                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

___________________________________
                                    )
MARIO TREVINO TUNCHEZ,              )
                                    )
      Plaintiff,                    )
                                    )
      v.                            )                Civil Action No. 09-473 (CKK)
                                    )
U.S. DEP’T OF JUSTICE et al.,       )
                                    )
      Defendants.                   )
___________________________________ )


                                 MEMORANDUM OPINION

       Plaintiff Mario T. Tunchez filed this action under the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552, and the Privacy Act (“PA”), 5 U.S.C. § 552a. The defendants, the

Department of Justice (“DOJ”) and the Department of Homeland Security (“DHS”), jointly filed

a motion for summary judgment. Because there are no material facts in genuine dispute and the

defendants are entitled to judgment as a matter of law, the motion will be granted.

                                        BACKGROUND

       Tunchez, a prisoner serving a federal sentence, sent a FOIA request to the Bureau of

Alcohol Tobacco Firearms and Explosives (“BATFE”) seeking all documents in any format

about him, referring to him, or related to a criminal investigation of him dating back to January

1990. Compl. Ex. A. The request stated that BATFE agents took part in the investigation

leading to his prosecution, provided the case number of the prosecution, and specifically asked

that all files — some of which were mentioned by name — be searched. Id. Using multiple

personal identifiers associated with Tunchez, the BATFE conducted multiple searches on
multiple days of the TECS (Treasury Enforcement Communications Systems) database, which

contains BATFE investigative records, and the N-Force case management system of files, which

contains records documenting BATFE’s investigative activity. Mot. for Summ. J. (“MSJ”),

Decl. of Averill P. Graham (May 26, 2009) (“Graham Decl.”) ¶¶ 11-15. None of the searches

resulted in locating any responsive records. Id. ¶ 15. The BATFE advised Tunchez that its

search for criminal records relating to him had failed to locate any information about him, and

suggested that he might want to check with the Drug Enforcement Administration. Compl.

Ex. B. On administrative appeal, the BATFE’s response was affirmed. Id. Ex. E. Tunchez now

challenges the adequacy of the BATFE’s search. See Opp’n at 7-8.

       Tunchez sent a similar request for records about himself to FBI headquarters (“FBIHQ”).

Compl. Ex. F. In response, FBIHQ conducted an electronic search of its CRS (Central Records

System), using the plaintiff’s name, birthdate, social security number, and place of birth to

identify any main files associated with him. MSJ, Decl. of David M. Hardy (Sept. 9, 2009)

(“Hardy Decl.”), ¶¶ 15-20, 25. The FBI sent Tunchez a response stating that “[n]o records

responsive to [his] FOIPA request were located by a search of the automated indices [to the main

files],”1 and suggested that he might also want to make a request to a specific FBI field office

where the records might be maintained. Compl. Ex. G. This response was affirmed on appeal,

and the recommendation to make a request to a field office was reiterated. Id. Ex. J. Tunchez



       1
           In FBI nomenclature, a “main file” is one which has a name corresponding with its
subject matter. Hardy Decl. ¶ 17. In other words, a search of FBI “main files” for records
relating to Tunchez would be a search for a file identified by Tunchez’s name or other personal
identifier. The other type of general index the FBI maintains is to a “reference entry,” which is a
subject referenced within a main file bearing a name other than the within-referenced subject. Id.


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then sent the same sort of request to the FBI’s local office in Brownsville, Texas. Id. Ex. K.

Despite two follow-up communications regarding that request — one of which was directed to

the DOJ’s FOIA/PA Referral Unit, he did not receive any acknowledgment or response from the

Brownsville office or DOJ with respect to that request. Id. Exs. L, M. The FBI has no record of

receiving the Brownsville request. Hardy Decl. ¶ 27.

       Subsequent to being served with this complaint, the FBI conducted searches — some for

the second time — of its main and reference files maintained at FBIHQ and all field offices.

Hardy Decl. ¶ 26. This search located two main files, consisting of a total of 176 unique pages of

records.2 Id. Of those, 36 pages were released in full, 137 pages were released with redactions,

and 3 pages were referred to the Bureau of Prisons (“BOP”) for review and release

determination. Id. The BOP has since released the three pages with redactions. MSJ, Decl. of

Ron Hill (July 31, 2009) ¶ 3. Tunchez raises no challenge to the BOP’s response. See Opp’n at

16. As to the FBI’s response, Tunchez argues that the search was inadequate, id. at 8-9, that the

lack of any response to his Brownsville request remains unexplained and is inexcusable, and that

the exemptions claimed for the redactions are invalid because “the information has been released

into the public domain via judicial proceedings and media outlets.” Opp’n at 10; see also id. at

9-12. In addition, Tunchez disputes the propriety of the FBI’s decision to withhold information

relating to law-enforcement techniques and procedures. Id. at 13.

