                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

 HENRY FRANCIS,
                        Plaintiff,

                        v.
                                                     Case No. 15-1683 (CRC)
 UNITED STATES
 DEPARTMENT OF JUSTICE,

                        Defendant.



                                     MEMORANDUM OPINION

       In January 2014, Plaintiff Henry Francis submitted a Freedom of Information Act

(“FOIA”) request to the Executive Office for United States Attorneys (“EOUSA”), seeking

specific information pertaining to his federal prosecution and sentence. EOUSA’s failure to

locate responsive records forms the basis of this lawsuit. The Department of Justice (“DOJ”), of

which EOUSA is a component, has moved for summary judgment on the basis that it fulfilled its

FOIA obligations by conducting a reasonably adequate search for responsive records. Because

EOUSA’s declaration supports its contention, and Francis has offered nothing to doubt the

reasonableness of the search, the Court will grant DOJ’s motion for the reasons explained more

fully below.

I. Background

       In 1994, a jury in the U.S. District Court for the Middle District of Florida convicted

Francis of conspiring to kill a federal official and of using interstate commerce facilities in the

commission of a murder for hire. As a result, Francis is serving a life sentence. See United

States v. Francis, No. 8:16-cv-1656-T-23TGW, 2016 WL 3501303, at *1 (M.D. Fla. June 27,

2016); Compl. 12. In January 2014, Francis submitted a FOIA request to EOUSA seeking:
         [T]he evidence that the United States probation officer Mr. Chris Castellano
         relied upon to make his factual determination to based [sic] my offense level, as
         he asserted that, the guideline for an 18 U.S.C. 1117 is found in section 2A1.5.
         That section provides for a base offense level of 28 [citing paragraphs 45 and 51
         of his presentence investigation report (“PSR”)].

Francis also requested:

         [T]he evidence that the United States probation officer . . . Castellano relied
         upon to make his factual determination that I violated 1111, 1114, 1116 or 1119
         [citing paragraph 1 of his PSR][;] . . . the evidence Special Task Force Agent
         Mr. U.K. Miller, presented to the Jamaican government seeking the arrest of two
         Jamaican native[s], Mr. Collin Rose, Bull and Mr. Wayne, to stand trial in the
         United States in an indictment filed in the Middle District of Florida . . . by a
         Grand Jury for an 18 U.S.C. 1117 conspiracy between them, Henry Francis and
         Jacqueline Dennis, to murder ASUA [sic] Darken and Task Force Agent
         Bahnsen [citing pages eight and nine of his PSR][;] and the Actual documents
         of what date [Agent Miller] made contact with the Jamaican government, what
         transpired between agent Miller and the Jamaican government, and what was the
         response that he received from the Jamaican government [citing trial
         transcripts].

Compl. Ex. E, ECF No. 1 at pp. 20-21 (“FOIA Request”).

       On March 20, 2015, EOUSA informed Francis that his “request seeks records which may

be available from the US Probation Office in Florida” and suggested that he “contact their

offices directly to seek possible release of the records.” Gov’t Ex. B, ECF No. 31-1. Francis

appealed EOUSA’s determination to the Office of Information Policy (“OIP”), claiming that it

was non-responsive to his request. Gov’t Ex. C. On July 13, 2015, OIP affirmed EOUSA’s

action “on modified grounds.” Id., Ex. D. The Chief of the Administrative Appeals Staff wrote

that “EOUSA conducted [a reasonably adequate] search and could locate no responsive records

subject to the [FOIA] in its files.” Id.

       Francis filed this civil action in October 2015. A “further search of the records relating to

Mr. Francis” located no responsive records. Gov’t’s Stmt. of Material Facts ¶ 8.




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II. Legal Standard

       FOIA imposes a general obligation on the government to provide agency records to the

public. 5 U.S.C. § 552(a). The statute carves out explicit exceptions to this disclosure

obligation, id. § 552(b), but “[t]he basic purpose of FOIA is 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). Congress did not intend, however, “to reduce government agencies to full-time

investigators on behalf of requesters.” Judicial Watch v. Export–Import Bank, 108 F. Supp. 2d

19, 27 (D.D.C. 2000). As a result, “FOIA creates only a right of access to records, not a right to

personal services,” Hudgins v. IRS, 620 F. Supp. 19, 21 (D.D.C. 1985), aff’d, 808 F.2d 137

(D.C. Cir. 1987), and it confers jurisdiction in the district court only to enjoin an agency from

improperly withholding records that are in its possession and control at the time of the FOIA

request. “Accordingly, when an agency does not possess or control the records a requester seeks,

the agency’s non-disclosure does not violate FOIA because it has not ‘withheld’ anything.”

