                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA



ANTHONY G. WHITE, SR.,                            )
                                                  )
                     Plaintiff,                   )
                                                  )
                     v.                           )   Civil Action No. 11-2045 (RJL)
                                                  )
DEPARTMENT OF JUSTICE,                            )
                                                  )
                     Defendant.                   )

                                                ~
                              MEMORANDUM OPINION
                             (September    U,
                                        2012) [# 11]


       In this action filed pro se under the Freedom oflnformation Act ("FOIA"), 5

U.S.C. § 552, plaintiff, a federal prisoner, challenges defendant Department of Justice's

("DOJ's") response to his request for records pertaining to him. Specifically, plaintiff

questions the adequacy of defendant's search that located just 23 responsive records and

defendant's justification for withholding those records in their entirety under certain

FOIA exemptions. Defendant moves to dismiss under Rule 12(b)(6) ofthe Federal Rules

of Civil Procedure for failure to state a claim upon which relief may be granted or for

summary judgment under Rule 56 [Dkt. # 11]. Upon consideration of the parties'

submissions and the entire record, the Court DENIES defendant's motion and directs it to

supplement the record.
                                       BACKGROUND

       By letter dated January 16, 2010 and received by DOJ's Mail Referral Unit,

plaintiff requested "all records pertaining to [himself]." Decl. of Kristin Ellis ("Ellis

Decl.") [Dkt. # 11-5], Ex. 1. The request was forwarded to the Criminal Division for

processing.   !d.~   8. In response to the Criminal Division's letter acknowledging the

request and seeking additional information, plaintiff returned a form the Criminal

Division had provided indicating that he was requesting searches of the following

sections: Appellate, Asset Forfeiture and Money Laundering, Fraud, Gang, Narcotic and

Dangerous Drug (NDDS), Electronic Surveillance Unit, Organized Crime and

Racketeering, Executive Office for Organized Crime Drug Enforcement Task Force

(OCDETF), and National Gang Targeting, Enforcement & Coordination Center

(GangTECC). !d., Ex. 3.

       By letter of October 27, 2010, the Criminal Division informed plaintiff that "a

search of the appropriate indices of Criminal Division records" located no responsive

records. !d., Ex. 7. It further informed plaintiff that, since OCDETF was no longer a part

of the Criminal Division and had become an independent DOJ component, that "portion

of [plaintiffs] request" was being referred to OCDETF for processing and a direct

response to plaintiff. !d. The Criminal Division also advised plaintiff about his right to

appeal "this denial of your request" to the Office oflnformation Policy ("OIP") within 60

days "of the date of this letter." !d. "Plaintiff did not appeal [the Criminal Division's]

'no records' response to OIP." !d.   ~   19.
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       The Criminal Division forwarded responsive pages to OCDETF, !d., Ex. 8, which,

in tum, referred three documents totaling 23 pages to DOJ's Executive Office for United

States Attorneys ("EOUSA") by letter dated December 23, 2010. Decl. ofDavid

Luczynski ("Luczynski Decl.") [Dkt. 11-4], Ex. A. By letter of January 18, 2011,

EOUSA informed plaintiff that it was withholding the 23 referred pages under FOIA

exemptions 2, 6, 7(C), 7(D), 7(E), and 7(F), see 5 U.S.C. § 552(b), and Privacy Act

exemption U)(2). !d., Ex. B.

       Plaintiff appealed EO USA's decision to the Office oflnformation Policy ("OIP")

allegedly by letter dated on January 21, 2011, see Luczynski Decl.    ~   6 & Ex. C, but OIP,

having no record of that appeal letter, later denied plaintiffs appeal it purportedly

received on September 13, 2011, as untimely. !d., Ex. H. Plaintiff filed this action on

November 17, 20 11. Compl. [Dkt. # 1].

                                STANDARD OF REVIEW

       Summary judgment shall be granted when the movant demonstrates "that there is

no genuine dispute as to any material fact and that the movant is entitled to judgment as a

matter oflaw." Fed. R. Civ. P. 56( a). When, as will become apparent here, "a party fails

to properly support an assertion of fact ... the court may: (1) give an opportunity to

properly support or address the fact .... " Fed. R. Civ. P. 56( e).

       In a FOIA action, the Court may award summary judgment based solely on

information provided in affidavits or declarations if they "describe the documents and the

justifications for nondisclosure with reasonably specific detail, demonstrate that the
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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). 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) (citation

and internal quotation marks omitted). To rebut the presumption, a plaintiff"must point

to evidence sufficient to put the Agency's good faith into doubt." Ground Saucer Watch,

Inc. v. CIA, 692 F.2d 770,771 (D.C. Cir. 1981). "Ultimately, an agency's justification

for invoking a FOIA exemption is sufficient if it appears logical or plausible[,]" is

adequately supported, and is not contradicted by the record. Larson v. Dep't of State, 565

F .3d 857, 862, 870 (D.C. Cir. 2009) (citation and internal quotation marks omitted).

