                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA

                                    )
KESTER SANDY,                       )
                                    )
            Plaintiff,              )
                                    )
      v.                            )                  Civil Action No. 15-0628 (CKK)
                                    )
EXECUTIVE OFFICE FOR                )
UNITED STATES ATTORNEYS,            )
                                    )
            Defendant.              )
___________________________________ )


                                 MEMORANDUM OPINION
       This matter is before the Court on the parties’ cross-motions for summary judgment [ECF

Nos. 14 and 16]. For the reasons discussed below, the Court will enter judgment for the

defendant.

                                      I. BACKGROUND

       Plaintiff, a prisoner who is currently incarcerated at the Coxsackie Correctional Facility

in New York, brings this action under the Freedom of Information Act (“FOIA”), see 5 U.S.C. §

552, against the Executive Office for United States Attorneys (“EOUSA”), a component of the

United States Department of Justice (“DOJ”). See Compl. ¶¶ 1, 4-6.

       In August 2013, plaintiff submitted a FOIA request to the United States Attorney’s Office

for the Eastern District of Pennsylvania (“USAO/EDPA”), id. ¶ 7, for the following information:


              Special Assistant US Attorney Lisa R. Cipoletti[’s] proof of
              appointment, oath of office for such title, when she was appointed
              such title, was she appointed in the year of 2004 and who appointed

                                                1
                  her such title and was she acting under the direction and supervision
                  of the U.S. Attorney during the above said year, particularly 04-cr-
                  324TJS U.S. v. Sandy; and any further information
Id., Ex. A (Freedom of Information Request dated August 12, 2013). The request was forwarded

to the EOUSA’s Freedom of Information Act Unit in Washington, D.C. for processing. Id. ¶ 8;

see id., Ex. B (Letter to plaintiff from Susan Falken, FOIA Contact, EDPA, dated August 21,

2013). The EOUSA acknowledged receipt of plaintiff’s request, which was assigned Request

No. 13-3142. 1 Id. ¶ 9; see id., Ex. C (Letter to plaintiff from Susan B. Gerson, Assistant

Director, Freedom of Information & Privacy Staff, EOUSA, dated September 12, 2013).

         A search of EOUSA personnel records produced no information about Ms. Cipoletti.

Def.’s Mem. of P. & A. in Support of its Mot. for Summ. J. [ECF No. 14-1] (“Def.’s Mem.”),

Ex. A (“Richardson Decl.”) ¶ 11. Although the EOUSA was notified of this result by email on

January 29, 2014, Richardson Decl. ¶ 12, plaintiff was not informed of this “no records” result

until May 22, 2015, see Def.’s Mem., Ex. K (Letter to plaintiff from Susan B. Gerson dated May

22, 2015) at 1.

         Meanwhile, and in error, the EOUSA notified plaintiff that it denied his request in full,

id. ¶ 9, relying on Exemptions 6 and 7(C), id., Ex. H (Letter to plaintiff from Susan B. Gerson

dated June 30, 2014) at 1. Plaintiff appealed the EOUSA’s determination administratively to the

DOJ’s Office of Information Policy (“OIP”). Id. ¶ 10. OIP affirmed “on partly modified

grounds,” that is, relying on Exemption 6 alone. Id., Ex. L (Letter to plaintiff from Matthew

Hurd, Senior Attorney, Administrative Appeals Staff, dated March 6, 2015) at 1.




1
    The EOUSA later assigned the request a new tracking number, FOIA-2014-02861. See Compl. ¶ 9.

                                                      2
          After plaintiff initiated this lawsuit, staff reviewed the EOUSA’s files and “discovered

that on January 29, 2014, it received a notification from the [United States Attorney’s Office for

the Eastern District of Pennsylvania] that the [office] no longer employed . . . Cipoletti and it no

longer possessed records related to her oath.” Def.’s Mem., Ex. J (Motion for Extension of Time

to Respond to Plaintiff’s Complaint, Sandy v. Exec. Office of United States Attorneys, No. 15-cv-

628 (D.D.C. filed May 29, 2015)) at 2. On the belief that Ms. Cipoletti had been an Assistant

United States Attorney, plaintiff was informed that responsive records had been transferred to the

General Service Administration’s National Personnel Records Center (“NPRC”). See id., Ex. J.

at 2.

          Plaintiff submitted a FOIA request to the NPRC, see Notice of Motion [ECF No. 16]

(“Pl.’s Mot. for Summ. J.”) at 4 (page numbers designated by ECF); see id., Ex. (Freedom of

Information Request dated August 10, 2015). 2 NPRC informed plaintiff that he should submit

his request directly to the subject’s last or current employing agency. Id., Ex. (Returned Request

Form).

          Counsel for defendant explains that Ms. Cipoletti was not a federal government

employee; at the time of plaintiff’s criminal prosecution in the Eastern District of Pennsylvania,

she “was ‘cross-designated’ as a [Special Assistant United States Attorney] under the Project

Safe Neighborhoods Initiative while simultaneously holding the position of Assistant District

Attorney employed with the Lehigh County District Attorney’s Office.” Reply to Pl.’s Opp’n to

Defs.’ Mot. for Summ. J. [ECF No. 17] at 4. Counsel further explains that the EOUSA would




2
    The Court construes plaintiff’s “Notice of Motion” as his cross-motion for summary judgment.

                                                         3
not have maintained a personnel file for Ms. Cipoletti, and the personnel file “is the most likely

location for information responsive to [p]laintiff’s FOIA request.” Id.

       Plaintiff emphasizes that he seeks Ms. “Cipoletti’s oath of office, etc., which is public

information,” but not personal information about her. Compl. ¶ 15. He demands release of the

records he requested, among other relief. See id. at 4 (page number designated by ECF); Pl.’s

Mot. for Summ. J. at 4.

