to the records request related to surveillance and the
warrant process, by a separate letter dated April 13, 2018, the FBI informed
Plaintiff that it required more specific information to process the request.29 Plaintiff
provided additional information by email on July 11, 2018.30 Upon receipt of that
information, the FBI determined the request related to Plaintiff personally and
therefore fell under the first category as well.31 The FBI then combined the two
requests and conducted an additional search.32 The FBI informed Plaintiff of the
consolidation and additional search by letter dated June 10, 2020.33 The FBI’s
searches did not locate any responsive records to Plaintiff’s FOIA request.34

26

Docket 29 at 4, ¶ 18 (Am. Compl.); Docket 38-1 at 3, ¶ 7 (Decl. of Michael Seidel, FBI).

27

Docket 38-1 at 4, ¶ 10 (Decl. of Michael Seidel, FBI).

Docket 29 at 4, ¶ 21 (Am. Compl.); Docket 38-1 at 5, ¶ 12 (Decl. of Michael Seidel, FBI). OIP
Administrative Appeals Staff adjudicates administrative appeals of initial FOIA request
responses made by DOJ components, including the FBI. See Docket 38-1 at 46–47 (Decl. of
Michael Seidel, FBI); Docket 38-4 at 4, ¶ 7 n.4 (Decl. of Vanessa R. Brinkmann, OIP).
28

29

Docket 29 at 4, ¶ 19 (Am. Compl.); Docket 38-1 at 4, ¶ 8 (Decl. of Michael Seidel, FBI).

30

Docket 29 at 4, ¶ 20 (Am. Compl.); Docket 38-1 at 4, ¶ 9 (Decl. of Michael Seidel, FBI).

31

Docket 38-1 at 4, ¶ 9 (Decl. of Michael Seidel, FBI).

32

Docket 38-1 at 5, 11 ¶¶ 14, 29 (Decl. of Michael Seidel, FBI).

33

Docket 38-1 at 5, ¶ 14 (Decl. of Michael Seidel, FBI); Docket 38-1 at 49.

34

Docket 38-1 at 11, ¶ 29 (Decl. of Michael Seidel, FBI).

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In support of the adequacy of its searches, the FBI submitted the declaration
of Michael Seidel, the agency employee who supervised the FOIA search. 35 Mr.
Seidel explained in detail the database systems and search methodologies used
to respond to Plaintiff’s FOIA request.36 He explained that CRS “is an extensive
system of records consisting of applicant, investigative, intelligence, personnel,
administrative, and general files compiled and maintained by the FBI in the course
of fulfilling its [] missions and functions as a law enforcement” agency.37 CRS
includes index entries for “individual[s] . . . that [are] the subject or focus of an
investigation” and “individuals . . . associated with the case but [who] are not the
main subject(s) or focus of an investigation.”38 When searching CRS for records
related to Plaintiff, the FBI used multiple variations of his name and his date of
birth.39

Mr. Seidel is the Section Chief of Record/Information Dissemination Section (“RIDS"), “whose
collective mission is to effectively plan, develop, direct, and manage responses to requests for
access to FBI records and information pursuant to the FOIA . . . .” Docket 38-1 at 2, ¶¶ 1, 2. Mr.
Seidel declares that the “statements contained in [his] declaration are based upon [his] personal
knowledge, upon information provided to [him] in [his] official capacity, and upon conclusions and
determinations reached and made in accordance therewith.” Docket 38-1 at 2, ¶ 2. See Lahr,
569 F.3d at 990 (“As a general matter, an affidavit from an agency employee responsible for
supervising a FOIA search is all that is needed to satisfy the personal knowledge requirement of
Federal Rule of Civil Procedure 56(e).”) (internal quotation marks omitted).
35

36

See generally Docket 38-1 (Decl. of Michael Seidel, FBI).

37

Docket 38-1 at 5–6, ¶ 16 (Decl. of Michael Seidel, FBI).

38

Docket 38-1 at 6–7, ¶ 18 (Decl. of Michael Seidel, FBI).

39

Docket 38-1 at 10, ¶ 28 (Decl. of Michael Seidel, FBI).

