                             UNITED	STATES	DISTRICT	COURT	
                             FOR	THE	DISTRICT	OF	COLUMBIA	
	
	
Jamail	J.	Hogan,	      	    	       	      )	
	      	       	       	    	       	      )	
	      	       Plaintiff,	  	       	      )	
	      	       	       	    	       	      )	
	      	       v.	     	    	       	      )	     Civil	Action	No.		09‐2203	(RLW)	
               	       	    	       	      )	
	      	       	       	    	       	      )	
United	States	Department	of	Justice,	      )	
	      	       	       	    	       	      )	
	      	       Defendant.	 	        	      )	
	
	
	
                                 MEMORANDUM	OPINION	
                                               	
	      In	this	action	brought	pro	se	under	the	Freedom	of	Information	Act	(“FOIA”),	5	U.S.C.	

§	552,	plaintiff,	a	federal	prisoner,	challenges	the	response	of	the	Department	of	Justice’s	

Executive	Office	for	United	States	Attorneys	(“EOUSA”)	to	his	request	for	records	

pertaining	to	his	criminal	prosecution.		Defendant,	having	released	responsive	records,	

moves	for	summary	judgment	under	Federal	Rule	of	Civil	Procedure	56.		Upon	

consideration	of	the	parties’	submissions	and	the	entire	record,	the	Court	will	grant	in	part	

and	deny	in	part	defendant’s	motion.	

                                       	I.	BACKGROUND	

	      By	letter	dated	April	19,	2009,	plaintiff	requested	the	following	records	from	

EOUSA:	“(1)	arrest	records,	(2)	investigation	and/or	investigatory	reports,	(3)	reports	or	

evidentiary	and/or	scientific	information	findings,	(4)	warrants,	and/or	detainers,	(5)	final	

and	closing	investigation	reports;	and	(6)	any	and	/or	all	information,	data,	or	reports	not	

otherwise	exempt	.	.	.	.”		In	addition,	plaintiff	wrote	as	a	“Specific	Request”	“written	
                                                1
aurthorzation	[sic]	from	the	assitance	[sic]	Attorney	General	for	indictment,	criminal	

complaint,	affidavit,	arrest	warrent	[sic],	[and]	a	copy	of	my	indictment,	criminal	complaint,	

affidavit,	and	arrest	warrant.”		Decl.	of	David	Luczynski	(“Luczynski	Decl.”)	[ECF	No.	11‐1],	

Ex.	A.		By	letter	of	May	14,	2009,	EOUSA	informed	plaintiff	that	prior	to	processing	his	

request,	he	would	need	to	provide	a	notarized	example	of	his	signature	or	a	certificate	of	

identity.		It	also	informed	plaintiff	that	because	U.S.	Attorney	files	and	records	“are	

maintained	in	over	one	hundred	separate	offices,”	he	should	“identify	the	specific		[offices]		

where	you	believe	records	may	be	located.		This	would	be	primarily	the	district(s)	in	which	

a	prosecution	.	.	.	occurred.”		Id.	¶	5	&	Ex.	B	at	1.		The	letter	further	advised	plaintiff	that	it	

constituted	the	agency’s	final	action,	that	he	should	file	a	new	request	after	“correct[ing]	

the	above	deficiencies,”	and	that	he	could	appeal	the	determination	to	the	Office	of	

Information	Policy	(“OIP”).		Id.	at	2.	

	       On	June	4,	2009,	EOUSA	received	a	letter	from	plaintiff	dated	March	25,	2009,	in	

which	he	stated	that	he	was	prosecuted	in	the	Middle	District	of	Florida,	Tampa	Division,	

by	“James	Muench.”		Plaintiff	listed	the	“specific	information”	sought	as:	(1)	“a	copy	of	the	

‘Complaint’	that	was	filed	by	prosecutor	James	Muench	requesting	an	indictment	from	the	

grand	jury[;]	(2)	“a	copy	of	‘Authorization	clearance’	given	by	the	Attorney	General	

permitting	.	.	.	Muench	permission	to	request	an	indictment	against	Jamail	James	Hogan[;]”	

(3)	“a	copy	of	the	indictment[;]”	(4)	a	copy	of	the	grand	jury	foreman’s	letter	or	Certificate	

of	Concurrence	[]	filed	[with]	the	Clerk	of	Courts[;]”	and	(5)	“a	copy	of	the	Grand	Jury	

Docket	Sheet.”		Id.,	Ex.	C.			




