BURKE v. DEPARTMENT OF HOMELAND SECURITY
MEMORANDUM OPINION on Defendant's motion for summary judgment (Dkt. 13 ), Plaintiff's motion for in camera review (Dkt. 22 ), and Defendant's motion for an extension of time to respond to Plaintiff's motion for in camera review (Dkt. 24 ). See document for details. A separate order (Dkt. 26 ) will issue. Signed by Judge Randolph D. Moss on 9/8/2017. (lcrdm1, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 16-1670 (RDM)
U.S. DEPARTMENT OF HOMELAND
Plaintiff Darryl Burke is currently serving a thirty-year prison term for bank fraud and
conspiracy to commit bank and wire fraud. In 2015, he submitted three overlapping Freedom of
Information Act/Privacy Act requests to the United States Secret Service, a component of the
U.S. Department of Homeland Security. Although not entirely clear, those requests apparently
sought—among other things—a signed real estate contract that was allegedly produced by Wells
Fargo Bank in response to a grand jury subpoena; the alleged grand jury subpoena itself; certain
handwritten notes; and the transcripts of the testimony of three witnesses who appeared at
Burke’s criminal trial.
In response, the Secret Service sent Burke a letter explaining that it had concluded that
Burke’s request sought third-party information and that, under the Service’s governing
regulations, it could provide the requested records only with the authorization of that third party.
Unsatisfied, Burke filed the present action under the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552, seeking to compel the Secret Service to release the requested records. This, in
turn, prompted the Secret Service to conduct a search for documents responsive to Burke’s
After doing so, the Secret Service filed a motion for summary judgment, which is
currently before the Court for decision. Dkt. 13. According to the Service, it was unable to
locate many of the records Burke seeks, and the records that it was able to locate are subject to
FOIA exceptions and thus need not be released. As to much of this, Burke does not push the
point. He now asserts that he seeks the release of only two sets of records: First, he seeks “the
signature page (No. 0149 P. 15)” of the “real estate contract between John H. Cobb and
Claris[s]a Garvey.” Dkt. 15 at 5. Second, he seeks “any notes about the [s]ignature page from
S.S. Agent Nat Maloney.” Id.
The Secret Service attests that it has repeatedly and diligently searched for these records
and that they are not to be found. See, e.g., Dkt. 13-3 at 2–3 (Falletich ¶¶ 8–12); Dkt. 20-1 at 3–
4 (Swain Decl. ¶¶ 13–15); Dkt. 21-1 at 2 (Swain Supp. Decl. 4–7). As a result, the only question
that remains for resolution is whether the Secret Service has met its burden of showing that it has
“conducted a search reasonably calculated to uncover” the two remaining categories of records
that Burke seeks. Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Weisberg v.
U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). The Court concludes that the
Service has met its burden and will, accordingly, grant the pending motion for summary
Because Burke has clarified that he now seeks to compel the Secret Service to release
only (1) the signature page of the real estate contract between John H. Cobb and Clarissa Garvey
and (2) any notes that Special Agent Maloney may have taken about that page, the Court will
recount just that portion of the background relevant to those records.
On April 20, 2015, the Secret Service received two FOIA requests from Burke, one dated
March 24, 2015, and the other dated April 2, 2015.1 See Dkt. 13-2 at 2 (Campbell Decl. ¶ 4); id.
at 13, 15. Approximately a week later, the Secret Service wrote to Burke, informing him that,
because his requests sought records about a third party—Clarissa Garvey—the Service could
“neither initiate a search for responsive documents nor confirm or deny the existence of
investigatory information pertaining to the person named in [the] request” without “the required”
authorization, including “a notarized release from . . . Garvey.” Dkt. 13-2 at 18. The Service
further explained that, if Burke did not respond “within thirty . . . days from the date of this
letter,” it would administratively close Burke’s file. Id.
Instead of providing that release, Burke submitted a third FOIA request, adding further
detail to his earlier requests. Dkt. 13-2 at 36, 39–41. Of greatest relevance here, Burke states
that he was “specifically ask[ing] for all page[s], includ[ing] [a] sign[ed] copy of [the] real
estate contract between Clarissa Garvey and John Cobb,” which was “subpoena[ed] from Wells
Fargo” and “sen[t] by fax to S.S. Agent Maloney from Wells Fargo.”2 Id. at 36. Burke attached
the “first page of the sale contract between Clarissa Garvey and John Cobb” to his request, id;
see also id. at 40; highlighted the alleged Wells Fargo subpoena reference number for the
The Secret Service refers to Burke’s second request as the “April 12” request, see, e.g., Dkt.
