                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

BRYAN WILSON,

                       Plaintiff,

                       v.                           Case No. 15-CV-1149 (CRC)

U.S. DEPARTMENT OF JUSTICE,

                       Defendant.

                            MEMORANDUM OPINION AND ORDER

       Plaintiff Bryan Wilson submitted a Freedom of Information Act (“FOIA”) request to the

Department of Justice’s (“DOJ’s”) Executive Office for United States Attorneys (“EOUSA”)1 to

obtain specific types of records related to his prior criminal conviction in the District of

Columbia. EOUSA released nine pages of responsive records after Wilson filed his Complaint.

The government has since moved for summary judgment. Because the declaration

accompanying DOJ’s motion leaves substantial doubt as to the sufficiency of its search, the

Court will grant in part and deny in part the government’s motion.

       I.      Background

       On May 25, 2014, Wilson requested “a true copy of the original indictment, complete

with the signatures of the indicting grand jury,” and “a copy of any requests for subpoena, or

affidavits in support of court order or warrant for authorization to obtain cell site information”

for a specified telephone number. Def.’s Mot. Summ. J. (“MSJ”) Ex. A, at 1. On June 12, 2014,

EOUSA informed Wilson that his request could not be processed because it did not include a


1
  EOUSA “provides administrative support for the 93 United States Attorneys,” including “legal
education, administrative oversight, technical support, and the creation of uniform policies.”
“Executive Office for United States Attorneys,” https://www.justice.gov/usao/eousa (last
updated July 8, 2015).
certification of his identity and did not specify a particular U.S. Attorney’s Office in which the

records might be found. Id. Ex. B, at 1. On December 8, 2014, Wilson followed up by

requesting “copies of any & all affidavits and motions to the Superior Court for the District of

Columbia and District of Columbia Court of Appeals moving those Courts for an order requiring

Nextel Inc. to turn over cell site records” for Wilson’s cell phone to the U.S. Attorney for the

District of Columbia or the Metropolitan Police Department. Id. Ex. C, at 1. EOUSA produced

nine pages of records to Wilson, but it also invoked FOIA Exemption 7(C), 5 U.S.C. § 552(b)(7),

to justify redacting personal identifying information for certain DOJ employees, law-

enforcement personnel, and third parties assisting with the underlying investigation. This

response to Wilson’s latter FOIA request is properly before the Court.2

       The government has moved for summary judgment, claiming that no genuine dispute

exists as to the adequacy of its search and the propriety of its limited withholdings. Wilson,

proceeding pro se, contests that the government has demonstrated the sufficiency of its search

beyond material doubt.

       II.     Standard of Review

       Congress enacted FOIA “to pierce the veil of administrative secrecy and to open agency

action to the light of public scrutiny.” ACLU v. U.S. Dep’t of Justice, 655 F.3d 1, 5 (D.C. Cir.

2011) (quoting Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976)). The statute imposes a


2
  An agency’s disclosure obligations under FOIA are triggered only upon receipt of a request
that reasonably describes the records sought and is “made in accordance with [the agency’s]
published rules stating the . . . procedures to be followed.” 5 U.S.C. § 552(a)(3)(A); see also
Lewis v. U.S. Dep’t of Justice, 733 F. Supp. 2d 97, 107 (D.D.C. 2010) (“[A]n agency is under no
obligation to respond ‘until it has received a proper FOIA request in compliance with its
published regulations.’”) (quoting Antonelli v. Fed. Bureau of Prisons, 591 F. Supp. 2d 15, 26
(D.D.C. 2008)). Because Wilson’s initial request did not comply with DOJ’s “verification of
identity” provision, 28 C.F.R. § 16.3(a)(3), it was properly closed at the administrative level.
Therefore, that request is not a subject of this action.

                                                     2
general obligation on federal agencies to provide records to the public. 5 U.S.C. § 552(a).

Although FOIA exempts certain categories of documents from this general obligation to

disclose, 5 U.S.C. § 552(b), the statute exists “to ensure an informed citizenry, vital to the

functioning of a democratic society, needed to check against corruption and to hold the

governors accountable to the governed,” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,

242 (1978). Thus, FOIA exemptions are “explicitly made exclusive,” Milner v. U.S. Dep’t of

Navy, 562 U.S. 562, 565 (2011) (quoting EPA v. Mink, 410 U.S. 73, 79 (1973)), and they “must

be ‘narrowly construed,’” id. (citing FBI v. Abramson, 456 U.S. 615, 630 (1982)).

