                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA
________________________________
                                  )
REGINALD WOODS,                   )
                                  )
          Plaintiff,              )
                                  )
       v.                         )    Civil Action No. 12-1701 (EGS)
                                  )
UNITED STATES DEPARTMENT OF )
JUSTICE,                          )
                                  )
          Defendant.              )
________________________________  )


                                 MEMORANDUM OPINION

       Plaintiff challenges the Department of Justice’s (“DOJ”) response to his request for

records under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Defendant, having

released responsive records, moves for summary judgment under Fed. R. Civ. P. 56, Def.’s Mot.

for Summ. J. [Dkt. # 10], and plaintiff has opposed the motion, Pl.’s Response to Def.’s Mot. for

Summ. J. (“Pl.’s Opp’n”) [Dkt. # 13]. Upon consideration of the parties’ submissions and the

entire record, the Court will grant defendant’s motion and enter judgment accordingly.

                                       I. BACKGROUND

       Plaintiff is a federal prisoner serving a 960-month prison sentence imposed by the United

States District Court for the Northern District of Alabama in November 1997 following

convictions for carjacking, four counts of bank robbery, and four counts of using a firearm

during a crime of violence. See Woods v. Rathman, No. 1:12-cv-2855, 2013 WL 1346373, at * 1

(N.D. Ala. Mar. 14, 2013). In a FOIA request dated December 28, 2009, to the “Dept. of Justice

FBI Crime Lab,” plaintiff sought the following six categories of records or information

pertaining to his criminal case: (1) the “field notes” of an FBI Special Agent; (2) the “exact

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dates that all specimens were collected for DNA analysis;” (3) “How many times were related

DNA specimens tested [] and to whom where those results disclosed?”; (4) “surveillance photos

or videos of ‘Talladega’ robbery related to DNA results;” (5) witness statements and police

reports related to said Talladega robbery; and (6) the “[e]xact dates DNA analysis results were

disclosed and to whom were they disclosed.” Decl. of David M. Hardy [Dkt. # 10-3], Ex. A.

On January 15, 2010, the FBI informed plaintiff that it was returning his request because it

needed “sufficient information to conduct an accurate search of the Central Records System.”

Id., Ex. B. On January 24, 2010, plaintiff responded with a “Clarification of Requested

Information,” in which he stated, inter alia, that the request “is related to a FBI crime lab report

prepared on October 8, 1997 by F. Samuel Baechtel, where DNA analysis was performed on a

white-ski-mask found in an abandoned get-away-car and was used . . . as government’s exhibit

# 44 [during the criminal trial].” Id., Ex. C.

       On April 25, 2011, the FBI informed plaintiff that it was releasing 55 pages it had

reviewed with portions redacted from 28 of those pages under FOIA exemptions 6 and 7(C), see

5 U.S.C. § 552(b), and the Privacy Act, 5 U.S.C. § 552a(j)(2). Id. ¶¶ 4-5 & Ex. F. The letter

also informed plaintiff about his right to appeal the decision to DOJ’s Office of Information

Policy (“OIP”). OIP affirmed the FBI’s determination on September 26, 2011. Id., Ex. I.

Plaintiff filed this action on October 17, 2012.

                                    II. LEGAL STANDARD

       Summary judgment is warranted Aif the movant shows [by affidavit or other admissible

evidence] that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.@ Fed. R. Civ. P. 56(a). A party opposing a summary judgment

motion must show that a genuine factual issue exists by A(A) citing to particular parts of



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materials in the record . . . or (B) showing that the materials cited do not establish the absence . .

. of a genuine dispute[.]@ Fed. R. Civ. P. 56(c). Any factual assertions in the moving party=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). However, “the inferences to be drawn from the underlying facts . . . must be viewed

in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted).

