UNITED STATES DISTRICT COURT F 1 L E D
FOR THE DISTRICT OF COLUMBIA

DEC 1 3 ZUll

) Clerk, U.S. Dist.rict'& Bankruptcy

NELSON R_ SANTANA, § Gourts for the D\strlct of Co|umb\a
Plaintiff, pro se, §

v ) civil case No. 09-300 (RJL)
. )
DEPARTMENT oF JUSTICE, §
Defendant. )
MEMORANDUlZ: OPINION
(December/ig 201 l) [#22]

Plaintiff Nelson R. Santana ("plaintiff’) brings this pro se action against the
Department of Justice ("DOJ" or "defendant"), seeking judicial review of the denial of
his request for certain records under the Freedom of Inforrnation Act ("FOIA"), 5 U.S.C.
§ 552 (2006). Plaintiff seeks material to challenge collaterally the conviction that
resulted in his imprisonment. Before this Court is defendant’s Renewed Motion for
Summary Judgment. After due consideration of the parties’ pleadings, the relevant law,
and the entire record herein, defendant’s motion is GRANTED.

BACKGROUND

In September of 2002, plaintiff was convicted of conspiring to distribute and to
possess with intent to distribute between one-half and five kilograms of cocaine. Unz'ted
Slates v. Santana, 342 F.3d 60, 63-64 (lst Cir. 2003). Plaintiff is currently serving a 121-
month sentence at the Adams County Correctional Center in Mississippi. 342 F.3d at 64;

Notice of Change of Address l, Aug. 19, 2009 [Dkt. # 16].
1

On January 26, 2007, the Executive Office of the United States Attorneys
("EOUSA") received a letter from plaintiff seeking certain records related to his criminal
conviction. 2nd Boseker Decl., Ex. A, FOIA/Privacy Act Request 8-9 [Dkt. #22-1]. In
that letter, plaintiff specifically requested the following documents: a pretrial motion
hearing transcript, telephone billing records and a pen register for the cellular telephone
of a government informant who testified at Santana’s trial, certain digital surveillance
images and any recordings of that surveillance, a call chait, and certain trial transcripts.
Id. The EOUSA interpreted this letter as requesting records relating to Santana himself
and both public records and non-public records relating to third parties. Ia'. 1 7-8, Exs. B,
E. Per EOUSA policy, the EOUSA then created two FOIA files, FOIA Nos. 07-158 and
07-159, to respond separately to the requests for public and non-public records. Id. In a
January 31, 2007 letter, the EOUSA notified Santana that it had denied the "non-public"
portion of his request, No. 07-159, since he had requested information about third parties
without their authorization and consent, citing FOIA exemptions 6 and 7(C). 2nd
Boseker Decl. 1 8, Ex. E.l The EOUSA then proceeded to respond to the remaining part
of plaintiffs request. 2nd Boseker Decl. il 9.

The EOUSA forwarded plaintiff s original FOIA letter to the United States
Attorney’s Office for the District of New Hampshire ("USAO-NH"), the office which

had prosecuted him, to search for responsive documents. 2nd Boseker Decl. jl 9,

l Santana appealed this denial to the U.S. Departrnent of Justice, Office of

Information and Privacy ("OIP"), and the OIP subsequently affirmed the EOUSA’s
denial, citing FOIA exemption 7(C). 2nd Boseker Decl. 111 12 - 15, Exs. E, H.

Prindiville Decl. 11 2-4 [Dkt. #22-2]. However, the EOUSA did not relay that it had
divided the request into two separate case files, and so the USAO-NH employee assigned
to the matter searched for all the documents listed in plaintiff s original FGIA letter.
Prindiville Decl. 1 9. To identify responsive documents, that employee performed the
following steps: (l) retrieved plaintiff’ s case file from the Federal Records Center,z (2)
reviewed that entire file for responsive records, (3) e-mailed the entire USAO-NH staff
requesting any and all records relating to plaintiff, and (4) searched for the keyword
"Santana" on the United States Attomey’s Office’s digital, case-management database.
Id. 11 2, 4-6.

Unfortunately, the employee was unable to locate every document requested by
plaintiff. Id. 1 6. Although the employee found the transcripts, she was unable to find
certain documents-namely, the telephone and surveillance records. Ia’. 1 6. In fact, she
was unable to locate any other records related to the plaintiff or his case except his
criminal case file, which had been purged before it was archived, and some
nonresponsive financial records. Ia’. 1 5-6. On March 20, 2008, the EOUSA released the
identified transcripts to plaintiff and notified him that the telephone and surveillance

records were not located. 2nd Boseker Decl. 1 l0, Ex. D.3

2 According to the declaration of the employee assigned to plaintiffs FOIA request,

who also has been employed at the USAO-NH since 1985, the USAO-NH retains case
files for one year after the files are closed. Prindiville Decl. 1 4. Then, the files are
purged of non-essential materials and shipped to the Federal Records Center for
preservation. Id.