       Tunchez also sent the same FOIA request to the United States Customs and Border Patrol

(“CBP”), a component of the DHS, seeking records about himself. Compl. Ex. N. In response,

the CBP conducted a search of the TECS, the SEACATS (Seized Assets and Case Tracking


       2
           Another 33 pages of duplicate records were also located. Hardy Decl. ¶ 26.

                                                -3-
System), the ENFORCE (Enforcement Case Tracking System), and the ACS (Automated

Commercial System), locating four pages of responsive records, which it released to Tunchez

with redactions. Decl. of Mark Hanson (Sept. 9, 2009) (“Hanson Decl.”), ¶¶ 5-6. The records

were released to Tunchez shortly after Tunchez had submitted this complaint for filing, but

before the complaint had been served on any defendants. See id. ¶ 6 (release of records made

under cover of letter dated March 11, 2009); Compl. at 1 (“received” stamped March 3, 2009).

Later, in preparing for this litigation, the CBP realized that the staff person who conducted the

search did not have access to all parts of the TECS system. Id. ¶ 7. Thus, CBP conducted the

search again and located an additional 10 pages of responsive records, which were released to

Tunchez with redactions. Id. In the process, a re-review of the releases made in March resulted

in a revision of the original redactions, resulting in additional information being released to

Tunchez. Id. ¶ 8. Tunchez challenges the timeliness of the CBP’s response and argues that the

public domain doctrine strips the records of all possible exemptions. Opp’n at 13-15.

                                            DISCUSSION

       Under Federal Rule of Civil Procedure 56, a motion for summary judgment should be

granted if the pleadings and evidence on file show that there is no genuine issue of material fact,

and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986). In considering whether there is a triable issue of fact, a court

must draw all reasonable inferences in favor of the non-moving party. Id. at 255. The party

opposing a motion for summary judgment, however, “may not rest upon the mere allegations or

denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue

for trial,” id. at 248, that would permit a reasonable jury to find in his favor, Laningham v. U.S.


                                                  -4-
Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). The non-moving party must do more than simply

“show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Moreover, “any factual assertions in the

movant’s affidavits will be accepted as being true unless [the opposing party] submits his own

affidavits or other documentary evidence contradicting the assertion.” Neal v. Kelly, 963 F.2d

453, 456 (D.C. Cir. 1992) (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982)).

       To prevail on a FOIA claim, a plaintiff must show that an agency improperly withheld

agency records. Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150

(1980). An agency cannot improperly withhold records if it did not receive a request for those

records. Ning Ye v. Holder, 624 F. Supp. 2d 121, 123-24 (D.D.C. 2009) (citing Banks v. Lappin,

539 F. Supp. 2d 228, 235 (D.D.C. 2008)); see also West v. Jackson, 448 F. Supp. 2d 207, 211

(D.D.C. 2006). Thus, a plaintiff, who bears the burden in this matter, must establish that the

agency received the FOIA request. In his verified complaint, Tunchez attests that he submitted a

FOIA request to the FBI’s office in Brownsville, Texas, and sought assistance from the DOJ’s

FOIA/PA Referral Unit in obtaining a response. Compl. ¶¶ IV.C.1 - 3 & Exs. K, L, M. The

Hardy Declaration attests that the FBI has no record of ever receiving these requests. Hardy

Decl. ¶ 27. Tunchez has not provided evidence — such as a return receipt for mail or a letter of

acknowledgment — to show that the FBI ever actually received the Brownsville requests.

Without such evidence to overcome the FBI’s sworn statement that it has no record of receiving

the Brownsville requests, Tunchez’s FOIA claim arising from the Brownsville requests must fail.

Ning Ye, 624 F. Supp. 2d at 123-24.




                                                -5-
         An agency is entitled to summary judgment in a FOIA suit once it demonstrates that no

material facts are in dispute and that it conducted a search of records in its custody or control,

Kissinger, 445 U.S. at 150-51, that was reasonably calculated to uncover all relevant information,

Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984), which either has been

released to the requestor or is exempt from disclosure, Students Against Genocide v. U.S. Dep’t

of State, 257 F.3d 828, 833 (D.C. Cir. 2001). To show that its search “us[ed] methods which can

be reasonably expected to produce the information requested,” Oglesby v. U.S. Dep’t of the

Army, 920 F.2d 57, 68 (D.C. Cir. 1990); see also Campbell v. U.S. Dep’t of Justice, 164 F.3d 20,

27 (D.C. Cir. 1998), the agency may submit affidavits or declarations that explain in reasonable

detail and in a nonconclusory fashion the scope and method of the search, Perry v. Block, 684

F.2d 121, 126 (D.C. Cir. 1982). In the absence of contrary evidence, such affidavits or

declarations are sufficient to demonstrate an agency’s compliance with the FOIA. Id. at 127. A

search need not be exhaustive, Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1383 (8th Cir. 1985),

and the adequacy of a search is not determined by its results, but by the method of the search

itself, Weisberg, 745 F.2d at 1485. An agency’s failure to find a particular document does not

necessarily indicate that its search was inadequate. Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir.

