BUHOLTZ v. UNITED STATES MARSHALS SERVICE et al
MEMORANDUM OPINION re: 5 Defendant Donnie Foster's Motion to Dismiss and 7 Defendant United States Marshals Service's Motion for Summary Judgment. See attached Memorandum Opinion for additional details. Signed by Judge Amit P. Mehta on 01/16/2017. (lcapm3)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
United States Marshals Service, et al.
Case No. 16-cv-00943 (APM)
Plaintiff Kenneth Buholtz, proceeding pro se, brings this action under the Freedom of
Information Act (“FOIA”) against the United States Marshals Service (“USMS” or
“Defendant”),1 seeking medical, phone, and disciplinary records created during his incarceration
at a USMS contract facility in Fannin County, Texas. 5 U.S.C. § 552. Defendant now moves for
summary judgment, asserting that the documents Plaintiff seeks are not in its possession.
Based on the parties’ submissions and the record evidence, the court grants Defendant’s
Motion for Summary Judgment.
From June 2011 to March 2013, Plaintiff was a prisoner at the Fannin County Detention
Center, which operates as a contract facility for USMS.
Compl., ECF No. 1 [hereinafter
Compl.], ¶ 4.01; Mem. in Supp. of Def.’s Mot. for Summ. J., ECF No. 7, at 6–12 [hereinafter
Def.’s Mem.], at 1, 6. On June 19, 2014, Plaintiff sent a request to USMS seeking all records
Plaintiff also named as a defendant Donnie Foster, former Sheriff of Fannin County, Texas. Defendant Foster
moved to dismiss, and Plaintiff appropriately conceded the motion. See Buholtz Consent Resp. to Def. Foster’s
Mot. to Dismiss, ECF No. 9. Accordingly, Defendant Foster’s Motion to Dismiss is granted.
pertaining to him. Def.’s Stmt. of Undisputed Material Facts, ECF No. 7, at 2–5 [hereinafter
Def.’s Stmt.], ¶ 1; Pet.’s Opp. to Summ. J., ECF No. 10 [hereinafter Pl.’s Opp.], at 1. The June
2014 FOIA Request is nowhere mentioned in Plaintiff’s Complaint—and thus does not appear to
be a subject of this action—but the court discusses it by way of background.2
USMS conducted a search for records, which yielded 51 pages of material. Def.’s Stmt.
¶¶ 2–4; Decl. of William Bordley, ECF No. 7-1 [hereinafter Bordley Decl.], ¶¶ 4, 6; Bordley
Decl., Ex. A, ECF No. 7-2, at 1–2. On July 16, 2014, USMS released 50 pages of material to
Plaintiff—33 pages in full and 17 pages with some information withheld pursuant to FOIA
Exemptions 7(C) and 7(E), which protect from disclosure certain law enforcement records.
Bordley Decl. ¶ 6; Bordley Decl., Ex. C, ECF No. 7-2 [hereinafter Bordley Decl., Ex. C], at 4–7;
5 U.S.C. § 552(b)(7).
The remaining page originated with the Executive Office for U.S.
Attorneys (EOUSA) and was referred to that agency for a response to Plaintiff’s request.
Bordley Decl. ¶ 6; Bordley Decl., Ex. C. When it turned over the records, USMS advised
Plaintiff that he could appeal USMS’ partial denial to the Department of Justice Office of
Information Policy within 60 days. Id.
Plaintiff, however, filed his appeal on October 8, 2014, after the 60-day period expired.
Bordley Decl. ¶ 7; Bordley Decl., Ex. D, ECF No. 7-2, at 8.
Thereafter, the Office of
Information Policy denied Plaintiff’s appeal as untimely. Bordley Decl. ¶¶ 7–8; Bordley Decl.,
Ex. E. ECF No. 7-2 [hereinafter Bordley Decl., Ex. E], at 10. In its letter denying the appeal, the
Office of Information Policy instructed Plaintiff, “you are free to make a new request to USMS
for any records that you might wish to receive.” Bordley Decl., Ex. E, at 10.
Even if the Complaint could be construed to challenge the agency’s response to the June 14, 2014 FOIA Request,
Plaintiff has offered no argument in response to Defendant’s Motion for Summary Judgment as to that request. In
any event, the court is satisfied that Defendant has adequately justified its withholdings to that request.
Heeding that invitation, Plaintiff filed a series of follow-on FOIA requests starting in
January 2015. On January 12, 2015, he sought from USMS his inmate phone account records
and disciplinary records from the period he was held at the Fannin County Detention Center.
Bordley Decl. ¶¶ 9–10; Bordley Decl., Ex. F, ECF No. 7-2 [hereinafter Bordley Decl., Ex. F], at
11. USMS advised Plaintiff that “[t]he records you seek are under the jurisdiction of Fannin
County” and “to direct your request to the appropriate agency in that facility.” Bordley Decl.,
Ex. G, ECF No. 7-2, at 12.
