O'Neill v. United States Department of Justice et al

Filing 18

DECISION AND ORDER signed by Judge Lynn Adelman on 1/25/17 that defendants motion for summary judgment 10 is GRANTED and this case is DISMISSED. Further ordering that plaintiffs motion for judicial notice and to expand the record 16 is DENIED. Further ordering the Clerk of Court to enter judgment accordingly. (cc: all counsel, via USPS to plaintiff) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
KEVIN O’NEILL,
Plaintiff,
v.

Case No. 16-C-425

UNITED STATES DEPARTMENT
OF JUSTICE, and
UNITED STATES MARSHALS
SERVICE,
Defendants.

DECISION AND ORDER
Kevin O’Neill, a federal prisoner who is representing himself, filed an action
under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, alleging that defendants
failed to produce certain documents he requested under the law. ECF No. 1. I screened
the complaint pursuant to 28 U.S.C. § 1915A and allowed him to proceed with a claim
that the Federal Bureau of Investigation (“FBI”) and the United States Marshal’s Service
(“USMS”) improperly withheld a 56-page courtroom security plan, along with documents
related to a murder plot, that plaintiff requested in 2015. ECF No. 4. I asked defendants
to answer by July 20, 2016, and they instead filed a motion for summary judgment on
that date. ECF No. 10. Plaintiff then filed a “motion for judicial notice and a motion to
expand the record” on December 6, 2016. ECF No. 16. The motions are now fully
briefed and ready for decision and order.

FACTS 1

I.

Plaintiff is an inmate at the Oxford Federal Correctional Institution. Compl., ¶ 5.
From early March 2000 to June 15, 2000, he was one of nine defendants on trial for
racketeering at the Eastern District of Wisconsin. Id., ¶ 8. On or about April 15, 2000,
individuals with the USMS lost a 56-page courtroom security plan that they created for
the trial. Id., ¶ 9. They apparently left the security plan in the lobby of the Hyatt Hotel
where they were staying for the trial. Id., ¶ 9. A reporter published a story on the
incident entitled “US Marshals lose copy of security plan in Outlaws federal racketeering
trial: US Marshals blow their cover at racketeering trial of nine bikers; abandon 56-page
security

plan

after

agent

leaves

copy

in

hotel

lobby.”

See

http://www.putnampit.com/outlaws.html. The news story stated that plaintiff arranged to
have Assistant U.S. Attorney Paul Kanter killed for a certain amount of money and that
the FBI had to assign in-district personal protection on Kanter as a result of the threat.
Id. Plaintiff was eventually convicted of racketeering, and he is still in prison for that
conviction.
About fifteen years later, on April 28, 2015, plaintiff “became aware” that the
USMS had lost the 56-page courtroom security plan and that a news story had been
published on the incident with details regarding plaintiff’s murder plot. Id., ¶ 13. That

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I take the facts in this section from defendants’ proposed findings of fact (ECF No. 11
at 5-18), and plaintiff’s sworn complaint (ECF No. 1), which I construe as an affidavit at
the summary judgment stage. Ford v. Wilson, 90 F.3d 245, 246-47 (7th Cir. 1996).
Where plaintiff disputes defendants’ proposed findings of fact without evidentiary
support, those facts are deemed undisputed for purposes of summary judgment. Fed.
R. Civ. P. 56(c)(4); Civ. L. R. 56(b)(2)(i)(B) and (b)(4).
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same day, plaintiff drafted a FOIA request letter addressed to Teresa L. Carlson at the
FBI, and he served it on the USMS, the FBI, and the Executive Office for United States
Attorneys. ECF No. 1-1 at 2-5. The letter stated:
“I am requesting a copy of the 56-page document the reporter acquired for
this story, as well as any other records the FBI maintains with a nexus to
the alleged plot your agency conveyed to the U.S. Marshals Service which
resulted in (then) Chief Deputy U.S. Marshal ‘[Joseph] Tindal direct[ing]
the establishment of an in-district personal protection assignment
on…[AUSA] Kanter,’ as well as the implementation of other extreme
security measures.”
Id. at 2.
USMS Response to Plaintiff’s FOIA Request
In response to the plaintiff’s FOIA request, the USMS Milwaukee office, who
created the 56-page courtroom security plan for plaintiff’s trial, searched their paper and
electronic records for the documents plaintiff requested. Bordley Dec., ECF No. 11-1, ¶
3.