2004); Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 892 n.7 (D.C. Cir.

1995).

         Tunchez asserts that the agencies’ searches were inadequate, but he offers no basis for his

objection except that (1) some searches did not produce results, or (2) did not produce results

until after the lawsuit was filed, or (3) the agency did not search all files or the files he specified

in his FOIA request. These objections are each contrary to the law. First, an agency’s failure to


                                                  -6-
find documents, or a particular document, does not necessarily indicate that its search was

inadequate. Wilbur, 355 F.3d at 678. Second, whether the search was completed before or after

the requestor files a lawsuit, the remedy available to the plaintiff in a FOIA suit is the same:

access to the documents to which he is entitled under the law. See 5 U.S.C. § 522(a)(4)(B)

(authorizing a federal court only to “enjoin the agency from withholding agency records and to

order the production of any agency records improperly withheld”); Perry, 684 F.2d at 125

(stating that “however fitful or delayed the release of information under the FOIA may be, once

all requested records are released [in accordance with the lawful exemptions], federal courts have

no further statutory function to perform”). Third, a FOIA requestor is not entitled to a search of

files specified by the requestor, but rather to a search of files “that are likely to turn up the

information requested,” Oglesby, 920 F.2d at 68, regardless of how many or how few records

systems are searched and whether they were identified by the requestor. Accordingly, Tunchez’s

objections to the agencies’ searches are unavailing.

        Tunchez concludes that the FBI ultimately found responsive documents at the FBI’s

Brownsville office. See Opp’n at 8-9. As the Hardy Declaration avers only that “FBIHQ and all

field offices” were searched, Hardy Decl. ¶ 26, Tunchez’s conclusion appears to rest on a

premise that Brownsville is a field office. The record submitted does not establish that the

Brownsville office is an FBI field office, and the Court has no knowledge that it is a field office.

The FBI refers to it as a “Resident agency.” Hardy Decl. ¶ 27. Nonetheless, the Hardy

declaration establishes that records of the sort requested by Tunchez are maintained by the FBI as

part of the CRS. Hardy Decl. ¶ 15. Furthermore, “[c]ertain records in the CRS are maintained at

FBIHQ, whereas records that are pertinent to specific field offices of the FBI are maintained in


                                                   -7-
those field offices.” Id. In light of this information, the Court concludes that the FBI’s search of

both the main and reference indexes to the CRS at “FBIHQ and all field offices” which was

conducted in response to Tunchez’s complaint, Hardy Decl. ¶ 26, “was reasonably calculated to

uncover all relevant information” responsive to Tunchez’s request, Weisberg, 745 F.2d at 1485.

In sum, based on the agency declarations submitted, the Court finds that the agencies have each

conducted searches that were reasonably calculated to produce the information requested, and

have complied with the law with respect to their obligation to search.

       An agency that withholds information responsive to a plaintiff’s request must justify its

decision in accordance with the exemptions identified in the FOIA. See 5 U.S.C.

§§ 552(a)(4)(B), 552(b); Al-Fayed v. CIA, 254 F.3d 300, 305 (D.C. Cir. 2001); Summers v. Dep’t

of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998); Mead Data Cent., Inc. v. U.S. Dep’t of the Air

Force, 566 F.2d 242, 260 (D.C. Cir. 1977). An agency may accomplish this by submitting

“affidavits or declarations that describe the documents involved and justify the non-disclosure in

a clear, specific and reasonably detailed manner, and that are not controverted by either contrary

evidence in the record [or] evidence of agency bad faith.” Voinche v. FBI, 412 F. Supp. 2d 60,

64-65 (D.D.C. 2006) (internal quotation marks and citations omitted). “These 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.” Id. at 65

(internal quotation marks omitted).




                                                -8-
       In this case, the defendants have asserted FOIA Exemptions 2, 3, 6, 7A, 7C, 7D, and 7E

to justify the nondisclosures made by the CBP, FBI, and BOP.3 In what appears to be a global

challenge to the information withheld, Tunchez argues that the records are stripped of their

statutory exemptions “because the information has been released into the public domain via

judicial proceedings and media outlets.” Opp’n at 10. Without assessing the applicability of this

exemption to all the withheld information, Tunchez has not “‘point[ed] to specific information in

the public domain that appears to duplicate that being withheld,’” as the law requires him to do

before a court can find that the exemption has been waived by the public domain doctrine.