3 On June 18, 2009, the EOUSA forwarded to the USAO-NH another FOIA request
from plaintiff`, FOIA No. 08-1642, in which he specifically identified trial exhibit

3

In August of 2008, plaintiff filed this lawsuit, alleging that the EOUSA’s denial of
his FOIA request was flawed because the records he requested were trial exhibits and
therefore public records. See Pl.’s Mot. for Relief 8-1 l [Dkt. #l-l].4 On May 6, 20l0,
defendant filed its Renewed Motion for Summary Judgment, arguing that it is entitled to
judgment as a matter of law because plaintiff has in fact received all located records
responsive to his FOIA request and the defendant has not withheld any records. Def.’s
Renewed Mot. Summ. J. l [Dkt. #22]; Mem. P&A Supp. Def.’s Renewed Mot. Summ. J.
4.5 For all the reasons set forth below, this Court agrees with the defendant and,
therefore, GRANTS its motion for summary judgment.

STANDARD OF REVIEW

"When assessing a motion for summary judgment under FOIA, the Court shall
determine the matter de novo." Judz`cial Watch, Inc. v. U.S. Dep ’t of Homelana’ Sec., 598
F. Supp. 2d 93, 95 (D.D.C. 2009) (citing 5 U.S.C. § 552(a)(4)(B)). Summaryjudgment is

appropriate "if the movant shows that there is no genuine dispute as to any material fact

numbers of the telephone records, surveillance records, and telephone chart. Prindiville
Decl. 11 l0-l l. Again, the office was unable to locate these records. Ia’. 11 10-l2.

4 Plaintiff first filed this suit in the Western District of Louisiana, but that court
transferred the case to this Court on February l7, 2009. Judgment [Dkt. #l]. In his
original pleadings, plaintiff did not clearly distinguish between the two separate FOIA
cases opened by the EOUSA, but he has since clarified that he is contesting only the
EOUSA’s denial in FOIA No. 07-159. Pl.’s Response to Def.’s Mot. Dismiss l-2 [Dkt.
#13].
5 Defendant filed a motion to dismiss or, in the alternative, for summary judgment
on July 16, 2009 [Dkt. #l l], but this Court denied that motion without prejudice and
directed defendant to re-file its motion with sufficient information for this Court to
conduct its review. Order, Mar. l8, 2010 [Dkt. #19].

4

and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
Therefore, the movant bears the burden, and the court will draw "all justifiable
inferences" in the favor of the non-moving party. Ana’erson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986) (citation omitted). Nevertheless, the non-moving party "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." Ia’. at 248 (internal quotations
omitted). Factual assertions in the movant’s affidavits may be accepted as true unless the
opposing party submits its own affidavits, declarations, or documentary evidence to the
contrary. See Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir, 1992).

In a FOIA case, an agency must "demonstrate beyond material doubt that its
search was reasonably calculated to uncover all relevant documents." Valencia-Lucena
v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (internal citation and quotation
omitted). To meet its burden, the agency may submit affidavits or declarations that
explain in reasonable detail the scope and method of the agency’s search, which, in the
absence of contrary evidence, suffice to demonstrate an agency’s FOIA compliance. See
Perry v. Block, 684 F.2d l2l, l26-27 (D.C. Cir. 1982) (per curiam). 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 ll97, 1200 (D.C. Cir. l99l) (internal quotations

and citation omitted).

ANALYSIS
I. Defendant has not withheld any documents from plaintl'jjf

Summary judgment must, and will, be granted in favor of defendant in this case
because the defendant has not actually withheld any records and therefore this Court is
without jurisdiction to afford plaintiff any remedy. See 5 U.S.C. 552(a)(4)(B)("[T]he
district court of the United States. .. in the District of Columbia, has jurisdiction to enjoin
the agency from withholding agency records and to order the production of any agency
records improperly withheld from the complainant.")(emphasis added). Unfortunately,
plaintiff mistakenly focuses on the EOUSA’s initial, January 3 l, 2007 denial of his
request for the telephone and surveillance records and the OIP’s October 31, 2007
affirmance of this denial. See Pl.’s Mot. Relief l-4; Pl.’s Reply District Ct.’s Mem.
Order, Factual Statements l-2; Pl.’s Resp. Def.’s Mot. Summ. J. ("Pl.’s Resp.") 2-3; see
also 2nd Boseker Decl. Exs. F, H.6 Yet, as made clear by the declaration of the USAO-
NH paralegal specialist assigned to plaintiff s FOIA request, the USAO-NH nevertheless
diligently searched for these documents but was unable to locate them. The plaintiffs
case file had been purged before it was archived. By the time plaintiff submitted his
FOIA request, the government, just as it advised plaintiff in its March 20, 2008 letter,

simply no longer possessed these documents. 2nd Boseker Decl. Ex. D. Accordingly,

