Jenkins v. United States Department of Justice

• Court: District Court, District of Columbia
• Decided: June 17, 2019
• Docket: Civil Action No. 2016-1676
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

VAN JENKINS, : : Plaintiff, : : v. : Civil Action No. 16-1676 (CKK) : U.S. DEPARTMENT OF JUSTICE, : : Defendant. :

MEMORANDUM OPINION

Plaintiff brought this action under the Freedom of Information Act (“FOIA”), see 5

U.S.C. § 552, in an effort to obtain information allegedly maintained by the United States

Attorney’s Office for the Eastern District of Michigan (“USAO/MIE”). The Court granted

Defendant’s Motion for Summary Judgment and to Dismiss on July 12, 2017, and plaintiff

appealed. The United States Court of Appeals for the District of Columbia Circuit remanded this

matter for further proceedings on the adequacy of defendant’s search for records responsive to

plaintiff’s FOIA request. See Order, Jenkins v. U.S. Dep’t of Justice, No. 17-5184 (D.C. Cir.

Aug. 14, 2018). As the D.C. Circuit suggested, this Court “order[ed defendant] to submit a

reasonably detailed affidavit upon which the reasonableness of its search can be judged.” Id.

Having reviewed defendant’s declaration, plaintiff’s response, and the parties’ respective

exhibits, the Court concludes that defendant conducted an adequate search for records responsive

to plaintiff’s FOIA request.

1 I. Plaintiff’s FOIA Request

Plaintiff sent a letter dated May 3, 2016, to Nancy Aishie A. Abraham, an Assistant

United States Attorney (“AUSA”) in the USAO/MIE’s in Flint, Michigan office, the caption of

which reads:

IDENTIFICATION OF REQUESTER: IN ACCORDANCE WITH 28 CFR Sec. 16.41(d) INFORMATION IN RE: DISCLOSURE OF ALL CRIMINAL BONDS, BONDING, JUDGMENT NUMBERS, OR OTHERWISE AS REQUESTED, CASE NO. 08-1329-FH WASHTENAW COUNTY 22ND JUDICIAL CIRCUIT COURT, ANN ARBOR, MICHIGAN & CASE NO. 13-708614 Compl., Ex. A-1 at 1 (emphasis in original). Plaintiff sought “full disclosure and release of all

records . . . [c]ontained in the files of [EOUSA] . . . under [his] name and/or identifier to [his]

name.” Id., Ex. A-1 at 1 (emphasis removed). He listed several categories of information of

interest to him, such as “Criminal Bonding information” and “Judgment Numbers

information[.]” Id., Ex. A-1 at 1. The letter found its way to the Executive Office for United

States Attorneys (“EOUSA”), a component of the United States Department of Justice (“DOJ”).

See id., Ex. A-1 at 3.

EOUSA assigned the matter a tracking number, FOIA-2016-02583. Mem. of P. & A. in

Support of Def.’s Mot. for Summ. J. and to Dismiss (“Def.’s Mem.”). Decl. of David Luczynski

(“Luczynski Decl.”) ¶ 5. Because plaintiff had not “provide[d] a notarized example of his

signature or a certification of identity,” Luczynski Decl. ¶ 5, EOUSA asked that he return a

Certification of Identity form and “clarify whether [he] was seeking or all records or records

related to bonds only,” id. Plaintiff returned the form, see Compl., Ex. B-2 at 5, accompanied by

a letter with the caption:

RE: REQUEST NO. FOIA-2016-02583; VAN JENKINS (SELF)/BONDS & RECORDS; GOVERNMENT CERTIFIED RECORDS PURSUANT TO 28 U.S.C. 1733(a) FOR CASE(S): 82-

2 13708614-01-FH & 08-1329-FH; AMENDED REQUEST OF FOIA TO THE 5/3/16 REQUEST. Id., Ex. B-2 at 1 (emphasis in original).

EOUSA assigned the matter a new tracking number, FOIA-2016-3203, and deemed the

request deficient. Luczynski Decl. ¶ 7. Applicable regulations require that a requester identify

the specific United States Attorney’s Office where he believed responsive records may be

located, and plaintiff had not done so. Id. Plaintiff was informed that he could correct the

deficiency and file a new FOIA request. Id.

Plaintiff pursued administrative appeals of EOUSA’s initial determinations on FOIA-

2016-2583 and FOIA-2016-3203 to DOJ’s Office of Information Policy (“OIO”). See Resp.