                                                  2
       By	letter	of	August	20,	2009,	EOUSA,	having	treated	the	latter	letter	as	a	new		FOIA	

request,	released	“[t]he	8	page	indictment	.	.	.	in	full	but	for	one	name	of	a	third	party	

individual.”		Luczynski	Decl.	¶	22.		EOUSA	withheld	the	name	under	FOIA	exemption	7(C),	

see	5	U.S.C.	§	552(b),	and	section	(j)(2)	of	the	Privacy	Act,	5	U.S.C.	§	552a.		Luczynski	Decl.	

¶¶	17,	20,	22	&	Ex.	E.1		EOUSA	informed	plaintiff	that	“because	you	were	charged	by	

Indictment,	there	would	not	be	a	complaint	filed	in	your	criminal	case,”	and	that	“the	

district	did	not	locate	an	arrest	warrant	or	an	affidavit.”		Ex.	E	at	1.		EOUSA	further	stated	

that	“there	is	no	‘authorization	clearance.’		The	Grand	Jury	Foreperson	signed	the	

indictment,	however,	any	other	Grand	Jury	Information	is	exempt.”		Id.	at	2.		Finally,	EOUSA	

informed	plaintiff	that	he	could	appeal	the	determination	to	the	OIP.		Id.		

	      By	letter	of	September	15,	2009,	plaintiff	lodged	his	appeal	with	OIP,	claiming	that	

“[o]ut	of	everything	I	requested	.	.	.	I	only	received	a	copy	of	my	indictment.”		Id.,	Ex.	F	at	1.		

By	letter	of	November	9,	2009,	OIP	“interpreted”	the	appeal	“as	being	limited	to	EOUSA’s	

action	on	six	records	.	.	.	(1)	your	indictment;	(2)	a	criminal	complaint;	(3)	the	case	docket	

proceedings;	(4)	the	grand	jury	docket;	(5)	an	arrest	warrant;	and	(6)	an	‘authorization	

clearance’	from	the	Attorney	General.”		OIP	affirmed	EOUSA’s	action,	and	noted	that	

plaintiff	had	added	to	his	list	of	requested	records	“case	docket	proceedings”	that	were	not	

“originally	request[ed].”		Id.,	Ex.	H	at	1.		OIP	informed	plaintiff	that	he	could	not	expand	the	

scope	of	his	initial	request	on	appeal	and	suggested	that	he	submit	a	new	FOIA	request	for	

the	case	docket	proceedings.		Id.		Plaintiff	filed	the	instant	action	on	November	20,	2009.	

1			In	the	administrative	proceedings,	EOUSA	also	invoked	FOIA	exemption	3	as	a	basis	for	

withholding	information,	see	Ex.	E	at	1,	but	neither	the	Luczynski	declaration	nor	any	other	
declaration	mentions	this	exemption.		Therefore,	the	Court	finds	that	defendant	has	waived	
any	reliance	upon	exemption	3	as	a	basis	for	withholding	information.			
                                                 3
                                      II.	LEGAL	STANDARD	

	      Summary	judgment	is	appropriate	upon	a	showing	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]	material	fact	is	‘genuine’	.	.	.	if	the	evidence	is	such	that	a	reasonable	jury	

could	return	a	verdict	for	the	nonmoving	party”	on	an	element	of	the	claim.	Anderson	v.	

Liberty	Lobby,	Inc.,	477	U.S.	242,	248	(1986).		Factual	assertions	in	the	moving	party's	

affidavits	or	declarations	may	be	accepted	as	true	unless	the	opposing	party	submits	his	

own	affidavits,	declarations	or	documentary	evidence	to	the	contrary.		Neal	v.	Kelly,	963	

F.2d	453,	456	(D.C.	Cir.	1992).		“If	a	party	fails	to	properly	support	an	assertion	of	fact	or	

fails	to	properly	address	another	party's	assertion	of	fact	.	.	.,	the	court	may	.	.	.	grant	

summary	judgment	if	the	motion	and	supporting	materials—including	the	facts	considered	

undisputed—show	that	the	movant	is	entitled	to	it.”		Fed.		R.		Civ.		P.	56(e).		The	moving	

party	bears	the	burden	of	demonstrating	the	absence	of	a	genuine	issue	of	material	fact.		

Celotex	Corp.	v.	Catrett,	477	U.S.	317,	322	(1986).			