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

Gold Anti–Trust Action Comm., Inc. v. Bd. of Governors of Fed. Reserve Sys., 762 F. Supp. 2d

123, 130 (D.D.C. 2011) (citations omitted). An agency has the burden of demonstrating that

“each document that falls within the class requested either has been produced, is unidentifiable,

or is wholly [or partially] exempt from the Act's inspection requirements.” Goland v. CIA, 607

F.2d 339, 352 (D.C. Cir. 1978) (internal citation and quotation omitted).

       In reviewing a summary judgment motion in the FOIA context, the court must conduct a

de novo review of the record. See 5 U.S.C. § 552(a)(4)(B). The court may award summary

judgment solely on the basis of information provided by the department or agency in affidavits

or declarations that describe “the documents and the justifications for nondisclosure with

reasonably specific detail, demonstrate that the information withheld logically falls within the

claimed exemption, and are not controverted by either contrary evidence in the record nor by

evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.

1981); see also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert. denied, 415 U.S.

977 (1974). Agency affidavits or declarations that are “relatively detailed and non-conclusory”

are accorded “a presumption of good faith, which cannot be rebutted by purely speculative



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claims about the existence and discoverability of other documents.” SafeCard Services v. SEC,

926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal citation and quotation omitted).

       An agency from which information has been requested must undertake a search that is

“reasonably calculated to uncover all relevant documents.” Weisberg v. Dep't of Justice, 705

F.2d 1344, 1351 (D.C. Cir. 1983). Thus, when, as here, an agency’s search is questioned, the

Court must decide the adequacy of the search by applying a “reasonableness test to determine the

adequacy of search methodology.” Campbell v. Dep't of Justice, 163 F.3d 20, 27 (D.C. Cir.

1998). The agency must demonstrate that it “made a good faith effort to conduct a search for the

requested records, using methods which can be reasonably expected to produce the information

requested.” Fischer v. Dep't of Justice, 596 F. Supp. 2d 34, 42 (D.D.C. 2009) (citations omitted).

An adequate affidavit can be rebutted with evidence that the agency's search was not made in

good faith. Defenders of Wildlife v. Dep't of the Interior, 314 F. Supp. 2d 1, 8 (D.D.C. 2004).

Because “the 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 the Currency, 315 F. 3d 311, 315 (D.C. Cir. 2003), “the fact that a particular document was

not found does not demonstrate the inadequacy of a search.” Boyd v. Crim. Div. of U.S. Dept. of

Justice 475 F.3d 381, 391 (D.C. Cir. 2007) (citations omitted).

                                       III. DISCUSSION

       Defendant argues first that it conducted an adequate search for records, second that the

Privacy Act precludes the production of the requested records, and third that it properly invoked

exemptions 6 and 7(C) to withhold third-party information. Def.’s Mem. of P. & A. in Supp. of

Def.’s Mot. for Summ. J. [Dkt. # 10-1] at 4-14. In his opposition, plaintiff questions defendant’s

search because it failed to produce “the exact date that specimen K5 was collected,” Pl.’s Opp’n



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at 2, asserts that “section (j)(2) of the Privacy Act ought not be considered a FOIA withholding

statute for first party requesters . . . .,” id. at 4, and contends that “a very significant public

interest would be furthered by the production of the date that specimen K5 was collected,” id. at

7.

        Both parties are correct with regard to the Privacy Act. While it is true that section (j)(2)

of the Privacy Act may preclude production of the requested records, the Privacy Act does not

bar disclosure of documents that are otherwise required to be produced under the FOIA. 5

U.S.C. ' 552a(b)(2); see Greentree v. United States Customs Serv., 674 F.2d 74, 79 (D.C. Cir.

1982). Since defendant properly considered plaintiff’s request in light of the FOIA, any issue

arising under the Privacy Act is essentially moot.

1. Defendant’s Search for Responsive Records

        Plaintiff has not refuted Hardy’s adequate description of the filing systems searched and

the search methods employed, which located 55 responsive pages. See Hardy Decl. ¶¶ 17-23.

