                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
HENRY PAUL RICHARDSON,                    )
                                          )
                  Plaintiff,              )
                                          )
            v.                            )                  Civil Action No. 13-1203 (ESH)
                                          )
UNITED STATES OF AMERICA,                 )
                                          )
                  Defendant.              )
_________________________________________ )


                                     MEMORANDUM OPINION

       Plaintiff Henry Paul Richardson, proceeding pro se, filed this action against the United

States of America under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to challenge

the Executive Office of United States Attorneys’ (“EOUSA”) response to his FOIA request. On

February 19, 2015, the Court granted defendant’s motion for summary judgment except as to two

issues. See Richardson v. United States, No. 13-cv-1203, 2015 WL 709118, at *6 (D.D.C. Feb.

19, 2015) (“Richardson I”) [ECF Nos. 30]. Before the Court is defendant’s renewed motion for

summary judgment on the remaining issues. (Def.’s Renewed Mot. for Summary Judgment,

March 6, 2015 [ECF No. 32] (“Renewed SJ Mot.”).) For the reasons stated herein, defendant’s

motion will be granted.

                                        BACKGROUND

       The factual and procedural history of this case prior to February 19, 2015, is set forth in

the Court’s prior opinion, see Richardson I, at *1, and will not be repeated here. Based on the

record at that time, the Court concluded that defendant was entitled to summary judgment on all

but two issues: (1) whether the EOUSA had conducted an adequate search for still photos
associated with a February 14, 2006 surveillance videotape; and (2) whether there was any

reasonably segregable non-exempt information in two of the documents (documents 11 and 12)

that EOUSA had withheld in their entirety. See id. at *6. The Court directed defendant to file a

renewed motion for summary judgment addressing these issues. (See Order, Feb. 19, 2015 [ECF

Nos. 31].)

       After receiving the Court’s Order, the EOUSA discovered that it had in its possession an

additional “80 pages of records containing photographs,” which it released to plaintiff in their

entirety on February 27, 2015.1 (2d Luczynski Decl. ¶ 2.)

       On March 6, 2015, defendant filed its renewed motion for summary judgment, supported

by a new declaration from David Luczynski and an updated Vaughn index.          (See Renewed SJ

Mot. Ex. 4 (2nd Decl. of David Luczynski, Feb. 27, 2015 [ECF No. 32-6]) (“2d Luczynski

Decl.”); id. Ex. 3 (Vaughn Index (Updated) [ECF No. 32-5]).) Plaintiff filed a response,

opposing summary judgment on the issue of the adequacy of the EOUSA’s search on the ground

that he had still not received a complete set of still photo images from the February 14, 2006

surveillance videotape nor a copy of the video itself. (Pl.’s Opp’n to Def.’s Renewed SJ Mot. at

2, June 5, 2015 [ECF No. 41].)

       After receiving plaintiff’s response, the EOUSA asked the United States Attorney’s

Office for the Eastern District of Virginia to “search Plaintiff’s file again, focusing on anything

related to a surveillance video.” (See Reply Ex. 1, ¶ 2 (Supplemental Declaration Addressing

Plaintiff’s Memorandum Concerning Surveil[l]ance Video, Jun 29, 2015 [ECF No. 43-1]



       1
          The declaration speculates that these records were part of the initial batch of records
received from the United States’ Office for the Eastern District of Virginia, out of which EOUSA
made the first release of 100 pages, but that they were erroneously omitted from processing after
plaintiff paid the necessary fee. (2d Luczynski Decl. ¶ 2.)

                                                     2
(“Luczynski Video Decl.”)).) As a result of that search, three DVDs and one Mini DVD were

located.2 (Luczynski Video Decl. ¶ 2.) However, the EOUSA concluded that these DVDs were

not responsive because they did not include surveillance footage from February 14, 2006.

(Luczynski Video Decl. ¶¶ 3-4.)

       When defendant filed its reply, it included another declaration from Luczynski,

describing the EOUSA’s supplemental search for surveillance video and stating that none of the

still photos that the EOUSA had previously released to plaintiff came from the February 14,

2006 surveillance video, but rather that they were “surveillance photos taken by various law

enforcement personnel, situated in different locations, and the date when they were taken is

unknown.” (Id. ¶ 1.)

                                            ANALYSIS

I.     LEGAL STANDARD

       Summary judgment is appropriate when the pleadings and evidence show 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). On “summary judgment the inferences to be drawn

from the underlying facts . . . must be viewed in the light most favorable to the party opposing

the motion.” Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Judicial

Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013). Where, as here, a plaintiff

is proceeding pro se, the Court has “an obligation to construe pro se filings liberally.”




