Davis v. Federal Bureau of Investigation

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ___________________________________ ) ADAM DAVIS, ) ) Plaintiff, ) ) v. ) Civil Action No. 10-0098 (EGS) ) Document No. 34 FEDERAL BUREAU ) OF INVESTIGATION et al., ) ) Defendants. ) ____________________________________)

MEMORANDUM OPINION

In this action brought under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,

plaintiff sues several federal agencies and agency components for allegedly failing to respond to

his requests for records pertaining to himself. He names as defendants the Federal Bureau of

Investigation (“FBI”), the Executive Office for United States Attorneys (“EOUSA”), the

Departments of Treasury, Justice (“DOJ”) and Homeland Security, the Internal Revenue Service

(“IRS”), the Financial Crimes Enforcement Network (“FinCen”), the Secret Service, and the

Securities and Exchange Commission (“SEC”).

Pending before the Court is the motion of the FBI, EOUSA, DOJ and IRS to dismiss or

for summary judgment [Dkt. # 34]. Upon consideration of the parties’ submissions and the

relevant parts of the record, the Court will grant in part and deny in part the moving defendants’

motion for summary judgment.

I. BACKGROUND

Plaintiff alleges that he requested from each defendant all records pertaining to himself,

“including, but not limited to, Criminal, Civil, Corporate, Individual, and Bond Information 2

and/or Commercial Crimes Bonding Information and/or Case Bonding Information and/or

Commercial Crimes Bonding Certification . . . .” Compl. Attach.1 Except for the IRS, which

first provided plaintiff a substantive response in 2009, the moving defendants responded

substantively to the request during the course of this civil action filed on January 20, 2010. Their

pertinent responses are as follows.

FBI’s Response

The FBI processed 471 pages of responsive records and, on February 18, 2010, and July

12, 2010, released 454 pages. It withheld information under FOIA exemptions 2, 3, 6, 7(C), 7(D)

and 7(E). See 5 U.S.C. § 552(b). Declaration of David M. Hardy (“Hardy Decl.”) [Dkt. # 34-4]

¶ 4.

EOUSA’s Response

EOUSA initially located 228 responsive pages and, by letter of March 23, 2010, released

to plaintiff 61 pages, eight of which contained redactions. EOUSA withheld 108 pages in full

and withheld plaintiff’s presentence investigation report pursuant to Bureau of Prisons policy that

permits a prisoner to review the document at his facility but not possess it. Declaration of Vinay

J. Jolly (“Jolly Decl.”) [Dkt. # 34-8], Ex. C. In addition, EOUSA referred 39 pages to the FBI,

from where they originated, to provide a direct response to plaintiff. Jolly Decl. ¶ 7. By letter of

May 7, 2010, EOUSA released to plaintiff an additional 116 pages, 74 of which contained

redactions, and it withheld 744 pages in full. EOUSA referred approximately 604 pages to the

1 The FOIA request attached to the complaint is neither addressed to any particular agency nor dated and signed. The defendants have placed in the record variations of the request substantially seeking the same information. 3

FBI, 124 pages to DOJ’s Criminal Division and seven pages to the IRS.2 Id. ¶ 8 & Ex. E.

EOUSA withheld information under FOIA exemptions 3, 5, 6 and 7(C). Id. ¶¶ 7, 8.

DOJ’s Response

By letter of June 11, 2010, the Criminal Division withheld all of the 24 pages of

responsive material it had located in the Office of International Affairs (“OIA”) under FOIA

exemptions 2, 5, 7(D) and 7(E). Declaration of Catherine Gonzalez Gallego (“Gallego Decl.”)

[Dkt. # 34-11] ¶ 14, Ex. 6 & Vaughn Index [Dkt. # 34-13]. Because plaintiff had not replied to

the Division’s request of November 30, 2009, to provide within 30 days additional information

regarding his request to search the files of the Electronic Surveillance Unit, the Division closed

that portion of plaintiff’s request. Id., Ex. 6 at 2.