Rather, plaintiff has an unsubstantiated “belie[f] that there is more evidence or files within the

Department of Justice’s system of records that was ‘withheld’ from his trial attorney that could

have exonerated the plaintiff during his jury trial.” Pl.’s Opp’n at 1. But the FOIA request

forming the basis of this action was addressed to the FBI, which is one of many DOJ

components, and “the component that first receives a request for a record and has possession of

that record is the component responsible for responding to the request.” 28 C.F.R. § 16.4(a); see

id. § 16.3 (requiring a FOIA requester to write “directly to the Department component that

maintains [] records,” or, if unknown, to “the FOIA/PA Mail Referral Unit, Justice Management

Division . . . .”). Plaintiff takes issue specifically with defendant’s failure to produce one record

or date, but an omitted record cannot alone support a finding of an inadequate search, and “FOIA



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neither requires 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. Hudgins v. I.R.S.

620 F. Supp. 19, 21 (D.D.C. 1985) (citation omitted).

       Hardy states that the FBI searched by “the phonetic sounds of [plaintiff’s] last, middle

and first names” and “used plaintiff’s date of birth to facilitate the identification of requested

records.” Hardy Decl. ¶ 23. In addition, the FBI “hand scoped the files to find the specific

requested ‘FBI crime lab report prepared in [sic] October 8, 1997 [] by Samuel Baechtel, where

DNA analysis was performed on a white ski mask found in an abandoned get-away car’. ” Id.

Defendant located potentially responsive material as a result of the “scoping.” Id.

       The Court is satisfied from Hardy’s declaration that defendant’s search was reasonably

calculated to locate all responsive records. In the absence of any contrary evidence, defendant is

entitled to summary judgment on the search question.

2. Defendant’s Claimed Exemptions

       Defendant redacted third-party identifying information from the released pages under

FOIA exemptions 6 and 7(C). Hardy Decl. ¶¶ 28, 32-37. The information pertained to FBI

special agents and support staff involved in “the investigative activities reported in the

[responsive] documents,” id. ¶ 36, and third-party individuals “of investigative interest to the

FBI and/or other law enforcement agencies.” Id. ¶ 37. Since defendant applied both exemptions

to the same information, and it is undisputed that the information was compiled for law

enforcement purposes, the Court will only address the propriety of defendant’s invocation of

exemption 7(C). See Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1173 (D.C. Cir. 2011)

(finding “no need to consider [e]xemption 6 separately [where] all information that would fall




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within the scope of [e]xemption 6 would also be immune from disclosure under [e]xemption

7(C)”).

          Exemption 7(C) protects from disclosure information in law enforcement records that

“could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5

U.S.C. § 552(b)(7)(C). In determining whether this exemption applies to particular material, the

Court must balance the privacy interest of individuals mentioned in the records against the public

interest in disclosure. See Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1115 (D.C. Cir.

2007); Beck v. Dep't of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993). The privacy interest at

stake belongs to the individual, not the government agency. U.S. Dep't of Justice v. Reporters

Comm. for Freedom of the Press, 489 U.S. 749, 763-65 (1989); see Nat'l Ass'n of Retired Fed.

Employees v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989) (noting individual's significant privacy

interest “in avoiding the unlimited disclosure of his or her name and address”). And “individuals

have a strong interest in not being associated unwarrantedly with alleged criminal activity.”

Stern v. Fed. Bureau of Investigation, 737 F.2d 84, 91-92 (D.C. Cir. 1984). Generally speaking,

an agency’s withholding of the type of third-party information at issue here has been routinely

upheld, and such information has been found to be “categorically exempt.” Nation Magazine,

Washington Bureau v. United States Customs Service, 71 F.3d 885, 896 (D.C. Cir. 1995). See

Banks v. Dep’t of Justice, 757 F. Supp. 2d 13, 18 (D.D.C. 2010) (“Exemption 7(C) ‘takes

particular note of the strong interest of individuals, whether they be suspects, witnesses, or

investigators, in not being associated unwarrantedly with alleged criminal activity.’ ”) (quoting

Dunkelberger v. U.S. Dep't of Justice, 906 F.2d 779, 781 (D.C. Cir. 1990)); Blackwell v. Fed.

