Tunchez v. U.S. Dep't Of Justice ., Civil Action No. 09-473 (CKK).

• Citation: 715 F.Supp.2d 49
• Decision Date: 03 June 2010
• Docket Number: Civil Action No. 09-473 (CKK).
• Parties: Mario Trevino TUNCHEZ, Plaintiff, v. U.S. DEP'T OF JUSTICE et al., Defendants.
• Court: U.S. District Court — District of Columbia

715 F.Supp.2d 49

Mario Trevino TUNCHEZ, Plaintiff,

v.U.S. DEP'T OF JUSTICE et al., Defendants.

Civil Action No. 09-473 (CKK).

United States District Court,District of Columbia.

June 3, 2010.

Mario Trevino Tunchez, Pine Knot, KY, pro se.

Lauren Joy Karam, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, District Judge.

Plaintiff Mario T. Tunchez filed this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act (“PA”), 5 U.S.C. § 552a. The defendants, the Department of Justice (“DOJ”) and the Department of Homeland Security (“DHS”), jointly filed a motion for summary judgment. Because there are no material facts in genuine dispute and the defendants are entitled to judgment as a matter of law, the motion will be granted.

BACKGROUND

Tunchez, a prisoner serving a federal sentence, sent a FOIA request to the Bureau of Alcohol Tobacco Firearms and Explosives (“BATFE”) seeking all documents in any format about him, referring to him, or related to a criminal investigation of him dating back to January 1990. Compl. Ex. A. The request stated that BATFE agents took part in the investigation leading to his prosecution, provided the case number of the prosecution, and specifically asked that all files-some of which were mentioned by name-be searched. Id. Using multiple personal identifiers associated with Tunchez, the BATFE conducted multiple searches on multiple days of the TECS (Treasury Enforcement Communications Systems) database, which contains BATFE investigative records, and the N-Force case management system of files, which contains records documenting BATFE's investigative activity. Mot. for Summ. J. (“MSJ”), Decl. of Averill P. Graham (May 26, 2009) (“Graham Decl.”) ¶¶ 11-15. None of the searches resulted in locating any responsive records. Id. ¶ 15. The BATFE advised Tunchez that its search for criminal records relating to him had failed to locate any information about him, and suggested that he might want to check with the Drug Enforcement Administration. Compl. Ex. B. On administrative appeal, the BATFE's response was affirmed. Id. Ex. E. Tunchez now challenges the adequacy of the BATFE's search. See Opp'n at 7-8.

Tunchez sent a similar request for records about himself to FBI headquarters (“FBIHQ”). Compl. Ex. F. In response, FBIHQ conducted an electronic search of its CRS (Central Records System), using the plaintiff's name, birthdate, social security number, and place of birth to identify any main files associated with him. MSJ, Decl. of David M. Hardy (Sept. 9, 2009) (“Hardy Decl.”), ¶¶ 15-20, 25. The FBI sent Tunchez a response stating that “[n]o records responsive to [his] FOIPA request were located by a search of the automated indices [to the main files],” ¹ and suggested that he might also want to make a request to a specific FBI field office where the records might be maintained. Compl. Ex. G. This response was affirmed on appeal, and the recommendation to make a request to a field office was reiterated. Id. Ex. J. Tunchez then sent the same sort of request to the FBI's local office in Brownsville, Texas. Id. Ex. K. Despite two follow-up communications regarding that request-one of which was directed to the DOJ's FOIA/PA Referral Unit, he did not receive any acknowledgment or response from the Brownsville office or DOJ with respect to that request. Id. Exs. L, M. The FBI has no record of receiving the Brownsville request. Hardy Decl. ¶ 27.

Subsequent to being served with this complaint, the FBI conducted searches-some for the second time-of its main and reference files maintained at FBIHQ and all field offices. Hardy Decl. ¶ 26. This search located two main files, consisting of a total of 176 unique pages of records. ² Id. Of those, 36 pages were released in full, 137 pages were released with redactions, and 3 pages were referred to the Bureau of Prisons (“BOP”) for review and release determination. Id. The BOP has since released the three pages with redactions. MSJ, Decl. of Ron Hill (July 31, 2009) ¶ 3. Tunchez raises no challenge to the BOP's response. See Opp'n at 16. As to the FBI's response, Tunchez argues that the search was inadequate, id. at 8-9, that the lack of any response to his Brownsville request remains unexplained and is inexcusable, and that the exemptions claimed for the redactions are invalid because “the information has been released into the public domain via judicial proceedings and media outlets.” Opp'n at 10; see also id. at 9-12. In addition, Tunchez disputes the propriety of the FBI's decision to withhold information relating to law-enforcement techniques and procedures. Id. at 13.