       FOIA cases are typically decided on motions for summary judgment. Brayton v. Office

of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In deciding such a motion, a court must

assume the truth of the non-movant’s evidence and draw all reasonable inferences in the non-

movant’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In order to meet its

FOIA obligations and prevail on a motion for summary judgment, “the government must

demonstrate that it conducted an adequate search and produced all responsive records not

properly withheld under FOIA’s nine statutory exemptions.” Sack v. CIA, 49 F. Supp. 3d 15, 19

(D.D.C. 2014).

       An agency cannot satisfy this burden with affidavits that are vague or conclusory, or that

merely parrot the statutory standard. Consumer Fed’n of Am. v. U.S. Dep’t of Agric., 455 F.3d

283, 287 (D.C. Cir. 2006). When an agency’s search is questioned, it must show “beyond

material doubt that its search was reasonably calculated to uncover all relevant documents.”

Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011)

(quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999)) (internal

quotation marks omitted). On summary judgment, a court may rely on a “reasonably detailed”



                                                      3
declaration that sets forth “the search terms and the type of search performed, and averring that

all files likely to contain responsive material . . . were searched.” Id. (quoting Oglesby v. U.S.

Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)) (internal quotation marks omitted). Such a

declaration is “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) (quoting Ground Saucer Watch, Inc.

v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)) (internal quotation marks omitted). But if the

record “leaves substantial doubt as to the sufficiency of the search, summary judgment for the

agency is not proper.” Truitt v. U.S. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990).

       III.    Analysis

               A.      Partial Withholdings Based on Exemption 7(C)

       The government has cited FOIA Exemption 7(C) as authority for redacting from the

documents it produced to Wilson personal identifying information for certain DOJ employees,

law-enforcement personnel, and third parties. Under that exemption, FOIA’s general obligations

do not apply to “records or information compiled for law enforcement purposes,” but only

insofar as such production could—as relevant here—“reasonably be expected to constitute an

unwarranted invasion of personal privacy.” Id. § 552(b)(7)(C). The government contends that

identifying the individuals who helped investigate and prosecute Wilson “would shed no light on

[DOJ’s] performance of [its] statutory duties.” MSJ 7. Wilson does not challenge these minimal

withholdings, and the Court finds them to be justified for the reason the government states. See

Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003) (citing cases that have

“consistently supported nondisclosure of names or other information identifying [third-party]

individuals appearing in law enforcement records, including investigators, suspects, witnesses,



                                                     4
and informants”). Accordingly, the Court will grant summary judgment in favor of the

government on this aspect of the case.

               B.     The Adequacy of DOJ’s Search

       DOJ has attempted to establish the adequacy of its search through the declaration of

David Luczynski, Attorney Advisor for EOUSA. Mr. Luczynski did not personally search for

records responsive to Wilson’s FOIA request; he instead relied on a liaison in the appropriate

U.S. Attorney’s Office. Luczynski describes the overall search for records as follows:

          After receiving plaintiff’s request letters, EOUSA undertook the search for
          documents responsive to plaintiff’s FOIA requests. Upon receiving a
          request, EOUSA forwarded the request letter to the FOIA Contact for the
          United States Attorney’s Office for the District of Columbia as indicated by
          the requester. Each United States Attorney’s Office maintains the case files
          for matters prosecuted by that office. The FOIA Contact began a systematic
          search for records on subject, Bryan Wilson, to determine the location of
          any and all files relating to him in order to comply with the FOIA request.
          The FOIA Contact searched for records physically and also sent e-mails to
          the appropriate staff to ascertain whether they had any responsive records.
          In connection with the search for responsive records to Plaintiff’s FOIA
          request, the FOIA Contact used the computer tracking system for the United
          States Attorney Offices, the “LIONS” system. 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. By use of the
          “LIONS” system, the user can access databases which can be used to
          retrieve the information based on a defendant’s name, the USAO number
          (United States’ Attorney's Office internal administrative number), and the
          district court case number.

       Luczynski Decl. ¶ 9.