Bureau of Investigation, 680 F. Supp. 2d 79, 93-94 (D.D.C. 2010) (approving the withholding of

“information likely to identify . . . FBI special agents and support personnel, non-FBI federal



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law enforcement employees, state and local law enforcement personnel, victims, third parties

who provided information, and third parties merely mentioned in the files”).

        “As a result of [e]xemption 7(C), FOIA ordinarily does not require disclosure of law

enforcement documents (or portions thereof) that contain private information.” Blackwell v.

FBI, 646 F.3d 37, 41 (D.C. Cir. 2011) (citing cases). The exception is when the requester has

shown that an overriding public interest compels disclosure, but “the only public interest relevant

for purposes of [e]xemption 7(C) is one that focuses on ‘the citizens' right to be informed about

what their government is up to.’ ” Davis v. U.S. Dep't of Justice, 968 F.2d 1276, 1282 (D.C. Cir.

1992) (quoting Reporters Comm. for Freedom of the Press, 489 U.S. at 773); see also Sussman,

494 F.3d at 1115. It is the requester's obligation to articulate a public interest sufficient to

outweigh an individual's privacy interest, and the public interest must be significant. See Nat'l

Archives and Records Admin. v. Favish, 541 U.S. 157, 172 (2004). As a general rule applicable

here, third-party identifying information is “the type . . . [that] is simply not very probative of an

agency’s behavior or performance.” Mays v. DEA, 234 F.3d 1324, 1327 (D.C. Cir. 2000).

(citation omitted).

        Plaintiff asserts that “a very significant public interest would be furthered by the

production of the date that specimen K5 was collected,” and any other “favorable evidence such

as any other ‘test results’ that support the plaintiff’s actual innocence . . . .” Pl.’s Opp’n at 7, 9.

He contends that any withheld information would provide “direct proof [that] [DOJ] has been

operating with ‘[un]clean hands’ from the very inception of its indictment and charges, or that it

has manufactured a conviction against a true first-time offender . . . .” Id. at 7. Plaintiff also

contends that “the public has a right to know whether [DOJ] is withholding evidence that could

substantiate or corroborate [his] actual innocence . . . .” Id. at 9. He then proceeds to recount



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testimony from his criminal trial. See id. at 9-18. Plaintiff does not reasonably explain how

releasing the withheld third-party information would shed any light on the FBI’s performance,

and his personal stake in obtaining information in order to attack his conviction simply “does not

count in the calculation of the public interest.” Oguaju v. United States, 288 F.3d 448, 450 (D.C.

Cir. 2002), vacated and remanded on other grounds, 541 U.S. 970 (2004), judgment reinstated,

378 F.3d 1115 (D.C. Cir. 2004); see Pugh v. FBI, 793 F. Supp. 2d 226, 233 (D.D.C. 2011)

(“That the FBI's denial of [plaintiff’s] FOIA requests may hinder his efforts to challenge his

conviction or sentence . . . is irrelevant.”).

        The Court is satisfied from Hardy’s uncontested explanation of the withheld information

and its own examination of the 55 Bates-stamped pages, Hardy Decl. Ex. F, that defendant

released all reasonably segregable portions of information, and properly applied exemption 7(C)

to the withheld third-party information. Hence, defendant is entitled to summary judgment on

the claimed exemption.

                                                 CONCLUSION

        For the foregoing reasons, the Court finds no genuine dispute as to a material fact with

regard to defendant’s handling of plaintiff’s FOIA request and concludes that defendant, having

satisfied its disclosure obligations, is entitled to judgment as a matter of law. A separate Order

accompanies this Memorandum Opinion.




DATE: September 12, 2013                         SIGNED:  EMMET G. SULLIVAN
                                                 UNITED STATES DISTRICT JUDGE




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