UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA
F RANCISCO SALDANA, ) ) P laintif f, ) ) v. ) Civil Action No. 08-1963 (JD B) ) F EDERAL BUREAU OF P RISONS, ) et al., ) ) Defendan ts. )

MEMORAN DUM OP INION AND ORDER Plaintiff Fra

ncisco Saldana

filed a pro se complaint under the Fr eedom of Information Act (“ FOIA”) , 5 U.S.C. § 552, ag ainst the Fe dera l Bure au of Prisons (“ BO P”), the Executive Offic e for the United States Attorney s (“EO USA”), the United States Marsha ls Service (“U SMS ”), a

nd the Fe dera l Bure au of I nvestig ation (“F BI ”), e ach of which is a c omponent of the United States Depa

rtment of Just ice ( “DOJ”). Ea ch def endant c omponent has filed a dispositi ve motion, to which the plaintiff has filed oppositions. In addition, Saldana has move d for a n order 1 requiringthe B OP to provide additional information and a copy of mail log s. The motions filed by the B OP and the EOU SA will be gr anted, a nd Saldana’ s motion for an orde r direc ting the BO P to provide copies of ma il logs will be denie d. Ruling on the motions filed by the USMS and the F BI

will be defe rre d, and the USMS and the F BI will be require d to submitsupplemental decla rations.

Although Salda

na fa iled to file three of the oppositions, he serve d them on the adve rse 1 parties, who in turn, f

iled them on the Court’s docke t.BACK GR OUND

Saldana is cur

rently a fe dera l prisoner, having be en sente nced in 1996 to ser ve life plus 15 y ear s in prison after

convictions for dr

ugtraff ickingand we apons violations. Throug h FOIA reque sts dating ba ck to 2004 direc ted to various off ices, he has soug ht information relating to his investigation, prosecution, and de fense , including summar ies of spec ific conve rsations he ha d with a fe dera l ag ent bef

ore he was a

rre sted and c onversations and visits he had w ith that ag ent and other persons while in c ustody befor e beingsentenc ed. I. USMS In August 2004, Saldana addr essed a FOIA re quest to the USMS Office of Gene ral Counsel, seeking“all re cords, doc uments, and information y ou have in your files pe rtainingto me or mentioningmy

name,” and spec ifically

reque sting c opies of docume nts showing the dates, time and names of

the marsha ls who had custody of him or wer e assig ned to his case , and copie s of re cords showingthe dates a nd times of his departur es and r eturns to the F eder al Dete ntion Center ( “F DC”) in Miami, Florida . USMS Mot . to Dismiss or for Summ. J . (“U SMS Mot.”), Dec laration of Wi lliam E. Bordle y (Mar . 26, 2009) (“ Bor dley Dec l.”) Ex. A. Wi thout providing any rationale in support, Saldana also re quested a fee waiver

or re duction, but stated that if the waiver was de nied “I

here by ag ree to pay

the fe es for

sear ch and duplication while retainingmy rig ht to appeal your denia l of fee waiver .” Id. His reque st was assig ned No. 2004USMS7629. Id. Ex . B. The USMS maintains a Prisoner Proce ssing a nd Population Manag ement/Prisoner Trac king Sy stem (“PPM/P TS”) and a Warrant Information Ne twork (“ WI N”) , which conta in the ag ency ’s re cords r elated to the a pprehe nsion of fug itives, the rec eipt and proc essingof fe dera l

