UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) MARCELO SANDOVAL, ) ) Plaintiff, ) ) v. ) Civil Action No. 16-1013 (ABJ) ) U.S. DEPARTMENT OF JUSTICE, et al., ) ) Defendants. ) ____________________________________)
MEMORANDUM OPINION
Plaintiff Marcelo Sandoval, proceeding pro se, brought this action under the Freedom of
Information Act (“FOIA”) and the Privacy Act against defendants United States Department of
Justice (“DOJ”), the Executive Office for United States Attorneys (“EOUSA”), the United States
Attorney’s Office for the Central District of Illinois (“USAO CDIL”), the Federal Bureau of
Investigation (“FBI”), and the Federal Bureau of Prisons (“BOP”), seeking both the production of
documents and the correction of inaccurate records. Compl. [Dkt. # 1] ¶¶ 4–9.
On June 22, 2017, defendants filed a motion to dismiss and a motion for summary
judgment. Defs.’ First Mot. to Dismiss & for Summ. J. [Dkt. # 17] (“Defs.’ First Mot.”); Mem. of
P. & A. in Supp. of Defs.’ Mot. [Dkt. # 17-2] (“Defs.’ First Mem.”). They argued that plaintiff
failed to exhaust his administrative remedies, Defs.’ First Mem. at 3–4; the FBI and EOUSA
conducted adequate searches, id. at 4–6; the FBI properly withheld some information pursuant to
FOIA exemptions, id. at 6–13; and plaintiff failed to state a Privacy Act claim. Id. at 14. In
plaintiff’s opposition, filed on October 20, 2017, he challenged adequacy of defendants’ searches
and the use of certain FOIA Exemptions. See Pl.’s Opp. to Defs.’ First Mem. [Dkt. # 20] (“Pl.’s
First Opp.”). On November 2, 2017, the Court dismissed plaintiff’s Privacy Act claims against all
defendants and granted defendant FBI’s motion for summary judgment on plaintiff’s FOIA claims.
Sandoval v. DOJ, 296 F. Supp. 3d 1, 6 (D.D.C. 2017). But the Court denied the motions filed by
defendants DOJ, EOUSA, and the USAO on the basis that their declarations were deficient. Id. at
11–18. The matter was remanded to these agencies to provide a more detailed justification for the
adequacy of their searches for responsive documents, and to release any reasonably segregable
non-exempt material to plaintiff consistent with FOIA. Id. at 16–17.
On April 3, 2018 defendants DOJ, EOUSA, and USAO CDIL filed a second motion for
summary judgment. See Defs.’ Second Mot. for Summ. J. [Dkt. # 29] (“Defs.’ Second Mot.”).
Because defendants have now provided sufficiently detailed explanations, the Court concludes that
the searches were adequate, and it will grant defendants’ motion.
BACKGROUND
The factual and procedural background of this case are laid out in detail in the Court’s
Memorandum Opinion granting in part and denying in part defendants’ first motion for summary
judgment, so the Court will address the facts only briefly here. See Sandoval v. DOJ, 296 F. Supp.
3d at 6–9.
On August 31, 2015, plaintiff sent a Freedom of Information/Privacy Act (“FOIPA”)
request to EOUSA asking for access to “any and all records . . . that relate[] to and/or make[]
reference to Sandoval,” “in and around 1997-2015,” including “[i]naccurate records, depict[ing]
Sandoval as a ‘Mexican Mafia Member’ and other false records such as Sandoval working with
the government.” Decl. of David Luczynski [Dkt. # 29-2] (“Luczynski Decl.”) ¶ 4, Ex. A.
Plaintiff submitted another FOIPA request to USAO CDIL dated September 11, 2015.
Luczynski Decl. ¶ 5, Ex. B. He sought records from “case: #99-40019-(Central District of
2 Illinois)” between 1997 and 2015, “[s]howing that Sandoval is a member of the Mexican Mafia &
that Sandoval was working for the FBI/DEA. And of [d]ocuments refuting supra.” Id. USAO
CDIL advised plaintiff to direct all future correspondence to EOUSA since that organization within
the Department of Justice handles all FOIA requests involving U.S. Attorneys’ Offices, and it sent
a letter to EOUSA on September 23, 2015, enclosing a copy of plaintiff’s FOIPA request for
processing. Decl. of Julie Leeper [Dkt. # 17-6] (“Leeper Decl.”) ¶ 3. EOUSA informed plaintiff
on October 9, 2015, that it had received the request he sent to the office that prosecuted him, and
EOUSA assigned it FOIA No. 2015-04040. Luczynski Decl. ¶ 7, Ex. D; Suppl. Decl. of Julie
Leeper [Dkt. # 29-3] (“Suppl. Leeper Decl.”) at 1.