13-1 at 1 (Def.’s SMF ¶ 1); Dkt. 13-2 at 2 (Campbell Decl. ¶ 4), but the request is actually dated
April 2, 2015, see Dkt. 13-2 at 15 (hand-written notations showing “4/2/2015”).
Burke’s May 19, 2015, FOIA request also sought the “[t]rial [t]estimony” of “Agent
Maloney,” “Clarissa Garvey,” and “John Cobb” from his “public trial.” Dkt. 13-2 at 36. In his
opposition brief, however, Burke “concede[d] that he d[id] not want the [Defendant] to supply
him with” those transcripts. Dkt. 15 at 5.
documents he was seeking, see id. at 36, 39, 41; and noted that he was requesting “public
information” that had been “testif[ied] [to] by both part[ies] in [Burke’s] public trial,” id. at 36,
39. Because Burke’s third request “did not include [the third-party] release” that he had been
previously advised was required, however, the Secret Service’s FOIA office “administratively
closed [Burke’s] file” without searching for any of the records he requested. Dkt. 13-2 at 4
(Campbell Decl. ¶¶ 15–16).
Burke initiated this action in August 2016. Dkt. 1. Although his complaint is not crystal
clear, the parties agree that, at a minimum, it seeks the two categories of records now at issue—
the signature page of the real estate contract and any notes Special Agent Maloney may have
taken about that page. After receiving the complaint, the Secret Service initiated its first search
for these (and other) records. See Dkt. 13-2 at 4–5 (Campbell Decl. ¶ 18). The Miami Field
Office was identified as the “controlling field office for the investigation leading to [Burke’s]
criminal case,” and Special Agent Eric Falletich was instructed to search for responsive records,
including “a real estate contract between Clarissa Garvey and John Cobb.” Id. at 5 (Campbell
Decl. ¶ 21); see also Dkt. 13-3 at 1 (Falletich Decl. ¶¶ 1, 3–4). Falletich searched through the
“[ten] banker boxes of documents associated with [Burke’s] criminal investigation,” “searched
[his] computer hard drive” using the “search terms ‘Clarissa Garvey,’ ‘John Cobb,’ ‘Garvey,’
and ‘Cobb,’” and searched the “Miami Field Office network drive” using the same four terms.
Dkt. 13-3 at 2–3 (Falletich Decl. ¶¶ 8, 10). Falletich’s search of his hard drive and the network
drive failed to yield any responsive records. Id. at 3 (Falletich Decl. ¶ 10). His search of the
banker boxes, however, uncovered seventy-four pages of potentially responsive records that
“reflect[ed] that they were produced in response” to the Wells Fargo subpoena referenced in
Burke’s FOIA requests. Dkt. 13-2 at 5 (Campbell Decl. ¶ 22); see also Dkt. 13-3 at 2 (Falletich
Decl. ¶¶ 8–9). The Secret Service did not release any of those seventy-four pages of records to
Burke, asserting that they contained only non-segregable information subject to FOIA
Exemptions 3 and 7(C). See Dkt. 13 at 8–10.
Relying on the adequacy of Falletich’s search and these FOIA exemptions, the Secret
Service moved for summary judgment. Dkt. 13 at 10. In opposing that motion, Burke “ma[d]e
clear” that “the signature page (No. 0149 P.15)” of the real estate contract “and any notes about
the [s]ignature page from [Special] Agent . . . Maloney” are “the only documents” that he is
seeking in this litigation. Dkt. 15 at 5. This clarification, in turn, prompted the Secret Service to
“conduct an additional search for th[e] signature page and any notes by Maloney about that
signature page.” Dkt. 20 at 1. According to the declaration of Brian Swain, the Special Agent in
Charge of the Secret Service’s Miami Field Office, that search “consisted of (a) a review of the
[ten] banker boxes of documents associated with the criminal investigation of [Burke], including
a review of the documents associated with [the] Wells Fargo subpoena . . . , and (b) a search of
all the electronic materials related to [Burke’s] criminal investigation on the Miami Field Office
network drive.” Dkt. 20-1 at 4 (Swain Decl. ¶ 14). He further attested that “[a]ll files likely to
contain responsive materials were searched.” Id. This “second” search “did not yield the
requested signature page or any notes about” it. Id. (Swain Decl. ¶ 15).
