THOMAS v. U.S. DEPARTMENT OF JUSTICE

Filing 33

MEMORANDUM OPINION AND ORDER denying without prejudice Defendant's 17 Motion for Summary Judgment. See the attached Memorandum Opinion and Order for additional details. Signed by Judge Amit P. Mehta on 03/28/2017. (lcapm1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
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ERNEST W. THOMAS,
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Plaintiff,
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v.
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U.S. DEPARTMENT OF JUSTICE,
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Defendant.
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___________________________________ )

Case No. 15-cv-01514 (APM)

MEMORANDUM OPINION AND ORDER
Plaintiff Ernest Thomas (“Plaintiff”), who is proceeding pro se, brings this action against
Defendant United States Department of Justice (“Defendant” or “the DOJ”) under the Freedom of
Information Act (“FOIA”). See 5 U.S.C. § 552. This matter is before the court on Defendant’s
Motion for Summary Judgment, ECF No. 17 [hereinafter Def.’s Mot.]. For the reasons discussed
below, Defendant’s Motion is denied without prejudice. 1
This case arises from a FOIA request Plaintiff submitted to the Executive Office for United
States Attorneys (“EOUSA”), a sub-agency of the DOJ, for records pertaining to a criminal case
brought against him in the Superior Court of the District of Columbia. Compl., ECF No. 1
[hereinafter Compl.], at 1. Plaintiff supplied the relevant case number in his FOIA request and
indicated that he sought, among other things, “police reports, medical report[s], [and] statements,
generated during the investigation of the criminal case.” Compl., Ex. A.

Based on Plaintiff’s representation that he had not received a copy of the documents released by the EOUSA, see
Pl.’s Opp’n to Def.’s Mot., ECF No. 20, at 2, 7–8, the court granted Plaintiff an extension of time, to March 21, 2017,
to file a supplemental opposition to Defendant’s Motion. To date, Plaintiff has neither filed that supplemental
opposition nor requested an extension of time to file. Therefore, the court issues this ruling without the benefit of
Plaintiff’s response.
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Defendant subsequently searched for records responsive to Plaintiff’s request.

As

explained in a declaration submitted by David Luczynski, an Attorney Advisor with the EOUSA,
each separate United States Attorney’s office maintains its own criminal case files. Def.’s Mot.,
Ex. A, ECF No. 17-1 [hereinafter Luczynski Decl.], ¶ 13. Accordingly, the EOUSA forwarded
Plaintiff’s request to the FOIA Contact at the U.S. Attorney’s Office for the District of Columbia
(“USAO/DDC”), the DOJ office that prosecuted him. Id. Thereafter, the FOIA Contact searched
the files affiliated with the case number Plaintiff provided in his FOIA request and sent e-mails to
the Assistant United States Attorney assigned to that case for any additional responsive records.
Id. In addition, the FOIA Contact searched the “LIONS” system to find responsive materials.
The “LIONS” system is the computer system used by United States
Attorney’s offices to track cases and to retrieve files pertaining to
cases and investigations. Through the “LIONS” system, the user
can access databases which can be used to retrieve the information
based on a defendant’s name, the USAO number (United States’
Attorney’s Office internal administrative number), and the court
case number for any court cases. In this case, the FOIA Contact
used the LIONS system to locate records responsive to plaintiff’s
FOIA request.
Id. In light of these efforts, Luczynski concludes that “[a]ll documents responsive to plaintiff’s
FOIA request have been located in the USAO/DDC.” Id.
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). 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 omitted). To this end, it 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) (per curiam). The

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supporting affidavit or declaration must be “reasonably detailed . . . , 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. U.S. Coast Guard, 180 F.3d 321, 326
(D.C. Cir. 1999) (internal quotation marks omitted).
The Luczynski Declaration—upon which Defendant relies to establish the adequacy of its
search—is insufficiently detailed to satisfy the summary judgment standard. The court does not
question the reasonableness of the EOUSA’s decision to forward Plaintiff’s request to the
USAO/DDC, the FOIA Contact’s decision to search the “LIONS” system, or the FOIA Contact’s
effort to obtain responsive material from the Assistant United States Attorney in charge of
Plaintiff’s criminal case. Those actions demonstrate a good faith effort to identify all responsive
records. Nevertheless, the Luczynski Declaration is insufficient to carry Defendant’s burden
because it fails to specify, with any level of detail, how the USAO/DDC conducted its searches.
For instance, the Declaration does not specify the search terms that the FOIA Contact used to
identify and retrieve records within the “LIONS” system. Nor does it detail in which files the
assigned Assistant United States Attorney conducted her own search at the FOIA Contact’s
prompting, what methods she used, or what responsive materials she identified, if any.
Without more details, Defendant cannot satisfy its burden on summary judgment. To be
clear, the USAO/DDC very well may have conducted an adequate search. After all, Plaintiff’s
FOIA request is straightforward: he seeks information about his own criminal case, which he
identified by case number. Based on the current record, however, the court cannot find that the
search conducted was reasonably designed to identify all responsive information. See DeBrew v.
Atwood, 792 F.3d 118, 122 (D.C. Cir. 2015) (concluding that the agency’s declaration was “not
sufficiently detailed to support a summary judgment because it does not disclose the search terms

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used by the [agency] and the type of search performed”); Morley v. CIA, 508 F.3d 1108, 1122
(D.C. Cir. 2007) (concluding that the agency’s declaration, which “merely identifies the three
directorates that were responsible for finding responsive documents,” was insufficient because it
did not “provide . . . information about the search strategies of the components charged with
responding to [the plaintiff’s] FOIA request”).
Because the court denies Defendant’s Motion for Summary Judgement on the adequacy of
the search, it need not rule on the propriety of Defendant’s withholdings or segregability
determination at this juncture. That said, the court has conducted a preliminary review of the
Luczynski Declaration and Vaughn Index and suggests that Defendant reexamine its invocation of
Exemptions 6 and 7(C) to withhold in full an expert witness’s curriculum vitae, a police officer’s
investigative notes, a handwritten account of the offense based on the victim’s statement, and
additional police notes. These records are identified as Documents 3, 5, 10, and 11, respectively,
in the Vaughn Index. See Luczynski Decl., Attach. J. Neither the declaration nor the Vaughn
Index adequately explains why those documents cannot be released in part by redacting identifying
personal information. Additionally, it is unclear how Exemptions 6 and 7(C) support the redaction
of names appearing in a publicly filed grand jury indictment. See id. (identifying Document 1 as
a “Grand Jury Indictment”). Defendant also may wish to revisit its segregability determination in
light of the court’s observations.
Thus, Defendant’s Motion for Summary Judgment is denied without prejudice. Defendant
may file a renewed Motion for Summary Judgment on or before April 27, 2017.

Dated: March 28, 2017

Amit P. Mehta
United States District Judge
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