Pleading to Def.’s Supporting Decl. on the Adequacy of Pl.’s FOIA Request Search for Records

(“Pl.’s Resp.”), Ex. B at 20-21. OIP notified plaintiff by letter dated September 1, 2016, that,

“[a]s a result of discussions between EOUSA personnel and [OIP], EOUSA . . . agreed to

conduct a search for responsive records in [USAO/MIE].” Id., Ex. B at 26. And as defendant

represented to the D.C. Circuit, “it [ran] a search for documents responsive to [plaintiff’s] FOIA

request[.]” Order, Jenkins v. U.S. Dep’t of Justice, No. 17-5184 (D.C. Cir. Aug. 14, 2018).

II. USAO/MIE’s Search for Responsive Records

A. The Declarant

The declarant, who currently is a Senior Legal Assistant for USAO/MIE’s Civil Division,

was USAO/MIE’s FOIA Coordinator from July 2012 through July 2018. Notice of Filing

Search Decl., Decl. of Michelle Said Land (“Land Decl.”) ¶ 1. Her duties included “the

coordinating of [FOIA] requests for access to records located [in USAO/MIE],” which has

offices in Flint, Bay City, and Detroit, Michigan. Land Decl. ¶ 1. She made her declaration

3 based “either on . . . [her] own personal knowledge or . . . knowledge [she] acquired . . . through

the performance of [her] official duties,” id., and was “familiar with the procedures that were

followed . . . in coordinating the search for records responsive to [the] FOIA request of Van

Jenkins,” id. ¶ 2.

B. CaseView

United States Attorney’s Offices use “a computerized docketing/case management

system” called CaseView. Id. ¶ 4. CaseView “tracks cases or matters for the entire USAO.” Id.

When a case or matter is opened, CaseView assigns it a “USAO” internal tracking number. Id.

“The information entered into . . . CaseView . . . is a series of individual records linked together,

or related, in local order.” Id. Records “may include . . . the names of parties, the names of

related cases, what the case is about, which Assistant United States Attorney is handling the case,

the Court assigned to the case, and the stage of each case.” Id. A user may search CaseView

“for a specific name.” Id. ¶ 5. The system also “is capable of cross-referencing other related

case[] information.” Id.

CaseView is the only computerized case management system of records in use at

USAO/MIE. See id. ¶ 6. It incorporates information which had been maintained in the previous

system, LIONS, id. ¶ 7, and “[d]ue to the large number of files maintained by the [USAO/MIE],

any search for case related documents must be performed by the use of CaseView,” id. ¶ 6.

According to the declarant, a “purely manual search for specific files/documents would be so

burdensome as to be virtually impossible[,]” id., given that records might be maintained at one of

three office locations within the Eastern District of Michigan, and that closed files periodically

are sent to archives, see id.

4 C. CaseView Searches

On May 9, 2016, Land received an email from Kristi Bashaw, Supervisory Legal

Assistant in the Flint, Michigan office. Id. ¶ 3. Attached were copies of “multiple letters from

Van Jenkins to various parties,” including plaintiff’s May 3, 2016, letter addressed to AUSA

Abraham. Id.

Land conducted a CaseView search on May 10, 2016, using variations of plaintiff’s name

(Van Jenkins, VanJenkins, and Jenkins) as search terms. Id. ¶ 7. This search yielded “no records

. . . matching [plaintiff’s] name.” Id. She made an effort “to identify any USAO case

name/matter name, a civil or criminal action number from within [plaintiff’s] letters . . . without

success.” Id. Queries using “information provided by [plaintiff], case numbers: 08-1329-FH and

13-708614 in ‘Washtenaw County 22nd Judicial Circuit Court, Ann Arbor, Michigan,’ yielded

no results.” Id. Land’s “recent attempt at repeating the search for the case numbers provided in

the FOIA request and entered into . . . CaseView did not result in locating responsive records.”

Id.

Land also queried the federal courts’ PACER system “in the Eastern District of Michigan

. . . using the last name ‘Jenkins’ in the search field.” Id. ¶ 8. Although this PACER search

located ten civil cases, review of each docket “did not reveal any federal case [USAO/MIE]

handled involving [plaintiff.]” Id. Nor did Land find that an Assistant U.S. Attorney at

USAO/MIE appeared as the attorney of record assigned to any of these cases.” Id.

Because plaintiff mentioned AUSA Nancy Abraham by name in his FOIA request, Land

contacted her. Id. ¶ 9. Abraham “performed an email search going back five years” and

“searched her paper copy files of every criminal judgment,” but found no responsive records. Id.

5 However, Abraham did locate references to plaintiff’s two email messages: one dated “October

16, 2018 . . . from Kristi Bashow to the Flint and Bay City branch offices asking if the name Van

Jenkins meant anything,” id., and the other dated November 1, 2018 from Bashow to Abraham

which “included a copy of the letter . . . from Van Jenkins which had been forwarded to , , , Land

on May 9, 2016,” id.

