### UNITED STATES DISTRICT COURT FORTHE DISTRICT OFCOLUMBIA
LONNIELAMONT GRIFFIN, ) ) 

### Plaintiff, ) ) 

### v. ) Civil Action No. 09-1517 (RJL) ) 

### EXECUTIVE OFFICE FORUNITED STATES) ATTORNEYS et

### at., ) ) 

### Defendants. ) 

# S'r MEMORANDUM OPINION March 

# ""-SI ,2011 In this action broughtprose underthe Freedom oflnformationAct ("FOIA"), 5 U.S.C. § 552, plaintiffchallenges the responses ofthe Executive Office for United States Attorneys ("EOUSA"), the United States Marshals Service ("USMS") and the United States Citizenship and Immigration Services ("USCIS") to his FOIArequests. 1 By Order ofJuly 26, 2010 [Dkt. No. 31], the Court denied the USMS' motion for summaryjudgment and directed it to supplement the record with regard to its invocation ofFOIA exemption 7(C). See accompanying Memorandum Opinion ("Mem. Op.") [Dkt. No. 30] at 5-6. The claims against all other defendants to this action have beenresolved in defendants' favor. See id. (granting the USCIS' motion for summaryjudgment); OrderofDecember 13,2010 (granting EOUSA's motion for summaryjudgment as conceded). In what remains ofthis case, the USMS has renewed its motionto dismiss or for summaryjudgment [Dkt. No. 36], which plaintiffhas opposed [Dkt. No. 39]. Based onthe

1 In the amended complaint filed on September 8,2009,plaintiffproperly names as defendants the Department ofJustice ("DOJ"), ofwhich the EOUSA and the USMS are components, and the Department ofHomeland Security, ofwhichthe USCIS is a component.parties' submissions and the relevantparts ofthe record, the Court will grant the USMS' motion for summaryjudgment.2 

### BACKGROUND The facts relevant to the pending motion are as follows. On May 7, 2008, plaintiff requested records in his name, "records relating to the Fugitive Arrest Warrant(s) issued for an individual under the name: Diego Alonzo de Pablos-Soto," and "records relating to the transfer
..

. ofan individual under the name: Antonio Palacio Calle." He stated that "[i]t appears that these two names relate to one individual." USMS' First Mot. to Dismiss or, in the Alternative, for Summ. J., Declaration ofWilliam E. Bordley ("Bordley Decl.") [Dkt. # 22-1], Ex. A. On July 9, 2008, the USMS released to plaintiff 19 of20 pages pertaining to him and informed plaintiffthat
one page was referred to the agency from which it originated "for disclosure determination and direct response to you[.]" !d., Ex. C. (The Bureau ofPrisons released the referred document in its entirety in September 2008. 

### Id., Ex. D.) The USMS further informed plaintiffthat it had redacted third-party identifying information from the released pages pursuantto FOIA exemption 7(C), 

### see 5 U.S.c. § 552(b), and was denying his request for third-party records under exemption 7(C) in the absence of"awritten authorized release" from the subjects ofthose records. Bordley Decl., Ex. C. In response to plaintiff's appeal ofthe denial ofhis request for third-party records, DOl's Office ofInformation and Privacy ("OIP") affirmed the USMS' decision by letter of October 30,2008. !d., Ex. F.3

2 Also pending is the USMS' motionto strike plaintiff's surreply or for leave to respond to it. Because the Court will considerplaintiff's surreply and defendant's response thereto, it will deny the motion to strike as moot. 3 

### In what is likely an oversight, the OIP states in the determination letterthat it is "affirming the FBI's action
...." Itis clear from the reference numbers and the description of the appeal that the OIP was affirming the USMS' action. 2In response to this Court's ruling, the USMS searched its "electronic records for records responsive to plaintiffsrequest regarding Pablos-Soto AKA Calle using the variations ofthe
names as searchterms." Supplemental Declaration ofWilliamE. Bordley ("Supp. Bordley Decl.") [Dkt. No. 36-4]**~** 4.4 