On August 1, 2017, the Court ordered the Secret Service to provide additional
information about its efforts to locate the requested records. The Court observed that Burke had
filed a supplemental opposition (Dkt. 16) that included “several pages of trial transcripts from his
criminal trial” in which a “witness discusse[d] the signature page of th[e] real estate contact” that
Burke was seeking, and in which “a lawyer [had] indicate[d] that the signature page” had been
“entered into evidence as ‘Government . . . Exhibit UU.’” Minute Order (Aug. 1, 2017) (quoting
Dkt. 16 at 5–6). The Court noted that, although the Secret Service had already performed a
supplemental search keyed to Burke’s updated request, it had not indicated whether “it
maintained copies of trial exhibits from [Burke’s] criminal trial” or whether it had “searched
those trial exhibits for the signature page” at issue. Id. Accordingly, the Court ordered that the
Secret Service provide a supplemental declaration “informing the Court whether it . . .
maintained a copy of the trial exhibits,” and, if so, whether those exhibits had been searched for
any records responsive to Burke’s narrowed request. Id. The Secret Service responded to the
Court’s order on August 7, 2017, verifying that it had performed a search “specifically for copies
of the trial exhibits from [Burke’s] criminal trial;” that it did “not maintain a complete copy of
the trial exhibits from [Burke’s] criminal trial;” that, among the “few” trial exhibits it did
maintain, it could not locate “the requested signature page;” and that a “third search” of the
“banker boxes” and all “electronic materials related to [Burke’s] criminal investigation” failed to
“yield the requested signature page or any notes about that signature page.” Dkt. 21-1 at 2
(Swain Supp. Decl. ¶¶ 4–7).
II. LEGAL FRAMEWORK
FOIA cases are typically resolved on motions for summary judgment under Federal Rule
of Civil Procedure 56. See, e.g., Shapiro v. U.S. Dep’t of Justice, 153 F. Supp. 3d 253, 268
(D.D.C. 2016). To prevail on a summary judgment motion, the moving party must demonstrate
that there are no genuine issues of material fact and that he or she is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In
a FOIA action, “the Court may award summary judgment to an agency solely on the basis of
information provided in affidavits or declarations that describe ‘ . . . the justifications for
nondisclosure [of records] with reasonably specific detail . . . and are not controverted by either
contrary evidence in the record nor by evidence of agency bad faith.’” Thomas v. FCC, 534 F.
Supp. 2d 144, 145 (D.D.C. 2008) (alterations in original) (quoting Military Audit Project v.
Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)). The Court reviews the agency’s decision de novo,
and the agency bears the burden of sustaining its action. 5 U.S.C. § 552(a)(4)(B).
The Secret Service asserts that, after three searches, it has failed to locate the specific
records that Burke requests. The only question for the Court to resolve, then, is whether the
Secret Service’s searches for those records were adequate. The Court concludes that they were.
“An agency has an obligation under FOIA to conduct an adequate search for responsive
records.” Ewell v. U.S. Dep’t of Justice, 153 F. Supp. 3d 294, 301 (D.D.C. 2016). The adequacy
of an agency’s FOIA search “is judged by a standard of reasonableness,” Weisberg v. U.S. Dep’t
of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984), and “[a]n agency fulfills its obligations . . . 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)). “In order to obtain
summary judgment[,] the agency must show that it 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). The
agency can show that it conducted an adequate search by relying on “[a] reasonably detailed
affidavit [or declaration], 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.” Id. Significantly, “the adequacy of a search is ‘determined not by the fruits of the
search, but by the appropriateness of [its] methods.’” Hodge v. FBI, 703 F.3d 575, 579 (D.C.
Cir. 2013) (alteration in original) (quoting Iturralde v. Comptroller of the Currency, 315 F.3d
311, 315 (D.C. Cir. 2003)).