Land avers that “there is no other location in [USAO/MIE] where . . . records which

might be responsive to [p]laintiff’s request are likely to be located,” id. ¶ 10, and that “[a]ll

locations that are likely to contain records about the plaintiff in the Eastern District of Michigan

have been searched,” id. ¶ 11. She is “not aware of any other method or means by which a

further search could be conducted that would likely uncover additional responsive records.” Id.

D. Plaintiff’s Challenges to USAO/MIE’s Search

First, plaintiff believes that EOUSA’s declarants were not truthful when claiming

USAO/MIE would not or did not maintain records about him. See Pl.’s Resp. ¶ 17. According

to plaintiff, he “is not the only one who made FOIA request[s] for the same state case records

and bonds.” Id. ¶ 18. He cites one case where the FBI released 93 pages of records in response

to the prisoner plaintiff’s FOIA request for information related to his purportedly wrongful state

court conviction. See Andrews v. FBI, No. CV F 11-1659, 2013 U.S. Dist. LEXIS 2973, at *3-*4

(E.D. Cal. Jan. 7, 2013). Plaintiff appears to argue that, because records pertaining to his own

state criminal case include “FBI reference numbers, and in the Presentence Report is plaintiff’s

assigned FBI Number,” FBI would have been able to “collect state case information as access to

the Inmate’s central file held in Federal Central Records System.” Pl.’s Resp. ¶ 20. Second,

plaintiff offers instructions on the means by which Land could locate lists of bonds and sureties

6 using the federal courts’ websites, see Pl.’s Resp. ¶¶ 21-27, 36, and faults defendant for its

failure to seek records maintained outside of USAO/MIE. See id. ¶ 26.

Plaintiff misunderstands both an agency’s obligations under FOIA and the limits of this

Court’s jurisdiction. This Court may “enjoin the agency from withholding agency records and to

order the production of any agency records improperly withheld from [plaintiff].” 5 U.S.C. §

552(a)(4)(B). Plaintiff does not explain how a search of records maintained by some other DOJ

component has any bearing on whether USAO/MIE maintains the information he requests, or

how USAO/MIE staff might retrieve FBI records through CaseView using an FBI number as a

search term. Nor does plaintiff explain whether or how court documents could be considered

“agency records,” meaning those records created or obtained by an agency, and in its control at

the time a FOIA request is made. See U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 144-

45 (1989). USAO/MIE does not run afoul of FOIA by its purported failure to seek out records

maintained by other government agencies. See, e.g., White v. U.S. Dep’t of Justice, 840 F. Supp.

2d 83, 90 (D.D.C. 2012) (rejecting requester’s argument that one agency component must seek

information from another agency component in order to perform an adequate search of the first

component’s record system), aff’d sub nom. White v. U.S. Dep’t of Justice Exec. Office for U.S.

Attorneys, No. 12-5067, 2012 WL 3059571 (D.C. Cir. July 19, 2012).

Plaintiff’s third and fourth challenges are no more successful. He faults defendant for

“fail[ing] to provide a certificate showing that the FOIA records do not exist.” Pl.’s Resp. ¶ 27.

FOIA imposes no such obligation on an agency. It “does not obligate agencies to create or retain

documents; it only obligates them to provide access to those which it in fact has created and

retained.” Kissinger, 445 U.S. at 152; see Hudgins v. IRS, 620 F. Supp. 19, 21 (D.D.C. 1985)

(finding that agency need not “create documents or opinions in response to an individual’s

7 request for information”), aff’d, 808 F.2d 137 (D.C. Cir. 1987). And plaintiff’s unsupported

assertion that defendant’s “declaration contains inaccurate information and is simply not true,”

Pl.’s Resp. ¶ 28, falls far short of rebutting the presumption that an agency’s declaration is

submitted in good faith, see SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)

(quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). Defendant’s

“failure to turn up a particular document, or mere speculation that as yet uncovered documents

might exist, does not undermine the determination that the agency conducted an adequate search

for the requested records.” Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004).

III. CONCLUSION

Defendant adequately demonstrates that CaseView is the system most likely to contain

records responsive to plaintiff’s FOIA request, explains the organization of information within

CaseView, describes the means by which Land queried CaseView using variations of plaintiff’s

name as search terms. These steps are reasonable under the circumstances of this case, even if

the search yielded no responsive records. There is no need for a Vaughn index or in camera

review, as plaintiff has requested. See Pl.’s Resp. ¶¶ 29, 36-37

The Court concludes that defendant conducted an adequate search for records responsive

to plaintiff’s FOIA request. An Order is issued separately.

DATE: June 17, 2019 /s/ COLLEEN KOLLAR KOTELLY United States District Court Judge