On October 20, 2015, plaintiff sent a third request to EOUSA, seeking the following:
I request specific documents proving my actual innocence of the kidnapping described in USA v. Sandoval, #99-cr-40019-JBM (C.D. Ill./Rock Island) & inaccurate records dep[icting] Sandoval as a member of the Mexican Mafia & government informant, which are both untrue, [and] also concerning government witnesses against Sandoval convicted of violence & committing perjury at Sandoval’s jury trial.
Luczynski Decl. ¶ 6, Ex. C. This request was also limited to the 1997 through 2015 time frame.
See id. USAO CDIL received this request from EOUSA sometime in November 2015, and it
deemed the request, which retained the same FOIA No. 2015-04040, to supersede plaintiff’s first
two requests. Suppl. Leeper Decl. at 1.
Between October 8, 2015 and June 13, 2016, USAO CDIL performed a physical and
electronic search for documents. Suppl. Leeper Decl. at 1. On approximately June 13, 2016, it
informed EOUSA that it was unable to locate any responsive documents. Leeper Decl. ¶¶ 4, 13.
On September 16, 2016, EOUSA responded to request No. 2015-04040, informing plaintiff
that his request had been processed and no responsive records had been found. Luczynski
Decl. ¶ 10, Ex. G. On October 3, 2016, plaintiff appealed EOUSA’s determination, id. ¶ 11, Ex.
3 H, and on December 15, 2016, the Office of Information Policy affirmed EOUSA’s action on his
request. Id. ¶ 12, Ex. J.
Plaintiff filed this pro se action on May 26, 2016. See generally Compl. On June 22, 2017,
defendants filed a motion to dismiss and a motion for summary judgment. See Defs.’ First Mot.;
Defs.’ First Mem. On November 2, 2017, the Court found that plaintiff failed to exhaust
administrative remedies in relation to his Privacy Act claims against all defendants and his FOIA
claim against BOP. Sandoval, 296 F. Supp. 3d at 11–13. The Court also granted summary
judgment in favor of the FBI on plaintiff’s FOIA claims, finding that the search conducted was
adequate and that the FBI properly withheld information pursuant to exemptions FOIA 6 and 7.
Id. at 17–20. However, the Court denied the motion for summary judgment filed by DOJ, EOUSA,
and the USAO CDIL because it found that the descriptions of the searches conducted had several
deficiencies. Id. at 11–18. The matter was remanded to the agencies to provide more detailed
explanations of the searches and to release any reasonably segregable non-exempt material to
plaintiff consistent with FOIA. Id. at 16–17.
On April 3, 2018, defendants DOJ, EOUSA, and USAO CDIL (collectively, “defendants”)
filed a second motion for summary judgment. See Defs.’ Second Mot.; Mem. of P. & A. in Supp.
of Defs.’ Second Mot. [Dkt. # 29-1] (“Defs.’ Second Mem.”). Plaintiff’s opposition did not
address the adequacy of the search; instead, plaintiff argued that because he has never been
properly indicted, he must be released from custody, and the government must provide him
information concerning his charges. See Pl.’s Opp. to Defs.’ Second Mot. [Dkts. ## 31, 32] (“Pl.’s
Second Opp.”). 1
1 Plaintiff filed two responses to defendants’ second motion for summary judgment. The two responses filed are very similar in content, and so the Court will read these responses as one opposition to defendants’ second motion for summary judgment. 4 Because defendants have provided a reasonable justification for the adequacy of their
search, the Court will grant defendants’ motion for summary judgment. 2
STANDARD OF REVIEW
In a FOIA case, the district court reviews the agency’s decisions de novo and “the burden
is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B); Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981). “[T]he vast majority of FOIA cases can be resolved on
summary judgment.” Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011).
Summary judgment is appropriate “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). The party seeking summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary
judgment, the non-moving party must “designate specific facts showing that there is a genuine
issue for trial.” Id. at 324 (internal quotation marks omitted).
