NELSON R. SANTANA, 

Plaintiff, 

v. 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

Civil Action No. 09-300 (RJL) 

DEPARTMENT OF JUSTICE, 

) 

) 

) 

) 

) 

) 

) 

) 

Defendant. ) 

MEMORANDUM ORDER 

The Department of Justice, the defendant in this action brought under the Freedom of 

Information Act, 5 U.S.c. § 552, ("FOIA"), has filed a motion to dismiss or in the alternative for 

summary judgment. The pro se plaintiff opposes the motion. Because the agency declaration 

does not provide the information necessary to allow this Court to conduct the required de novo 

determination of this 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 that the second 

FOIA search, No. 07-159, was opened "to address that part of plaintiffs request seeking 

nonpublic records for named third-party Nickerson, such as telephone billing records." Def.'s 

Mot. to Dismiss or for Summ. J. ("Def.' s Mot. "), Stmt.of Material Facts as to Which There is No 

Genuine Issue ("SMUF") ~ 2; see also id., Def.'s Mot., Declaration of John F. Boseker (July 15, 

2009) ("Bosecker Decl.") ~ 11. The defendant then "categorically denied access" to information 

involving Nickerson, "absent express authorization and consent of the third-party." Bosecker 
Decl. ~ 12 & Ex. E. However, the defendant subsequently responded to the plaintiff regarding 

the other search, No. 07-158, and stated "that there are no records for your specific requests" 

regarding 

Nickerson's telephone billing records/pen register for cell phone 

from 2/1/01-5/20/01 

Digital surveillance images of 5/9/01 

Tapes and DVD of surveillance 

Call chart for March, April and May 2001. 

~ 9 and Ex. D. These four requested categories of information all expressly or impliedly seek 

nonpublic records for named third-party Nickerson. The agency declaration does not specifically 

identify what information was the subject of No. 07-158 and what information was the subject of 

No. 07-159. Furthermore, the declaration does not contain a description of any search in 

response to the plaintiff's FOIA request. 

"When assessing a motion for summary judgment under FOIA, the Court shall determine 

the matter de novo." Judicial Watch. Inc. v. Dep 'f of State, 650 F. Supp. 2d 28,32 (O.D.C. 

2009). 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 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, Students Against Genocide v. Dep 'f of State, 257 F.3d 828, 833 (D.C. Cir. 

2001). 

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On this record, the Court cannot determine what parts of the plaintiffs FOIA request 

were allocated to each of the two searches opened by the defendant, and therefore, cannot assess 

the agency's responses in light of the subject matter to which the responses relate. Furthermore, 

the Court cannot determine either the scope and method of the search conducted in relation to 

No. 07-158, or whether a search was conducted at all in response to No. 07-159. Without a 

declaration that explains in reasonable detail and in a non-conclusory fashion the scope and 

method of the agency's search, Perry v, Block, 684 F.2d 121, 126 (D.C. Cir. 1982), including 

identifying which systems of records were searched and the search terms used to conduct the 

search, the Court cannot assess the reasonableness of any search. In short, the Court cannot 

begin to conduct its de novo review on the basis of the record now before it. Accordingly, it is 

hereby. 

ORDERED that the defendant's motion to dismiss or for summary judgment is DENIED 

without prejudice, and the defendant is directed to submit a renewed dispositive motion within 

30 days of the date of this order. 

t,G~ RICHARD. ON 

Date: United States District Judge 

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