Tunchez also sent the same FOIA request to the United States Customs and Border Patrol (“CBP”), a component of the DHS, seeking records about himself. Compl. Ex. N. In response, the CBP conducted a search of the TECS, the SEACATS (Seized Assets and Case Tracking System), the ENFORCE (Enforcement Case Tracking System), and the ACS (Automated Commercial System), locating four pages of responsive records, which it released to Tunchez with redactions. Decl. of Mark Hanson (Sept. 9, 2009) (“Hanson Decl.”), ¶¶ 5-6. The records were released to Tunchez shortly after Tunchez had submitted this complaint for filing, but before the complaint had been served on any defendants. See id. ¶ 6 (release of records made under cover of letter dated March 11, 2009); Compl. at 1 (“received” stamped March 3, 2009). Later, in preparing for this litigation, the CBP realized that the staff person who conducted the search did not have access to all parts of the TECS system. Id. ¶ 7. Thus, CBP conducted the search again and located an additional 10 pages of responsive records, which were released to Tunchez with redactions. Id. In the process, a re-review of the releases made in March resulted in a revision of the original redactions, resulting in additional information being released to Tunchez. Id. ¶ 8. Tunchez challenges the timeliness of the CBP's response and argues that the public domain doctrine strips the records of all possible exemptions. Opp'n at 13-15.

DISCUSSION

Under Federal Rule of Civil Procedure 56, a motion for summary judgment should be granted if the pleadings and evidence on file show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering whether there is a triable issue of fact, a court must draw all reasonable inferences in favor of the non-moving party. Id. at 255, 106 S.Ct. 2505. The party opposing a motion for summary judgment, however, “may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial,” id. at 248, 106 S.Ct. 2505, that would permit a reasonable jury to find in his favor, Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C.Cir.1987). The non-moving party must do more than simply “show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Moreover, “any factual assertions in the movant's affidavits will be accepted as being true unless [the opposing party] submits his own affidavits or other documentary evidence contradicting the assertion.” Neal v. Kelly, 963 F.2d 453, 456 (D.C.Cir.1992) (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir.1982)).

To prevail on a FOIA claim, a plaintiff must show that an agency improperly withheld agency records. Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980). An agency cannot improperly withhold records if it did not receive a request for those records. Ning Ye v. Holder, 624 F.Supp.2d 121, 123-24 (D.D.C.2009) (citing Banks v. Lappin, 539 F.Supp.2d 228, 235 (D.D.C.2008)); see also West v. Jackson, 448 F.Supp.2d 207, 211 (D.D.C.2006). Thus, a plaintiff, who bears the burden in this matter, must establish that the agency received the FOIA request. In his verified complaint, Tunchez attests that he submitted a FOIA request to the FBI's office in Brownsville, Texas, and sought assistance from the DOJ's FOIA/PA Referral Unit in obtaining a response. Compl. ¶¶ IV.C.1-3 & Exs. K, L, M. The Hardy Declaration attests that the FBI has no record of ever receiving these requests. Hardy Decl. ¶ 27. Tunchez has not provided evidence-such as a return receipt for mail or a letter of acknowledgment-to show that the FBI ever actually received the Brownsville requests. Without such evidence to overcome the FBI's sworn statement that it has no record of receiving the Brownsville requests, Tunchez's FOIA claim arising from the Brownsville requests must fail. Ning Ye, 624 F.Supp.2d at 123-24.

An agency is entitled to summary judgment in a FOIA suit once it demonstrates that no material facts are in dispute and that it conducted a search of records in its custody or control, Kissinger, 445 U.S. at 150-51, 100 S.Ct. 960, that was reasonably calculated to uncover all relevant information, Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984), which either has been released to the requestor or is exempt from disclosure, Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 833 (D.C.Cir.2001). To show that its search “us[ed] 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); see also Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 27 (D.C.Cir.1998), the agency may submit affidavits or declarations that explain in reasonable detail and in a nonconclusory fashion the scope and method of the search, Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982). In the absence of contrary evidence,...