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Given that Plaintiff sought records related to himself, ostensibly alleging that
he is the subject or focus of—or associated with—FBI law enforcement activity,
any such information would reasonably be expected to reside within CRS. The
FBI searched the system twice with adequate variations and found no responsive
records. Plaintiff, however, challenges the adequacy of the FBI’s search. Plaintiff
points to specific communications that he allegedly had directly and indirectly with
the FBI, asserting that the non-disclosure of those communications, which
ostensibly should have been discovered in CRS or “created some type of record,”
demonstrate the inadequacy of the search.40 First, Plaintiff alleges that on or about
April 3, 2018, he sent a letter to the office of Alaska Senator Sullivan asking for
help with the FBI.41 Plaintiff states he received a response from the Senator’s
office, which was purportedly a forwarded email of the FBI’s response to the
Senator’s office.42
directly.43

Second, Plaintiff alleges that he twice contacted the FBI

But Plaintiff has not adduced admissible evidence of his alleged

communications with the FBI.44 The purported emails are merely lines of text.45

40

Docket 40 at 1–3 (Opp.).

41

Docket 40 at 2 (Opp.).

42

See Docket 40 at 2 (Opp.) (citing Docket 40-4).

43

See Docket 40 at 2–3 (Opp.) (citing Dockets 40-1, 40-2).

44

See Fed. R. Evid. 901(a).

45

See Docket 40-1, 40-2, 40-4.

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The documents do not contain the distinctive characteristics of an email, such as
the identity of the sender and the recipient, the date and time sent, and the subject
line.46 Accordingly, the Court declines to consider these documents in assessing
the adequacy of the FBI’s search. And even if the Court were to consider the
purported emails, “the failure to produce or identify a few isolated documents
cannot by itself prove the searches inadequate.”47
Plaintiff also appears to contend that the FBI should have searched
individual email accounts in addition to CRS.48 However, “[i]n accordance with FBI
policy,

emails

and

other

communications

which

provide

substantive

documentation regarding the FBI’s investigative actions, contain important and/or
valuable evidentiary information, or are required to be maintained by law or
regulation, are serialized and made retrievable through the CRS.”49 As such, any
substantive emails would likely be located in CRS and, therefore, “additional
searches would be redundant and unlikely to locate additional responsive
records.”50 Moreover, the Ninth Circuit Court of Appeals has rejected a similar

46

Fed. R. Evid. 901(b)(4).

47

Lahr, 569 F.3d at 988.

Docket 40 at 2–3 (Opp.) (“I request discovery of the FBI’s electronic communications to locate
a trail of what happened to these emails, or alternatively, for the FBI to search its electronic
communications.”).
48

49

Docket 41-1 at 4, ¶ 6 (Supp. Decl. of Michael Seidel, FBI).

50

Docket 41-1 at 3, ¶ 5 (Supp. Decl. of Michael Seidel, FBI).

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argument that the FBI should have searched the “email files of specific FBI
personnel.”51 Based on the Court’s de novo review of the FBI’s response and Mr.
Seidel’s declaration, the Court finds that the FBI conducted a search reasonably
calculated to uncover all relevant documents.52
Plaintiff also “request[s] discovery of the FBI’s electronic communications to
locate a trail of what happened to these emails” and to “determine if any potentially
responsive indexed records were determined to be outside the scope of my
request.”53 However, Plaintiff does not articulate how the emails are “essential to
oppose summary judgment.”54 Plaintiff also has not demonstrated that the alleged
records outside the scope of his request actually “exist.”55 Accordingly, the Court
denies discovery as to the FBI’s FOIA search.56

51

See Hamdan, 797 F.3d at 771–72.

52

See Lahr, 569 F.3d at 986.

53

Docket 40 at 3 (Opp.).

54

Fam. Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir.
2008) (“The requesting party must show: (1) it has set forth in affidavit form the specific facts it
hopes to elicit from further discovery; (2) the facts sought exist; and (3) the sought-after facts
are essential to oppose summary judgment.”).
55

Id. (holding plaintiff failed to satisfy requirements of Fed. R. Civ. P. 56(f)).

See Case v. DOJ, Case No. CV-12-0500-JTR, 2013 WL 6587918, at *5 (E.D. Wash. Dec. 13,
2013) (“The failure of an agency ‘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.’” (quoting Wilbur, 355 F.3d at 678)).
56

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II.