DiBacco v. U.S. Army, 795 F.3d 178, 192 (D.C. Cir. 2015) (citing Kissinger v. Reporters

Committee for Freedom of the Press, 445 U.S. 136, 150 (1980)). Nevertheless, a FOIA requester

who is dissatisfied with the agency’s no-records response “may . . . challenge the adequacy of

the agency’s search.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 67 (D.C. Cir. 1990).

       FOIA cases are appropriately resolved on summary judgment. See Brayton v. Office of

U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). When an agency’s search is questioned, it

must show “beyond material doubt that its search was reasonably calculated to uncover all

relevant documents.” Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 514

(D.C. Cir. 2011) (quoting Valencia–Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir.



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1999)) (internal quotation marks omitted). An agency’s search is judged by the individual

circumstances of each case. See Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990).

The central question is whether the search itself was reasonable, regardless of the results. See

Cunningham v. U.S. Dep’t of Justice, 40 F. Supp. 3d 71, 83-84 (D.D.C. 2014). Therefore,

“[t]he 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). Agencies need not scour every database, but

rather should conduct a “good faith, reasonable search of those systems of records likely to

possess requested records.” Cunningham, 40 F. Supp. 3d at 83. Agency declarations, especially

from individuals coordinating the search, are accorded “a presumption of good faith, which

cannot be rebutted by 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) (citation and

internal quotation marks omitted).

       Courts can decide—and award—summary judgment solely based on agency affidavits

and declarations that are “relatively detailed and non-conclusory.” Id. Important details include

what records were searched, who did the search, and what search terms or processes were used.

See Judicial Watch., Inc. v. Dep’t of the Navy, 971 F. Supp. 2d 1, 2 (D.D.C. 2013). A plaintiff

can rebut an agency declaration by raising “substantial doubt[s] as to the reasonableness of the

search, especially in light of ‘well-defined requests and positive indications of overlooked

materials.’” Cunningham, 40 F. Supp. 3d at 84 (quoting Founding Church of Scientology of

Washington, D.C. v. NSA, 610 F.2d 824, 837 (D.C. Cir. 1979)).




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III. Analysis

       In his opposition, ECF No. 28, Francis finds fault with the Declaration of David

Luczynski, who is an Attorney Advisor for EOUSA. Indeed, Luczynski’s statements about the

initial search conducted in the U.S. Attorney’s Office in the Middle District of Florida

(“MDFL”) in response to Francis’ FOIA request are generalized and uncorroborated. See

Luczyinski Decl. ¶ 5, ECF No. 25-2. But EOUSA has also proffered the declaration of the

employee at the local office in Florida who actually searched for responsive records during the

course of this litigation. As a result, any claim based on the pre-litigation search is moot. See

Saldana v. Fed. Bureau of Prisons, 715 F. Supp. 2d 24, 26 (D.D.C. 2010) (noting that “[e]ven if

Saldana’s claims were not moot at the time he filed this complaint, . . . they have since become

moot by the FBI’s additional searching, processing, and release of records”); cf. Bayala v. United

States Dep’t of Homeland Sec., Office of Gen. Counsel, 827 F.3d 31, 36 (D.C. Cir. 2016)

(holding “question of administrative exhaustion . . . moot” where agency’s administrative

decision “ha[d] been overtaken by new and different in-court disclosures and explanations”).

       The Court turns now to the relevant search. Megan D. Hoobler is a Paralegal Specialist

for the MDFL’s Criminal Division and that office’s FOIA coordinator. Hoobler Decl. ¶ 1. Her

“responsibilities include coordinating with [EOUSA] to respond to all FOIA requests for records

located within the MDFL.” Id. Hoobler states that upon her office’s receipt of a FOIA request,

the Legal Information Network System (LIONS) is searched to determine “1.) if there is a case

within the MDFL regarding the subject matter of the request; 2.) if the requestor is a defendant;

