### NELSON R. 

### SANTANA, Plaintiff,


### v. UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA

Civil Action No. 09-300 (RJL) DEPARTMENT OFJUSTICE, ) ) ) ) ) ) ) ) ) 

### Defendant.
MEMORANDUM ORDER The Department ofJustice, the defendant inthis action brought underthe Freedom of Information Act, 5 U.S.c. § 552, ("FOIA"), has filed a motion to dismiss orin the alternative for summaryjudgment. Theprose plaintiffopposes the motion. Because the agency declaration does not provide the information necessary to allow this Court to conductthe required de novo determination ofthis dispute, see 5 U.S.C. § 552(a)(4)(B), the defendant's motion will be denied without prejudice, and the defendant will be instructed to renew its motion within 30 days. In response to the plaintiffs single FOIA request, the defendant opened two distinct FOIA searches identified as Nos. 07-158 and 07-159. The defendant explains thatthe second FOIA search, No. 07-159, was opened "to address that part ofplaintiffs request seeking nonpublic records for named third-partyNickerson, such as telephone billing records." Def.'s Mot. to Dismiss orfor Summ. J. ("Def.'s Mot."), Stmt.ofMaterial Facts as to Which There is No Genuine Issue ("SMUF")**~** 2; see also id., Def.'s Mot., Declaration ofJohn F. Boseker (July 15, 2009) ("Bosecker Decl.")**~** 11. The defendant then "categorically denied access" to information involvingNickerson, "absent express authorization and consent ofthe third-party." BoseckerDecl.**~** 12 & Ex. E. However, the defendant subsequently responded to the plaintiffregarding the other search, No. 07-158, and stated "thatthere are no records for your specific requests" regarding Nickerson's telephone billingrecords/pen register for cell phone from 2/1/01-5/20/01 Digital surveillance images of5/9/01 Tapes and DVD ofsurveillance Call chart for March, April and May 2001.**~** 9 and Ex. D. These four requested categories ofinformation all expressly or impliedly seek nonpublic records for named third-partyNickerson. The agency declaration does not specifically identify what information was the subject ofNo. 07-158 and what information was the subject of No. 07-159. Furthermore, the declaration does not contain a description ofany search in response to the plaintiff's FOIA request. "When assessing a motion for summaryjudgment under FOIA, the Court shall determine the matter de novo." Judicial Watch. Inc. v. Dep 'fof State, 650 F. Supp. 2d 28,32 (O.D.C. 2009). An agency is entitled to summaryjudgment in a FOIA suit once it demonstrates that no material facts are in dispute and that it conducted a search ofrecords in its custody or control, Kissinger v. Reporters Committeefor Freedom of the Press, 445 U.S. 136, 150-51 (1980), that
was reasonably calculated to uncover all requested information, Weisberg v. 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, StudentsAgainst Genocide v. Dep 'fof State, 257 F.3d 828, 833 (D.C. Cir. 2001).



### - 2 -Onthis record, the Court cannot determine what parts ofthe plaintiffsFOIA request
were allocated to each ofthe two searches opened by the defendant, and therefore, cannot assess the agency's responses in light ofthe subject matter to which the responses relate. Furthermore, the Court cannot determine eitherthe scope and method ofthe search conducted in relation to No. 07-158, or whether a search was conducted at all inresponse to No. 07-159. Without a declaration that explains in reasonable detail and in a non-conclusory fashion the scope and method ofthe agency's search, Perry v, Block, 684 F.2d 121, 126 (D.C. Cir. 1982), including identifying which systems ofrecords were searched and the search terms used to conduct the search, the Court cannot assess the reasonableness ofany search. In short, the Court cannot begin to conduct its de novo review onthe basis ofthe record now before it. Accordingly, it is hereby.ORDERED that the defendant's motionto dismiss or for summaryjudgmentis DENIED without prejudice, and the defendant is directed to submit arenewed dispositive motion within 30 days ofthe date ofthis order.

# t,G~ RICHARD. ON Date: United States District Judge

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