OIG
On July 16 or 18, 2019, Plaintiff submitted a FOIA request to the Office of

the Inspector General (“OIG”) seeking records pertaining to himself.57

OIG

provided a substantive response on August 26, 2019, producing three pages of
responsive materials and explaining that it made certain redactions pursuant to
statutory exemptions.58

OIP’s Administrative Appeals Staff denied Plaintiff’s

administrative appeal on January 16, 2020.59
In support of the adequacy of its search, OIG submitted the declaration of
Deborah Waller, the agency employee who supervised the FOIA search. 60 Ms.
Waller explained in detail the database systems and search methodologies used
to respond to Plaintiff’s request.61 OIG is responsible for investigating employee
misconduct and for auditing and inspecting the operations of the Department of

57

Docket 29 at 3, ¶ 12 (Am. Compl.); Docket 38-2 at 3, ¶ 5 (Decl. of Deborah M. Waller, OIG).

Docket 29 at 3, ¶ 14 (Am. Compl.); Docket 38-2 at 4, ¶ 9 (Decl. of Deborah M. Waller, OIG);
Docket 38-3 (OIG FOIA Production).
58

Docket 29 at 3, ¶ 15 (Am. Compl.); Docket 38-2 at 6–7, ¶ 15 (Decl. of Deborah M. Waller,
OIG).
59

Ms. Waller is the “Supervisory Government Information Specialist for the Office of the Inspector
General, United States Department of Justice (OIG), Washington, D.C.” Docket 38-2 at 1, ¶ 1.
Ms. Waller declares that the “statements in [her] declaration are based upon [her] personal
knowledge and experience and upon information made available to [her] in the course of my
official duties.” Docket 38-2 at 1-2, ¶ 1. See Lahr, 569 F.3d at 990 (“As a general matter, an
affidavit from an agency employee responsible for supervising a FOIA search is all that is needed
to satisfy the personal knowledge requirement of Federal Rule of Civil Procedure 56(e).”) (internal
quotation marks omitted). OIG conducted a second search on January 15, 2020, and again did
not locate any additional responsive documents. Docket 38-2 at 6–7, ¶ 15.
60

61

See generally Docket 38-2 (Decl. of Deborah M. Waller, OIG).

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Justice.62

According to Ms. Waller, OIG searched its Investigation Data

Management System (“IDMS”), which is the database of all OIG investigative
records.63 OIG did not search its audit and inspection records because those
“audit and inspections records do not focus on the conduct of individuals, [and
therefore] there is no reasonable possibility that those records will contain
information regarding Plaintiff’s request.”64 The search of IDMS returned the three
responsive pages provided to Plaintiff, which OIG redacted pursuant to
Exemptions 6 and 7(C).65

The responsive records reflected Plaintiff’s prior

complaints to OIG concerning the alleged recruitment events and harassment. 66
In opposition, Plaintiff indirectly challenges the adequacy of the search and
requests discovery. Plaintiff alleges that OIG did not provide records relating to a
referral from the Office of the Inspector General of the Intelligence Community
(“OIG-IC”) to OIG.67 Because OIG did not produce this record, according to

62

Docket 38-2 at 2, ¶ 2 (Decl. of Deborah M. Waller, OIG).

Docket 38-2 at 3, ¶ 7 (Decl. of Deborah M. Waller, OIG) (“The keywords searched included
the first and last name of STEVEN and STOUFER. I also searched just the last name
STOUFER, with and without the middle name and Plaintiff’s social security number, to ensure
the search encompassed any records that would be retrievable by that name.”).
63

Docket 38-2 at 3–4, ¶ 8 (Decl. of Deborah M. Waller, OIG) (“Moreover, the OIG cannot search
[the audit and inspection] records by the name provided by Plaintiff or any other personal
identifier.”).
64

65

Docket 38-2 at 4, ¶¶ 9, 10 (Decl. of Deborah M. Waller, OIG).

66

See Docket 38-3 (OIG FOIA Production).

67

Docket 40 at 3 (Opp.).