       2
         Apparently, these DVDs were not identified as responsive during the EOUSA’s first
search of plaintiff’s file because he had requested “surveillance pictures,” but “he did not request
videos.” (Luczynski Video Decl. ¶ 2.)

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Toolasprashad v. Bureau of Prisons, 286 F.3d 576, 583 (D.C. Cir. 2002); Haines v. Kerner, 404

U.S. 519, 520–21 (1972).

       “FOIA cases typically and appropriately are decided on motions for summary judgment.”

See, e.g., Higgins v. U.S. Dep’t of Justice, 919 F. Supp. 2d 131, 139 (D.D.C. 2013) (internal

quotations omitted). To obtain summary judgment, a defendant agency must establish that it has

conducted an adequate search for responsive records, that each responsive record that it has

located either has been produced to the plaintiff or is exempt from disclosure, and that it has not

withheld any reasonably segregable information. See Weisberg v. Dep’t of Justice, 627 F.2d 365,

368 (D.C. Cir. 1980); Elec. Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1, 12 (D.C. Cir.

2014). “[S]ummary judgment may be granted on the basis of agency affidavits if they contain

reasonable specificity of detail rather than merely conclusory statements, and if they are not

called into question by contradictory evidence in the record or by evidence of agency bad faith.”

Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980).

II.    ADEQUACY OF THE EOUSA’S SEARCH FOR SURVEILLANCE PHOTOS
       AND VIDEOS

       Relying on its supplemental production of documents, its supplemental search of

plaintiff’s file, and two additional declarations, defendant asserts that the EOUSA has conducted

an adequate search for any surveillance photos or videotapes from February 14, 2006.

       An agency has conducted an adequate search under the FOIA if “it can demonstrate

beyond material doubt that its search was ‘reasonably calculated to uncover all relevant

documents.’” Valencia–Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999)

(quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (quoting Weisberg v. Dep’t

of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983))). To meet this burden, the agency must submit

a “reasonably detailed affidavit, setting forth the search terms and the type of search performed,


                                                     4
and averring that all files likely to contain responsive materials (if such records exist) were

searched.” Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The agency’s

affidavits need not “set forth with meticulous documentation the details of an epic search for the

requested records,” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982), but if “the record leaves

substantial doubt as to the sufficiency of the search, summary judgment for the agency is not

proper.” Truitt, 897 F.2d at 542; see also Plunkett v. Dep’t of Justice, 924 F. Supp. 2d 289, 298

(D.D.C. 2013) (denying summary judgment for defendant because “a factual dispute existed as

to the adequacy of EOUSA’s search”). “The adequacy of the search . . . ‘is judged by a standard

of reasonableness and depends, not surprisingly, upon the facts of each case.’” Steinberg v. U.S.

Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg v. Dep’t of Justice, 745

F.2d 1746, 1485 (D.C. Cir. 1984)).

       Plaintiff challenges the adequacy of the EOUSA’s search on the ground that it failed to

locate a complete set of still photos from the February 14, 2006 surveillance videotape or the

videotape itself, both of which plaintiff maintains must exist. This time around, the Court is

satisfied that the EOUSA has conducted an adequate search for these records. When the Court

denied summary judgment on this issue, there was “uncontroverted evidence” in the record that

the EOUSA had released an incomplete set of still photos taken from the February 14, 2006

surveillance videotape. Richardson, 2015 WL 709118, at *3 (citing Pl.’s Aff. ¶ 2). The Court

observed that

       [d]efendant perhaps has an explanation for why it did not locate or release a
       complete set of pictures, but no such explanation has been provided to the Court.
       It did not file a reply, and neither its declarations nor the Vaughn index even
       mentions videotape pictures, much less describes how or where defendant found
       the pictures that it did release.




                                                      5
Under those circumstances, the Court concluded that “there remain[ed] a question as to the

adequacy of defendant’s search for the still photos associated with the February 14, 2006

videotapes.” Id. Now, however, defendant has provided the explanation that was previously

lacking, explaining that the still photos that the EOUSA found and released were not from the

surveillance video. (See Luczynski Video Decl. ¶ 1.) Thus, there is no obvious “gap” in the

records that were located and produced. In addition, while maintaining that plaintiff’s FOIA

request did not technically ask for “surveillance videos” when he requested “surveillance

pictures” (see Renewed SJ Mem. at 8), the EOUSA has conducted a second search of plaintiff’s

file for “anything related to a surveillance video.” (Luczynski Video Decl. ¶ 2.) That search

located 4 DVDs, which defendant has established do not contain the February 14, 2006

surveillance videotape sought by plaintiff. (Id. ¶¶ 3-4.) Based on these developments, the Court

is satisfied that the EOUSA conducted an adequate search for the February 14, 2006 surveillance

videotape and any related still photos.3

III.   SEGREGABILITY OF INFORMATION IN DOCUMENTS 11 AND 12

       To address the issue of segregability with respect to documents 11 and 12, defendant has

submitted a revised Vaughn index with more detailed descriptions of these documents. (See