IRS’s Response

Following a search for records, the IRS, by letter dated November 9, 2009, informed

plaintiff that it had located no responsive records because he did not file tax returns for tax years

2000, 2001, 2002 and 2004 “through present” and the IRS was “currently unable to secure the

administrative file for 2003.”3 Declaration of Anne M. Jensen (“Jensen Decl.”) [Dkt. # 34-14],

Ex. B [Dkt. # 35]. Plaintiff was invited to “resubmit” his request in 90 days. Id. at 1. The letter

further informed plaintiff that “any existing records pertaining to [his criminal case] would be

maintained by the Federal Court and [DOJ],” id., and advised him of his right to appeal

2 Jolly states that EOUSA referred 604 pages “to the FBI” and seven pages “to the FBI.” Jolly Decl., n.4. The IRS’ declaration confirms that EOUSA referred seven pages to it. 3 In his request to the IRS, plaintiff sought copies of “all documentation and information relating [to him] dated January 1, 2000-September 30, 2009,” as well as information relating to his criminal case and copies of “all bonds or monetary instruments issued in [his name].” Jensen Decl., Ex. A [Dkt. # 35]. 4

administratively within 35 days of the determination. Jensen Decl. ¶ 8 & Ex. C. Ms. Jensen

“was never contacted by an Appeals Officer or made aware of any appeal made by plaintiff

regarding his FOIA request.” Jensen Decl. ¶ 9.

Regarding the seven pages referred from EOUSA, the IRS, by letter of June 11, 2010,

released four pages to plaintiff and withheld three pages under exemption 3. Declaration of

Darlene A. Broomall (“Broomall Decl.”) [Dkt. # 34-15], Ex. A.

II. LEGAL STANDARD

Summary judgment is warranted “if the movant shows [by affidavit or other admissible

evidence] 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). A party opposing a summary judgment

motion must show that a genuine factual issue exists by “(A) citing to particular parts of

materials in the record. . . or (B) showing that the materials cited do not establish the absence . . .

of a genuine dispute[.]” Fed. R. Civ. P. 56(c). Any factual assertions in the moving party’s

affidavits will be accepted as being true unless the opposing party submits his own affidavits or

other documentary evidence contradicting the assertion. Neal v. Kelly, 963 F.2d 453, 456 (D.C.

Cir. 1992). In a FOIA action, the Court may award summary judgment solely on the information

provided in agency affidavits or declarations when they describe “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); see also Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied,

415 U.S. 977 (1974). 5

III. DISCUSSION

1. Claimed Exemptions

In his opposition captioned Response to Defendant’s Motion to Dismiss or . . . partial

Summary Judgment (“Pl.’s Opp’n”) [Dkt. # 37] , plaintiff does not address any particular

argument or state facts to create a genuine issue about the moving defendants’ claimed

exemptions, nor has he contested the defendants’ record referrals. Thus the Court, consistent

with the warnings given in the Order of August 4, 2010, finds that plaintiff has conceded

defendants’ justification for withholding information. See In re Miller, 2004 WL 963819 (D.C.

Cir., May 4, 2004) (In managing its docket under the circumstances presented, “the court may

choose to . . . resolve the motion for summary judgment on the merits without an opposition . . .

or [] treat summary judgment as conceded.”); FDIC v. Bender, 127 F.3d 58, 67 (D.C. Cir. 1997)

(finding no abuse of discretion in Court’s enforcement of local rule by “treat[ing] the FDIC's

motion for summary judgment as conceded”); Rosenblatt v. Fenty, 734 F. Supp. 2d 21, 22

(D.D.C. 2010) (“an argument in a dispositive motion that the opponent fails to address in an

opposition may be deemed conceded”) (citing cases). Nevertheless, the Court must determine

the propriety of defendants’ withholding of documents in their entirety. See Trans-Pacific

Policing Agreement v. United States Customs Service, 177 F.3d 1022, 1027-28 (D.C. Cir. 1999)

(requiring the district court to make a segregability finding whether raised by the parties or not);

accord Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007) (“Before

approving the application of a FOIA exemption, the district court must make specific findings of

segregability regarding the documents to be withheld.”) (citations omitted). 6

FBI Records

The FBI appears to have withheld 17 pages in their entirety but its declarant, Mr. Hardy,

has not identified those pages and explained the applicable exemptions. The Court therefore is

without sufficient information to determine the propriety of the FBI’s withholding of complete

documents and, thus, will deny the FBI’s motion on this issue without prejudice.4

