NICHOLS v. OFFICE OF GENERAL COUNSEL et al

Filing 40

MEMORANDUM OPINION re: Defendant's 32 Renewed MOTION for Summary Judgment. Signed by Judge Robert L. Wilkins on 9/25/2013. (tcb)

SUMMARY MEMORANDUM AND OPINION;  
NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS. 

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NYRON NICHOLS,
Plaintiff,
v.

OFFICE OF GENERAL
COUNSEL et al.
Defendants.

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Civil Action No. 11-1357 (RLW)

MEMORANDUM OPINION1
In what remains in this FOIA action, the Bureau of Alcohol, Tobacco, Firearms and
Explosives (“ATF”) has proffered evidence about its search for records and has renewed its
motion for summary judgment. Def. ATF’s Renewed Mot. for Summ. J. [Dkt. # 32]. See Order
[Dkt. # 29] (granting summary judgment to ATF on its claimed exemptions and denying
summary judgment on the search question). Plaintiff has opposed the instant motion,
Consolidated Opp’n to Def.’s Mot. for Summ. J., Statement of Material Facts as to Which a
General Issue Exist, & Mem. of P. & A. in Support of Pl.’s Opp’n in Affidavit Form [Dkt. # 34],

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This unpublished memorandum opinion is intended solely to inform the parties and any
reviewing court of the basis for the instant ruling, or alternatively, to assist in any potential future
analysis of the res judicata, law of the case, or preclusive effect of the ruling. The Court has
designated this opinion as “not intended for publication,” but this Court cannot prevent or
prohibit the publication of this opinion in the various and sundry electronic and legal databases
(as it is a public document), and this Court cannot prevent or prohibit the citation of this opinion
by counsel. Cf. Fed. R. App. P. 32.1. Nonetheless, as stated in the operational handbook adopted
by our Court of Appeals, “counsel are reminded that the Court's decision to issue an unpublished
disposition means that the Court sees no precedential value in that disposition.” D.C. Circuit
Handbook of Practice and Internal Procedures 43 (2011).

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SUMMARY MEMORANDUM AND OPINION;  
NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS. 

and ATF has replied. Def.’s Reply Per the Court’s Order of Aug. 23, 2013 [Dkt. # 39]. Upon
consideration of the parties’ submissions and the relevant parts of the record, the Court will grant
ATF’s renewed motion for summary judgment and will now enter judgment for the defendants
on all claims.
LEGAL STANDARD
An agency is required “to make a good faith effort to conduct a search for the requested
records, using methods which can reasonably be expected to produce the information requested.”
Int’l Trade Overseas, Inc. v. Agency for Intern. Dev., 688 F. Supp. 33, 36 (D.D.C. 1988) (quoting
Marrera v. Dep't of Justice, 622 F. Supp. 51, 54 (D.D.C. 1985)) (other citations omitted). In
determining the adequacy of a FOIA search, the Court is guided by principles of reasonableness.
Id. (citing Weisberg v. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). Because the
agency is the possessor of the records and is responsible for conducting the search, the Court
may rely on "[a] reasonably detailed affidavit, setting forth the search terms and the type of
search performed, and averring that all files likely to contain responsive materials (if such
records exist) were searched." Valencia-Lucena v. United States Coast Guard, 180 F.3d 321,
326 (D.C. Cir. 1999) (citations omitted).
"Once the agency has shown that its search was reasonable, the burden shifts to [the
plaintiff] to rebut [the defendant's] evidence by a showing that the search was not conducted in
good faith." Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citing Miller v. U.S. Dep't of
State, 779 F.2d 1378, 1383 (8th Cir. 1985)). Summary judgment is inappropriate “if a review of
the record raises substantial doubt” about the adequacy of the search. Valencia-Lucena , 180
F.3d at 326 (citing Founding Church of Scientology v. Nat’l Security Agency, 610 F.2d 824, 837
(D.C. Cir. 1979)). However, “the [single] fact that a particular document was not found does not
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SUMMARY MEMORANDUM AND OPINION;  
NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS. 

demonstrate the inadequacy of a search.” Boyd v. Crim. Div. of U.S. Dept. of Justice, 475 F.3d
381, 390 -391 (D.C. Cir. 2007) (citations omitted).
DISCUSSION
Plaintiff questioned the adequacy of ATF’s search because the records he received did
not include a specific lab report and related documents “that would be labeled as exhibit no. 1 . .
. .” Mem. Op. [Dkt. # 28] at 12. The Court denied ATF’s initial summary judgment motion in
part because it had provided no evidence to permit a meaningful assessment of its search. Id. In
support of the instant motion, ATF has proffered the Second Declaration of Peter J. Chisholm
[Dkt. # 32-3], who adequately describes the filing systems that were searched and the search
methods employed. See id. ¶¶ 4-8. Chisholm explains that any responsive records were most
likely to be found in the TECS database because it “contains the names of the individuals ATF
has investigated,” id. ¶ 6, and a search by plaintiff’s full name indeed located plaintiff’s
“Criminal Investigation Number” and responsive records. Id. ¶ 8.
As to the alleged missing exhibit, Chisholm agrees that while ATF’s release included
“various” DEA lab reports that “begin with the designation ‘Exh. No. 2’ and continue
sequentially to ‘Exh. No. 6,’ ” it did not include “ ‘Exh. No. 1.’ ” Id. ¶ 10. During the course of
this litigation, ATF conducted an additional search but “the case agent confirmed that ATF does
not possess a copy of ‘Exh. No. 1,’ to the extent that such a report ever existed.” Id. Defendant
subsequently discovered that Exhibit 1 was “collected as part of a prior investigation” but was
destroyed “pursuant to agency destruction of property policy” on March 28, 2005, after the
investigation was closed, and approximately five years before plaintiff submitted his FOIA
request in September 2010. Decl. of Stephanie M. Boucher ¶¶ 6-7 [Dkt. # 39-1].

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SUMMARY MEMORANDUM AND OPINION;  
NOT INTENDED FOR PUBLICATION IN THE OFFICIAL REPORTERS. 

An agency satisfies its disclosure obligations under the FOIA when it has conducted an
adequate search and released all non-exempt responsive records in its control at the time of the
FOIA request. See Judicial Watch v. U.S. Secret Serv., --- F.3d. ---, No. 11-5282, 2013 WL
4608141, at *5 (D.C. Cir. Aug. 30, 2013) (“[T]he term ‘agency records’ extends only to those
documents that an agency both (1) create[s] or obtain [s], and (2) control[s] . . . at the time the
FOIA request [was] made.”) (quoting U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 14445 (1989)) (internal quotation marks omitted) (alterations in original). The Court finds that ATF
conducted an adequate search for responsive records and is now entitled to summary judgment.
A separate final order accompanies this Memorandum Opinion.
Digitally signed by Judge Robert L.
Wilkins
DN: cn=Judge Robert L. Wilkins, o=U.S.
District Court, ou=Chambers of
Honorable Robert L. Wilkins,
email=[e-mail], c=US
Date: 2013.09.25 12:58:25 -04'00'

____________________
ROBERT L. WILKINS
United States District Judge
Date: September 25, 2013

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