### It located six responsive pages "consisting ofCalle's 'USM-129 Individual Custody/Detention Report'." Id.**~** 7. Inquiries to USMS offices in the District of Massachusetts, the Eastern District ofMichigan and the SouthernDistrict ofGeorgia, identified
as the most likely places to containresponsive records, located no otherresponsive records. See id. at**~~** 7-9. The USMS released the six form pages with all informationpertaining to Calle redacted. See id., Ex. B (Vaughn index and redacted pages).5 DISCUSSION Summaryjudgmentis appropriate when "the movant shows that there is no genuine dispute as to any material fact and [that it] is entitled tojudgment as a matter oflaw." FED. R.

4 Plaintiffargues that Bordley's supplemental declaration fails to satisfy the "personal knowledge" requirement ofFed. R. Civ. P. 56(c)(4). See Pl.'s Supp. Mem. ofP. & A. in Opp'n to Def. USMS' Mot. to Dismiss or, inthe Alternative, for Summ. J. at 10-12. "Adeclarant in a FOIA case satisfies the personal knowledge requirement in Rule 56(e) [now (c)] ifinhis declaration, he attests to his personal knowledge ofthe procedures used in handling a FOIA request and his familiarity with the documents in question." Barnardv. Dep 'fof HomelandSec., 531 F. Supp. 2d 131,138 (D.D.C. 2008) (citations and internal alterations and quotation marks omitted). See SafeCardServs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir.1991)(citing Meeropol v. Meese, 790 F.2d 942,951 (D.C. Cir. 1986)) (determiningthatthe person in charge ofa search is "the most appropriate person to provide a comprehensive affidavit"). Bordley is the USMS' Associate General Counsel and FOrA/Privacy Act Officer, "experienced with the procedures for responding to [FOrA] requests ... for information maintained in the records and files ofthe USMS." Supp. Bordley Decl.**~** 1. The subsequent search and release ofrecords were "conducted"by his staffat his direction. Id.**~** 4; see Second Suppl. Decl. ofWilliamE. Bordley [Dkt. No. 42-1]**~** 2 (stating thathe "personally oversawthe search for records inresponse to Plaintiffs FOrA request ...."). The Courtfinds that Boardley is competentto testify to the matters at hand.

5 Because the generic information, 

### i.e., section headings and standard language, was not redacted from the released forms, the Vaughn index incorrectly describes the withholdings as "in full." 3Cry. P. 56(a). "[T]he substantive lawwill identify which facts are material. Only disputes over facts that might affect the outcome ofthe suit under the governing law will properlypreclude the entry ofsummaryjudgment. Factual disputes that are irrelevant orunnecessary will not be counted." Anderson v. LibertyLobby, Inc., 477 U.S. 242, 248 (1986). In a FOIA action, the Court may award summaryjudgmentto an agency solely onthe basis ofinformationprovided in declarations that describe "thejustifications for nondisclosure with reasonably specific detail
... and are not controverted by either contrary evidence inthe record norby evidence ofagency bad faith." MilitaryAuditProject v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Because agency declarations are accorded "apresumption ofgood faith," Long v. Us. Dep 't of Justice, 450 F. Supp.2d 42,54 (D.D.C. 2006), it is incumbent uponthe plaintiffto "pointto evidence sufficient to put the Agency's good faith into doubt." GroundSaucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981). 1. Exemption 7(C). The USMS argues that it properly withheld records pertaining to "Diego Alonzo de Pablos-Soto and/orAntonio Palacio Calle" ("Calle") underexemption 7(C). See Mem. ofP. & A. in Support ofDef. USMS' Renewed Mot. to Dismiss or, in the Alternative, for Summ. J. at 9- 16. FOIA exemption 7(C) protects from disclosure information compiled for lawenforcement purposes to the extentthat disclosure "couldreasonably be expected to constitute an unwarranted invasion ofpersonal privacy." 5 U.S.c. § 552(b)(7)(C). The Court initially determined that plaintiffhad raised a genuine issue as to whetherthe requested records were compiled for law enforcementpurposes. See Mem. Op. at 5-6. In his supplemental declaration, Bordley states that Calle was placed inthe USMS' custody following his arrest by the Drug Enforcement Administration inthe District ofMassachusetts on June 12, 1989. Supp. Bordley Decl.**~** 10. He
4further states that the responsive records "were compiled in the course ofenforcement ofthe USMS responsibilities with respect to the housing, transportation and safekeeping offederal prisoners." Id. Given that the requested records would have been compiled to "assistthe USMS in carrying out its statutory law enforcement responsibilities related to the execution offederal arrest warrants[,] the investigation offugitives, [and] the [transport and maintenance] offederal prisoners from
...their arrest [to final disposition]," id.**~** 6, the Court finds the threshold law enforcement requirement ofexemption 7 satisfied. See Campbell v. 