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Plaintiff, discovery is needed.68 However, it appears that OIG did produce a record
of a complaint that it “received from OIG, Intelligence Community via OIG Hotline
Fax on 12/13/2018.”69 According to a purported copy of a notification letter from
OIG-IC, which confirmed that OIG-IC referred the matter to OIG, Plaintiff submitted
the complaint to OIG-IC on October 22, 2018.70 OIG-IC apparently referred the
complaint to OIG shortly after receiving the complaint from Plaintiff. And even if
the referral was not produced in Plaintiff’s FOIA request, “the failure to produce or
identify a few isolated documents cannot by itself prove the searches
inadequate.”71 Based on the Court’s de novo review of OIG’s response and Ms.
Waller’s declaration, the Court finds that OIG demonstrated it conducted a search
reasonably calculated to uncover all relevant documents.72
Plaintiff also asserts that OIG misapplied the FOIA exemptions. Plaintiff
contends that FOIA Exemption 7(C) cannot apply because “the agency [did not]
demonstrate that the record was created for a law enforcement purpose.”73

68

Docket 40 at 3 (Opp.).

69

See Docket 38-3 at 3 (OIG FOIA Production).

70

Docket 40-3 (Opp.) (OIG-IC Notification Letter).

71

Lahr, 569 F.3d at 988.

See id. at 986. Plaintiff also requests discovery “to locate the referral.” Docket 40 at 3 (Opp.).
However, given that the referral was ostensibly disclosed, the Court declines to grant discovery
as it relates to OIG’s FOIA search.
72

73

Docket 40 at 3–4 (Opp.).

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Further, Plaintiff asserts that, should the Court find otherwise, the public interest in
disclosure outweighs the privacy interest of the individual who allegedly retaliated
against Plaintiff.74
Exemption 7(C) carves out “records or information compiled for law
enforcement purposes, but only to the extent that the production of such law
enforcement records or information . . . could reasonably be expected to constitute
an unwarranted invasion of personal privacy[.]”75 Exemption 7(C) redactions are
evaluated under a two part test. First, “an agency with a clear law enforcement
mandate [such as OIG] need establish only a ‘rational nexus’ between its law
enforcement duties and the document for which Exemption 7 is claimed.”76 Here,

74

Docket 40 at 4 (Opp.).

75

5 U.S.C. § 552(b)(7)(C).

Binion v. DOJ, 695 F.2d 1189, 1194 (9th Cir. 1983) (quoting Church of Scientology of
California v. U.S. Dep’t of Army, 611 F.2d 738, 748 (9th Cir. 1979), overruled on other grounds
by Animal Legal Def. Fund, 836 F.3d 987); Rosenfeld v. DOJ, 57 F.3d 803, 808 (9th Cir. 1995);
see, e.g., Van Mechelen v. U.S. Dep’t of Interior, Case No. C05-5393, 2005 WL 3007121, at *4
(W.D. Wash. Nov. 9, 2005) (applying the deferential “rational nexus” test to exemption claims by
the Department of Interior’s Office of Inspector General).
76

The Ninth Circuit Court of Appeals pursues separate inquiries for agencies that have clear law
enforcement mandates and those with “mixed” functions that encompass both administrative
and law enforcement duties. See Church of Scientology, 611 F.2d at 748 (“[A]n agency which
has a ‘mixed’ function, encompassing both administrative and law enforcement functions, must
demonstrate that it had a purpose falling within its sphere of enforcement authority in compiling
the particular document . . . In determining whether a ‘law enforcement purpose’ is present,
courts must look to the purpose behind the compilation of the document.”); see also Pub. Emps.
for Env’t Resp. v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.-Mexico, 740 F.3d 195, 203
(D.C. Cir. 2014) (“If the agency has mixed law enforcement and administrative functions, we will
‘scrutinize with some skepticism the particular purpose claimed.’” (quoting Tax Analysts v. I.R.S.,
294 F.3d 71, 77 (D.C. Cir. 2002))). Even assuming OIG is a mixed function agency, OIG has
demonstrated that its purpose for compiling the documents fell squarely within its investigative
functions, in contrast to its auditing and inspection functions. See Docket 38-3 (OIG FOIA
Production) (documents compiled by “OIG - Investigations”); Docket 38-2 at 2–3, 5 ¶¶ 2–4, 13
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the disclosed records catalogued Plaintiff’s complaints to OIG that FBI or other
agency employees were engaged in “illegal surveillance.”77 It follows that OIG
compiled those records with a purpose of monitoring or investigating criminal
wrongdoing (i.e., “illegal surveillance”) by FBI or other agency employees, which
OIG is empowered to do.78 Accordingly, OIG has established a rational nexus
between the disclosed documents and its law enforcement duties. Second, a court
“must balance the privacy interest protected by the [redactions] against the public
interest in government openness that would be served by disclosure.” 79 Here,
most of the redactions at issue appear to be the names of OIG employees who
were involved in the processing of Plaintiff’s complaints.80 Those individuals have
a cognizable privacy interest.81 Further, any third-party individuals (i.e., FBI or
other agency employees) whose names were redacted have a privacy interest as
well, especially considering that Plaintiff is alleging that these individuals engaged

