                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          :
DONNIE WAYNE SHEFFIELD,                   :
                                          :
                        Plaintiff,        :
                                          :
      v.                                  :                    Civil Action No. 12-1008 (ABJ)
                                          :
ERIC H. HOLDER, JR.,                      :
                                          :
                        Defendant.        :
_________________________________________ :


                                  MEMORANDUM OPINION

        This matter is before the Court on Defendant’s Motion to Dismiss or, in the Alternative,

Motion for Summary Judgment [ECF No. 21]. 1 For the reasons discussed below, the motion will

be granted.


                                        I. BACKGROUND


        The plaintiff submitted a request under the Freedom of Information Act (“FOIA”), see 5

U.S.C. § 552, to the Executive Office for United States Attorneys (“EOUSA”), a component of

the United States Department of Justice (“DOJ”), for the following:

               I hereby request that you send me one copy of each and every
               document which is either in your possession or is under your
               control that either refers, relate[s] or pertains to either the arrest or
               to the Department of Justice’s prosecution of the [plaintiff] for his
               alleged violation of 18 USC § 922(g) or for any other matter.



1
    The defendant’s first dispositive motion [ECF No. 11] was withdrawn on November 8, 2012.
                                                  1
Mem. of P. & A. in Supp. of Def.’s Mot. to Dismiss or, in the Alternative, Mot. for Summ. J.

(“Def.’s Mem.”), Decl. of David Luczynski (“Luczynski Decl.”), Ex. A (New FOIA Request

dated November 14, 2011). The EOUSA acknowledged its receipt of the request. Compl., Ex. B

(Letter to plaintiff from Susan B. Gerson, Acting Assistant Director, Freedom of Information &

Privacy Staff, EOUSA, dated December 1, 2001). As of the filing of this lawsuit, however, the

plaintiff had not received a “comprehensive response” from the EOUSA. Id. ¶ 5.


       A preliminary search of records maintained by the United States Attorney’s Office for the

District of South Carolina (“USAO/DSC”) yielded approximately 500 pages of records.

Luczynski Decl. ¶ 9. “Although not all of these pages [were] likely to be released, [the] plaintiff

was notified that EOUSA charges $0.10 per page for duplication of documents that are released

after the first 100 pages, which are free.” Id. Fees for the processing of the plaintiff’s request

would exceed $25.00, id., and “the request [would] not be considered received and work [would]

not be completed until [the plaintiff agreed] to pay the anticipated fees.”     Id., Ex. F (Letter to

plaintiff from Susan Gerson dated August 23, 2012). However, if the plaintiff wanted “to reduce

the amount of fees,” the EOUSA suggested that he “reformulate [his] request.” Id. Plaintiff

availed himself of the opportunity, and reformulated his request as follows:

               I hereby request that you send me each and every document which
               is either in your possession or under your control that either relates,
               refers or pertains to U.S. Marshal[] Stewart Cottingham’s
               participation in the arrest of the [plaintiff] on January 11, 2006 in
               Florence, S.C.
Id., Ex. H (FOIA Request dated May 2, 2011). A search for this more specific set of materials

yielded no responsive records. Id. ¶ 13; see id., Ex. J (Letter to plaintiff from Susan B. Gerson

dated November 28, 2012).




                                                 2
                                       II. DISCUSSION


                             A. Summary Judgment in a FOIA Case


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

Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). The Court

grants summary judgment if the moving party shows that there is no genuine dispute as to any

material fact and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

Generally, to prevail in a FOIA case, “the defending agency must prove that each document that

falls within the class requested either has been produced, is unidentifiable, or is wholly exempt

from the [FOIA’s] inspection requirements.” Nat’l Cable Television Ass’n v. FCC, 479 F.2d

183, 186 (D.C. Cir. 1973).


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

challenge the adequacy of the agency’s search [for responsive records].” Valencia-Lucena v.

U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999); Antonelli v. Fed. Bureau of Prisons, 591

F. Supp. 2d 15, 28 (D.D.C. 2008) (“Where no records were found . . . , the Court must determine

the adequacy of [agency’s] search.”). In these circumstances, the Court may rely on affidavits or

declarations submitted by the agency “as long as they are relatively detailed and nonconclusory

and . . . submitted in good faith.” Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C.