EOUSA Records

In two separate releases, EOUSA withheld a total of 852 pages under exemptions 5, 6,

and 7(C). Jolly Decl. ¶¶ 7-8. Jolly states that “[e]ach document was evaluated to determine if

any information could be segregated and released” and that “documents withheld in their entirety

contain no meaningful portion that could be released without destroying the integrity of the

documents or without identifying a third-party individual.” Id. ¶ 33. EOUSA’s Vaughn index

supports Jolly’s statements. See id., Attach. A.

Most of the records were properly withheld under exemption 5 as attorney work product

and deliberative process material. See e.g., Vaughn index Docs. 55, 61, 63 (total of 508 pages).

Exemption 5 protects from disclosure “inter-agency or intra-agency memorand[a] or letters

which would not be available by law to a party other than an agency in litigation with the

agency.” 5 U.S.C. § 552(b)(5). “[T]he parameters of Exemption 5 are determined by reference

to the protections available to litigants in civil discovery; if material is not ‘available’ in

4 To the extent that the defendants are relying on exemption 2 to justify withholding information, they shall reconsider the invocation of this exemption in light of the Supreme Court’s recent decision, Milner v. Dep't of the Navy, ___ 562 U.S. ___ (Mar. 7, 2011), abrogating in part Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C. Cir. 1981) (“High 2" analysis). 7

discovery, it may be withheld from FOIA requesters.” Burka v. U.S. Dep’t of Health and Human

Servs., 87 F.3d 508, 516 (D.C. Cir. 1996); accord Sussman v. U.S. Marshals Service, 494 F.3d

1106, 1112 (D.C. Cir. 2007) (citing cases). “Because Exemption 5 covers ‘those documents, and

only those documents, normally privileged in the civil discovery context’ . . . , it does not protect

documents that are ‘routinely’ or ‘normally’ disclosed in civil discovery[.]” Loving v. Dep’t of

Defense, 550 F.3d 32, 37 (D.C. Cir. 2008) (citations omitted).

The deliberative process privilege “shields only government ‘materials which are both

predecisional and deliberative.’ ” Tax Analysts v. Internal Revenue Serv., 117 F.3d 607, 616

(D.C. Cir. 1997) (quoting Wolfe v. Dep’t of Health & Human Servs., 839 F.2d 768, 774 (D.C.

Cir. 1988) (en banc)). And “[t]he primary purpose of [the attorney work product privilege] is to

protect against disclosure the mental impressions, conclusions, opinions, or legal theories of an

attorney or other representative of a party concerning litigation.” Heggestad v. United States

Dep’t of Justice, 182 F. Supp.2d 1, 7 (D.D.C. 2000) (citing Fed. R. Civ. P. 26(b)(3)). Because

“[t]he work-product privilege simply does not distinguish between factual and deliberative

material [for segregability consideration] . . . . [I]f the work-product privilege protects the

documents at issue [], [e]xemption (b)(5) protects them as well, regardless of their status as

“factual” or “deliberative.” Martin v. Off. of Special Counsel, Merit Systems Protect. Bd., 819

F.2d 1181, 1187 (D.C. Cir. 1987).

In addition, it is not disputed that the records were compiled for law enforcement

purposes. See Jolly Decl. ¶ 13 (“The entire responsive case file pertains to the criminal

investigation of Mr. Davis for violations of lying to federal agents . . . and was compiled for

criminal law enforcement purposes by the USAOs for the Eastern District of Wisconsin and the 8

Western District of Missouri . . . . ”). Thus, EOUSA properly withheld third-party records under

exemption 7(C), see Nation Magazine, Washington Bureau v. U.S. Customs Service, 71 F.3d

885, 896 (D.C. Cir. 1995) (finding third-party identifying information contained in law

enforcement files “categorically exempt” from disclosure under exemption 7(C)), and plaintiff

has not presented any evidence to suggest that an overriding public interest compels disclosure of

the otherwise protected information. See National Archives and Records Administration v.