3.) if the case is active or closed; and 4.) the Assistant United States Attorney (AUSA) to whom

the matter is assigned.” Id. ¶ 5. If the requester is a defendant, as was Francis, his identity is

confirmed by comparing personal identifiers in LIONS, i.e., a defendant’s “Marshal number,



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date of birth, and social security number.” Id. An email is sent to the assigned AUSA and his or

her legal assistant, who are then “asked to search for any responsive documents.” Id. ¶ 6. The

physical files are retrieved and labeled with “an additional instruction that the file is not to be

purged without prior approval from the FOIA coordinator.” Id. ¶ 7. “Once all records are

received, the assigned [FOIA] processor sorts through the records to identify those responsive to

the request” and forwards any such records to EOUSA for processing. Id. ¶ 8.

        Although both the paralegal specialist and FOIA processor who handled Francis’ request

have since retired, Hoobler declares that she “received extensive training from both” individuals,

and “that the [foregoing] search process . . . was in place at the time of Mr. Francis’s request.”

Id. ¶ 2. Most importantly, in response to this lawsuit, Hoobler “personally reviewed the FOIA

file and search notes,” retrieved Francis’s “physical files,” and “performed a second, thorough

search . . . for potentially responsive records.” Id. ¶ 9.

        Hoobler reasonably describes the first part of Francis’ request as seeking “evidence

utilized by the United States Probation Office (USPO) in determining Mr. Francis’s offense level

and advisory guidelines calculation.” Id. ¶ 10. She explains that the U.S. Attorney’s Office

“does not maintain records or evidence utilized by the USPO. And, although the P SR and

objections thereto were in the files, there were no other records that indicated what evidence the

Probation Officer relied on in determining Mr. Francis[’] offense level or advisory guidelines

calculation.” Id. Consequently, no responsive records were found.

        As for the remaining parts of the FOIA request, Hoobler states that she “found no . . .

evidence nor documentation describing” evidence “presented to the Jamaican government

seeking the arrest of ‘Mr. Collin Rose, Bull and Mr. Wayne,’” nor did she find “documents

memorializing a meeting between agent [U.K. Miller] and the Jamaican government.” Id. ¶¶ 11-



                                                   6
12. Because an excerpt of trial testimony supplied by Francis suggested that such a meeting

might have been “memorialized in a FD-302 form,” Hoobler located “eight FD-302s,” but she

declares that those forms were not “responsive to Mr. Francis’s request as they do not discuss a

meeting between an agent and the Jamaican government[,] [and] [n]one mention[s] an agent

U.K. Miller.” Id. ¶ 12.

       Hoobler was not required to answer Francis’ questions or to opine about the “evidence”

he requested. See Espinoza v. Dep’t of Justice, 20 F. Supp. 3d 232, 245 (D.D.C. 2014) (“The

FOIA places no obligation on an agency to answer questions disguised as a FOIA request . . . or

to create documents or opinions in response to an individual’s request for information, nor is an

agency obligated to obtain a duplicate of or to re-create a record [not in its control or possession]

in order to fulfill a FOIA request.”) (citations and internal quotation marks omitted; alterations in

original); Saldana, 715 F. Supp. 2d at 19 (noting “‘[t]o the extent [a] plaintiff’s FOIA requests

are questions or requests for explanations of policies or procedures, these are not proper FOIA

requests’”) (quoting Anderson v. Dep’t of Justice, 518 F. Supp. 2d 1, 10 (D.D.C. 2007))

(alterations in original). And Hoobler has otherwise described a good-faith search reasonably

calculated to locate responsive records maintained by EOUSA. 1 As a result, this Court has “no

further judicial function to perform under the FOIA.” Perry v. Block, 684 F.2d 121, 125 (D.C.

Cir. 1982).




1    Francis appears also to seek equitable relief against the United States Probation Office. See
Compl. ¶¶ 32-33. But “as an arm of the court,” the probation office “is not subject to FOIA’s
disclosure requirements,” and any challenge to information contained in the presentence reports
that office is charged with generating “is wholly irrelevant to the FOIA analysis.” Espinoza, 20 F.
Supp. 3d at 245.

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IV. Conclusion

       For the foregoing reasons, the Court will grant DOJ’s motion for summary judgment and

enter judgment in its favor. An Order accompanies this Memorandum Opinion.




                                                  ________________________
                                                  CHRISTOPHER R. COOPER
DATE: August 21, 2017                             United States District Judge




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