The record provides ample evidence that the Secret Service performed an adequate search
that was reasonably calculated to locate the signature page Burke requested and any notes
Special Agent Maloney may have taken about that page. The Secret Service focused its search
on the Miami Field Office because it was the “controlling field office for the investigation
leading to [Burke’s] criminal case.” Dkt. 13-2 at 5 (Campbell Decl. ¶ 20). It tasked Eric
Falletich with performing the search because he was “familiar with the documents in the case
file.” Dkt. 13-3 at 1 (Falletich Decl. ¶¶ 1–4). As Falletich avers in his declaration, the
“documents associated with [Burke’s] criminal investigation” were contained in “[ten] banker
boxes” located in the Miami Field Office, and he “searched through th[o]se boxes for [the]
documents” Burke requested without success. Id. at 2 (Falletich Decl. ¶ 8). He also “searched
[his] computer hard drive” and the “Miami Field Office network drive” for any electronic
documents that were responsive to terms like “Garvey” and “Cobb”—the signatories to the
contract that Burke was seeking—but, again, failed to locate the specific documents at issue. Id.
at 2–3 (Falletich Decl. ¶ 10).
Burke attacks the adequacy of this search by claiming that Falletich falsely attested that
he was “the assigned case agent for the Secret Service case that ultimately led to” Burke’s fraud
conviction. Dkt. 15 at 6 (citing Dkt. 13-3 at 1 (Falletich Decl. ¶ 1)). According to Burke, this
assertion calls into question the veracity of Falletich’s declaration—and his assertion that he
completed a thorough search—because Falletich was not even employed by the Secret Service at
the time of Burke’s trial. Id. That argument, however, fails to recognize the possibility that
Falletich inherited responsibility for the matter after the trial was complete. That possibility,
moreover, is borne out by the declaration of Special Agent in Charge Swain, who attests that it is
“protocol within the Miami Field Office” to reassign a departing agent’s work to another agent
and that, in fact, Special Agent Falletich is “currently assigned to [Burke’s] criminal case.” Dkt.
20-1 at 2–3 (Swain Decl. ¶¶ 8, 10–11). Accordingly, there is no reason to question the accuracy
of Falletich’s declaration.
As explained above, after Burke clarified the object of his request, the Secret Service
performed a second search, once again “review[ing] . . . the [ten] banker boxes of documents” in
an effort to locate the signature page, and, again, “search[ing] . . . all of the electronic materials
related to [Burke’s] criminal investigation on the Miami Field Office network drive.” Dkt. 20-1
at 4 (Swain Decl. ¶¶ 14–15). Even with the more defined parameters Burke had provided, this
search proved no more fruitful than the first. And after the Service conducted yet a third
search—this time by searching for trial exhibits that may have contained the signature page in
question—the Secret Service, yet again, did not find the records Burke seeks. The Secret Service
further explained, moreover, that it had “not maintain[ed] a complete copy of the trial exhibits
from [Burke’s] criminal trial;” that, among the exhibits it did retain from the trial, a search “for
any trial exhibit that include[d] [Burke’s] requested signature page” came up empty; and that, for
the third time, the “search did not yield the requested signature page or any notes about that
signature page.” Dkt. 21-1 at 2 (Swain Supp. Decl. ¶¶ 3–7).
To meet its burden at the summary judgment stage, the “agency may submit, and [the
Court] may rely on, ‘reasonably detailed affidavit[s], setting forth the search terms and type of
search performed, and averring that all files likely to contain responsive materials (if such
records exist) were searched.’” Aguiar v. Drug Enforcement Admin., 865 F.3d 730, 738 (D.C.
Cir. 2017) (second alteration in original) (quoting DiBacco v. U.S. Army, 795 F.3d 178, 188
(D.C. Cir. 2015)). The declarations described above meet that standard. They describe where
responsive records, if any, were likely to be found; they describe in detail the locations that were
searched; they describe the electronic search terms; they explain that the Secret Service did not
keep a complete set of the trial exhibits; and they demonstrate a level of diligence commensurate
with the task. In short, the Secret Service’s declarations describe the methodology employed to
locate the records that Burke requested, explain who conducted the search and why, and note that
“[a]ll files likely to contain responsive materials were searched.” Dkt. 13-3 at 3 (Falletich Decl.
¶ 12). Even though the Secret Service’s search efforts did not bear the “fruit” that Burke was
hoping to obtain, the “appropriateness of [its] methods” cannot be faulted for that failure.
Iturralde, 315 F.3d at 315.
Burke’s efforts to resist this conclusion fail. First, even if Burke is correct that the
signature page was discussed in “open court” such that the “public domain exception” would
apply, see Dkt. 16 at 2 (citing Davis v. U.S. Dep’t of Justice, 968 F.2d 1279, 1279–80 (D.C. Cir.