       The	FOIA	requires	a	federal	agency	to	release	all	records	responsive	to	a	properly	

submitted	request	except	those	protected	from	disclosure	by	one	or	more	of	nine	

enumerated	exemptions,	see	5	U.S.C.	§	552(b),	and		authorizes	the	Court	only	"to	enjoin	[a	

federal]	agency	from	withholding	agency	records	or	to	order	the	production	of	any	agency	

records	improperly	withheld	from	the	complainant.”		5	U.S.C.	§	552(a)(4)(B).		In	a	FOIA	

case,	the	Court	may	grant	summary	judgment	based	solely	on	information	provided	in	an	

agency's	affidavits	or	declarations	if	they	are	relatively	detailed	and	when	they	describe	

“the	documents	and	the	justifications	for	nondisclosure	with	reasonably	specific	detail	.	.	.	

                                                  4
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).		

Agency	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.	&	Exch.	Comm'n,	926	F.2d	1197,	1200	(D.C.	Cir.	

1991)	(quoting	Ground	Saucer	Watch,	Inc.	v.	CIA,	692	F.2d	770,	771	(D.C.	Cir.	1981)).	

                                        III.	DISCUSSION	

	      Plaintiff	does	not	refute,	and	therefore	has	conceded,	defendant’s	otherwise	proper	

justification	for	redacting	from	one	of	the	released	pages	the	name	of	a	third‐party	

individual	under	FOIA	exemption	7(C).		See	Luczynski	Decl.	¶¶	17‐	21.		As	to	this	single	

withholding,	the	Court	finds	that	defendant	is	entitled	to	judgment	as	a	matter	of	law.	

       In	his	opposition	to	the	pending	motion,	plaintiff	argues	that	defendant	and	other	

non‐parties	violated18	U.S.C.	§	1623,	which	is	the	criminal	statute	proscribing	the	making	

of	false	statements	before	a	grand	jury	or	court.		Pl.’s	Mem.	of	P.	&	A	Opposing	the	Def.’s	

Summ.	J.	Mot.	(“Pl.’s	Mem.”)	[ECF	No.	13]	at	2.		Such	a	claim	has	nothing	to	do	with	an	

agency’s	withholding	of	records	and,	thus,	is	beyond	the	scope	of	this	FOIA	action.		To	the	

extent	that	plaintiff	is	challenging	the	veracity	of	the	declarants	in	this	action,	he	has	not	

created	a	genuine	issue	by	“point[ing]	to	evidence	sufficient	to	put	the	Agency's	[presumed]	

good	faith	into	doubt.”		Ground	Saucer	Watch,	Inc.,	692	F.2d	at	771.		

       Plaintiff	also	challenges	the	adequacy	of	defendant’s	search	for	responsive	records.		

See	Pl.’s	Mem.	at	3.		Because	an	inadequate	search	for	records	constitutes	an	improper	




                                                5
withholding	under	the	FOIA,	see	Maydak	v.	U.S.	Dep’t.	of	Justice,	254	F.	Supp.2d	23,	44	

(D.D.C.	2003),	plaintiff’s	challenge	of	the	search	is	properly	before	the	Court.			

       An	agency	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	of	Justice,	622	F.	Supp.	51,	54	(D.D.C.	1985))	

(other	citations	omitted).		In	determining	the	adequacy	of	a	FOIA	search,	the	Court	is	

guided	by	principles	of	reasonableness.		Id.	(citing	Weisberg	v.	Dep't	of	Justice,	745	F.2d	

1476,	1485	(D.C.	Cir.	1984)).		Because	the	agency	is	the	possessor	of	the	records	and	is	

responsible	for	conducting	the	search,	the	Court	may	rely	on	"[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.	United	States	Coast	Guard,	180	F.3d	321,	326	(D.C.	Cir.	1999)	(citations	

omitted).		"Once	the	agency	has	shown	that	its	search	was	reasonable,	the	burden	shifts	to	

[the	plaintiff]	to	rebut	[the	defendant's]	evidence	by	a	showing	that	the	search	was	not	

conducted	in	good	faith."		Moore	v.	Aspin,	916	F.	Supp.	32,	35	(D.D.C.	1996)	(citing	Miller	v.	

U.S.	Dep't	of	State,	779	F.2d	1378,	1383	(8th	Cir.	1985)).		Summary	judgment	is	

inappropriate	“if	a	review	of	the	record	raises	substantial	doubt”	about	the	adequacy	of	the	

search.		Valencia‐Lucena	,	180	F.3d	at	326	(citing	Founding	Church	of	Scientology	v.	Nat’l	

Security	Agency,	610	F.2d	824,	837	(D.C.	Cir.	1979)).		However,	“the	[single]	fact	that	a	

particular	document	was	not	found	does	not	demonstrate	the	inadequacy	of	a	search.”		