Luczynski Decl. ¶ 3; Vaughn Index (Updated) at 9-10.) In the original Vaughn index, the 20

pages that comprise document 11 were described as “[d]ocuments containing information about



       3
         Plaintiff also suggests that the EOUSA should have provided him with “detailed
descriptions” of what is depicted in the photos that were produced or that it was obligated to try
and locate the video even if it was possessed by another government agency, but neither is
required under the FOIA. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S.
136, 152 (1980) (“The [FOIA] 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”); see DeBrew
v. Atwood, No. 12-5361, 2015 WL 3949421, at *3 (D.C. Cir. June 30, 2015) (“agency is not
obligated, nor is it able, to disclose a record it does not have”).

                                                    6
the victim” that “contain personal information relating to the victim's family, names, addresses,

medical forms, as well as coroner's report describing the injuries sustained by . . . victim.”

(Vaughn Index at 9.) In the updated Vaughn index, though, document 11 is described as:

       Documents containing information about the victim. In particular, “Victim
       History Form(s)” listing relatives and their addresses, detailed physical
       description of the victim, last known whereabouts, identifying marks, and places
       of employment. In addition, the document contains “Homicide Victim Lifestly
       Information Sheet” which includes educational and criminal background, along
       with a “rap sheet” covering victim’s past in detail. Not only do the records contain
       information strictly relating to the victim’s family, names, addresses, medical
       forms, as well as coroner’s report describing the injuries sustained by plaintiff’s
       victim, but they also do not contain any information, nor mention of name of the
       plaintiff.

(Vaughn Index (Updated) at 9-10.) Similarly, document 12 was previously described as a

“[d]ocument from the Richmond Police Department titled ‘Lineup ID Report’” that “contains

names and ID numbers of third party individuals used in the lineup” (Vaughn Index at 10), but

the updated Vaughn index includes the following additional information:

       The document is dated 2/16/2006, contains Richmond Police Department’s
       “Related Case Number” identifying the particular case, as well as suspect
       (plaintiff’s) ID number. Out of the various third party names listed on the form, as
       part of the lineup plaintiff’s name and ID number is also provided. If the
       document was segregated applying FOIA exemption 7C, the only thing legible on
       the page that is not third party information would be plaintiff’s name and ID
       number. For those reasons the document is withheld in full.

(Vaugh Index (Updated) at 10.) In addition to these more detailed descriptions of documents 11

and 12, the record establishes that these documents have been reviewed for segregability. (See

Vaughn Index (Updated) at 9-10 (“No page was determined segregable after review for

segregability. Disclosure of any portion of the document would disclose third party information,

thus the document is not segregable.”); 2d Luczynski Decl. ¶¶ 4-5 (stating that the EOUSA has

“conducted a page-by-page review of the material responsive to Plaintiff’s FOIA request to

determine what material could be disclosed and what material was exempt from disclosure” and


                                                      7
“released all reasonably segregable information wherever possible unless the information was

inextricably intertwined with information properly withheld”).)

       Plaintiff does not challenge defendant’s contention that documents 11 and 12 were

properly withheld in their entirety, and the revised descriptions of documents 11 and 12 no

longer “lack the detail necessary for the Court to conduct its own segregability analysis.”

Richardson I at *5. Having reviewed these descriptions and the supplemental declaration, the

Court is satisfied that there is no reasonably segregable non-exempt information in these

documents that the EOUSA should have released. Accordingly, defendant is entitled to

summary judgment on the issue of segregability for documents 11 and 12.

                                         CONCLUSION

       As defendant has established the adequacy of its search and that it properly withheld

documents 11 and 12 in their entirety, it is entitled to summary judgment on these two remaining

issues. A separate Order granting its renewed motion for summary judgment accompanies the

Memorandum Opinion.



                                                     /s/ Ellen Segal Huvelle
                                                     ELLEN SEGAL HUVELLE
                                                     United States District Judge

Date: August 4, 2015




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