William E. Bordley, the Associate General Counsel and Freedom of

Information/Privacy Act Officer for the USMS, provided a declaration with information on
how and why the USMS stores records, and how they processed plaintiff’s FOIA
request in this case. Id., ¶ 1.
Bordley explained that the USMS is responsible for “investigating fugitive
matters,” “executing warrants,” and “receiving, processing, transferring and maintaining
custody of federal prisoners.” Id., ¶ 4. To aid in carrying out these responsibilities, the
USMS stores information in two electronic databases: the “Prisoner Processing and
Population Management/Prisoner Tracking System” and the “Warrant Information
Network.” Id. Both of these databases are searched by an individual’s name and/or his

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personal identifiers, i.e., the individual’s date or place of birth, social security number,
and prisoner registration number. Id.
The USMS also stores records on individual office computers. Id., ¶ 6. USMS
employees have access to an individual office computer where they can create and
save documents, and they also have access to the office’s “shared drive” which
contains templates for employee use. Id., ¶ 6. In 2000, office practice was to use a
template and save “high-risk” security plans on an employee’s individual office
computer. Id. The office’s individual computers were most recently replaced in 2006-07,
and no copies of the old computer drives were saved. Id.
Finally, the USMS also has limited paper files. Id., ¶ 5-6. Once the USMS
completes its responsibilities relating to a particular trial, it does not save paper copies
of the security plan for that trial, other than possibly as a template for future cases. Id., ¶
5.
In response to plaintiff’s FOIA request, the USMS searched their Prisoner
Processing and Population Management/Prisoner Tracking System and the Warrant
Information Network using plaintiff’s name and personal identifiers. Id., ¶ 3. They found
some information relating to plaintiff, but they did not locate a copy of the security plan.
Id., ¶ 4. They searched their individual computers and shared drives, but could not find
a copy of the security plan. Id. USMS also searched their paper files but could not find a
copy of the security plan. Id., ¶ 6. By letter dated July 22, 2016, the USMS informed
plaintiff that their search for records did not yield any responsive documents. Id., ¶ 7.

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FBI Response to Plaintiff’s FOIA Request
In response to the plaintiff’s FOIA request, the FBI also searched their paper and
electronic records for the documents plaintiff requested. Hardy Dec., ECF No. 11-2, ¶¶
7-8. David M. Hardy, the Section Chief of the FBI’s Record/Information Dissemination
Section (“RIDS”) provided a declaration with information on the FBI’s records keeping
systems and details regarding the handling of plaintiff’s FOIA request. Id., ¶ 1.
The FBI maintains a Central Records System (“CRS”) to aid in law enforcement,
counterintelligence, and general administrative and personnel functions. Id., ¶ 15. CRS
encompasses records of the FBI Headquarters, FBI Field Offices, and FBI Legal
Attaché Officers worldwide. Id., ¶ 15. When a case file is opened in the CRS, the FBI
assigns it a Universal Case File Number consisting of three parts: (1) the CRS file
classification number, (2) the abbreviation of the FBI Office of Origin initiating the file,
and (3) the assigned individual case file number for that particular subject. Id.

To

search the CRS, the FBI maintains “indexes” organized by individual (persons), by
organization (organizational entities, places, and things) and by event (terrorist attack,
bank robbery, etc.). Id., ¶ 18. The FBI only indexes information considered relevant and
necessary for future retrieval. Id. As a result, not every individual name or other subject
matter is indexed in the CRS. Id.
In October 1995, the FBI implemented the Automated Case Support (“ACS”),
and converted over 105 million CRS records into a single, consolidated case
management system accessible by all FBI offices. Id., ¶ 19. To search the ACS, the FBI
uses the Universal Index (“UNI”), where individual names are recorded by date of birth,
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race, sex, locality, social security number, address, and/or date of an event. Id., ¶ 20. A
UNI index search can locate FBI records created both before and after its 1995
implementation, in both paper and electronic format. Id.