                                                6
Boyd		v.	Crim.	Div.	of	U.S.	Dept.	of	Justice,	475	F.3d	381,	390	‐391	(D.C.	Cir.	2007)	(citations	

omitted).	

        According	to	Luczynski,	EOUSA	forwarded	plaintiff’s	request	to	the	Middle	District	

of	Florida	because	each	U.S.	Attorney’s	Office	maintains	the	files	of	the	cases	it	prosecutes.		

Luczynski	Decl.	¶	12.		Plaintiff’s	criminal	case	file	is	“maintained	in	the	Criminal	Case	File	

System	.	.	.	entitled	United	States	v.	Jamail	Hogan.”		Id.	¶	13.		Luczynski		has	supplied	the	

declaration	of	Belinda	Brown	who,	as	FOIA	coordinator	for	the	U.S.	Attorney’s	Office	in	the	

Middle	District	of	Florida,	conducted	the	search	for	records	responsive	to	plaintiff’s	

request.		See	Brown	Decl.	[ECF	No.	11‐10]	¶¶	1‐2.			

        Brown	states	that	she	“retrieved	[plaintiff’s]	criminal	docket	sheet	from	LEXIS	

Courtlink”	and	searched	the	Legal	Information	Office	Network	System	(LIONS),	which	

identified	the	Tampa	office	as	the	location	of	plaintiff’s	records.			Id.	¶	4.		According	to	

Brown,	“LIONS	is	the	case	management/tracking	system	used	by	USAOs	to	record	and	

maintain	up‐to‐date	information	on	cases	opened	by	Assistant	U.S.	Attorneys	.	.	.	and	to	

produce	a	variety	of	reports	on	that	information.”		Id.	¶	4.		Brown	“physically	searched	

[plaintiff’s]	criminal	case	file,”	for	five	listed	records,	and	found	only	the	indictment.		Id.	¶¶	

5‐6.		She	states	that	“there	was	no	criminal	complaint;	no	authorization	clearance	.	.	.	;	no	

letter	or	certificate	of	concurrence	of	the	grand	jury	foreperson;	and	no	grand	jury	docket	

sheet.”		Id.	¶	6.				

        Plaintiff	asserts	that	he	“has	submitted	proof	that	an	arrest	warrant	does	exist.”		Pl.’s	

Mem.	at	5.		This	fact	alone	does	not	create	a	triable	issue	because	an	agency	is	required	to	

produce	only	those	records	in	its	custody	and	control	at	the	time	of	the	FOIA	request.	

                                                 7
McGehee	v.	CIA,	697	F.2d	1095,	1110	(D.C.	Cir.	1983).		However,	Brown	does	not	list	the	

arrest	warrant	–	listed	by	OIP	as	one	of	six	requested	records	‐‐	as	a	record	for	which	she	

searched.		This	omission	presents	a	genuine	issue	about	the	adequacy	of	defendant’s	

search.		Therefore,	the	Court	will	deny	defendant’s	motion	on	this	issue.		See	Iturralde	v.	

Comptroller	of	Currency,	315	F.3d	311,	314	(D.C.	Cir.	2003)	(“	‘[I]f	a	review	of	the	record	

raises	substantial	doubt,	particularly	in	view	of	well	defined	requests	and	positive	

indications	of	overlooked	materials,	summary	judgment	is	inappropriate.	’	”)	(quoting	

Valencia‐Lucena,	180	F.3d	at	326)	(internal	quotation	marks	and	other	citation	omitted)	

(alteration	in	original).	

                                      IV.	CONCLUSION	

	      For	the	foregoing	reasons,	the	Court	finds	that	defendant	is	entitled	to	judgment	as	a	

matter	of	law	on	its	uncontested	withholding	of	the	name	of	a	third‐party	individual	under	

FOIA	exemption	7(C).		The	Court	further	finds	that	defendant	is	not	entitled	to	summary	

judgment	on	its	search	for	responsive	records.		Accordingly,	defendant’s	motion	for	

summary	judgment	will	be	granted	in	part	and	denied	in	part	without	prejudice.		A	

separate	Order	accompanies	this	Memorandum	Opinion.	

	

	      	

                                                   ________/s/____________	
                                                   ROBERT	L.	WILKINS	
                                                   United	States	District	Judge	
Date:	August	10,	2011	
	




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