Cir. 1983) (citations and internal quotation marks omitted). Although the agency’s affidavits or

declarations “are presumed to be in good faith,” a requester “can rebut this presumption with

evidence of bad faith.” Elec. Privacy Info. Ctr. v. Dep’t of Homeland Sec., 384 F. Supp. 2d 100,

107 (D.D.C. 2005) (citing SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)).

The requester cannot rest, however, on mere conjecture or “purely speculative claims about the


                                               3
existence and discoverability of other documents.” Id. (quoting Ground Saucer Watch, Inc. v.

CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).


                          B. The EOUSA’s “No Records” Response


       “The ‘LIONS’ system is the computer system used by United States Attorneys offices to

track cases and to retrieve files pertaining to cases and investigations.” Luczynski Decl. ¶ 15.

Through LIONS, “the user can access databases which can be used to retrieve information based

on a defendant’s name, the USAO number (United States[] Attorney’s Office internal

administrative number), and the district court case number.” Id. “Each United States Attorney’s

Office maintains the case files for criminal matters prosecuted by that office.” Id. Because the

plaintiff’s original and reformulated FOIA requests refer to his arrest in Florence, South

Carolina, “the EOUSA forwarded the requests to the FOIA Contact for the District of South

Carolina.” Id. “All responsive documents to [the plaintiff’s] FOIA requests would have been

located in the USAO/DSC,” and, the declarant avers, “[t]here are no other records systems or

locations within EOUSA or DOJ [where] other files pertaining to [the plaintiff’s] name were

maintained.” Id.


       Upon receipt of the plaintiff’s FOIA request by email on December 6, 2011, Def.’s

Mem., Decl. of Loquita Bryant-Jenkins (“Bryant-Jenkins Decl.”) ¶ 3, the FOIA Contact at the

USAO/DSC began her search using LIONS/ALCATRAZ, a computerized docketing and case

management system. Id. ¶ 4. She explained that, when a new matter or new case is opened, a

staff member enters information (names of parties and related cases, for example) into LIONS,

and the case is assigned an internal tracking number (“USAO number”).           Id.   Using the

plaintiff’s name as a search term, a query of LIONS/ALCATRAZ identified “card file indexes


                                               4
on Donnie Sheffield (LIONS/ALCATRAZ # 2007R00689),” which would have been located in

the Florence, South Carolina office. Id. ¶ 7. Apparently the case file had been forwarded to the

Columbia, South Carolina office while the plaintiff’s criminal case was on appeal, see id. ¶ 9,

and was returned to the Florence office in July 2012, id. ¶ 16. The FOIA Contact then sent “the

entire criminal file and appeal file with victim witness & grand jury page count to EOUSA” for

processing. Id. ¶ 17.


       The initial search yielded approximately 500 pages pertaining to the plaintiff and the

criminal case against him, most of which were “transcripts and court filing[s] that took place

during prosecution of the plaintiff.” Luczynski Decl. ¶ 16. Because the plaintiff’s reformulated

request sought “only [information] dealing with U.S. Marshal[] Stewart Cottingham’s

participation in [the plaintiff’s] arrest,” the EOUSA’s FOIA staff limited the search “specifically

for any [records] that mention U.S. Marshal[] Stewart Cottingham’s name. None of the records

contain this name.” Id.


                        C. The Plaintiff’s Challenges to the EOUSA’s Search


       The plaintiff’s opposition begins with an objection to the EOUSA’s reliance on

“declarations previously filed in this case upon the Defendant’s first filed Motion to Dismiss and

or for Summary Judgment” because the first motion included a declaration of David Luczynski

later found to have included incorrect information. Pl.’s Mot. to Strike and Mot. in Opp’n to

Def.’s Mot. to Dismiss or in the Alternative, Mot. for Summ. J. (“Pl.’s Opp’n”) at 2. Based on

the defendant’s withdrawal of its earlier dispositive motion, the plaintiff argues that the instant

motion “should be stricken from the record as scandalous, or in the alternative, any reference




                                                5
made to the declarations of ‘Luczynski’ be stricken from the record and that summary judgment

be denied.” Id. at 3.


        Mr. Luczynski’s first declaration [ECF No. 11-1], dated October 10, 2012, stated – in

error – that the plaintiff had not responded to the EOUSA’s August 23, 2012 letter requesting his

commitment to pay fees associated with the processing of his request and offering the plaintiff an

opportunity to reformulate his request.        Counsel withdrew the motion – and with it Mr.

