                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA




  MICHAEL SUSSMAN,

          Plaintiff,
                                                            Civil Action No.03-610 (HHK)
          v.

  UNITED STATES MARSHALS SERVICE,

          Defendant.




                                  MEMORANDUM ORDER

       In this case, Michael Sussman proceeding pro se, alleges that the United States Marshals

Service (“Marshals Service”) violated both the Privacy Act, 5 U.S.C. § 522a, and the Freedom of

Information Act (“FOIA”), 5 U.S.C. § 522. This Court granted summary judgment in favor of the

Marshals Service, and Sussman appealed. The United States Court of Appeals for the District of

Columbia Circuit affirmed part of this Court’s decision, and vacated and remanded the remainder

for further proceedings. See Sussman v. United States Marshals Service, 494 F.3d 1106, 1124

(D.C. Cir. 2007). Since the Circuit Court rendered its opinion, the Marshals Service has released

additional documents to Sussman, and both parties have changed their positions with respect to

exemptions claimed and disputed prior to the Circuit Court’s decision. Thus, some disputes that

predate the Circuit Court’s opinion have been resolved, others have not, and new ones are

presented to this Court for the first time. Now before the Court is the Marshals Service’s motion

for summary judgment and Sussman’s motion for partial summary judgment and limited

discovery. Because neither party has established an absence of a genuine issue of material fact
and that it is entitled to judgment as a matter of law, the summary judgment motions submitted by

both parties will be denied without prejudice. Because discovery is not warranted at this point,

Sussman’s motion for limited discovery will also be denied without prejudice.

                                      I. FOIA EXEMPTIONS

       The parties continue to dispute at least some of the FOIA exemptions claimed by the

defendant. The record submitted does not permit the Court to determine exactly which

exemptions as to which redacted portions of which documents Sussman challenges. The

information submitted by the Marshals Service in its Vaughn index, together with its

declarations, is insufficient to support a determination that the Marshals Service has justified its

nondisclosure decisions.

       Therefore, the Court will require the parties to submit a record that will afford the Court a

basis upon which to resolve the parties’ disputes. See Voinche v. F.B.I., 412 F. Supp. 2d 60, 65

(D.D.C. 2006) (stating that a court may require a more detailed Vaughn index if the one

submitted is not detailed enough to allow a court to determine whether FOIA exemptions were

legitimately claimed). The parties shall meet and confer, repeatedly if necessary, in order to

narrow their disputes and prepare a clear record for the Court.1 At a minimum, Sussman will be

required to precisely identify for the Marshals Service each disputed redaction, and the Marshals

Service will be required to prepare a submission that:

       (1) addresses only the nondisclosures that remain in dispute;




       1
          If at this juncture, or at any time, the parties wish to mediate their dispute either with
the assistance of a magistrate judge or the Court’s Alternative Dispute Resolution program, the
parties are encouraged to so notify the Court.

                                                  -2-
       (2) is accompanied by copies of all the pages that have been released to Sussman with

       disputed partial nondisclosures, so as to show the location and extent of each redaction

       and the precisely correlated exemption(s) asserted for each redaction (these pages should

       bear unique identifiers for ease of reference by the parties and the Court, e.g., page

       numbers or Bates-stamps applied for this purpose);

       (3) includes a sworn statement that, by reference to the unique page identifier, provides

       for each redaction on each page a nonconclusory description 2 of the redacted information

       that explains how the asserted exemption applies.

See id. The parties shall confer and jointly propose a date by which this new record for the Court

will be submitted.

                                  II. PRIVACY ACT CLAIMS

       Sussman asserts three Privacy Act claims: a failure to provide him access to his records, a

failure to comply with the nondisclosure provisions, and a failure to account for allegedly

improper disclosures of his records. See 5 U.S.C. § 552(a)(d)(1) (governing access of subject

records); § 552a(b) (governing nondisclosure of subject information); § 552a(c) (governing

accounting of disclosures of subject records). All these claims depend in the first instance on a

determination of what information the Marshals Service has on Sussman that is subject to the

access, nondisclosure, and accounting provisions of the Privacy Act, a disputed issue.




       2
          Describing withheld information as “internal information” Vaughn index, Aug. 29,
2008, [filed at docket entry 75] at 4, 5, 6, or as “predominantly internal and which, if released,
would risk circumvention of the law,” Mem. in Supp. of Def.’s Mot. for Summ. J., Suppl.
Declaration of William E. Bordley, Oct. 24, 2008, ¶ 10, is not adequate as a nonconclusory
description that explains the application of FOIA exemption (b)(2).

                                                 -3-
       This Circuit has determined that the Privacy Act provisions implicated in this case apply

only to records maintained in a “system of records,” and that a “system of records” for these

purposes is one in which information about individuals is, in actual practice, retrieved by the

individual’s name. See Henke v. U.S. Dep’t of Commerce, 83 F.3d 1453, 1459-61 (D.C. Cir.

1996); accord Krieger v. U.S. Dep’t of Justice, 529 F. Supp. 2d 29, 41-42 (D.D.C. 2008).

