Truesdale v. U.S. Dept. of Justice

• Decision Date: 13 August 2010
• Docket Number: Civil Action No. 08-1862 (PLF)
• Parties: Alvin B. TRUESDALE, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

731 F.Supp.2d 3

Alvin B. TRUESDALE, Plaintiff,

v.UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.

Civil Action No. 08-1862 (PLF).

United States District Court, District of Columbia.

Aug. 13, 2010.

Alvin B. Truesdale, Estill, SC, pro se.

Audrey Elizabeth Lambert, U.S. Attorney's Office, Washington, DC, for Defendants.

OPINION

PAUL L. FRIEDMAN, District Judge.

In its September 29, 2009 Opinion and Order, the Court dismissed all defendants except the United States Department of Justice ("DOJ" or "defendant"), and dismissed all but two claims: one under the Freedom of Information Act ("FOIA"),5 U.S.C. § 552, with regard to FOIA Request No. 2004-02303 addressed to the Federal Bureau of Prisons ("BOP"), and another under the Privacy Act, 5 U.S.C. § 552a, with regard to plaintiff's demand for amendment of records maintained in the BOP's SENTRY database. See Truesdale v. United States Dep't of Justice, 657 F.Supp.2d 219, 227-29 (D.D.C.2009). The DOJ has filed a renewed motion to dismiss or, in the alternative, for summary judgment addressing these remaining claims. Having considered the motion, plaintiff's opposition, and the entire record in this case, the motion will be granted in part and denied in part.

I. DISCUSSION

A. Summary Judgment Standard

The Court grants a motion for summary judgment if the pleadings, the discovery and disclosure materials on file, together with any affidavits or declarations, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "[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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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).

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, 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); see also Hertzberg v. Veneman, 273 F.Supp.2d 67, 74 (D.D.C.2003). 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. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C.Cir.1991) (quoting Ground Saucer Watch, Inc. v. Cent. Intelligence Agency, 692 F.2d 770, 771 (D.C.Cir.1981)).

B. FOIA Request No. 2004-02303

According to the BOP, on December 24, 2003, it received plaintiff's request for "a copy of all documents showing the Attorney General has established in the [DOJ] a repository of records of [plaintiff's] 21 U.S.C. § 848 conviction, and all records that determine the validity of said conviction." Defendant's Memorandum of Points and Authorities in Support of its Motion to Dismiss or, in the Alternative, for Summary Judgment ("Def.'s Mem."), Declaration of Roy Lathrop ("Lathrop Decl.") ¶ 4. Defendant does not submit a copy of the request.

In response to this request, the BOP notified plaintiff that it was "uncertain as to what documents [he was] seeking." Def.'s Mem., Lathrop Decl., Ex. A. For this reason, "no search was conducted in relation to [the] request." Id., Lathrop Decl. ¶ 11. Further, the BOP advised plaintiff that, to the extent he sought information about his conviction, such information would be found in his inmate centralfile. Id., Ex. A. The DOJ's Office of Information and Privacy ("OIP"), the office to which administrative appeals are directed, affirmed the BOP's determination. Id., Ex. B (February 22, 2005 letter from M. Pustay, OIP, regarding Appeal No. 05-0522). It reiterated that "the only information regarding [plaintiff's] conviction ... maintained by the BOP is located in [his] central file at the institution," and that "it maintains no other material responsive to [the] request." Id.¹

Plaintiff submits in his opposition to the DOJ's motion a copy of correspondence, dated August 28, 2003, directed to the Freedom of Information Act Privacy Act Referral Unit at the DOJ's Washington, D.C. headquarters. See Memorandum of Points and Authorities in Support of Plaintiff[ ] Alvin B. Truesdale['s] Response to the Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment ("Pl.'s Opp'n"), Ex. 9 (letter to the Director of the Freedom of Information Act Privacy Act Referral Unit, DOJ). It is a request for:

A copy of any and all documents that shows the Attorney General of the United States established in the Department of Justice a repository of records of requester['s] CCE (21 USC § 848) conviction and all records that determine the [v]alidity and/or the invalidation of said conviction.

A copy of any and all certified records of the requester's CCE conviction that shows the [i]nvalidation and validity of said conviction. See 18 USC § 3661(a)(b)(c) [sic].

Id.

Although plaintiff identifies this August 28, 2003 letter as the FOIA request later assigned Request No. 2004-2303 by the BOP, he denies having submitted a request for this information to the BOP or to its Director; rather, he states that the request was intended for the United States Attorney General. Pl.'s Opp'n at 2.² And because plaintiff maintains that the August 28, 2003 letter was intended as a request for records maintained by the United States Attorney General, id., he objects to its referral to the BOP without the agency sending him a notice of referral pursuant to 28 C.F.R. § 16.4(f), id. at 2-3. In addition, plaintiff maintains that his request "reasonably describes the records he seek[s]," and that the description set forth in his request "is sufficient for the United States Attorney General or a professional employee that work[s] in the [Attorney General's Office] who is familiar with the subject area of the request to locate the records with a reasonable amount of effort." Id. at 14. Consequently, plaintiff asserts, defendant "is required to conduct a search in 2004-02303." Id.

Generally, the FOIA requires than an agency promptly release records to a requester as long as his request "reasonably describes such records and ... is made in accordance with published rules ... and procedures to be followed" in submitting the request. 5 U.S.C. § 552(a)(3)(A). If the requested recordsare in the agency's possession, it cannot refuse to act on the request because the records originated elsewhere. McGehee v. Cent. Intelligence Agency, 697 F.2d 1095, 1110 (D.C.Cir.1983). The FOIA also contemplates consultation with or the referral of a request to "another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein." 5 U.S.C. § 552(a)(6)(B)(iii)(III).

DOJ regulations provide that a requester "may make a request for records of the [DOJ] by writing directly to the ... component that maintains those records." 28 C.F.R. § 16.3(a). If the requester "cannot determine where within the [DOJ] to send [his] request, [he] may send it to the FOIA/PA Mail Referral Unit, Justice Management Division, U.S. Department of Justice, 950 Pennsylvania Avenue, NW., Washington, DC 20530-0001, [and that] office will forward [the] request to the component(s) it believes most likely to have the [requested] records." Id. If a DOJ component receives a request for records in its possession and determines that "another component, or another agency of the Federal Government, is better able to determine whether the record is exempt from disclosure under the FOIA," it may "[r]efer the responsibility for responding to the request ... to the component best able to determine whether to disclose it, or to another agency that originated the record (but only if that agency is subject to the FOIA)." 28 C.F.R. § 16.4(c). If a referral is made, the referring component "ordinarily shall notify the requester of the referral and inform [him] of the name of each component or agency to which the request has been referred and of the part of the request that has been referred." 28 C.F.R. § 16.4(f).

Under the FOIA the Court may compel disclosure of agency records only if they were improperly withheld. Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 137-38, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980). A referral procedure may constitute an improper withholding "if its net effect is significantly to impair the requester's ability to obtain the records or significantly to increase the amount of time he must wait to obtain them," McGehee v. Cent. Intelligence Agency, 697 F.2d at 1110, and a withholding of this sort is improper "unless the agency can offer a reasonable explanation for its procedure." Id.

Defendant does not explain the route by which plaintiff's August 28, 2003 letter, apparently sent to the Attorney General, made its way to the BOP or indicate whether the Referral Unit forwarded the request to the BOP and/or another DOJ component. If the request was referred, the DOJ neither identifies the component or components responsible for responding to the request nor states whether it notified plaintiff of the referral. Assuming that the DOJ Referral Unit...