Luczynski’s first declaration – because the declaration attested to facts later found to be

incorrect. Upon receipt of the plaintiff’s opposition to the first dispositive motion, “EOUSA

staff again reviewed its FOIA records and found that[,] on September 7, 2012, EOUSA received

[the plaintiff’s] letter asking to reformulate his original request.” Mot. for a New Briefing

Schedule [ECF No. 18] at 2.


        It is hardly a sign of bad faith to acknowledge an error, particularly where, as here, the

defendant promptly takes steps to correct the error. Mr. Luczynski’s second declaration [ECF

No. 21-1] does not contain the erroneous information of the first. It is not scandalous and it will

not be stricken from the record. Furthermore, only Mr. Luczynski’s second declaration is

relevant to this opinion.     The second declaration, in conjunction with Ms. Bryant-Jenkins’

declaration, not only describes adequately the EOUSA’s search in sufficient detail and but also

demonstrates that the agency’s search for responsive records was reasonable under the

circumstances. See Looney v. Walters-Tucker, 98 F. Supp. 2d 1, 3 (D.D.C. 2000) (“In reviewing

the somewhat contradictory declarations of defendant, the Court relies on those filed in support

of its present Renewed Motion, however, because they are neither conclusory nor incomplete

and because, as a result of the prodding of the Court and plaintiff’s counsel, the Court now is

satisfied that the agency has finally got it right, that its most recent search is adequate”).

                                                   6
       Next, the plaintiff challenges Mr. Luczynski’s conclusion that none of the records

responsive to his FOIA request mention Stewart Cottingham. Pl.’s Opp’n at 4. He “submits that

. . . Cottingham was a key . . . witness in the Government’s case in chief against [him],” id., and

represents that Cottingham testified at a suppression hearing. Id. at 4-5. According to the

plaintiff, “it is quite obvious that other documents, data, [and] information has [sic] been

generated, prepared or recorded by Key Government Witness Stewart Cottingham” and that

these items “would be used to report any incident which may have occur[r]ed on January 11,

2006,” the date of his arrest. Id. at 5. He posits that the government “certainly would not call a

witness to trial that made absolutely no reports, nor records or other information, unless the

government witness was coached to testify falsley [sic].” Id. A search that does not yield

records mentioning Stewart Cottingham, in plaintiff’s view, “was not []reasonably calculated to

uncover all responsive records.” Id.


       “[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) (citation omitted). In this case, the EOUSA’s

supporting declarations meet the agency’s burden on summary judgment by “demonstrat[ing]

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

documents.” Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995);

Davidson v. Envtl. Prot. Agency, 121 F. Supp. 2d 38, 39 (D.D.C. 2000). Neither the plaintiff’s

speculation as to the existence of records nor the EOUSA’s inability to locate records mentioning

Stewart Cottingham renders the search inadequate. See Ancient Coin Collectors Guild v. U.S.

Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (finding that search yielding “only a few

emails . . . is not enough to render its search inadequate, even supposing that any reasonable


                                                7
observer would find this result unexpected”); Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004)

(“[T]he agency’s failure to turn up a particular document, or mere speculation that as yet

uncovered documents might exist, does not undermine the determination that the agency

conducted an adequate search for the requested records.”); Vento v. IRS, 714 F. Supp. 2d 137,

145 (D.D.C. 2010) (finding that plaintiffs’ speculation that other documents exist did not rebut

presumption of good faith accorded to agency’s declaration). 2


                                      III. CONCLUSION


       The Court concludes that the EOUSA conducted an adequate search for records

responsive to the plaintiff’s FOIA request, that there are no genuine issues of material fact in

dispute as to the EOUSA’s compliance with the FOIA, and that the EOUSA is entitled to

judgment as a matter of law. Accordingly, the defendant’s motion for summary judgment will

be granted. An Order accompanies this Memorandum Opinion.




                                                     /s/
                                                     AMY BERMAN JACKSON
                                                     United States District Judge
DATE: June 27, 2013




2
  The plaintiff’s remaining arguments, see Pl.’s Opp’n at 6-7, have no merit. The defendant no
longer argues that the plaintiff failed to exhaust his administrative remedies prior to filing the
lawsuit, and plaintiff is not entitled to judgment in his favor because he has indeed exhausted
those remedies. Because the EOUSA has located no responsive records, its untimely response to
the plaintiff’s FOIA request does not require the production of responsive records (had any such
records been located) at no charge to the plaintiff.
                                                8