The mere existence of a factual dispute is insufficient to preclude summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A dispute is “genuine” only if a
reasonable fact-finder could find for the non-moving party; a fact is “material” only if it is capable
2 On August 8, 2018, plaintiff filed a motion to take judicial notice requesting that the Court take notice of various matters relating to plaintiff’s underlying charges. See Pl.’s Mot. to Take Judicial Notice [Dkt. # 33] at 1–2. In light of the Court’s ruling on defendants’ motion for summary judgment, plaintiff’s motion for judicial notice is denied as moot. In any event, the motion would have been denied because the matters plaintiff requested to be noticed are irrelevant to this FOIA action and defendants’ motion for summary judgment. See Whiting v. AARP, 637 F.3d 355, 364 (D.C. Cir. 2011) (finding that “matters to be noticed must be relevant”). 5 of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236,
1241 (D.C. Cir. 1987). In the FOIA context, “the sufficiency of the agency’s identification or
retrieval procedure” must be “genuinely in issue” in order for summary judgment to be
inappropriate. Weisberg v. DOJ, 627 F.2d 365, 371 n.54 (D.C. Cir. 1980), quoting Founding
Church of Scientology v. Nat’l Sec. Agency, 610 F.2d 824, 836 (D.C. Cir. 1979) (internal quotation
marks omitted). In assessing a party’s motion, the court must “view the facts and draw reasonable
inferences ‘in the light most favorable to the party opposing the summary judgment motion.’”
Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962) (per curiam).
“Summary judgment may be granted on the basis of agency affidavits” in FOIA cases,
when those affidavits “contain reasonable specificity of detail rather than merely conclusory
statements,” and when “they are not called into question by contradictory evidence in the record
or by evidence of agency bad faith.” Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215
(D.C. Cir. 2013), quoting Consumer Fed’n of Am. v. Dep’t of Agric., 455 F.3d 283, 287 (D.C. Cir.
2006). However, a plaintiff cannot rebut the good faith presumption afforded to an agency’s
supporting affidavits through “purely speculative claims about the existence and discoverability
of other documents.” 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).
Even if the nonmoving party fails to respond to the motion for summary judgment, or
portions thereof, a court cannot grant the motion on the basis that it was conceded. Winston &
Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016). That is because the “burden is always
on the movant to demonstrate why summary judgment is warranted.” Id., quoting Grimes v.
District of Columbia, 794 F.3d 83, 97 (D.C. Cir. 2015) (Griffith, J., concurring). A district court
6 “must determine for itself that there is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law, and then ‘should state on the record the reasons
for granting or denying the motion.’” Id. at 508–09, quoting Fed. R. Civ. P. 56(a).
ANALYSIS
FOIA requires the release of government records upon request. It was enacted “to ensure
an informed citizenry, vital to the functioning of a democratic society, needed to check against
corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire &
Rubber Co., 437 U.S. 214, 242 (1978). At the same time, Congress recognized “that legitimate
governmental and private interests could be harmed by release of certain types of information and
provided nine specific exemptions under which disclosure could be refused.” FBI v.
Abramson, 456 U.S. 615, 621 (1982); see also Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d 918,
925 (D.C. Cir. 2003) (“FOIA represents a balance struck by Congress between the public’s right
to know and the government’s legitimate interest in keeping certain information confidential.”),
citing John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). The Supreme Court has
instructed that “FOIA exemptions are to be narrowly construed.” Abramson, 456 U.S. at 630.
To prevail in a FOIA action, an agency must first demonstrate that it has 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). Second, the agency must show that “materials that are withheld . . . fall within
a FOIA statutory exemption.” Leadership Conference on Civil Rights v. Gonzales, 404 F. Supp.
2d 246, 252 (D.D.C. 2005) (citation omitted). Any “reasonably segregable” information in a
responsive record must be released, 5 U.S.C. § 552(b), and “non-exempt portions of a document
7 must be disclosed unless they are inextricably intertwined with exempt portions.” Mead Data
Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977).
Because a fundamental principle behind FOIA “is public access to government
documents,” courts require “agencies to make more than perfunctory searches and, indeed, to
follow through on obvious leads to discover requested documents.” Valencia-Lucena v. U.S. Coast
Guard, 180 F.3d 321, 325 (D.C. Cir. 1999), citing John Doe Agency, 493 U.S. at 151 and Campbell
v. DOJ, 164 F.3d 20, 28 (D.C. Cir. 1998). Therefore, an agency only “fulfills its obligations under
FOIA if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to
uncover all relevant documents.’” Id., quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C.
Cir. 1990); see also Oglesby, 920 F.2d at 68. Although there “is no requirement that an agency
search every record system,” an agency “cannot limit its search to only one record system if there
are others that are likely to turn up the information requested.” Oglesby, 920 F.2d at 68.