Currently, UNI consists of

about 112.5 million searchable records and is updated daily with new indexed material.
Id. Older CRS records not indexed in UNI as a result of the 1995 consolidation are
searched by manual review of index cards. Id., ¶ 24. A manual search is triggered: (1) if
the individual searched was born before January 1, 1958; or (2) if an event searched
occurred before January 1, 1973. Id.
In July 2012, the FBI implemented Sentinel, the FBI’s “next generation case
management system.” Id., ¶ 21. Sentinel functions in the same way as ACS, but did not
replace ACS. Id. Information indexed in Sentinel is also replicated or “backfilled” to
ACS. Id. However, all records logged on or after July 1, 2012 were created using
Sentinel. Id.
In response to plaintiff’s FOIA request, the FBI conducted a UNI index search of
the ACS database on May 5, 2015. Id., ¶ 23. The FBI used plaintiff’s given name, Kevin
Patrick O’Neil, and his alias, “Spike,” to conduct the search. Id. They also searched for
documents related to plaintiff using his personal identifiers. The search yielded some
results, but none related to his FOIA request. Id. The FBI also manually searched index
cards because plaintiff was born before January 1, 1958. Id. The manual search did not
yield any records responsive to the request. Id., ¶ 24.
On May 25, 2016, in response to this litigation, the FBI again searched the ACS
database using the UNI index. Id., ¶ 25. They included additional search terms such as
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“AUSA Kanter Murder Plot,” “AUSA Kanter,” “Outlaw Murder Plot,” and “Outlaw Plot.” Id.
The FBI did not locate responsive records with these additional search terms. Id.
II.

DISCUSSION

Federal Rule of Civil Procedure 56 provides, in part, that summary judgment shall be
granted “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). I take
all facts in favor of the FOIA requester, and grant summary judgment where there is no
genuine issue of material fact about the adequacy of the agency’s records search. See
Rubman v. U.S. Citizenship & Immigration Services, 800 F.3d 381, 387 (7th Cir. 2015)
(citing Becker v. IRS, 34 F.3d398, 405 (7th Cir. 1994)). To that end, “discovery is
generally unavailable in FOIA actions” because factual disputes are rare and legal
issues are limited to how the law is applied to the documents at issue. Wheeler v. C.I.A.,
271 F.Supp.2d 132, 139 (D.D.C. 2003); see also CareToLive v. Food and Drug Admin.,
631 F.3d 36, 345-46 (6th Cir. 2011) (“Claims under [FOIA] are typically resolved without
discovery on the basis of the agency’s affidavits.”).
1. The Freedom of Information Act
Congress enacted FOIA to maintain an open government, ensure the existence
of an informed citizenry, as well as “to check against corruption and to hold the
governors accountable to the governed.” N.L.R.B. v. Robbins Tire & Rubber Co., 437
U.S. 214, 242 (1978). The law provides that agencies “shall make. . . records promptly
available to any person” who submits a request that “(i) reasonably describes such