Favish, 541 U.S. 157, 172 (2004) (“Where the privacy concerns addressed by [e]xemption 7(C)

are present, . . . [the requester] must show that the public interest sought to be advanced is a

significant one, an interest more specific than having the information for its own sake [and that] .

. . the information is likely to advance that interest.”).

Based on the information contained in EOUSA’s Vaughn index, the Court finds that

EOUSA properly withheld documents in their entirety under exemptions 5 and 7(C).

DOJ Records

The Criminal Division withheld five documents totaling 24 pages under FOIA

exemptions 2, 5, 7(D) and 7(E). Gallego Decl. ¶ 14 & Vaughn Index [Dkt. # 34-13]. It properly

withheld as attorney work product under exemption 5 a two-page memorandum from an OIA

attorney to an assistant United States attorney discussing “how to incorporate [documents] into

prosecution . . . .” Vaughn Index, Doc. 1.5 The Court therefore will not address whether the

same information was properly withheld under exemption 2 as “[i]nternal personnel rules and

practices of the agency.” Id. See supra note 4.

5 For easier referencing, the Court has assigned a number to each document in the order listed in the Vaughn index. 9

As to the remaining documents – 2, 3 4, 5 -- the Court finds that DOJ has not properly

justified those withholdings. The supporting declaration is not helpful because it merely parrots

the statutory language of each claimed exemption, see Gallego Decl. ¶¶ 15-20, and thus “fails to

supply the information necessary to facilitate the adversary process and De novo review.”

Goland v. CIA, 607 F.2d 339, 365 (D.C. Cir. 1978). Similarly, the Vaughn index lacks sufficient

details about documents 3, 4 and 5 to determine whether they indeed contain attorney work

product and, as to document 4, also deliberative process material. Furthermore, as to documents

3 and 5, described as requests to a foreign government for assistance, DOJ has not satisfied the

threshold requirement of exemption 5 by showing that those documents are “inter-agency or

intra-agency memorand[a] or letters . . . .” 5 U.S.C. § 552(b)(5).

DOJ purportedly withheld information contained in documents 3 and 5 also under

exemption 7(E), but it has not shown what, if any, “techniques and procedures for law

enforcement investigations or prosecutions, or . . . guidelines for law enforcement investigations

or prosecutions . . . ,” 5 U.S.C. § 552(b)(7)(E), are at risk of being exposed and why said

exposure “could reasonably be expected to risk circumvention of the law.” Id. The generic

description of the documents as “prosecution memoranda . . . detailing evidence gathering efforts

and prosecution strategies in Mr. Davis’ criminal case,” Gallego Decl. ¶ 19, does not suffice. See

Billington v. Dep’t of Justice, 69 F. Supp. 2d 128, 140 (D.D.C. 1999) (“Exemption 7(E) . . . may

not be used to shield well-known or commonplace techniques or procedures.”) (citations

omitted), rev’d in part on other grounds, 233 F.3d 581 (D.C. Cir. 2000); cf. Blanton v. Dep’t of

Justice, 64 Fed. Appx. 787, 789 (D.C. Cir. 2003) (“With respect to Exemption 7(E), the FBI's

affidavit adequately established that the polygraph information was not generally known to the 10

public.”); Durrani v. U.S. Dep’t of Justice, 607 F. Supp. 2d 77, 91 (D.D.C. 2009) (finding that

the declarant had “provided a reasonable explanation for why disclosure of such information

could impede current and future investigations.”).

DOJ withheld document 2 -- a two-page “[l]etter to OIA from a foreign Attorney General

providing factual information re criminal case in confidence” -- under exemption 7(D). Vaughn

Index. Exemption 7(D) allows the withholding of records if their disclosure “could reasonably

be expected to disclose the identity of a confidential source. . . .” 5 U.S.C. § 552(b) (7)(D). A

confidential source includes “a State, local, or foreign agency or authority or any private

institution which furnished information on a confidential basis.” Id. The agency, however, has

the burden of showing, inter alia, that an informant provided the information under either an

express or implied promise of confidentiality and that disclosure could reasonably be expected to

disclose the source’s identity. U.S. Dep’t of Justice v. Landano, 508 U.S. 165, 171-72 (1993).