-2-detainee s, and the tra nsportation, maintenanc e and c ustody of fe dera l prisoners fr om the time of their ar rest or r emand until the prisoner is committ ed to the Attorne y Gene ral for

service of sentenc e. B ordley

Dec l. ¶¶ 16-17. O nce a

prisoner is either

committed for ser

vice of sentenc e or
remove d to another district, that prisone r’s file is c losed and tra nsfer red to a Fe dera l Records Center ( “F RC”) for stora g e. Id. ¶¶ 19- 21. Saldana’ s PP M/PTS and WI N re cords ha d been transfe rre d to the FRC. Id. ¶ 19. Althoug h the USMS requested r etrieva l of Saldana’ s file, staff at the F RC could not locate the file. Id. ¶ 22. The r ecor d shows that the USMS never communicated this information to S aldana , but mentioned it only in the ag ency

decla ration filed with its di spositive moti on. A sea rch of the PPM/ PTS nonetheless located two doc uments perta ining to Saldana , which we re pr oduced to him. Id. ¶¶ 19, 23. The USMS also searche d the DOJ’s Cons olidated Asset Tra ckingSy stem (“CATS”) and located appr ox imately 498 pag es of potentially

responsive r ecor ds. Of the r esponsive re cords located, the USMS relea sed 100 pag es of re cords without cha

rg e, 48 of which had minimal reda ctions pursuant to FO I A Exempti ons 2 and 7(C), 5 U .S.C. §§ 552(b)(2) & (7)( C). Id. ¶ 6 & Ex . E. The USMS denied Saldana ’s re quest for a fee waiver , informed him that copy ing the rema inder of r ecor ds for re lease to him would incur a n estimated fe e of $40, a

nd stated that fur

ther proc essingdepende d on his ag ree ment to pay the fe es. Id. Ex . E. I t also sugg ested that if Saldana wanted to r efor

mulate his reque st to reduc e costs, he should c ontact the a uthor of the USMS letter. Id. Saldana did not agree to pay the $40 copy

ing f ee. B ut soon after

rec eivingthe USMS’s response , Saldana did under take to “r efor

mulate” his re quest by

expanding it to include copies of a ll written repor ts made by

any U.S. marshal, other

ag ents assig ned to work sec urity

conce rningUnited States of Amer ica v. F ranc isco Saldana, c ase No.: 95-605-CR-Ne sbitt, specifically repor ts filed by U.S. marshal Corre al, . . . -3-[and] copies of a ll written notes conce rninghis [ Correa l’s] contacts with”

[Assi stant United States Attorney (“AUSA”)] Ally son Fritz and J onathal L oo [si c], and other f

eder al/state ag ents. Id. Ex . F a

t 1-2. The USMS treate d this reformulate d reque st as a new one and a ssigne d it No. 2005USMS8415. Id. Ex . G. The U SMS then informed Salda na that a se arc h for the r ecor ds identified in No. 2005USMS8415 failed to locate responsive r ecor ds, and that he ha d 60 day s to appea l this determination. Id. This response did not mention Saldana’ s PP M/PTS and WI N file that had not bee n located by the staff at the F RC. In three subsequent letter s Saldana submitted additional reque sts, framingthem as par t of his init ial 2004 reque st. See id. Ex s. H, I , J . The USMS assigne d No. 2007USMS10808 to t hese three new r equests, and inf ormed Saldana

that a supplementa l searc h had not locate d any responsive doc uments, that it had no additional documents per taining to his cr iminal prosecution, and that he ha d 60 day s to appea l this determination. Id. Ex . K. It also informed Saldana that most of the 400 pag es re lated to his 2004 reque st that had bee n located but not re lease d wer e seized asset re cords. Id. This response a lso ga ve no additional information reg ardingthe missing file at the FRC. Saldana a ppeale d to the Offic e of Information and Priva cy (“O I P”), which a ffirme d the USMS’s response. Id. Ex . M (deny ing a s moot his “appeal f

rom USMS’s failure to re spond”). Twice there afte r Saldana

attempted to expand the scope of No. 2007USMS10808. Id. Ex s. N, O. The fir st such corr espondenc e wa s not directed to, a nd did not reac h, the USMS office that handles F OIA re quests. The sec ond reque st sought re cords that a re not maintaine d by

the USMS, and the USMS di rec ted Saldana to submit his request else wher e.