(Decl. of Deborah M. Waller, OIG).
77

See Docket 38-3 (OIG FOIA Production).

28 C.F.R. § 0.29a(b)(2) (empowering OIG to “[i]nvestigate allegations of criminal wrongdoing
and administrative misconduct on the part of Department [of Justice] employees”); Docket 38-2
at 2–3, ¶¶ 2–4 (Decl. of Deborah M. Waller, OIG).
78

79

Lahr, 569 F.3d at 973.

See Docket 38-3 (OIG FOIA Production); Docket 41 at 13 (Reply) (“[M]ost [] of the redactions
at issue were of the names of DOJ-OIG agents, all of whom have privacy interest that even
[Plaintiff] does not contest.”).
80

See Lahr, 569 F.3d at 977 (permitting redaction of names of FBI agents who worked on an
investigation because “lower level officials, like the FBI agents involved here, generally have a
stronger interest in personal privacy than do senior officials”) (internal quotation marks omitted).
81

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in illegal activity.82 “To advance a relevant public interest, the release of [certain]
names must ‘shed light on an agency’s performance of its statutory duties or
otherwise let citizens know what their government is up to.’” 83 Plaintiff, however,
does not adduce any evidence or offer any argument as to how disclosing the
names of OIG employees who merely processed the complaints, or the names of
third-party individuals, would shed any such light. Accordingly, the privacy interest
outweighs the public interest. Therefore, the Court finds that OIG properly invoked
Exemption 7(C) for each redaction.
Plaintiff also briefly contends that the “privacy protections of exemption 7(C)
are broader than the privacy protections under exemption 6. Since exemption 7(C)
shouldn't apply, exemption 6 shouldn’t apply.”84 However, as OIG claimed both
exemptions for each redaction, and the Court found the redactions proper under
Exemption 7(C), it need not address the redactions pursuant to Exemption 6.
III.

OIP on behalf of OAG
On May 10, 2010, Plaintiff submitted a FOIA request to the Office of

Information Policy (“OIP”), seeking records pertaining to himself from the Office of

82

Schiffer v. FBI, 78 F.3d 1405, 1410 (9th Cir. 1996) (holding persons named in FBI files have a
“strong interest in not being associated unwarrantedly with alleged criminal activity”) (internal
quotation marks omitted).
83

Lahr, 569 F.3d at 978 (quoting U.S. Dep’t of Def. v. FLRA, 510 U.S. 487, 497 (1994)).

84

Docket 40 at 4 (Opp.) (docket citation omitted).

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the Attorney General (“OAG”).85 OIP provided a substantive response to Plaintiff’s
request by letter dated May 11, 2020, stating that a search of its Departmental
Executive Secretariat (“DES”) database was conducted.86 The search located a
reference to a December 19, 2018 letter from Plaintiff to the Department of Justice,
which was forwarded at that time to the Civil Rights Division (“CRT”) for handling.87
The substantive response explained that Plaintiff could request a copy of the
correspondence by submitting a request to CRT.88 Otherwise, no responsive
records were identified in the search.89 OIP’s Administrative Appeals Staff denied
Plaintiff’s administrative appeal on May 19, 2020.90
In support of the adequacy of its search, OIP submitted the declaration of
Vanessa Brinkmann, the agency employee who supervised the FOIA search.91