                                         II. DISCUSSION

                              A. Summary Judgment in a FOIA Case

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

Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009). On a motion for summary judgment, the

Court generally “must view the evidence in the light most favorable to the nonmoving party,

draw all reasonable inferences in his favor, and eschew making credibility determinations or

weighing the evidence.” Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir. 2008); see also

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Ordinarily, where the agency

moves for summary judgment, it must identify materials in the record to demonstrate the absence

of any genuine issue of material fact. See Fed. R. Civ. P. 56(c)(1). Plaintiff as the non-moving

party then must point to specific facts in the record to show that there remains a genuine issue

that is suitable for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

                          B. The EOUSA’s Search for Responsive Records

        “A requester dissatisfied with the agency’s response that no records have been found

may challenge the adequacy of the agency’s search by filing a lawsuit in the district court after

exhausting any administrative remedies.” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321,

                                                 4
326 (D.C. Cir. 1999) (citations omitted). In this circumstance “[t]he Court applies a

reasonableness test to determine the adequacy of search methodology . . . consistent with the

congressional intent tilting in favor of disclosure.” Campbell v. U.S. Dep’t of Justice, 164 F.3d

20, 27 (D.C. Cir. 1998) (citations and internal quotation marks omitted). An agency “fulfills its

obligations under [the] FOIA if it can demonstrate 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) (citations and internal quotation marks

omitted). The agency may submit affidavits or declarations to explain the method and scope of

its search, see Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982), and such affidavits or

declarations 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) (internal quotation marks and citation

omitted). However, if the record “leaves substantial doubt as to the sufficiency of the search,

summary judgment for the agency is not proper.” Truitt v. Dep’t of State, 897 F.2d 540, 542

(D.C. Cir. 1990).

       The EOUSA’s declarant identifies herself as an Administrative Services Assistant who

“serve[s] as a liaison to the FOIA/PA staff for the [EOUSA] in Washington, D.C. Richardson

Decl. ¶¶ 1-2. In this capacity, she has access to “records maintained by or located on the

Electronic Official Personnel Folders (eOPF) system.” Id. ¶ 3. “The eOPF provides electronic,

web-enabled access for all Federal agency personnel to view and manage employment

documents.” Id. ¶ 9.

       The declarant searched eOPF using Ms. Cipoletti’s name as a search term. Id. ¶¶ 8-9.

She also searched “Microsoft Outlook Office, Global Address Book, [and] Global Address

                                                 5
Listings,” described as “a database within the Microsoft Exchange Server account . . .

contain[ing] the names and email addresses . . . of every employee within DOJ.” Id. ¶ 10. “The

searches did not produce any records related to Ms. Cipoletti.” Id. ¶ 11. According to the

declarant, “[a]ll systems of records located within eOPF [deemed] likely to contain records

responsive to [p]laintiff’s [FOIA] request have been searched.” Id. ¶ 13. Further, she stated, she

is “not aware of any other locations within EOUSA” where potentially responsive records “are

likely to be located,” or “of any other method or means by which a further search could be

conducted that would likely uncover additional responsive records.” Id. ¶ 14.

        Plaintiff responds by referring to the NPRC’s response to his FOIA request, namely its

instruction “to submit [his] request to the last or current employing agency.” Pl.’s Mot. for

Summ. J. ¶ 13. 3 “NPRC never had . . . information” about Ms. Cipoletti, id. ¶ 14, and he asserts

that “EOUSA and/or [the United States Attorney’s Office for the Eastern District of

Pennsylvania] should have Ms. Cipoletti’s information[.]” Id. ¶ 14.

        “[T]he issue to be resolved is not whether there might exist any other documents possibly

responsive to the request, but rather whether the search for those documents was adequate.”

Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983) (citing Perry, 684 F.2d

at 128). Here, the EOUSA’s declarant indicates “which files were searched, by whom those files

were searched, and . . . a systematic approach to document location.” Toensing v. U.S. Dep’t of

Justice, 890 F. Supp. 2d 121, 142 (D.D.C. 2012) (quoting Weisberg v. U.S. Dep’t of Justice, 627

F.2d 365, 371 (D.C. Cir. 1980)) (internal quotation marks omitted). The EOUSA’s supporting

declaration is “accorded a presumption of good faith,” SafeCard Servs., 926 F.2d at 1200, and



3
  Any further inquiry about Ms. Cipoletti should be directed to the Lehigh County District Attorney’s Office, not to
a federal agency.

                                                         6
plaintiff can overcome it only by supplying evidence of bad faith, see Elec. Privacy Info. Ctr. v.

Dep’t of Homeland Sec., 384 F. Supp. 2d 100, 107 (D.D.C. 2005). Here, plaintiff offers “purely

speculative claims about the existence and discoverability of other documents,” SafeCard Servs.,

926 F.2d at 1200 (internal quotation marks and citation omitted), and “the fact that a particular

document was not found does not demonstrate the inadequacy of a search.” Boyd v. Criminal

Div. of U.S. Dep’t of Justice, 475 F.3d 381, 391 (D.C. Cir. 2007) (citations omitted).

                                       III. CONCLUSION

       The Court concludes that the EOUSA conducted a search reasonably calculated to locate

records responsive to plaintiff’s FOIA request. Even though it located no responsive records, the

EOUSA demonstrates not only compliance with its obligations under the FOIA, but also

entitlement to a judgment in its favor. Accordingly, the Court will grant defendant’s motion for

summary judgment and deny plaintiff’s cross-motion. An Order is issued separately.




                                              /s/
DATE: March 18, 2016                          COLLEEN KOLLAR KOTELLY
                                              United States District Court Judge




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