Marshall v. Fed. Bureau of Investigation

• Decision Date: 10 August 2011
• Docket Number: Civil Action No. 10–871 (RMC).
• Parties: Eric Joseph MARSHALL, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, Defendant.
• Court: U.S. District Court — District of Columbia

802 F.Supp.2d 125

Eric Joseph MARSHALL, Plaintiff,

v.FEDERAL BUREAU OF INVESTIGATION, Defendant.

Civil Action No. 10–871 (RMC).

United States District Court, District of Columbia.

Aug. 10, 2011.

Eric Joseph Marshall, Pollock, LA, pro se.

Josh Hildreth, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, District Judge.

Eric Joseph Marshall, who is incarcerated, seeks documents regarding DNA evidence relating to his criminal conviction. He brought this suit against the Federal Bureau of Investigation (FBI) ¹ seeking records under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. The parties filed cross motions for summary judgment. ² Because the FBI conducted an adequate search for records and disclosed all of the information available, subject to various exemptions, the FBI's motion for summary judgment will be granted and Mr. Marshall's cross motion will be denied.

I. FACTS

Mr. Marshall was convicted on October 26, 2005 of armed bank robbery, use and brandishing of a firearm during and in relation to a crime of violence, and being a convicted felon in possession of a firearm. Def.'s Mot., Ex. 1 (“Hardy Decl.”) ³ ¶ 6. He is incarcerated in the Federal Correctional Institution in Pollock, Louisiana.

On November 18, 2008, Mr. Marshall submitted a FOIA/Privacy Act (PA) request to FBI Headquarters seeking a copy of his DNA report from the FBI laboratory in Quantico, Virginia and a copy of his DNA report from the DNA Diagnostic Center Laboratory in Fairfield, Ohio. Hardy Decl., Ex. A. On October 2, 2009, the FBI released, in part, a one page document; the document was redacted pursuant to FOIA Exemptions §§ 552(b)(6) and (7)(C).⁴ Hardy Decl., Ex. I. Mr. Marshall appealed to the Department of Justice Office of Information Policy (“OIP”). The FBI located additional records, and the OIP remanded the matter for further processing. Id., Ex. K.

Then, on February 9, 2010, Mr. Marshall made a specific request for the following DNA reports (including the Polymerase Chain Reaction (“PCR”) ⁵ report and the Short Tandem Repeat (“STR”) Report: ⁶ 1) a report dated July 24, 2003, prepared by the FBI; 2) a report dated October 22, 2003, prepared by the FBI; and 3) a report dated March 25, 2004, prepared by the DNA Diagnostics Center. Id., Ex. L. On April 26, 2010, the FBI released, in part, ten pages of documents, redacted pursuant to FOIA Exemptions §§ 552(b)(2), (6), and (7)(C). See Hardy Decl. ¶ 34 & Ex. O (FBI's release of reports dated July 24, 2003; Oct. 22, 2003; and Dec. 2, 2003).

Mr. Marshall filed this suit, alleging that the FBI did not adequately respond to his request for “complete copies of his DNA reports.” See Compl. [Dkt. # 1] at 1. Specifically, he asks the Court to order the FBI to provide all DNA reports and related documents dated July 24, 2003 and October 22, 2003. Id. at 3.

Subsequently, on September 2, 2010, the FBI released two additional pages, withholding the pages in part under Privacy Act Exemption (j)(2) and FOIA Exemption § 552(b)(2). Hardy Decl., Ex. S. This release included a black and white copy of an electropherogram ⁷ dated July 11, 2003. On September 8, 2010, the FBI released two more pages—a color copy of the same electropherogram. Id., Ex. T. On February 7, 2011, the FBI released a copy of an electropherogram dated September 25, 2003. See Def.'s Notice [Dkt. # 29].