1992)), that exception is of no moment where the agency cannot locate the document that was
previously discussed in “open court.” Second, his focus on the Secret Service’s repeated
invocations of a “Protective Order,” while understandable, is misplaced. See Dkt. 23 at 1–2.
Although the Secret Service’s declarants make frequent reference to an order “issued by the
United States District Court for the Southern District of Florida” that, they assert, “precludes the
disclosure of the sensitive information contained in any of the discovery documents associated
with [Burke’s] underlying criminal case,” see, e.g., Dkt. 13-2 at 6 (Campbell Decl. ¶¶ 25–27),
the Service does not ultimately rely on that protective order in seeking summary judgment. With
or without a protective order, the Secret Service cannot release records it does not have.
Similarly, there is no basis for the Court to conclude—as Burke seems to contend—that
there exists a separate cache of potentially responsive documents that are “covered by the
Government’s Protective Order” and that the Secret Service has yet to search. Dkt. 23 at 2. The
Secret Service’s representations, made under the penalty of perjury, regarding its efforts to locate
the requested records are entitled to a presumption of good faith, see Clemente v. FBI, No. 165067, --- F.3d ---, 2017 WL 3443034, at *3 (D.C. Cir. Aug. 11, 2017)), and the Service Service’s
witnesses have attested without qualification that they searched “[a]ll files likely to contain
responsive materials,” see, e.g., Dkt. 13-3 at 3 (Falletich Decl. ¶ 12). Burke’s bare assertion that
there must be some other set of “documents” containing the signature page is not enough to cast
doubt on the these representations. See SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C.
Cir. 1991) (“Mere speculation that as yet uncovered documents may exist does not undermine
the finding that the agency conducted a reasonable search.”). More fundamentally, Burke
appears to misunderstand the nature of a protective order. A protective order does not create a
new class of documents that are necessarily filed and maintained separately from other
documents, but rather governs how covered documents may be used and to whom they may be
Finally, Burke requests that the Court either require additional detail from the Secret
Service or conduct an in camera inspection regarding one issue. Dkt. 22. In particular, he points
to the Secret Service’s assertion that “[a]lthough [it] has the page that [Burke] asserts or appears
to assert is the signature page to the specified contract, see [Dkt. 15 at 5], that page is not the
signature page to the specified contract.” Dkt. 20-1 at 4 (Swain Decl. ¶ 16). Far from injecting
uncertainty, however, that assertion is readily explained by reference to Burke’s own filings. In
narrowing the scope of his request in his opposition brief, Burke stated that he seeks “the
signature page (No. 0149 P.15).” Dkt. 15 at 5. He then attaches the portions of the contract that
he does have to his supplemental brief in opposition. Dkt. 16 at 8–10. The final page of that
document bears the notation “No. 0149 P. 14,” id. at 10, presumably prompting Burke to ask for
the next page—“No. 0149 P. 15”—which he assumes is the signature page. But, page “No. 0149
P. 14” notes at the bottom that it is “Page 3 of 5,” id., making clear that two pages follow.
Understood in this light, the fact that the Secret Service acknowledges that it possesses a copy of
page “No. 0149 P.15” is not at all inconsistent with the Service’s further assertion that it does not
possess the signature page. Because Burke has made clear that it is the signature page that he
seeks, and because the Secret Service has provided multiple declarations under the penalty of
perjury attesting that it does not have that page, the Court concludes that there is no need for
further explanation or for an in camera inspection of page “No. 1049 P.15”—that is, the secondto-last page of the contract.
As the D.C. Circuit has explained, “[an] agency is not obligated, nor is it able, to disclose
a record it does not have.” Burke v. U.S. Dep’t of Homeland Sec., No. 16-cv-1595,
--- F. Supp. 3d ---, 2017 WL 3405512, at *6 (D.D.C. Aug. 8, 2017) (alteration in original)
(quoting DeBrew v. Atwood, 792 F.3d 118, 123 (D.C. Cir. 2015)). Here, the Secret Service
conducted three diligent searches for the records that Burke requested and could not locate them.
That is all the law requires.
The Court will, accordingly, GRANT the Secret Service’s motion for summary
judgment, Dkt. 13, and will DENY Burke’s motion for in camera review, Dkt. 22. The Court
will DENY the Secret Service’s motion for an extension of time to respond to Burke’s motion
for in camera review, Dkt. 24, as moot.
A separate order will issue.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: September 8, 2017
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