An express assurance of confidentiality is shown by an agency’s proffer of “probative

evidence that the source did in fact receive an express grant of confidentiality.” Campbell v. U.S.

Dep’t of Justice, 164 F.3d 20, 34 (D.C. Cir. 1998) (quoting Davin v. U.S. Dep’t of Justice, 60

F.3d 1043, 1061 (3d Cir. 1995)). Such evidence may take many forms, such as notations on the

face of the withheld document, an official’s personal knowledge about the source, a statement

from the source, or documents discussing practices or policies for dealing with the source at issue

or similarly situated sources. Id.; see Billington v. U.S. Dep’t of Justice, 233 F.3d 581, 585 (D.C.

Cir. 2000) (“At the very least[,] the government must indicate where [express] assurances of

confidentiality are memorialized.”). When the agency claims an implied assurance of

confidentiality, the proper inquiry is “whether the particular source spoke with an understanding 11

that the communication would remain confidential.” Landano, 508 U.S. at 172. An implied

assurance of confidentiality may be inferred from evidence showing the circumstances

surrounding the imparting of the information, including the nature of the criminal investigation

and the informant’s relationship to the target. Id; Computer Professionals for Social

Responsibility v. U.S. Secret Serv., 72 F.3d 897, 905-06 (D.C. Cir. 1996). DOJ has proffered no

evidence from which the Court can find either an express or an implied grant of confidentiality.

For the foregoing reasons, the Court will deny the motion as to DOJ on the withholding

of all Criminal Division documents in their entirety except the Memorandum dated April 7,

2005, which the Court determines was properly withheld as attorney work product.

IRS Records

The IRS properly withheld two documents totaling three pages under exemption 3

because they were third-party tax records. Broomall Decl. ¶ 5 & Vaughn Index [Dkt. # 34-16]

(citing 26 U.S.C. § 6103). Exemption 3 protects from disclosure records that are “specifically

exempted . . . by statute . . . provided that such statute either “(A) [requires withholding] in such

a manner as to leave no discretion on the issue,” or “(B) establishes particular criteria for

withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552 (b)(3); see

Senate of the Commonwealth of Puerto Rico v. U. S. Dep’t of Justice, 823 F.2d 574, 582 (D.C.

Cir. 1987). The tax code specifically prohibits the disclosure of “any return or return

information.” 26 U.S.C. § 6103(a). See Tax Analysts v. IRS, 410 F.3d 715, 718 (D.C. Cir. 2005)

(“Tax returns and return information remain confidential except where provided to the

contrary.”). The IRS therefore is entitled to summary judgment on its withholding of entire

documents under exemption 3. 12

2. Adequacy of the Searches

Plaintiff asserts that defendants “have not produced the [requested] material . . . that is

clearly defined on its face.”6 Pl.’s Opp’n at 3. But “the adequacy of a FOIA search is generally

determined not by the fruits of the search, but by the appropriateness of the methods used to carry

out the search.” Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)

(citing Steinberg v. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994)); accord Boyd v. Criminal

Div. of U.S. Dep’t of Justice, 475 F.3d 381, 390-391 (D.C. Cir. 2007) (“the fact that a particular

document was not found does not demonstrate the inadequacy of a search.”) (citations omitted).

Because the agency is the possessor of the records and is responsible for conducting the search,

the Court may rely on "[a] reasonably detailed affidavit, 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) (citations omitted).