# us. Dep'tof Justice, 164 F.3d 20,32 (D.C. Cir. 1998) ("Because the FBI specializes in law enforcement, its decision to invoke exemption 7 is entitled to deference.") (citation omitted); Jiminez v. FBI, 938 F. Supp. 21, 29 (D.D.C. 1996) (finding documents containing information "in connection with the receipt, processing, safekeeping, and transportation ofplaintiffwhile he was in the USMS's custody" satisfied exemption 7's threshold law enforcement purpose). Plaintiffhad not provided Calle's consent or authorization to release his records. Supp. Bordley Decl.**~** 12. Therefore, the USMS redacted all ofCalle's personal information from the released forms, asserting that the disclosure ofsuch information could subject him "to unwarrantedpublic attention, embarrassment, harassment, and annoyance ofbeing associated with a criminal law enforcement matter." Supp. Bordley Decl.**~** 10. In addition to names and other identifying information, the redacted personal information included the individual's custody status and history, arrest information and case dispositions. See Vaughn index. Forthe
reasons Bordley has stated, third-party information contained in law enforcement files is "categorically exempt" from disclosure under exemption 7(C) in the absence ofan overriding public interest in its disclosure. Nation Magazine, Washington Bureau v. UnitedStates Customs Service, 71 F.3d 885, 896 (D.C. Cir. 1995).


### 5In orderto demonstrate a public interest warranting disclosure ofthe otherwise protected information, plaintiffmust showthat the withheld information is necessary to "shed any light on the [unlawful] conduct ofany Government agency or official." UnitedStates Dep 't of Justice v. Reporters Comm.for Freedom of the Press, 489 U.S. 749, 772-73 (1989); accord SafeCard Services, Inc., v. SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991). "Where the privacy concerns addressed by [e]xemption 7(C) are present, ... [the requester] must showthat the public interest sought to be advanced is a significant one, an interest more specific than having the information for its own sake [and that]
...the information is likely to advance that interest." Nat 