Cottone v. Reno, 193 F.3d at 555-56 (D.C. Cir. 1999) (quoting Afshar v. Dep’t of State, 702 F.2d

1125, 1130 (D.C. Cir. 1983)). Because Tunchez has not identified any specific information or

the“the exact portions” of a specific document that is in fact “preserved in a permanent public

domain,” id. (internal quotation marks omitted), his public domain challenge fails.


       3
           See exemptions, 5 U.S.C. §§ 552(b)(2) (exempting information “related solely to the
internal personnel rules and practices of an agency”); (b)(3) (exempting information “specifically
exempted from disclosure by statute” if that statute “requires that the matters be withheld from
the public in such a manner as to leave no discretion on the issue” or “establishes particular
criteria for withholding or refers to particular types of matters to be withheld”); (b)(6) (exempting
“personnel and medical files and similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy”); (b)(7) (exempting “records or information compiled
for law enforcement purposes, but only to the extent that the production of such law enforcement
records or information (A) could reasonably be expected to interfere with enforcement
proceedings, ... (C) could reasonably be expected to constitute an unwarranted invasion of
personal privacy, (D) could reasonably be expected to disclose the identity of a confidential
source, including a State, local, or foreign agency or authority or any private institution which
furnished information on a confidential basis, and, in the case of a record or information
compiled by criminal law enforcement authority in the course of a criminal investigation or by an
agency conducting a lawful national security intelligence investigation, information furnished by
a confidential source, (E) would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law enforcement investigations
or prosecutions if such disclosure could reasonably be expected to risk circumvention of the
law”).

                                                 -9-
       Tunchez also specifically targets the redactions made pursuant to Exemption 7E relating

to “‘techniques and procedures’ used for law enforcement investigations and prosecutions.”

Opp’n at 13 (quoting MSJ at 26). His challenge, however, is limited to asserting that the FBI’s

declaration fails to make the required showing to justify withholding the information. Id. (“No

where [sic] in the memorandum of law or Hardy declaration does the FBI even attempt to make a

show [sic] as required by law, ....”). A review of the Hardy Declaration, submitted on behalf of

the FBI, leads to a contrary conclusion. Hardy explains that the information relating to

techniques and procedures that the FBI is withholding would, if released, identify which among

the 27 techniques and procedures listed on the documents were used in investigating Tunchez,

and the FBI’s evaluation of those techniques and procedures. Hardy Decl. ¶¶ 70-71. This is

information the FBI does not want to fall into the hands of other investigative targets who might

find such information useful in evading detection. Id. The Hardy Declaration provides adequate

justification for withholding the information under Exemptions 2 and 7E. Tunchez raises no

other specific objections to the information withheld. Upon review of the Hanson, Hardy and

Hill Declarations, the Court finds that the CBP, FBI and BOP have justified the withholdings as

required by law.

       The FOIA expressly requires that “[a]ny reasonably segregable portion of a record shall

be provided to any person requesting such a record after deletion of the portions which are

exempt.” 5 U.S.C. § 552(b). Each of the declarations filed on behalf of the FBI and the CBP

attests that the responsive records were reviewed for segregability and that all non-exempt

reasonably segregable information was released. Hanson Decl. ¶¶ 20-21; Hardy Decl. ¶¶ 31, 72.

A review of the documents released to Tunchez with redactions provides no basis for doubting


                                               -10-
the veracity of the segregability assertions in those two declarations. See MSJ, FBI Ex. J, CBP

Exs. A & B. The BOP’s declaration also demonstrates that it segregated and released all non-

exempt information. See Hill Decl. Ex. B (stating that only “third party information” was

redacted from the 3 pages released to Tunchez). Tunchez does not dispute any these attestations

or raise any challenges related to segregability. On this record, the Court finds that the CBP,

FBI, and BOP satisfied the FOIA’s requirements to release all responsive non-exempt

information that could reasonably be segregated and released.

                                         CONCLUSION

       The defendants have submitted clear, specific, detailed and non-conclusory explanatory

declarations that establish that each agency has conducted searches reasonably calculated to

produce the information requested, and has released all reasonably segregable non-exempt

information. The objections the plaintiff has lodged lack merit. Accordingly, the defendants’

motion will be granted and judgment will be awarded to the defendants.

       A separate order accompanies this memorandum opinion.


                                                                /s/
                                                      COLLEEN KOLLAR-KOTELLY
Date: June 3, 2010                                    United States District Judge




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