6 Santana also claims that the EOUSA should have "construed his request more

broadly" and that his "enumeration of specific items does not limit his initial request."
Pl.’s Mot. for Relief 2-3 [Dkt. #l-l]. But, plaintiff explains neither what other
documents he wishes the EOUSA would have provided nor how the EOUSA’s
interpretation of his specific requests was unreasonable.

the government did not withhold them from the plaintiff.7
II. Defendant adequately searched for plaintz'jj’ ’s requested documents

Although plaintiff does not specifically argue that the defendant’s searches were
inadequate, plaintiff does state that "the defendant is once attempting to mislead the
Court by claiming that the no record were ultimately located [sic]." Pl.’s Resp. 2.
Because plaintiff is proceeding pro se, however, the Court will construe his complaint
liberally and treat his statement as a general challenge to the adequacy of USAO-NH’s
searches. See Haz'nes v. Kerner, 404 U.S. 5 19, 520 (1972). Unfortunately, doing so does
not transform the plaintiffs case into a meritorious one. How so?

"ln order to obtain summary judgment the agency must show 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." Oglesby v. U.S. Dep ’t of the
Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (citations omitted). But, an agency need not

search every records system so long as it conducts "a reasonable search tailored to the

7 Plaintiff and the government make much hay about whether the requested

documents were public records and therefore should have been produced. See generally
Pl.’s Mot. Relief; Pl.’s Reply to D. Ct’s Mem. Order, Factual Statements l-2; Pl.’s
Response to Def.’s Mot. Summ. J. l-3; Def.’s Mem. Supp. Renewed Mot. Summ. J l2-
l6. Essentially, plaintiff contends that the government should have disclosed the
telephone records, surveillance images and DVDs, and telephone records charts because
they were used as prosecution exhibits at his trial and therefore became public records.
While public disclosure of documents at trial would likely preclude assertion of the FOIA
exemption, the plaintiff bears the initial burden of demonstrating that the requested
information matches the previously disclosed information and was made public. See
Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999); see also Fitzgz`bbon v. CIA, 9ll
F.2d 755, 765 (D.C. Cir. l990). Because it is unnecessary, and indeed impracticable with
the available information, to determine whether the requested information was made
public, I need not engage in this analysis.

nature cfa particular request." Campbell v. U.S. Dep ’t of Justice, 164 F.3d 20, 28 (D.C.
Cir. 1998). Indeed, "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)
(citation omitted); see also Hornbostel v. U.S. Dep ’t of the lnterz'or, 305 F. Supp. 2d 21,
28 (D.D.C. 2003).

Plaintiff here has failed to offer any evidence beyond his own speculation and self-
serving statements to overcome the adequate agency affidavits before this Court. See
Iturralde, 315 F.3d at 315. At most, his claims that the defendant is "attempting to
mislead the court" amount to an indirect challenge to the adequacy of the USAO-NH’s
search based on the search results. See Pl.’s Resp. 2. The search’s futility, however, is
not determinative of the search’s adequacy. Ituralde, 315 F.3d at 315.

The defendant has submitted affidavits which adequately detail its efforts to search
for responsive documents and demonstrates its compliance with FOIA. In particular, the
EOUSA has filed the declaration of the USAO-NH employee that was directly
responsible for searching for and identifying documents responsive to plaintiffs FOIA
request. Prindiville Decl. 11 l-2. That employee explained in her declaration that she
recalled plaintiffs case file from the off-site, Federal Records Center, because "case files
are purged of non-essential material and. .. shipped  for storage one year after they are
closed." Id. 1 4. After retrieving the case file, she conducted a "page-by-page review of
the entire file," but was unable to locate any requested documents besides the transcript

pages. Id. 1 6. Further, she explained that she contacted the entire USAO-NH staff and
8

searched the USAO’s digital case-management system to identify any additional,
potentially responsive documents. Id. 1 5. Most importantly, she admitted that she was
unaware that the EOUSA had divided plaintiffs FOIA request into two parts, and so she
searched for all the documents listed in his request. Ia’. 1 9. Specifically, she stated:

1 recently learned that No. 07-159 was opened to address the request for billing

records, surveillance records and call chart. 1 had searched for those records, and

responded to the [FOIA and Privacy Act staff] about their non-existence, in

response to Request No. 07-158.

Id. 1 9 (emphasis added).

Although it is unfortunate that the records plaintiff seeks are no longer within the
government’s possession, FOIA does not provide a remedy in such situations. In sum,
the defendant conducted a more than adequate search that complied fully with FOIA’s
requirements. Plaintiff, thus, has no basis for relief.

CONCLUSION

For all of the foregoing reasons, the Court GRANTS defendant’s Renewed Motion

for Summary Judgment [#22]. An Order consistent with this decision accompanies this

two

RicHARibJ/Li~:oN
United States District Judge

Memorandum Opinion.