-4-The USMS has moved for dismiss al or summary

judgme nt on the g round that Saldana has not exhausted his administrative remedie s. I t maintains that beca use Saldana

did not pay

the require d $40 copying f

ee r elated to the 400 pa g es of r esponsive docume nts not release d to him, he did not exhaust his admini strative re medies and is ther efor e not entitled to judicial revie w. Reply at 14. In the alter

native, the USMS argues that its searc h was a dequate and it has re lease d all non-exempt information to which Saldana is entitled. Id. at 7-8. Saldana contends that he is entitled to a fe e wa iver, Opp’ n to USMS Mot. at 20-21, a nd that beca

use he r efor

mulated his reque st, he is not subject to paying the proce ssing f ees, id. at 17-18. He further argues that the
sear ches the USMS conducted we re not a dequate , as they did not include an intervie w of De puty Correa l or a sea

rch of his “internal or

external offic e,” a

nd beca use the file store d at the F RC was not located a

nd revie wed f

or re sponsive documents. Id. at 7. Saldana doe s not raise a ny challeng es with respe ct to the USMS’s invocation of FO I A Exempti ons 2 and 7(C). II. F BI In J anuar y 2005, Saldana wr ote to FB I headqua rters ( “F BIHQ”) askingfor “ all rec ords, documents and infor

mation [ illegible] in y our files pe rtainingto me or mentioningmy name,” and additionally

mentioning spe cific r ecor ds and categ ories of infor mation he was se eking . FB I Mot. for Summ. J . (“F BI

Mot.”), De clar ation of David M. Hardy (Mar . 26, 2009) (“ Har dy Dec l.”) Ex. A. The F BI

identified the re quest as No. 1014622- 000, id. Ex . D, and se arc hed for
rec ords indexed to Saldana’s name in its FBI HQ’s a utomated index to i ts Central Recor ds Sy stem (“CRS”). Id. ¶¶ 30- 35. That sea rch ide ntified potentially

responsive material, whic h was “unava ilable and ha s been pla ced on ‘ locate.’ ” Id. Ex . E. (The Court understands “ unavailable ” to mean that the f

ile could not be found at the time. The Court does not know, and the Har dy
-5-Dec laration does not revea l, the signific ance of a f ile being“plac ed on ‘loc ate.’ ”) I n J anuar y 2006, Saldana se nt another F OIA re quest to FB I HQ, this one identifying the case number for his criminal prose cution and re iteratinghis request for some of the spe cific infor mation mentioned in his request the pr ior y ear . Id. Ex . F. Af ter re ceivingno response despite makinginterim inquiries, Saldana f

iled an appe al, which wa s denied a s moot because there had bee n no adver se deter mination. See id. Ex s. G, H, & I
. Saldana se nt two more inquiries about No. 1014622. See id. Ex s. J & K . In response , the FB Iopened a

new r equest, No. 1080531- 000, see id. Ex . L , appar ently based on Salda

na’s J anuar y 2006 reque st, which specif ically soug ht rec ords of stateme nts made to a c erta in named FB Iag ent on Octobe r 11, 1995, and c opies of all 302’s filed by that ag ent for which Saldana w as 2 the source of informa

tion, see id . Ex . F. A se arc h of the main files in FB I HQ’s CRS did not 3 locate a ny responsive r ecor ds. See id. Ex . M. The F BI ’s re sponse to Saldana did not acknow ledg e or pr ovide any additional information re g ardingthe file that wa s “plac ed on ‘locate’” more than two year s ear lier. See id. Ex s. E & M. Salda na’s a ppeal f rom this deter mination was unsucce ssful. Id. Ex . R. In the meantime, Saldana direc ted a F OIA re quest to the FB I ’s Miami Field Of fice framed as a

n add-on to No. 1080531- 000, one of Salda na’s e arlier

reque sts directed to F BI HQ. The substanc e of Salda

na’s Miami re quest was f or “a copy of the 302 filed by

Ag ent [] on April of 1996.” Id. Ex . S. He also re quested a copy of the thre e-w ay , three -par ty telephone

