KANAYA v. ALCOHOL TOBACCO & FIREARMS ATF
MEMORANDUM OPINION accompanying final order issued separately this day. Signed by Judge Amit P. Mehta on 1/11/18.(ah)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Alcohol, Tobacco, Firearm and Explosives,
Civil No. 17-1103 (APM)
Plaintiff, a federal prisoner appearing pro se, brought this action under the Freedom of
Information Act (“FOIA”) and the Privacy Act to compel records from Defendant Alcohol,
Tobacco, Firearm and Explosives (“ATF”). Plaintiff attaches to the Complaint his FOIA request
dated October 15, 2015, and addressed: “Dear Sir or Madam, Re: Department of Justice; U.S.
Attorney of Southern District of Florida.” 1 Compl., ECF No. 1, Ex. A. Contending that it did not
receive Plaintiff’s request, Defendant has moved for summary judgment under Rule 56 of the
Federal Rules of Civil Procedure and has proffered in support the Declaration of Peter J. Chisholm,
ECF No. 10-1. Plaintiff has produced no evidence showing that Defendant received, or should
have received, the FOIA request. Therefore, the court will grant Defendant’s motion for the
reasons explained more fully below.
Plaintiff requested essentially all records pertaining to the criminal prosecution of himself and a co-defendant. In
the sole paragraph mentioning ATF, Plaintiff merely asked: “How did ATF profile as a robber or stash house robber”?
Ex. A ¶ 7.
Federal Rule of Civil Procedure 56 provides that a court should grant summary judgment
if “there is no genuine dispute as to any material fact and [the moving party] is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). A material fact is one that is capable of affecting the
outcome of litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). FOIA authorizes
district courts to enjoin federal agencies from withholding agency records and to order the
production of any improperly withheld records. 5 U.S.C. § 552(a)(4)(B). But an agency’s
obligation “to search for and disclose all responsive records” is not triggered until it has received
a request, Ctr. for the Study of Servs. v. United States Dep't of Health & Human Servs., 874 F.3d
287, 288 (D.C. Cir. 2017), that “reasonably describes” the requested records and “is made in
accordance with [the agency’s] published rules,” 5 U.S.C. § 552(a)(3)(A). Under DOJ regulations,
a FOIA requester should “write directly to the FOIA office of the component that maintains the
records being sought,” 28 C.F.R. § 16.3(a), or if unsure, mail the request to DOJ’s “FOIA/PA Mail
Referral Unit, Justice Management Division,” which would then “forward the request to the
component(s) that it determines to be most likely to maintain the [requested] records,” id. § 16.3
(a)(2); see § 16.41 (requiring same of Privacy Act requesters).
Defendant’s declarant is the Acting Chief of ATF’s Disclosure Division. He indicates that
Defendant was unaware of Plaintiff’s FOIA request until this lawsuit. Once informed, Disclosure
Division staff, using various terms, searched ATF’s “electronic FOIA databases to determine if
the alleged FOIA request was received by [the] office.” Chisholm Decl. ¶¶ 6-7. ATF found no
record of having received a FOIA request from Plaintiff “in or around October 15, 2015.” Id. ¶ 8.
Plaintiff counters that because he has “shown by a declaration” that he “sent [his] FOIA
request on October 15, 2015,” through the prison mail system, the burden shifts to “the
Government to prove that [he] delivered his initial FOIA request to prison authorities – if at all –
on a date other than on October 15, 2015.” Pl.’s Opp’n , ECF No. 12, at 2. This argument is
A federal agency has no obligation to respond to a FOIA request it has not received. See
Reynolds v. United States Dep’t of Justice, Civ. Action No. 16-1428 (JEB), 2017 WL 1495932
(D.D.C. April 26, 2017), at *2. Where, as here, an agency submits a declaration stating it did not
receive the FOIA request, the burden falls on the requester to come forward with proof to create a
genuine dispute of fact that he sent the FOIA request to the agency and the agency received it. See
Pinson v. United States Dep’t of Justice, 69 F. Supp. 3d 108, 113-14 (D.D.C. 2014). Here, Plaintiff
has failed to meet his burden. The only evidence Plaintiff offers is his own declaration, which
does not establish mailing to ATF. Rather, the declaration states, “I placed in the inmate legal
mailbox to the Dep’t of Justice (“ATF”) my FOIA request on October 15, 2015, and State that
first-class postage was prepaid.” Pl.’s Opp’n at 4 (emphasis added). Thus, Plaintiff’s declaration
does not show he mailed the FOIA request to ATF at an address associated with ATF. Moreover,
Plaintiff fails to acknowledge that, on its face, his FOIA request (1) is directed at “Department of
Justice; U.S. Attorney of Southern District of Florida,” not ATF, and (2) does not include an
address where it supposedly was mailed. Compl., Ex. A. Therefore, even the FOIA request itself
does not help Plaintiff satisfy his burden.
In short, where, as here, an agency’s declaration “demonstrate[s] that the prerequisites for
triggering the agency’s duties to search and produce responsive records have not been satisfied,”
and the agency’s declaration stands unrebutted by competent evidence, “the agency is entitled to
summary judgment.” MacLeod v. United States Dep’t of Homeland Sec., No. 15-cv-1792, 2017
WL 4220398, at *6 (D.D.C. Sept. 21, 2017) (citing Dale v. IRS., 238 F. Supp. 2d 99, 103 (D.D.C.
2002) (other citations omitted)).
For the foregoing reasons, Defendant’s Motion for Summary Judgment is granted and
judgment is entered in favor of Defendant.
A separate order accompanies this memorandum opinion.
Dated: January 11, 2018
Amit P. Mehta
United States District Judge
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