In determining the adequacy of a FOIA search, the court is guided by principles of

reasonableness “based on what the agency knew at its conclusion rather than what the agency

speculated at its inception.” Campbell, 164 F.3d at 28. "If the requester produces countervailing

evidence placing the sufficiency of the identification or retrieval procedures genuinely in issue,

summary judgment is inappropriate." Spannaus v. CIA, 841 F. Supp. 14, 16 (D.D.C. 1993)

6 In the “Conclusion” of his opposition, plaintiff seeks the production of records from “C.C.A. in Levenworth, Kansas” and the “U.S. Marshalls [sic].” Pl.’s Opp’n at 4. Neither of those entities was named as a defendant to this action, and the complaint’s allegations provide no notice of a claim against either the Bureau of Prisons or the U.S. Marshals Service. Plaintiff has not moved to amend the complaint to add those defendants, and to do so now would come too late in these proceedings. Presumably, plaintiff can bring a separate FOIA action against those entities. 13

(citing Church of Scientology v. Nat’l Security Agency, 610 F.2d 824, 836 (D.C. Cir. 1979)); see

Valencia-Lucena, 180 F.3d at 326 (summary judgment is inappropriate “if a review of the record

raises substantial doubt” about the adequacy of the search) (citation omitted).

FBI’s Search

The FBI searched its Central Records System (“CRS”) utilizing “a six-way phonetic

breakdown” of plaintiff’s full name and identified a main file containing potentially responsive

records and cross-reference files. Hardy Decl. ¶¶ 41-42. The “General Indices to the CRS files

are the means by which the FBI can determine what retrievable information, if any, [it] may have

in its CRS files on a particular subject matter or individual, such as Adam Davis.” Id. ¶ 35. The

FBI also searched its Electronic Surveillance indices, also categorized by name, but located no

responsive records. Id.

Based on Mr. Hardy’s detailed description of the FBI’s filing system, see id. ¶¶ 30-40, the

search methods employed and the retrieval of responsive records, the Court finds that the FBI

conducted an adequate search for records. Plaintiff faults the FBI for not producing documents

pertaining to an alleged FBI investigation of him from 1984 to 1988 of which he claims to have

“first hand knowledge” because “he interacted with FBI agents while being investigated at his

workplace.” Pl.’s Opp’n at 2. Plaintiff speculates that records of the alleged investigation should

exist, but he has not produced any evidence to raise a genuine dispute about the reasonableness

of the FBI’s search. The Court therefore will grant summary judgment to the FBI on its search

for responsive records. 14

EOUSA’s Search

EOUSA searched “the computer tracking system for the United States Attorney Offices

[“USAOs”], the Legal Information Office Network System (“LIONS”),” utilizing plaintiff’s

name. Jolly Decl. ¶ 10. It located records in the USAOs for the Western District of Missouri and

the Eastern District of Wisconsin. Id. ¶¶ 10-11. The search located two criminal case files in the

Western District of Missouri “related to [plaintiff’s] arrest and removal . . . following his

indictment, and to his arrest and transfer following his prosecution and flee from the Eastern

District of Wisconsin,” id. ¶ 10, and three criminal case files in the Eastern District of Wisconsin

“related to [plaintiff’s] prosecution and appeal,” id. ¶ 11. In addition to those file searches, an e-

mail was sent to the AUSA assigned to plaintiff’s case in Missouri, id. ¶ 10, an inquiry was made

to the prosecuting AUSA in Wisconsin, and e-mails were sent “to all the USAO for the Eastern

District of Wisconsin employees regarding [responsive] documents[,]” id. ¶ 11. Jolly states that

“[t]here are no other records systems or locations within [both USAOs] in which other files

pertaining to the Plaintiff were maintained.” Id. ¶¶ 10, 11. Based on the Jolly declaration and

those of Teri L. Morris [Dkt. # 34-9], who conducted the search in the Western District of

Missouri, and Charles E. Westphal [Dkt. # 34-10], who conducted the search in the Eastern

District of Wisconsin, the Court finds that EOUSA conducted an adequate search for records. It

therefore will grant summary judgment to EOUSA on its search for responsive records.

DOJ’s Search

The Criminal Division first searched its central index by variations of plaintiff’s name but

located no records. Gallego Decl. ¶ 11. Based on plaintiff’s selections made from the

“Descriptive List of Criminal Division Sections that Maintain Records by Personal Identifiers,” 15

Dkt. # 34-12, the Division then “sent a search request sheet to each [section, except the

Electronic Surveillance Unit,] [containing] detailed instructions . . . to record the specific search

terms and the systems searched.”7 Gallego Decl. ¶ 12. Ms. Gallego describes each section’s

search. See id. ¶ 13(a)-(h). Computerized searches were “conducted by inputting the search

terms that plaintiff had provided, specifically, ‘Adam Davis,’ ‘Adam E. Davis’ and ‘Adam

Eugene Davis’.” Id. ¶ 13. “Where the records [were] hard copy, a manual search was conducted

using” those search terms. Id. “Several sections also searched the Automated Case Tracking

System,” which “tracks all cases and matters that are the responsibility of the Criminal Division’s

litigating sections.” Id. Based on the description of the Division’s filing systems and Ms.