This is a ref

ere nce to F D-302, a

form used by

the FB Ito memorialize an interview. 2 “Main files” in FB Inomenclatur e ar e those files ide ntified by the subject of the ir 3 content. I f the file is a

bout a per son, it is i dentified by the per son’s name. H ardy Dec l. ¶ 31. -6-conver sation betwee n Saldana, his ex-wife, a nd the ag ent. Id. This reque st to the Miami Field Offic e wa s assig ned No. 1104474- 000, id. Ex . T, and a sear ch of the CRS index i n the Miami Field Of fice identified no re sponsive rec ords, id. Ex . U. Saldana a ppeale d, id. Ex . V, and the OI P affirme d the FB I ’s deter mination, id. Ex . X. Saldana f iled this lawsuit in November 2008, promptingthe FB Ito conduct anothe r
sear ch of inde x es to the F BI HQ and Miami Field Off ice CRS, and to searc h for the f irst time in its Electronic Surveillanc e sy stem (“EL SUR”). Id. ¶ 41. These additional sear ches loc ated responsive f

iles only in the Miami Field Off

ice. Id. The Ha

rdy Dec laration does not indicate that these sea

rche s of the F BI HQ files identifie d the file that ha d been “ place d on ‘locate’” More importantly , it does not ex plain why a file that was identified in a se arc h of the F BI HQ index to the CRS i n 2005 was not also identified in e ach subse quent sea rch of the FB I HQ index to the CRS . After

the re sponsive rec ords from the Miami Field Off ice we re ide ntified and re viewed, 55 pag es we re r elea sed in full or in part to Saldana
. Id. ¶ 42 & Ex . Z . The only information reda cted wa s withheld pursuant to FO I A Exempti ons 6 and 7(C), 5 U.S.C. §§ 552(b)( 6) & (7)( C). Id. ¶ 42. The F BI has moved for

summary judgme nt. See Reply

at 2, 5-7. Saldana

asser ts that the FB I ’s sea rche s were inadequate. Opp’n to F BI Mot. at 4-11. Specific ally , he maintains that they
wer e inade quate be cause the FB I did not interview a c erta in named F BI ag ent about the documents re quested, or se arc h his “internal or external offic e,” or

the offic es of a

cer tain named ATF ag ent (who, in a

ny case , was not mentioned in the F OIA re quests), id. at 6, and f ailed to
sear ch its “Tickler ” sy stem, id. at 7. Saldana doe s not raise a ny specific challeng e re g ardingthe

-7-FB I HQ CRS file that was “plac ed on loca te.” Nor does he c halleng e the leg itimacy of the F BI ’s use of F OIA Exempti ons 6 and 7(C) to withhold cer tain information. Id. at 12-13. III. BOP In a F OIA re quest direc ted to the B OP’s Southeast Reg ional Offic e date d J anuar y 1, 2006, Saldana a sked for

“copie s of the existi nglog e ntries maintained by the [FDC], Mi ami, FL for Oc tober 11, 1995 through May 6, 1996 . . . .” See Compl. App. A. After c orre spondence to resolve a n initial confusion, the BO P notified Saldana that proc eedingwith his request, identified as No. 06-2709, w ould incur an e stimated sear ch fe e of $392, a nd that Saldana would have to either a g ree to pay

the fe e, modify

his request to mee t a lower fee , or settle for

the first two fr ee hours of sea

rching
. SeeBO P Mot. t o Dismiss or for Summ. J . (“B OP Mot.”), Dec laration of Christine Gree ne (“ Gre ene D ecl.” ) Att. 3. The B OP’s letter, dated Marc h 16, 2006, further informed Saldana

that if he wa s not satisfied with this determination he could appe al within 60 day s. Id. By