Docket 29 at 5, ¶ 25 (Am. Compl.); Docket 38-4 at 2, ¶ 3 (Decl. of Vanessa R. Brinkmann,
OIP). OIP is responsible for processing FOIA requests on behalf of certain Justice Department
components, including OAG. Docket 38-4 at 1, ¶ 1 (Decl. of Vanessa R. Brinkmann, OIP).
85

Docket 29 at 5, ¶ 26 (Am. Compl.); Docket 38-4 at 3, ¶ 5 (Decl. of Vanessa R. Brinkmann,
OIP), 13–14 (May 11, 2020 FOIA Response Letter).
86

Docket 38-4 at 3, ¶ 5 (Decl. of Vanessa R. Brinkmann, OIP), 13–14 (May 11, 2020 FOIA
Response Letter); cf. Docket 29 at 5, ¶ 26 (“Soon after filing the request, the Plaintiff received
an email stating that there were no responsive records.”) (Am. Compl.).
87

Docket 38-4 at 3, ¶ 5 (Decl. of Vanessa R. Brinkmann, OIP), 13–14 (May 11, 2020 FOIA
Response Letter).
88

89

Docket 38-4 at 7, ¶ 17 (Decl. of Vanessa R. Brinkmann, OIP).

Docket 29 at 5, ¶ 27 (Am. Compl.); Docket 38-4 at 3, 4, ¶¶ 6, 7 (Decl. of Vanessa R.
Brinkmann, OIP). OIP Administrative Appeals Staff, a separate and distinct unit within OIP,
adjudicated the administrative appeal. Docket 38-4 at 4, ¶ 7 n.4 (Decl. of Vanessa R.
Brinkmann, OIP).
90

Ms. Brinkmann is Senior Counsel in OIP. Docket 38-4 at 1, ¶ 1. “In [that] capacity, [she is]
responsible for supervising the handling of the Freedom of Information Act . . . requests processed
91

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Ms. Brinkmann explained in detail the database systems and search
methodologies used to respond to Plaintiff’s request.92 Although OAG “does not
typically maintain records on individuals, and specifically, would be very unlikely to
maintain records on Plaintiff,” according to Ms. Brinkmann’s declaration, OIP
nonetheless searched DES, the “official records repository” for OAG.93

DES

“maintains records of all formal, controlled, unclassified correspondence sent to or
from” OAG and “track[s] internal Department [of Justice] correspondence sent
through formal channels.”94 OIP searched DES using Plaintiff’s name (“Steven
Stoufer”) as the search term, which returned only the 2018 letter that had been
forwarded to the Civil Rights Division.95
In opposition, Plaintiff appears to allege that the search was too “restricted”
and requests discovery.

However, Plaintiff’s vague speculation as to the

inadequacy of the search methodology does not undermine Ms. Brinkmann’s

by the Initial Request Staff (“IR Staff”) of OIP that are in litigation,” including on behalf of OAG.
Docket 38-4 at 1, ¶ 1. Ms. Brinkmann declares that she makes the “statements [in her declaration]
on the basis of personal knowledge, as well as information provided to [her] by others within the
Executive Branch of the Federal Government with knowledge of the types of records at issue in
this case, and on information acquired by [her] in the course of performing my official duties.”
Docket 38-4 at 2, ¶ 2. See Lahr, 569 F.3d at 990 (“As a general matter, an affidavit from an
agency employee responsible for supervising a FOIA search is all that is needed to satisfy the
personal knowledge requirement of Federal Rule of Civil Procedure 56(e)”) (internal quotation
marks omitted).
92

See generally Docket 38-4 (Decl. of Vanessa R. Brinkmann, OIP).

93

Docket 38-4 at 6–7, ¶¶ 13–14 (Decl. of Vanessa R. Brinkmann, OIP).

94

Docket 38-4 at 5, ¶ 11 (Decl. of Vanessa R. Brinkmann, OIP).

95

Docket 38-4 at 7, ¶¶ 15, 17 (Decl. of Vanessa R. Brinkmann, OIP).

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reasonably detailed, nonconclusory declaration, especially considering that OIP’s
search actually resulted in a response.96

Further, Plaintiff is not entitled to

discovery because he has not set forth specific, essential facts that he expects to
elicit that would demonstrate the inadequacy of OIP’s search.97 Based on the
Court’s de novo review of OIP’s response and Ms. Brinkmann’s declaration, the
Court finds that OIP on behalf of OAG demonstrated it conducted a search
reasonably calculated to uncover all relevant documents.98
IV.