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records and (ii) is made in accordance with [the agency's] published rules.” 5 U.S.C. §
552(a)(3)(A).
To prevail at summary judgement, “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.” Rubman v. U.S. Citizenship
and Immigration Services, 800 F.3d 381, 387 (7th Cir. 2015) (quoting Oglesby v. U.S.
Dept of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). Evidence that a search was
reasonable and conducted in good faith generally comes in the form of “reasonably
detailed nonconclusory affidavits submitted in good faith.” Id. (quoting Matter of Wade,
969 F.2d 241, 249 n.11 (7th Cir. 1992). “Good faith is presumed” and “can be bolstered
by evidence of the agency's efforts to satisfy the request.” Id.
The adequacy of an agency’s search is evaluated using a standard of
reasonableness. Id. (citing Davis v. DOJ, 460 F.3d 92, 103 (D.C. Cir. 2006)).
Reasonableness is flexible and context-dependent. Id. The search must be reasonable
under the facts of the case; however, the search need not be “exhaustive” nor need it
locate every possible document. Powers v. United States Department of Justice, 2006
WL 2546809 at *8 (E.D. Wis. 2006).
Plaintiff’s FOIA request asks for (1) the 56-page courtroom security plan (which
was created by the USMS) and (2) “any other records the FBI maintains with a nexus to
the alleged plot.” The USMS and FBI both presented affidavits from individuals in
charge of maintaining agency records describing in detail their efforts to locate the
documents plaintiff requested. Both defendants satisfied their burden to show that the
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agencies searched their records using methods that could reasonably produce the
information requested. Therefore, I grant summary judgment in favor of defendants and
dismiss this case.
a. USMS Search for the 56-page Courtroom Security Plan
The USMS conducted a search for the 56-page courtroom security plan and
found nothing. The affidavit from William Bordley explained that the USMS indexes a
record in their electronic database using an individual’s name and personal identifiers,
and as a result, they typically search files in their system using this information. The
USMS conducted a search of their electronic databases using plaintiff’s name and
personal identifiers and could not find the security plan. Although plaintiff asserts that
the USMS “intentionally narrowed the scope of [their] search” by using only his name
and personal identifiers, the Seventh Circuit has previously concluded that searching
an electronic database using plaintiff’s name or personal identifiers was an objectively
reasonable way to find documents related to him. See Moore v. F.B.I., 366 F. App'x
659, 661 (7th Cir. 2010) (“[Plaintiff’s] name was a reasonable search term, and the
inquiry produced only three potentially responsive files that had all been destroyed
years earlier. That the FBI no longer possesses those documents does not undermine
the reasonableness of the agency's search.”)
The USMS also searched individual office computers, shared drives, and paper
files. They did not locate the security plan. Contrary to plaintiff’s assertion, the USMS
was not required to specifically describe “which particular paper files were searched” in
order to prove that their search was reasonable. Bordley indicated that the USMS does
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not save paper copies of a security plan once they have completed the trial associated
with that plan. They have paper files only when someone decides to keep a document
as a template for future use. The USMS searched the paper files they had and could not
find the security plan.

That is enough for me to conclude that the search was

reasonable.
Lastly, plaintiff argues that the USMS search was inadequate because it did not
include a search for “communications” between USMS employees regarding the
security plan. Plaintiff’s FOIA request only asks for a copy of the 56-page courtroom
security plan, and does not ask for “communications” related to the plan. Therefore,
based on information from Bordley’s affidavit, I conclude that the USMS searched their
records using methods that could reasonably produce the information requested.
b. FBI Search for “Any Other Records the FBI Maintains With A Nexus to
the Alleged Plot”
The FBI searched for records “with a nexus to the alleged plot” and found
nothing. The affidavit from David Hardy explained that the FBI also indexes information
in their electronic databases using an individual’s name and personal identifiers. As
discussed above, a search using plaintiff’s name and personal identifiers to locate
documents related to his trial was reasonable and intended to produce the records
requested. Unlike the USMS, who searched all locations, the FBI limited its search to
the ACS system and to manual review of index cards. But, this decision was
reasonable, as the documents plaintiff requested involved incidents that occurred in
2000, and the FBI’s other electronic database, Sentinel, only contains files created after
2014. The plaintiff asked the FBI to search its “tickler files” and “I-drive files” for more
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information; however, the FBI no longer uses these files, and therefore it could not
search those locations. From the information in Hardy’s affidavit, I conclude that the FBI
searched their records using methods that could reasonably produce the information
requested.
Plaintiff presents two other arguments to show that the USMS and FBI exhibited
“bad faith” in conducting their search: (1) neither agency contacted Joseph Tindal, Paul
Kanter, or other individuals associated with the Outlaw case in conducting their search,
and (2) his colleague from the Outlaw trial, Mr. Powers, made an “indistinguishable”
FOIA request, and in that case the FBI found over 3,000 responsive records. Neither of
these argument is persuasive.
First, FOIA only requires that the agency conduct a “reasonable” search of
records. Both agencies did that. The security plan and other records plaintiff seeks are
almost fifteen years old at this point. Therefore, both agencies were justified in limiting
their search to the records in their possession, and were not required to contact Tindal,
Kanter, or other individuals associated with the case in order to comply with FOIA.
Second, regarding Mr. Power’s “indistinguishable” FOIA request to the FBI,
Hardy explained that Mr. Powers was involved in two different litigations in 2000 and his
FOIA request sought all records concerning the two criminal trials, in addition to a copy
of the security plan. Although they were not required to, the FBI recently reviewed the
3,000 responsive records in Power’s case. The responsive records pertained only to Mr.
Powers, and the security plan was not among those documents. Therefore, I conclude