letter dated May

22, 2007, and expressly

ref ere ncingNo. 06-2709, Saldana repe ated his re quest for visitor log s from the Miami FD C, and expanded his reque st to include telephone, visitor, and spe cial housingunit logs, which he had not pre viously reque sted. Moreove r, he a lso stated that he wa s “re questing all rec ords, documents, a nd information you have in your files pe rtainingto me or mentioning my name.” Compl. App. D at 4-5. The B OP has no re cord of

rec eivingthis corre spondence . Gre ene D ecl.¶ 10. Saldana a lleg es that he a lso submit ted a F OIA re quest dated January 30, 2007 to the BO P’s Southeast Regiona l Office . Compl. App. D at 1. This request, whic h does not ref ere nce No. 06-2709 a

nd appea rs unre lated to the subjec t matter of No. 06- 2709, seeks only “the pa rty or ag ency to place the separ ation order betwee n my self and my

co-de fenda

nts” in his criminal -8-prosec ution. Id. The B OP has no rec ord of r ece iving this reque st. Gree ne De cl. ¶ 9. In a letter

dated August 22, 2007, Saldana appe aled the B OP’s lack of response to his J anuar

y 2007 reque st about the sepa

ration orde r. Compl. App. E. Then, in a letter dated De cembe r 4, 2007, and containingno ref

ere nce to No.06- 2709, Saldana wr ote to “add thr ee a dditional requests to my J anuar y 30, 2007 reque st filed with y our ag ency .” The additional three reque sts sought
rec ording s of telephone conver sations, and did not appea r re lated to his J anuar

y 2007 reque st. Compl. App. F at 2-3. The BO P did rece ive this Dece mber 2007 letter , assig ned the r equest No. 2008-2363, a

nd on J anuar

y 9, 2008, responde d to Saldana that it did not create transc ripts of telephone c onversations and that the audio re cording s of the re quested tele phone conve rsations had alr eady

been de stroy ed. See Compl. App. F at 4. In a letter dated Septembe r 24, 2007, addr essed to the B OP’s FDC in Miami, Saldana posed two questions, one a sking a pproxi mately

how longit takes to proce ss an inmate fr om the time the United States Marsha l relinquishes custody until the inmate is back in his assigne d unit, and the other

askingwhether

the inmate has a cce ss to a telephone during this per iod. See Compl. App. F. at 1. This letter reque sted information, but not in the form of e x isting ag ency rec ords. See id. The B OP has no rec ord of this letter. The B OP has moved to dismiss S aldana ’s ac tion ag ainst it because Saldana ne ither reduc ed the sc ope of his January 2006 reque st nor paid, or a g ree d to pay , the associated sea rch fee , and ther efor e has not e x hausted his administrative re medies. Reply at 1-2. Saldana , char acte rizing his multipl e re quests as one F OIA re quest and four amendments ther eto, Compl. ¶¶ 8- 13, argues that he w as not obligated to pay the estimated proc essingfee s beca use he ref ormulated his re quest, and that the B OP did not provide responses a s require d by law. Opp’ n -9-to BOP Mot. at 7. He a lso argues that the B OP should not be allowed now to cla im that it di d

not rec eive some of

his requests, bec ause e ven if the B OP did not rece ive them in the first instance, the y

wer e appe nded to an a

ppeal he filed. Id. at 15-16. IV. EOUSA Saldana a ddresse d a F OIA re quest dated January 4, 2006, to the EOUSA, see king “ the date the disc overy

order was provide d to [ his attorney ],” and “c opies of all 302’s pr ovided by [a
cer tain named] FB Iag ent . . . in this case, c oncer ning my self.” E OUSA’s Mot. to Dismiss or for Summ. J . (“EO USA Mot.”), De clar ation of John F. Boseke r (Ma r. 25, 2009) ( “B oseker

Dec l.”) Ex . B. This re quest was a ssigne d No. 06-73. B osecke r De cl. Ex. C . Four months later, Saldana submitt ed an a dditional request see king “ copies of a ny corr espondenc e” se nt from United States Penitentiary