In sum, the FBI released fifteen pages, two in whole and the thirteen in part. See Hardy Decl. ¶ 4 & Exs. I, O, S, & T. The only information redacted from the documents was the telephone numbers and fax numbers of FBI personnel and names and identifying information of FBI Special Agents, FBI personnel, and third parties of investigative interest. Id. ¶ 40. After the Hardy Declaration was prepared, the FBI also released in full the electropherogram dated September 25, 2003. See Def.'s Notice [Dkt. # 29]. The FBI found no records pertaining to a March 25, 2004 DNA report prepared by DNA Diagnostics Center.

Mr. Marshall admits that the FBI responded to his FOIA request by producing certain PCR and STR reports and electropherograms. See Pl.'s Mot. at 4. He contends, however, that he requested more information that was not produced. He seeks “Laboratory Number 030903021 PF NR Date October 22, 2003 PCR/STR reports for [e]lectropherogram of computer specimen simulations Q2, Q68, and Q69.” Id. The FBI contends that because it conducted an adequate search and produced documents that were properly redacted pursuant to valid FOIA Exemptions, summary judgment should be granted in its favor.

II. STANDARD OF REVIEW

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Moreover, summary judgment is properly granted against a party who “after adequate time for discovery and upon motion ... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. FOIA cases are typically and appropriately decided on motions for summary judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir.1993); Rushford v. Civiletti, 485 F.Supp. 477, 481 n. 13 (D.D.C.1980).

III. ANALYSIS

FOIA requires agencies of the federal government to release records to the public upon request, unless one of nine statutory exemptions applies. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975); 5 U.S.C. § 552(b). To prevail in a FOIA case, the plaintiff must show that an agency has (1) improperly (2) withheld (3) agency records. United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989). Even though FOIA “strongly favors prompt disclosure, its nine enumerated exemptions are designed to protect those legitimate governmental and private interests that might be harmed by release of certain types of information.” August v. FBI, 328 F.3d 697, 699 (D.C.Cir.2003) (internal quotation marks omitted). An agency seeking to withhold information must identify the reasons why a particular exemption is relevant. King v. Dep't of Justice, 830 F.2d 210, 219 (D.C.Cir.1987).

A. Adequacy of the Search and Vaughn Index

The adequacy of a search is measured by a standard of reasonableness and depends on the individual circumstances of each case. Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C.Cir.1990). The question is not whether other responsive documents may exist, but whether the search itself was adequate. Steinberg v. Dep't of Justice, 23 F.3d 548, 551 (D.C.Cir.1994). Before it can obtain summary judgment in a FOIA case, “an agency must show, viewing the facts in the light most favorable to the requester, that ... [it] has conducted a search reasonably calculated to uncover all relevant documents.” Id. There is no requirement that an agency search every record system, but the agency must conduct a good faith, reasonable search of those systems of records likely to possess the requested information. Oglesby v. Dep't of Army, 920 F.2d 57, 68 (D.C.Cir.1990). An agency is not required to undertake a search that is so broad as to be unduly burdensome. Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C.Cir.1995).

To establish that an adequate search was conducted, proper exemptions were claimed, and reasonably segregable records were released, agencies regularly submit an affidavit in support of their motions for summary judgment. Judicial Watch v. Dep't of Health and Human Servs., 27 F.Supp.2d 240, 240 (D.D.C.2002). Agency affidavits are deemed sufficient if they show, with reasonable specificity, why the documents or redactions fall within an exemption. Hayden v. NSA, 608 F.2d 1381, 1387 (D.C.Cir.1979). A court may award summary judgment solely on the basis of information provided by agency declarations if the declarations 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). An agency's 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. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991) (internal citation and quotation omitted).

The agency's affidavit is often accompanied by or includes a Vaughn index. The D.C. Circuit's decision in Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), requires agencies to prepare an itemized index correlating each withheld document, or portion thereof, with a specific FOIA exemption and the agency's nondisclosure justification. The materials can be presented in any form so long as they provide the court a reasonable basis to evaluate the exemption claims. Delaney, Migdail & Young, Chartered v. IRS, 826 F.2d 124, 128 (D.C.Cir.1987). Once an agency has provided adequate affidavits, the burden shifts back...