Apparently unsatisfied with that response, Plaintiff submitted additional requests for the
same records in April and June 2015, which USMS treated as duplicate requests and took no
action. Bordley Decl. ¶¶ 11–12; Bordley Decl., Exs. H & I, ECF No. 7-2 at 13–14. Plaintiff
then filed a complaint in this court on May 19, 2016. See Compl.
Most FOIA cases are appropriately decided on motions for summary judgment.
See Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). A court
may award summary judgment in a FOIA case by relying on the agency’s 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 quotation marks omitted), and if they describe
“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 controverted by either contrary evidence in the record nor by evidence of agency bad faith,”
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). The court affords such
declarations “substantial weight” if they meet these requirements. Judicial Watch v. U.S. Dep’t
of Def., 715 F.3d 937, 940–41 (D.C. Cir. 2013).
Defendant seeks summary judgment on a simple ground—it does not possess the records
that Plaintiff seeks. Def.’s Mem. at 6. It contends that, if the records are to be found anywhere,
they would be in the possession of the state or local agency that operates the Fannin County
Detention Center. Id. Plaintiff responds that Defendant’s lack of physical possession of the
records does not absolve it of the obligation to produce them. Pl.’s Opp. at 3–5. As he puts it,
because the Fannin County Detention Center was a USMS contract facility, all it had to do was
make a “phone call to attempt to [retrieve] these records.” Id. at 3–4. Plaintiff is wrong for two
First, the requested records are not “agency records” for purposes of FOIA. Under FOIA,
federal courts are empowered to “order the production of any agency records improperly
withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). The Supreme Court has held that for
documents to qualify as “agency records” the agency must both (1) “create or obtain” the
requested materials, and (2) “be in control of [them] at the time the FOIA request is made.” U.S.
Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 144–45 (1989) (quoting Forsham v. Harris, 445
U.S. 169, 182 (1980)). The records requested by Plaintiff satisfy neither of these elements. As
William Bordley, Associate General Counsel and the Freedom of Information/Privacy Act
Officer of USMS, has attested: “The records plaintiff seeks, medical, disciplinary, and phone
records, are not records maintained by the USMS. The USMS contract facilities are responsible
for maintaining the records. These records are neither created nor obtained by the USMS, nor
under USMS control at the time of the FOIA request.” Bordley Decl. ¶ 13. Plaintiff has offered
no evidence to the contrary.
The fact that the Fannin County Detention Center was a USMS contract facility does not
convert its records into records created or controlled by USMS. USMS did not exercise the kind
of “extensive supervision and control” over the records’ creation for the court to conclude that
the contract facility acted on behalf of USMS in creating the records. See Bordley Decl. ¶ 13
(“USMS contract jails are responsible for the day-to-day care of USMS prisoners, including
housing and non-emergency medical care.”); cf. Burka v. U.S. Dep’t of Health and Human
Servs., 87 F.3d 508, 515 (1996) (holding that outside firms acted on behalf of a federal agency in
creating data tapes when the agency exercised extensive supervision and control over data
collection and analysis). Nor are any of the factors present that would establish the agency’s
control over the records. See id. at 515 (quoting Tax Analysts v. Dep’t of Justice, 845 F.2d 1060,
1069 (D.C. Cir. 1988), aff’d on other grounds, 492 U.S. 136 (1989) (instructing courts to
consider four factors in determining whether an agency exercises sufficient control over a
document to make it an “agency record”: “(1) the intent of the document’s creator to retain or
relinquish control over the records; (2) the ability of the agency to use and dispose of the record
as it sees fit; (3) the extent to which agency personnel have read or relied upon the document;
and (4) the degree to which the document was integrated into the agency’s record system or
files.”). The court therefore concludes that the jail records sought by Plaintiff are not agency
records for purposes of FOIA.3
Second, FOIA imposes no obligation upon USMS to, as Plaintiff suggests, pick up the
phone and request the records. FOIA “imposes no obligation to compile or procure a record in
Nor does 5 U.S.C. § 552(f)(2)(B) compel a different result. That provision provides that documents maintained for
an agency by a government contractor, “for the purposes of records management,” are subject to FOIA. See id.
Section 552(f)(2)(B) “primarily addresses the availability of physical documents committed to the custody of a
third-party for storage, and does not necessarily impose an affirmative obligation to search for and produce
documents in the possession of third party contractors.” Ryan v. FBI, 113 F. Supp. 3d 356, 363 (D.D.C. 2015). As
USMS did not contract with the Fannin County Detention Center “for the purposes of records management,” Section
552(f)(2)(B) does not apply.
response to a request.” Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S.
136, 151 (1980) (quoting Attorney General’s Memorandum on the Public Information Section of
the Administrative Procedure Act 23–24 (June 1967), Source Book I, pp. 222–23). Because the
USMS is not required to retrieve documents from a third party to comply with FOIA, the court
rejects Plaintiff’s argument that USMS must do so.
For the foregoing reasons, the court grants Defendant USMS’ Motion for Summary
Judgment, as well as Defendant Donnie Foster’s Motion to Dismiss.
A separate final order accompanies this Memorandum Opinion.
Dated: January 16, 2017
Amit P. Mehta
United States District Judge
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