Allenwood, Whitedeer , Pennsylvania betwe en August 1, 1996 and August 31, 1999, to AUSA Fr itz
. Id. Ex . D. This reque st was assig ned No. 06- 1303. Id. Ex . E. By letter dated Fe bruar y 27, 2007, and re fer encingboth Nos. 06-73 and 06- 1303, the EOUSA infor med Saldana that it had expended two fre e hours of sear ch time, that it had locate d 32 box es of r ecor ds, and that sear chingthe 32 boxes would incur an estimated se arc h fee of $3584, a sum he must pay befor e the EO USA would continue proc essinghis requests. Id . Ex . F. The letter a lso sugg ested that he could r efor

mulate his reque st or identify some amount he would pa y for a partial sea

rch. Id. Finally , the letter state d that the re quest would be c onsidered c losed if the EOU SA did not
rec eive a response from Saldana

within 30 day s. Id. Saldana se nt at least two additional letters which he c hara cter izes as narrow ing or modifying his re quests. Id. Ex . Lat 1-4. Saldana’ s 4
Both of the letters that we re r ece ived by the EOUSA we re misdated by one y ear ; the 4 rema inder do not appe ar to have bee n rec eived by the EOUSA at a time proxi mate to the date they bear
. See Bose cker

Dec l. Ex . L
. -10-letters re formulated his re quest by identifying — f

or some re quested re cords only — a subset of box es amongthe 32 he wa nted to be sea

rche d. Be cause he nar

rowe d the scope of the sea rch w ith respe ct to only

some rec ords, pra ctically speaking , he did not narr ow it at all beca use all boxes would have to be sear ched f or the other

rec ords he r equeste d. Fur thermore , his letters soug ht additional information not mentioned in the prior r equest. Id. at 1-4 (L etters r ece ived April 9, 2007 and Apr il 25 2007) (identifying boxes for se arc hing pr ior reque sted materia l, and adding reque sts for a summary

of a w itness’s testimony , copies of a ll plea offe rs made, c opies of “eve ry thing” perta ining to the disqualification of Saldana’s de fense counsel, a nd copies of a

n amende d jury

instruction). The EO USA did not respond furthe r. In August 2007, Saldana appea led the F ebrua

ry 2007 response from the EO USA, id . Ex . I , and by letter dated Marc h 17, 2008, the DOJ’s OI P affirme d the EOUSA’s r esponse, id. at ¶¶ 15- 19 & E x . K. After Saldana f

iled this lawsuit, the EOUSA discovere d that — in connec tion with a prior reque st not at issue here — Salda na had a g ree d to, but did not, pay a $140 sea

rch f ee. See id. ¶¶ 6- 7 & E x . A. The EO USA now asser ts that his prior failure to pa y , alone, is ca

use for dismiss al of this complaint. Id. ¶ 21. Additionally , the EOUSA a rgues that Saldana ’s claim
war rants dismissal on the g round that he did not pay the estimated $3584 in sea rch f ees in this
case and ther efor e did not exhaust his admini strative re medies. See Reply at 12-13. Saldana maintains that beca

use he submitted “r efor

mulated” r equests, he should not be de emed to have failed to e x haust his administrative reme dies. Opp’n to EOU SA Mot. at 5-8. The EOU SA counter s that Saldana’s r efor mulations did notnarr ow the scope of his reque st. EOUSA Mot. at 6 (citingBose ker D ecl. ¶

21.)