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that the responsive records in Mr. Power’s case are not evidence of “bad faith” on the
part of the FBI in this case.
Nothing in the record shows that defendants exhibited bad faith in conducting
their searches. Therefore, I will grant summary judgment in favor of defendants and will
dismiss this case.
III.

PLAINTIFF’S MOTION FOR JUDICIAL NOTICE AND MOTION TO EXPAND
THE RECORD

On December 6, 2016, plaintiff filed a “motion for judicial notice and motion to
expand the record” under Federal Rule of Evidence 201. ECF No. 16. He asks me to
judicially notice certain statements made by Carrie Grow and David Sobonya, via email
correspondence, involving inmate Harvey Power’s “indistinguishable” FOIA request. Id.
Rule 201 allows me to take judicial notice of “adjudicative” facts that are: (1) “generally
known within the trial court’s territorial jurisdiction,” or (2) that “can be accurately and
readily determined from sources whose accuracy cannot reasonably be questioned.”
Fed. R. Evid. 201(b).
Plaintiff’s proposed facts (see ECF No. 16, ¶¶ 1-5) do not fall within either
category discussed above. See Hepp v. Ultra Green Energy Servs., LLC, No. 13 C
4692, 2014 WL 7190860, at *4 (N.D. Ill. Dec. 17, 2014) (concluding that court was
unaware of any precedent which allowed it to take judicial notice of emails). This is
particularly true because plaintiff seeks to use these emails to prove the truth of the
matter asserted rather than to prove that the email exchange occurred. See United
States v. First Am. Title Ins. Co., No. 16 CV 07008, 2016 WL 7374277, at *4 (N.D. Ill.
Dec. 20, 2016). Therefore, I will deny plaintiff’s motion.
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IV.

CONCLUSION
IT IS THEREFORE ORDERED that defendants’ motion for summary judgment

(ECF No. 10) is GRANTED and this case is DISMISSED.
IT IS FUTHER ORDERED that plaintiff’s motion for judicial notice and to expand
the record (ECF No. 16) is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court enter judgment accordingly.
This order and the judgment to follow are final. A dissatisfied party may appeal
this decision to the Court of Appeals for the Seventh Circuit by filing in this court a
notice of appeal within 30 days of the entry of judgment. See Federal Rule of Appellate
Procedure 3, 4. I may extend this deadline if a party timely requests an extension and
shows good cause or excusable neglect for not being able to meet the 30-day deadline.
See Federal Rule of Appellate Procedure 4(a)(5)(A).
Under certain circumstances, a party may ask me to alter or amend my judgment
under Federal Rule of Civil Procedure 59(e) or ask for relief from judgment under
Federal Rule of Civil Procedure 60(b). Any motion under Federal Rule of Civil
Procedure 59(e) must be filed within 28 days of the entry of judgment. I cannot extend
this deadline. See Federal Rule of Civil Procedure 6(b)(2). Any motion under Federal
Rule of Civil Procedure 60(b) must be filed within a reasonable time, generally no more
than one year after the entry of the judgment. I cannot extend this deadline. See
Federal Rule of Civil Procedure 6(b)(2).
I expect parties to closely review all applicable rules and determine, what, if any,
further action is appropriate in a case.
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Dated at Milwaukee, Wisconsin, this 25th day of January, 2017.
s/ Lynn Adelman
_______________________________
LYNN ADELMAN
District Judge

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