Gallego’s description of the search methods employed, the Court finds that the Criminal Division

conducted an adequate search. It therefore will grant summary judgment to DOJ on its search for

responsive records.

IRS’ Search

The IRS searched its Information Data Retrieval System (“IDRS”), “the major IRS

database of taxpayer information,” utilizing plaintiff’s name and social security number. Jensen

Decl. ¶ 4. The IRS “learned [from the search] that plaintiff had not filed returns for the tax years

2000 through 2002 and 2004 through 2009[;]” thus, no responsive records were located for those

years. Id. The IRS located one “entry . . . that a Substitute for Return Assessment tax year 2003

was prepared by the IRS on plaintiff’s behalf.” Id. Based on that entry, Ms. Jensen made

inquiries to the Dayton Federal Records Center “for any paper records associated with tax year

7 Plaintiff’s request to search the Electronic Surveillance Unit was closed after he failed to provide “three pieces of additional information” needed to search surveillance records. Gallego Decl. ¶ 7. 16

2003,” to no avail. Id. ¶ 5. She then “requested a copy of the Substitute for Return File from [a]

Fresno Automatic Substitute For Return (ASFR)” team member, who, after searching the ASFR

computer system, located no responsive information. Id. ¶ 6.

Ms. Jenson concluded from the IRS’ three-year record retention schedule that plaintiff’s

2003 assessment made in August 2003 “would have been automatically destroyed in August

2009,” two months before his FOIA request dated October 5, 2009. Id. Nevertheless, the IRS

informed plaintiff that it “was unable to secure the administrative file for 2003, and that if the

records were still needed, an additional request could be submitted in 90 days.” Id. ¶ 8. In

addition, the IRS provided plaintiff “a copy of Form 4506-T, Request for Transcript of Tax

Return, which could be used to identify and request transcripts for tax year 2003.” Id. This

suggests that there may be other filing systems that the IRS failed to search. Ms. Jensen does not

state that the IDRS is the only filing system likely to contain records responsive to plaintiff’s

request and she has not provided a description of the IRS’ filing systems from which a reasonable

inference can be drawn.8 The Court therefore cannot conclude from the current evidence that the

IRS conducted an adequate search. It therefore will deny summary judgment to the IRS on its

search for responsive records.

8 In its administrative response to plaintiff, the IRS informed him that “any existing records pertaining to [his criminal case] would be maintained by the Federal Court and [DOJ].” Jensen Decl., Ex. B. In her declaration to the Court, Ms. Jensen has not addressed this aspect of plaintiff’s request. In supplementing the record, and if such is the case, the IRS should include an explanation of why it did not search for records pertaining to plaintiff’s criminal case. Even if such records may be found in a court or another agency, the agency receiving a FOIA request is obligated to produce any responsive records that are in its custody and control at the time of the request. McGehee v. Central Intelligence Agency, 697 F.2d 1095, 1110 (D.C. Cir. 1983). 17

IV. CONCLUSION

For the foregoing reasons, the Court grants in part and denies in part defendants’ motion

for summary judgment. The Court grants the motion as to each defendants’ withholding of

documents in part and EOUSA’s and the IRS’s withholding of documents in their entirety. As to

the withholding of entire documents by the FBI and DOJ, the motion is denied without prejudice.

In addition, the Court grants the motion as to the searches performed by the FBI, EOUSA and

DOJ. As to the IRS’ search for records, the motion is denied without prejudice. A separate

Order accompanies this Memorandum Opinion.

SIGNED: EMMET G. SULLIVAN UNITED STATES DISTRICT JUDGE

DATE: March 16, 2011