### 'IArchives andRecordsAdmin. v. Favish, 541 U.S. 157, 172 (2004). In making such a showing, plaintiff must assert "morethan a bare suspicion" ofofficial misconduct. Id. at 174. He "mustproduce evidence that would warrant a beliefby a reasonable personthatthe alleged Government impropriety might have occurred." Id. Otherwise, the balancing requirement does not come into play. See id. at 175. Plaintiffasserts that "[t]hepublic has an interest in knowing what [] the USMS [was] up to when, absent a court order, [it] released Pablos Soto
... from USMS custody afterthe Federal district court explicitlyremanded him to USMS custody without bail." PI.'s Mem. ofP. & A. in Support ofPl.'s Mot. for Leave to Invoke Public Interest Exception [Dkt. No. 25] at 11. He also asserts that "thepublic has an interest in knowing howoften, and at who's [sic] discretion the USMS improperly releases illegal aliens, and whether the USMS coordinates such release with other Government agencies
...." Id. Finally, plaintiffasserts that "the sought after records are needed to confirm orrefute Plaintiffs evidence." !d. at 13. Plaintiffs unsubstantiated claim of official misconduct is belied by his acknowledgment that the USMS in October 1986 and January 1988 informed the "the Savannah district court ... that Pablos Soto was a fugitive from
6justice," id. at 8, and the public interest in disclosure "does not include helping an individual obtain information for his personal use." Oguaju v. Us., 288 F.3d 448,450 (D.C. Cir. 2002), vacatedandremandedon othergrounds, 541 U.S. 970 (2004), reinstated, 378 F.3d 1115 (D.C. Cir. 2004) (citation omitted). In the absence ofany evidence establishing a public interest in disclosure ofthethirdparty information, the Court has nothing to weigh against the substantial privacy interests at stake. Ittherefore finds that the USMS is entitled to summaryjudgment on its application of exemption 7(C) to the third-party's personal informationthat was redacted from the released forms. 2. Adequacy ofthe Search Plaintiffargues that the USMS' subsequent search for third-partyrecords was inadequate because it failed to include the Middle District ofGeorgia. PI.'s Supp. Mem. ofP. & A. in Opp'nto Def. USMS' Mot. to Dismiss or, in the Alternative, for Summ. 1. ("Pl.'s Supp. Mem.") [Dkt. No. 39] at 5-6. The agency to which a FOIA request is submitted is required "to make a good faith effort to conduct a search for the requested records, using methods which can reasonably be expectedto produce the information requested." Int'[ Trade Overseas, Inc. v. Agency for Intern. Dev., 688 F. Supp. 33, 36 (D.D.C. 1988) (quoting Marrera v. Dep'! of Justice, 622 F. Supp. 51,54 (D.D.C. 1985)) (other citations omitted). In determiningthe adequacy ofa FOIA search, the Court is guided by principles ofreasonableness. Id. (citing Weisberg v. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). Because the agency is the possessorofthe records and is responsible for conducting the search, the Court may rely on "[a] reasonably detailed affidavit, setting forth the searchterms and the type ofsearch performed, and averring
7that all files likely to contain responsive materials (ifsuch records exist) were searched." Valencia-Lucena v. UnitedStates Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (citing Oglesby v. UnitedStates Dep't of theArmy, 920 F.2d 57, 68 (D.C. Cir. 1990); Kowalczykv. Dep't of Justice, 73 F.3d 386,388 (D.C. Cir. 1996); Weisberg v. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). "Once the agency has shownthat its search was reasonable, the burden shifts to [the plaintiff) to rebut [the defendant's] evidence by a showing that the search was not conducted in good faith." Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citing Miller v. Us. Dep'( of State, 779 F.2d 1378, 1383 (8th Cir. 1985)). Summaryjudgmentis inappropriate "ifareview ofthe record raises substantial doubt" about the adequacy ofthe search. Valencia-Lucena, 180 F.3d at 326 (citing Founding Church of Scientology v. Nat 'ISecurity Agency, 610 F.2d 824,837 (D.C. Cir. 1979)). Plaintiffpoints to an order dated October 22, 1992, that purportedly was issued in a deportation proceeding in Oakdale, Louisiana. Pl.'sMot. for Leave to Submit Matters Outside the Pleadings, Ex. N (Order ofthe Immigration Judge) [Dkt. # 15-1]. But the document is not reliable because, among its many deficiencies, it is not authenticated and it fails to establishthe hand-written named respondent, "F-Palacio-Calle, Antonio," as the same individual who is the subject ofplaintiffs FOIA request. Furthermore, plaintiffcites this exhibit as "countervailing evidence that
... Pablos Soto was remanded to the custody ofthe USMS on September 27, 1985 in the Middle District ofGeorgia," PI.'s Supp. Mem. at 5, butthe exhibit contains no such information and Oakdale, Louisiana, is located in the Western District of Louisiana. Plaintiffs speculationthat records may be found in locations not searched fails to create a genuine dispute about the reasonableness ofthe USMS' search.