To demonstrate that it has performed an adequate search for responsive documents, an
agency must submit a reasonably detailed affidavit describing the search. Id. (finding summary
judgment improper where agency’s affidavit lacked sufficient detail). An affidavit is “reasonably
detailed” if it “set[s] forth the search terms and the type of search performed, and aver[s] that all
files likely to contain responsive materials (if such records exist) were searched.” Id.; see also
Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 92 (D.D.C. 2009) (finding declaration
deficient where it failed to detail the types of files searched, the filing methods, and the search
terms used). However, agency affidavits that “do not denote which files were searched, or by
whom, do not reflect any systematic approach to document location, and do not provide
information specific enough to enable [the requester] to challenge the procedures utilized” are
insufficient to support summary judgment. Weisberg, 627 F.2d at 371; see also Steinberg v. DOJ,
8 23 F.3d 548, 552 (D.C. Cir. 1994) (stating that an agency affidavit must describe “what records
were searched, by whom, and through what process”). Given these principles, conclusory
assertions about the agency’s thoroughness are insufficient. Morley v. CIA, 508 F.3d 1108, 1121
(D.C. Cir. 2007).
“Agency affidavits are accorded a presumption of good faith,” Safecard Servs., Inc., 926
F.2d at 1200, which can be rebutted with “evidence of agency bad faith,” Military Audit Project,
656 F.2d at 738, or when “a review of the record raises substantial doubt” that certain materials
were overlooked despite well-defined requests. Valencia-Lucena, 180 F.3d at 326, citing
Founding Church of Scientology, 610 F.2d at 837; see also Truitt, 897 F.2d at 542 (“If, however,
the record leaves substantial doubt as to the sufficiency of the search, summary judgment for the
agency is not proper.”).
In support of its first motion for summary judgment, the EOUSA provided the declaration
of David Luczynski, an Attorney Advisor who acts as a liaison between offices within DOJ to
facilitate their responses to FOIA and Privacy Act requests. Luczynski Decl. ¶ 1. USAO CDIL
proffered the declaration of Julie Leeper, a legal assistant who serves as the FOIA and Privacy Act
Coordinator for USAO CDIL, and who coordinates with EOUSA in connection with responding
to all FOIA and Privacy Act requests sent to her office. Leeper Decl. ¶ 1. In support of their
second motion for summary judgment, defendants provided a supplemental declaration from Ms.
Leeper. See generally Suppl. Leeper Decl.
In his declaration, Mr. Luczynski stated that criminal case files are maintained at the U.S.
Attorney’s Office that led the prosecution. Luczynski Decl. ¶ 13. So, when EOUSA received
plaintiff’s request, EOUSA forwarded it to the FOIA contact in the Central District of Illinois. Id.
He stated that the FOIA contact “began a systematic search for records on ‘Marcelo Sandoval’ to
9 determine the location of any and all files relating to plaintiff in order to comply with his request,”
and that the search included a search for records from the case file in Case No. 99-cr-40019-JBM.
Id. Mr. Luczynski referred to Ms. Leeper’s declaration for further details about the searches
conducted. Id.
Ms. Leeper provided details about USAO CDIL’s computerized docketing/case
management system known as LIONS, and she stated that files could be located in any USAO
CDIL office as well as the Federal Records Center in Chicago, Illinois. Leeper Decl. ¶ 8. From
January 4, 2016, to June 13, 2016, “emails were sent to employees of the CDIL . . . advising them
to complete a search for responsive records.” Id. ¶ 10. Ms. Leeper herself “performed a physical
search for opened and closed files, search for Federal Records Center files, the LIONS system,
Windows, Outlook, PACER (court’s website), and archived electronic computer files, for
responsive documents relating to Sandoval, specifically case number 99-CR-40019.” Id. ¶ 11.
In her supplemental declaration, she averred that no other record systems were likely to
produce responsive records. Suppl. Leeper Decl. at 1. Ms. Leeper stated that she located “boxes
of files relative to Sandoval, case number 99-CR-40019, as well as electronically stored files,” but
that after reviewing the documents, she did not find any responsive documents. Leeper Decl. ¶ 12.
She discussed this conclusion with the Assistant U.S. Attorney who handled plaintiff’s case and
“he advised [her] that there were no documents responsive to Sandoval’s request.” Id. At that
point, on June 13, 2016, Ms. Leeper advised EOUSA that no responsive documents were found.