       In opposing the government’s motion, Wilson contends that Luczynski’s declaration is

insufficient to demonstrate the adequacy of EOUSA’s search. Under Rule 56(c) of the Federal

Rules of Civil Procedure, a declaration filed in support of a motion for summary judgment “must

be based on personal knowledge . . . and show that the affiant or declarant is competent to testify

on the matters stated.” A FOIA declarant satisfies this requirement “if he has a general



                                                     5
familiarity with the responsive records and procedures used to identify those records.” Barnard

v. U.S. Dep’t of Homeland Sec., 531 F. Supp. 2d 131, 138 (D.D.C. 2008). FOIA declarants need

not have actually participated in the searches themselves. Schoenman v. FBI, 575 F. Supp. 2d

166, 172 (D.D.C. 2008). Still, “the person in charge” of performing the search is often “the most

appropriate person to provide a comprehensive affidavit” in FOIA cases. Plunkett v. U.S. Dep’t

of Justice, 924 F. Supp. 2d 289, 298 (D.D.C. 2013) (internal quotation marks omitted).

       For two main reasons, the evidentiary record leaves the Court with substantial doubt as to

the sufficiency of DOJ’s search. First, Luczynski did not “aver[] that all files likely to contain

responsive materials . . . were searched.” Ancient Coin Collectors, 641 F.3d at 514 (quoting

Oglesby, 920 F.2d at 68). The description provided is far less encompassing: Luczynski first

asserted that his FOIA contact “used” a particular electronic case-tracking system, “LIONS,”

“[i]n connection with the search for responsive records.” Luczynski Decl. ¶ 9. Luczynski’s

FOIA contact evidently searched LIONS using some combination of Wilson’s name, the relevant

district-court case number, and the internal administrative number associated with Wilson’s case.

Id. Presumably following the leads generated by this electronic query, the contact then

“searched for records physically” and “sent e-mails to the appropriate staff to ascertain whether

they had any responsive records.” Id. But Luczynski has not represented that all areas likely to

contain responsive records were in fact searched.3 His blanket assurance that EOUSA’s search

was “systematic,” id., hardly remedies this crucial defect. The Court can only speculate about

the FOIA contact’s methodology—the number and location of any physically searched files, why


3
  In particular, the government did not respond to Wilson’s suggestion that three additional
records systems—the Replicated Court Information System, Closed Files Information Tracking
System, and Master Index System—may, based on declarations previously filed by the agency,
contain additional responsive records. See Pl.’s Opp’n Def.’s MSJ 7–8 (citing Ford v. U.S.
Dep’t of Justice, Civ. No. 07–1305 (CKK), 2008 WL 2248267 (D.D.C. May 29, 2008);
Richardson v. U.S. Dep’t of Justice, 730 F. Supp. 2d 225 (D.D.C. 2010)).
                                                     6
those files alone were searched, why some staff were deemed “appropriate” email recipients, and

whether any physical searches resulted from those emails.

       And second, Luczynski’s declaration does not satisfy the Court that he had “a general

familiarity with the responsive records” at issue in this case. Barnard, 531 F. Supp. 2d at 138.

He does claim “familiar[ity] with the procedures followed by []his office in responding to the

FOIA request(s) made to EOSUA by Plaintiff.” Luczynski Decl. ¶ 2. He also asserts that his

knowledge is partially “based upon [his] review of the official files and records of EOUSA.” Id.

But the identity of the documents he reviewed remains a mystery: The Court cannot determine

whether records maintained by the U.S. Attorney’s Office for the District of Columbia qualify as

“official files and records of EOUSA” (as opposed to those of the originating office), and even if

they do, it is unclear whether Luczynski has ever seen the records that were produced to Wilson.

He at no point claims familiarity with records responsive to any one FOIA request. See

Londrigan v. FBI, 670 F.2d 1164, 1174 (D.C. Cir. 1981) (stating that a FOIA affiant must have

“personal knowledge of the documents in question,” even if he did not personally participate in

the search); Schoenman, 575 F. Supp. 2d at 172–73 (finding that a FOIA declarant “me[t] the

standard for personal knowledge” because he was familiar with the agency’s FOIA procedures

and “reviewed Navy Document Number Two himself”). Given these shortcomings, the

government has not shown beyond material doubt that its search was reasonably calculated to

uncover all responsive records.

       For the foregoing reasons, it is hereby

       ORDERED that Defendant’s Motion for Summary Judgment be GRANTED IN PART

and DENIED IN PART without prejudice. Summary judgment is granted to Defendant as to its




                                                    7
withholding of certain information under Exemption 7(C), and denied without prejudice as to the

adequacy of its search. It is further

        ORDERED that Defendant, by July 12, 2016, supplement the evidentiary record in

accordance with this decision.

        SO ORDERED.




                                                          CHRISTOPHER R. COOPER
                                                          United States District Judge

Date:      June 28, 2016




                                                  8