### 8Plaintiffrequested "records relating to the Fugitive Arrest Warrant(s) issued for an individual under the name: Diego Alonzo de Pablos-Soto" and "records relating to the transfer
..

. ofan individual under the name: Antonio Palacio Calle
.... [that] appear[ed]
... [to] relate to
one individual." Bordley Decl., Ex. A at 2. Using variations ofthose two names, the USMS searched the electronic indices ofits PrisonerProcessing and Population Management/Prisoner Tracking System 

### ("PPM/PTS") and Warrant Information Network ("WIN") and determined that "records regarding this individual would be located in the District ofMassachusetts and the Eastern District ofMichigan.,,6 Supp. Bordley Decl.**~** 7. Itlocated six responsive pages "consisting ofCalle's 'USM-129 Individual Custody/Detention Report'," but located no records for Pablos-Soto. !d. The USMS then contacted the FOIA liaisons in the District of Massachusetts and the Eastern District ofMichigan "to determine whetherthose Districts maintained any additional records for Pablos-SotoICalle." Id.**~** 8. Following searches in the foregoing districts "usingthe name and identifiers for Antonio Palacio Calle," and where available, the "accession number believed to correspond to the retirement ofrecords" to the Federal Records Center, it was determined that any records, "other than the electronic records, would have been destroyed in accordance with the ten year prescribed records retention period for USMS prisoner records." 7 Id.**~** 9 & Ex. A at 3 (72 Fed. Reg. 33521 6 "The USMS maintains an electronic index
... ofindividuals for whom federal warrants were issued and individuals who were in USMS custody in its 

### [PPM/PTS and WIN] systems of records." Supp. Bordley Decl.**~** 5. Those record systems "cover[]" the decentralized files maintained by each ofthe USMS's 94 district offices. Id.

7 Giventhat the requested records presumably would have been created in June 1989 when Calle was arrested, or at the latest in January 1991 when his consent to transfer form was filed in the Southern District ofGeorgia [Dkt. No. 15-1, Pl.'sEx. M] ,the USMS reasonably concluded after its search in 2010 that any responsive records were destroyed pursuantto the (continued
...) 9(June 18, 2007» ("Retention and Disposal"). In addition, utilizing the information plaintiffhad provided in the aforementioned public interest memorandum filed in this case, the USMS liaison in the Southern District ofGeorgia conducted a search but "failedto locate any records, electronic or paper, pertaining to Pablos-SotoICalle." Id.**~** 9. Bordley concludes that "[e]ach of the Districts' searches encompassed records that would reasonably contain responsive information." Id. Plaintiffsuggests that the USMS overlooked record systems, "including, but not limited to, 'JPATS,' USMS' Justice Prisoner and Alien Transportation System." Pl.'s Supp. Mem. at 12. Butthe JPATS records are included in the 

### PPM/PTS and WIN record systems that
were searched. Second Supp. Decl. ofWilliam E. Bordley [Dkt. No. 42-1]**~** 4. Based on the USMS's declarations, the Court finds that the USMS conducted searches reasonably calculated to locate responsive records. In the absence ofany contrary evidence or evidence ofbad faith, the Court concludes that the USMS is entitled to summaryjudgment onthe search question. CONCLUSION Forthe foregoing reasons, the Court finds that the record presents no genuine issue of material fact on the propriety ofthe USMS's invocation ofFOIA exemption 7(C) and the adequacy ofits search. Therefore, the USMS, having satisfied its disclosure obligations under the FOIA, is entitled tojudgmentas a matter oflaw. A separate, final order accompanies this Memorandum Opinion. 

# a\
!**//** 

# I JJ.L / RICHAR
.LEON United States District Judge

7 (
...continued) record retention schedule

- and could reasonably have reached the same conclusion had it conducted a search in 2008 when it first received plaintiffsFOIA request. 10