Petrucelli v. Dep't of Justice
| Decision Date | 15 October 2020 |
| Docket Number | Civil Action No. 18-0729 (CKK) |
| Parties | John A. Petrucelli, Plaintiff, v. Department of Justice, Defendant. |
| Court | U.S. District Court — District of Columbia |
Plaintiff brought this action pro se to compel records under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, from Department of Justice ("DOJ") components Bureau of Prisons ("BOP") and Executive Office for United States Attorneys ("EOUSA"). On March 20, 2020, the Court granted DOJ's motion for summary judgment as to BOP and denied the motion as to EOUSA without prejudice and with leave to supplement the record. Order [Dkt. # 58]; see Mem. Op. at 13 [Dkt. # 59] ("Mem. Op. I") ( insufficient evidence on EOUSA's search for responsive records). Pending before the Court is DOJ's Renewed Motion for Summary Judgment [Dkt. # 62], which plaintiff has opposed [Dkt. # 69]. For the reasons explained below, the motion will be granted.
As before, the Court is compelled "to identify the issues that are properly before it." Mem. Op. I at 6. In his opposition, plaintiff discusses matters unrelated to this supplemental record and this case. In the "Preliminary Statement," for example, plaintiff asserts that "EOUSA arbitrarily and capriciously withheld information under FOIA Exemptions 6, 7(c), and 7(f) in response to [his] various FOIA requests," Opp'n at 6, even though the remainder of this case does not concern the withholding of information.1 The Court reiterates that it will not consider matters "beyond the scope of this litigation." Mem. Op. I at 1-2. Solely at issue is EOUSA's processing of the following two requests.
In a letter to EOUSA dated October 24, 2016, plaintiff requested "copies of the untranscribed transcripts and tape recording of [his] criminal trial arraignment," which occurred on February 1, 2002, in the U.S. District Court for the Southern District of New York ("SDNY"). Decl. of Natasha Hudgins, Ex. A [Dkt. # 32-9 at 1]. By letter of November 28, 2016, EOUSA acknowledged the request as seeking first-party records and public records and extended the statutory response time based on its assessment of "unusual circumstances[.]" Id., Ex. B.
By letter of November 16, 2017, EOUSA informed plaintiff that a search of the U.S. Attorney's Office for the SDNY for "a tape recording of your arraignment" had located no responsive records. "That record," EOUSA explained, Id., Ex. C. DOJ's Office of Information Policy affirmed EOUSA's decision by letter of March 16, 2018. Id., Ex. D.
In a letter to EOUSA dated January 21, 2018, plaintiff requested "copies of all payments made by me to [the] U.S. Attorney's Office of the Southern District," including "the dates they were made and the amount of each." Hudgins Decl., Ex. E. By letter of July 3, 2018, EOUSAreleased "two pages . . . in full" and informed plaintiff that "the official records regarding restitution payments are judicial records, and can be retrieved from the Court where the proceedings took place." Id., Ex. I.
In this Court's initial proceedings, plaintiff questioned EOUSA's search for "audio tapes." Mem. Op. I at 13 (quoting Petrucelli Second Decl. ¶ 4 [Dkt. # 36 at 24]). The "sparse information" in EOUSA's declaration precluded a proper examination of the search. Id.; see id. at 7-8 (). DOJ has supplemented the record with the Declaration of Darian Hodge, FOIA Officer for the United States Attorney's Office for the Southern District of New York ("USAO-SDNY"), who has been that office's "point of contact" with EOUSA "since 2014." Supp. Hodge Decl. ¶ 1 [Dkt. # 62-2].
At this stage of the proceedings, EOUSA "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). The Court may rely on EOUSA's declaration if it is "reasonably detailed," sets "forth the search terms and the type of search performed," and avers "that all files likely to contain responsive materials (if such records exist) were searched." Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (quoting Oglesby, 920 F.2d at 68) (internal quotation marks omitted)). Such 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) (citation and internal quotation marks omitted). "Once an agency has made a prima facie showing of adequacy, the burden shifts to the plaintiff to provide countervailing evidence . . .sufficient to raise substantial doubt concerning the adequacy of the agency's search." Rodriguez v. U.S. Dep't of Def., 236 F. Supp. 3d 26, 35 (D.D.C. 2017) (internal citation omitted).
Summary judgment is inappropriate if "the record leaves substantial doubt as to the sufficiency of the search[.]" Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (footnote and citations omitted). Substantial doubt may arise from, among other things, an agency's failure "to follow through on obvious leads to discover requested documents." Valencia-Lucena, 180 F.3d at 325 (citation omitted); see id. at 327 ().
Hodge states that in response to this request for a recording of plaintiff's arraignment, he Supp. Hodge Decl. ¶ 4 (parenthesis in original). Using the case number, Hodge then searched CaseView, which is "a district specific electronic database containing information about all of the cases (civil and criminal) handled by the SDNY." Id. Hodge discovered "that USAO-SDNY had sent sixteen boxes of records associated with 1:02-cr-99 to the Federal Records Center on 11/28/2011," which he retrieved utilizing "the accession number '118-12-0369' placed on each of the sixteen boxes before they were sent to the Federal Records Center." Id. Based on the terms of the FOIA request "and the policies andprocedures followed by the USAO-SDNY for compiling official records for matters," Hodge "determined that the only location likely to contain an audio recording or transcript of the arraignment in criminal case 1:02-cr-99 was the case files that had been sent to the Federal Records Center in November 2011." Id.
After retrieving the sixteen boxes from the Federal Records Center, Hodge "searched each file in each box by hand" and "looked for any storage medium that might contain an audio recording," such as "a cassette tape or a microcassette tape." Id. ¶ 5. He also "searched for any optical storage media including CDs, and DVDs" and "examined each record to determine if it was, or included, a transcript of a court proceeding." Id. Hodge's supervisor "also reviewed the boxes looking for audio tapes and court transcripts." Id. Neither "located any audio recordings in any of the sixteen boxes," and the transcripts found were not of plaintiff's arraignment. Id. In addition, neither Hodge nor his supervisor saw "any indication that any order was placed by the USAO-SDNY for reproduction of the audio or preparation of a transcript of the arraignment." Id.
On April 17, 2017, Hodge emailed plaintiff's FOIA request to two Assistant United States Attorneys ("AUSA") assigned to "matters involving Plaintiff's filing of petitions under 28 U.S.C. § 2255," asking "if their files contained either an audio recording or a transcript of Plaintiff's arraignment." Id. ¶ 6. He "received an e-mail back from one of the AUSA, which copied the other AUSA, indicating that they did not know of any records responsive to Plaintiff's FOIA Request 2017-301." Id.
In response to this lawsuit, Hodge and his supervisor "again carefully, and independently of each other, reviewed the contents of the sixteen boxes of records from the SDNY'sprosecution of the Plaintiff" but "did not locate either an audio recording or a transcript of Plaintiff's arraignment." Id. ¶ 7.
Finally, Hodge prompted a search by the USAO-SDNY Systems Division of which identified no responsive records, id. ¶ 8, and he "reviewed agency records involving other FOIA requests the Plaintiff had submitted in the past seeking records from USAO-SDNY in his criminal case," id. ¶ 9.
Hodge cites two revealing documents. First, in the FOIA request at issue, plaintiff wrote: Supp. Hodge Decl., Ex. A. Although Hodge did not recognize the purported identifier "as referring to or identifying any records within the SDNY," he "ran" it "as a search term in CaseView, which did not return any results." Supp. Hodge Decl. ¶ 9. Second, in an Affidavit, a licensed New York State Private Investigator recounts his visit to the...
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