USMS
On December 13 or 14, 2018, Plaintiff submitted a FOIA request to the

United States Marshals Service, requesting all records pertaining to himself.99
Plaintiff alleged that, as of July 21, 2020, USMS had “not provided a determination
or any responsive records.”100

USMS, however, maintains that it issued a

substantive response to Plaintiff’s request in a letter dated May 6, 2019, stating
that a search of USMS databases was conducted and that no responsive records

Case, 2013 WL 6587918, at *5 (“The failure of an agency ‘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.’”
(quoting Wilbur, 355 F.3d at 678)).
96

97

Fam. Home & Fin. Ctr., Inc., 525 F.3d at 827.

98

See Lahr, 569 F.3d at 986.

Docket 29 at 5, ¶ 29 (Am. Compl.); Docket 38-5 at 4, ¶ 14 (Decl. of Charlotte Luckstone,
USMS).
99

100

Docket 29 at 5, ¶ 30 (Am. Compl.).

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were located.101 Plaintiff did not administratively appeal USMS’s response to his
FOIA request.102
In support of the adequacy of its search, USMS submitted the declaration of
Charlotte Luckstone, the agency employee who supervised the FOIA search.103
Ms. Luckstone explained in detail the database systems and search
methodologies used to respond to Plaintiff’s request.104 Plaintiff’s opposition does
not address USMS’s systems or methodologies, seek discovery, or explain his
failure to exhaust administrative remedies.105 Based on the Court’s de novo review
of USMS’s response and Ms. Luckstone’s declaration, the Court finds that USMS

Docket 38-5 at 4–5, ¶ 16 (Decl. of Charlotte Luckstone, USMS). USMS has filed a copy of
the substantive response, which includes Plaintiff’s address. Docket 38-5 at 9–10.
101

102

Docket 38-5 at 6, ¶ 20 (Decl. of Charlotte Luckstone, USMS).

Ms. Luckstone is an Associate General Counsel in the Office of General Counsel, USMS.
Docket 38-5 at 1, ¶ 1. Ms. Luckstone is “familiar with the procedures for responding to requests
made of the USMS under the Freedom of Information Act . . . for information maintained in the
records and files of the USMS.” Docket 38-5 at 1, ¶ 1. “To prepare this declaration, [Ms.
Luckstone] reviewed the USMS FOIA access database, as well as an electronic shared drive.”
Docket 38-5 at 1, ¶ 3. The database and shared drive contain information cataloguing the USMS’s
response to Plaintiff’s FOIA request. Docket 38-5 at 4–6, ¶ 13–20. See Lahr, 569 F.3d at 990
(“As a general matter, an affidavit from an agency employee responsible for supervising a FOIA
search is all that is needed to satisfy the personal knowledge requirement of Federal Rule of Civil
Procedure 56(e)”) (internal quotation marks omitted). Upon receiving notice of the instant lawsuit,
Ms. Luckstone also “reached out to the FOIA liaison in the District of Alaska and (out of an
abundance of caution) asked the liaison to perform another search for records pertaining to Mr.
Stoufer. On August 4, 2020, the Administrative Officer for the District of Alaska searched JDIS
and Outlook email records using Plaintiff’s first and last name and located no responsive records.”
Docket 38-5 at 5, ¶ 17.
103

104

See generally Docket 38-5 at 4–5, ¶ 16 (Decl. of Charlotte Luckstone, USMS).

See generally Docket 40 (Opp.); see also Yagman v. Pompeo, 868 F.3d 1075, 1083 (9th Cir.
2017) (holding that exhaustion under FOIA is a prudential consideration rather than a
jurisdictional prerequisite).
105

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demonstrated it conducted a search reasonably calculated to uncover all relevant
documents.106
CONCLUSION
In light of the foregoing, IT IS ORDERED THAT Defendants’ Motion for
Summary Judgment at Docket 38 is GRANTED. The Clerk of the Court is directed
to enter a final judgment accordingly.
Dated this 27th day of April, 2021 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

106

See Lahr, 569 F.3d at 986.

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