Id. ¶ 13.
When the defendants first submitted these two declarations in support of their first motion
for summary judgment in an attempt to meet their burden with regard to the adequacy of their
searches, the declarations did not inspire confidence that the agencies conducted searches that were
10 reasonably calculated to uncover all relevant documents. The Court found that there were several
deficiencies with the searches conducted by the EOUSA and USAO CDIL. Sandoval, 296 F.
Suppl. 3d at 15–17. First, the declarations did not make clear whether plaintiff’s three requests for
documents were consolidated into a single request number. Id. at 16. Second, Ms. Leeper stated
that she “performed a physical search for opened and closed files, search for Federal Records
Center files, the LIONS system, Windows, Outlook, PACER (court’s website), and archived
electronic computer files,” Leeper Decl. ¶ 11, but she failed to explain why these specific locations
were searched. Sandoval, 296 F. Supp. 3d at 17. Third, she asserted that “emails were sent to
employees of the CDIL . . . advising them to complete a search for responsive documents,” Leeper
Decl. ¶ 10, but did not identify who those employees were and what their responsibilities were,
nor did she aver that no other custodians were likely to possess responsive documents, or describe
the types of records searched or the search methodology used by the employees. Sandoval, 296 F.
Supp. 3d at 17. Finally, Ms. Leeper stated that she searched electronic databases “for responsive
documents relating to Sandoval, specifically case number 99-CR-40019,” but she did not list the
search terms used, and while she stated that she personally reviewed the paper and electronic files
that were uncovered, she did not describe what she did to search the electronic files. See id.;
Leeper Decl. ¶¶ 11–12.
Defendants have now cured these deficiencies. First, defendants make clear that the three
document requests sent by plaintiff were consolidated into one request number. In her
supplemental declaration, Ms. Leeper states that the first request came in on September 11, 2015,
and a second request duplicative of the first came in on October 8, 2015. Suppl. Leeper Decl. at
1. This request was given a request number of 2015-04040. Id. Then, in November 2015, USAO
11 CDIL received a third request from EOUSA under 2015-04040. Id. This third request superseded
plaintiff’s first two requests. Id.
Second, Ms. Leeper explained in her supplemental declaration that she performed a
physical search and a search through various systems, such as the Federal Records Center, LIONS,
Windows, Outlook, PACER, and archived electronic computer files, because these locations were
likely to produce responsive records. Id. She averred that “[n]o other record systems were likely
to produce responsive documents” and that “all files likely to maintain responsive records were
searched.” Id. She also performed a physical search of files relevant to the plaintiff. Id.
Third, Ms. Leeper states that she emailed all of the employees of the USAO CDIL
(including the Springfield, Peoria, Urbana, and Rock Island offices) “advising them to complete a
search for ‘all records files (pending or closed), notes, and computer files, including email and
documents, etc.,” with respect to plaintiff. Suppl. Leeper Decl. at 2.
Finally, she states that the following search terms were used to search electronic files:
“Marcelo Sandoval,” “innocent,” “innocence,” “mafia,” “government informant,” “perjury,”
“inaccurate,” “99-40019,” and “99-cr-40019,” and she avers that “all files likely to maintain
responsive records were searched.” Id.
While defendants’ supplemental declaration could have provided more details regarding
the systems searched and why they were searched, the Court finds that the search conducted by
defendants meets the standard of reasonableness required. See Oglesby, 920 F.2d at 68 (a search
is adequate if a reasonably detailed affidavit sets forth the search terms, type of search performed,
and avers that all files likely contain responsive materials were searched). Defendants’
declarations set forth, with reasonable detail, who conducted the search, the type of search
performed, and the locations searched. The declarations are “relatively detailed” and the Court
12 has no reason to find that it was not “submitted in good faith.” Morley, 508 F.3d at 1116.
Moreover, considering the broad nature of plaintiff’s document request, defendants’ search of all
physical and electronic files retained by all employees of U.S. Attorney’s Office in question, using
terms that included the plaintiff’s first and last names, was “reasonably calculated to discover the
requested documents.” SafeCard Servs., 926 F.2d at 1201.
Because defendants demonstrate with reasonable specificity that the searches were
calculated to locate records responsive to plaintiff’s FOIA requests, the Court concludes that
defendants’ searches were adequate.
CONCLUSION
For the foregoing reasons, the Court will grant defendants’ motion for summary judgment.
A separate order will issue.
AMY BERMAN JACKSON United States District Judge
DATE: January 24, 2019