"When assessing a motion for summary judgment under FOIA, the Court shall determine

the matter de novo." Judicial Watch, Inc. v. US. Dep 't ofHomeland Sec., 598 F. Supp.

2d 93, 95 (D.D.C. 2009) (citing 5 U.S.C. § 552(a)(4)(B)).

                                        ANALYSIS

       Defendant seeks dismissal of the complaint on the ground that plaintiff failed to

exhaust his administrative remedies with regard to the Criminal Division's response.

"[A]s a jurisprudential doctrine, failure to exhaust precludes judicial review" if a merits

determination would undermine the purpose of permitting an agency to review its FOIA

determinations in the first instance. Hidalgo v. FBI, 344 F.3d 1256, 1258-59 (D.C. Cir.
                                              4
2003). Since plaintiffs administrative appeal of the Criminal Division's "no records

response" would be untimely and exhaustion is not jurisdictional, the Court finds it more

prudent to resolve the merits of this action. Hence, it will deny defendant's motion to

dismiss the complaint for failure to exhaust administrative remedies.

       Plaintiff first challenges DOJ's search for records, contending that "[l]ogic would

dictate that given the fact Plaintiff went to trial, there would be an abundance more than

the twenty three pages which has thus far been acknowledged." Pl.'s Opp 'n to De f.'s

Mot. to Dismiss or Alternatively for Summ. J. ("Pl.'s Opp'n") at 1-2 [Dkt. # 13]. The

agency to which a FOIA request is submitted is required "to make a good faith effort to

conduct a search for the requested records, using methods which can reasonably be

expected to produce the information requested." Int'l Trade Overseas, Inc. v. Agency for

Intern. Dev., 688 F. Supp. 33, 36 (D.D.C. 1988) (quoting Marrera v. Dep 't ofJustice,

622 F. Supp. 51, 54 (D.D.C. 1985)) (other citations omitted). As a general rule, "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 Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (citation omitted).

       When an agency's search for responsive records is questioned, the Court must

determine whether it was adequate. This presupposes, however, that the agency has

proffered "[a] reasonably detailed affidavit, setting forth the search terms and the type of

search performed, and averring that all files likely to contain responsive materials (if such

records exist) were searched." Valencia-Lucena v. US. Coast Guard, 180 F.3d 321, 326
                                              5
(D.C. Cir. 1999) (citations omitted); see Morley v. CIA, 508 F.3d 1108, 1116 (D.C. Cir.

2007) ("[I]n adjudicating the adequacy of the agency's identification and retrieval efforts,

the trial court may be warranted in relying upon agency affidavits . . . . However, such

reliance is only appropriate when the agency's supporting affidavits are relatively

detailed and nonconclusory and ... submitted in good faith.") (citations and internal

quotation marks omitted) (alteration and ellipses in original). DOJ's declarant states only

that "the FOIA/PA Unit initiated searches" ofthe Criminal Division sections plaintiffhad

checked as wanting to be searched. Ellis Decl. ~ 14. This conclusory statement provides

no useful information for the Court to assess defendant's search and determine its

adequacy.

       Plaintiff next challenges defendant's invocation ofFOIA exemptions to justify its

withholding completely of the located responsive records. He correctly contends that

defendant has failed to articulate the "basis for the exemption(s) claimed." Pl.'s Opp'n at

5; see Luczynski Decl.   ~   5 (summarizing release letter listing FOIA exemptions 2, 6,

7(C), 7(D), 7(E), 7(F)). It is established that "when an agency seeks to withhold

information, it must provide 'a relatively detailed justification, specifically identifying the

reasons why a particular exemption is relevant and correlating those claims with the

particular part of a withheld document to which they apply[.]' " Morley, 508 F.3d at

1122 (quoting King v. Dep 't ofJustice, 830 F.2d 210, 219 (D.C. Cir. 1987)) (other

citation omitted). Since defendant's declarant has provided neither a detailed explanation

for the asserted exemptions nor an index consistent with the requirements of Vaughn v.
                                                6
Rosen, 484 F.2d 820 (1973), the Court has no basis to rule on the propriety of the asserted

exemptions and to make a so-called segregability finding with regard to defendant's

withholding of the responsive records in their entirety. See Trans-Pacific Policing

Agreementv. US. Customs Service, 177 F.3d 1022, 1027 (D.C. Cir. 1999) (explaining

the district court's "affirmative duty to consider the segregability issue sua sponte")

(internal citations omitted).

                                      CONCLUSION

       For the foregoing reasons, the Court DENIES defendant's motion to dismiss

without prejudice. A separate Order accompanies this Memorandum Opinion.


                                                      ~/
                                                       I~RICHA       J. EON
                                                         United States District Judge




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