                This is not to suggest that an agency may simply refuse to acknowledge
       that it maintains a system of records and thereby insulate itself from the reach of
       the Privacy Act. To the contrary, if there is evidence that an agency in practice
       retrieves information about individuals by reference to their names, the mere fact
       that the agency has not acknowledged that it operates a system of records will not
       protect it from the statutory consequences of its actions. On the other hand, there
       is no magic number of incidental or ad hoc retrievals by reference to an
       individual's name which will transform a group of records into a system of records
       keyed to individuals.

               One factor in deciding whether such a system exists, obviously, is the
       purpose for which the information on individuals is being gathered . . . . Thus, . . .
       where information about individuals is only being gathered as an administrative
       adjunct to a grant-making program which focuses on businesses and where the
       agency has presented evidence that it has no practice of retrieving information
       keyed to individuals, the agency should not be viewed as maintaining a system of
       records. On the other hand, where an agency—such as the FBI—is compiling
       information about individuals primarily for investigatory purposes, Privacy Act
       concerns are at their zenith, and if there is evidence of even a few retrievals of
       information keyed to individuals’ names, it may well be the case that the agency is
       maintaining a system of records. We hold therefore that in determining whether
       an agency maintains a system of records keyed to individuals, the court should
       view the entirety of the situation, including the agency’s function, the purpose for
       which the information was gathered, and the agency’s actual retrieval practice and
       policies.


Henke, 83 F.3d at 1461. Given the function of the Marshals Service, Privacy Act concerns are at

their zenith. Whether Sussman’s records are part of a “system of records” depends in large part

on the purpose for which the information was gathered and the Marshals Service’s actual

retrieval practice and policies.


                                                -4-
       The Marshals Service’s declarations in this case do not disclose its actual retrieval

practice and policies. See Mem. in Support of Def.’s Mot. for Summ. J., Suppl. Decl. of William

E. Bordley, Oct. 24, 2008 (“Bordley Decl.”); Reply in Supp. of Def.’s Mot. for Summ. J., Second

Suppl. Decl. of William E. Bordley, Dec. 12, 2008. The Marshals Service states that it conducted

“a search for records pertaining to” Sussman at several of its district offices, and that it located

records on Sussman in its office in the Western District of Pennsylvania and in its headquarters

for the Investigative Services and Judicial Security Divisions. Bordley Decl. ¶ 19. The Marshals

Service does not disclose the method by which these records were retrieved or its usual practice

of retrieving such records. It claims, however, that “[t]he IC/TIS [Inappropriate

Communications/Threat Investigation System] is the only Privacy Act system of records wherein

records indexed to [Sussman’s] name and/or personal identifier are maintained,” id. (emphasis

added), and that it “located no accountings for disclosures for [Sussman’s] records in the IC/TIS

system,” and that there is no evidence of improper disclosures from Sussman’s records in that

system of records, id. ¶ 20. These assertions rest on a presumption to which the Marshals Service

is not entitled on this record: that the other records searched are not a “system of records” for

Privacy Act purposes.

       Because the Marshals Service’s declarations do not establish a record that sufficiently

explains the purpose for which all of the information on Sussman was gathered, or its actual

retrieval practice and policies for the information maintained in various locations on Sussman,

the Marshals Service has not established that those records are not part of a “system of records”

about Sussman and subject to the Privacy Act provisions giving rise to the claims in this case.3


       3
         It does not help matters that the record is confused by discrepancies between what the
Marshals Service’s declarations appear to state and what its counsel represents as fact. For

                                                  -5-
Without resolving that issue in the first instance, there can be no summary judgment on the

Privacy Act claims.

                                  CONCLUSION AND ORDER

       Because the record facts do not warrant an award of summary judgment for either party as

to any of the issues remaining in dispute, it is hereby

       ORDERED that Sussman shall identify with precision, and convey to the Marshals

Service, each document or redaction in same that remains in dispute; it is further

       ORDERED that the Marshals Service shall prepare and submit a record such as is

described in subpart A of this memorandum order; it is further

       ORDERED that the parties shall, on or before October 8, 2009, file a jointly proposed

date for the submission of such record; and it is further

       ORDERED that the Marshals Service shall, on or before October 8, 2009, advise the

Court as to whether it intends to attempt again to establish a record capable of supporting an

award of summary judgment on the Privacy Act claims, and if so, propose a date by which that

record will be submitted.


                                                          HENRY H. KENNEDY, JR.
Date: September 25, 2009                                  United States District Judge




example, the sworn declaration states that a document was released “showing the date the USMS
closed its only investigative file indexed to plaintiff’s name.” Bordley Decl. ¶ 8. Yet, counsel
asserts that “[h]ere, the evidence is undisputed that the USMS conducted, and then closed, an
investigation into Keith Maydak, including for threatening a federal judge, but that USMS never
investigated Plaintiff himself.” Def.’s Reply in Supp. of its Mot. for Summ. J. at 2, ¶ 1. The law
is clear that in such situations the declaration controls, but such apparent contradictions invite
concern as to the accuracy and/or clarity of the sworn statements.

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