-11-AP P LICABLE LEGAL STANDARDS

A cour t may dismiss a complaint or a

ny part of it for

failure to state a c laim upon which relief may be g rante d. See Fe d. R. Civ. P . 12(b)( 6). A F OIA plaintiff’s f ailure to e x haust administrative re medies bef ore f iling a c ivil action is properly treated as a

failure to state a c laim upon which re lief may

be g rante d. See H

idalgo v. FBI, 344 F.3d 1256, 1260 ( D.C. Cir. 2003). On a motion under Rule 12( b)(6) for f ailure to e x haust wher e “matters outside the plea dings a re prese nted to and not excluded by the cour t, the motion shall be treated a s one for summary judgme nt under Rule 56.” F ed. R. Civ. P. 12(d). Summ ary judgme nt may

be g rante d only

wher e the “plea dings, the discovery and disclosure materia ls on file, and any aff idavits show that there is no ge nuine issue as to any materia l fac t and that the movant is entitled to judgme nt as a matter of law.” Fe d. R. Civ. P . 56(c) (2). A material fa ct is one that is capa ble of a ffe ctingthe outcome of the litigation. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A g enuine issue is one wher e the “ evidenc e is such that a r easona ble jury could re turn a ve rdict for the nonmoving party ,” id., as opposed to evide nce that “is so one-sided that one party must prevail as a

matter of law,” id. at 252. A cour

t consideringa motion for summary judgme nt must draw all “justifiable infere nces” from the e vidence in favor of the nonmovant. Id. at 255. The nonmovingparty , howeve r, must do more than mer ely establish some “meta

phy sical doubt;” rather, the nonmova nt must come forw ard w ith “specific fac ts” demonstratinga g enuine issue. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Congr ess ena cted the F OIA “to open up the working s of g overnme nt to public scrutiny throug h the disclosure of

g overnme nt rec ords.” Stern v. FBI , 737 F.2d 84, 88 ( D.C. Cir. 1984) (interna l quotations omi tted). The A ct’s policy of broa d disclosure of g overnme nt documents
-12-was intende d to “ensure an informe d citizenry , vital to the functioning of a de mocratic society .”

FBI v . Abramson, 456 U.S. 615, 621 (1982). Ac cording ly , the FO I A re quires an a g ency to “make rec ords promptly

available to any

person.” 5 U.S.C. § 552 (a)(3) (A). It does not “oblig ate ag encie s to crea

te or re tain documents; it only obligates them to provide ac cess to those whic h it in fac t has cre ated a

nd reta ined.” Kissi nger v. Re porters Comm. for Freedom of the Pre ss, 445 U.S. 136, 152 (1980). Nor does it require an ag ency to answer

questions, conduct re sear ch or provide opinions. See Coolman v . IRS, 1999 WL675319, *7 (W.D.Mo. J uly 12, 1999) (f

inding that an ag ency

is not required by

the FO I A to answe r questions, conduc t resea rch, c reate re cords, or provide le g al opinions); accord Barbe r v. Office of Information and Privac y, Civil Action No. 02-1748 (JDB), slip. op. at 4 (D .D.C. Sept. 4, 2003) (statingthat the FO I A def endant “ had no duty to conduct re sear ch or to a nswer que stions”). Thus, “[t] o the extent [ a] plaintiff' s FOIA reque sts are que stions or requests for explanations of policies or proc edure s, these ar e not prope r FOIA re quests.” Anderson v. D ep’t of Justice , 518 F. Supp. 2d 1, 10 (D.D .C. 2007). In a F OIA suit, an ag ency is entitled to summ ary

judgme nt once it demonstrate s that no materia l fac ts are in dispute a nd that it conducted a

sear ch of r ecor ds in its custody or control, Kissi nger, 445 U.S. at 150-51, that wa s rea sonably calc ulated to uncove r all re levant information, W eisberg v. D ep’t of Justice , 745 F.2d 1476, 1485 ( D.C. Cir. 1984), which either has bee n rele ased to the r equestor or is ex empt from disclosure , Students Against Genocide v . Dep’ t of State, 257 F.3d 828, 833 ( D.C. Cir. 2001). To show that its searc h “us[ed] m ethods which c an be
rea sonably

expected to produc e the infor mation reque sted,” Oglesby v . Dep’ t of the Army, 920 F.2d 57, 68 ( D.C. Cir. 1990); see also Campbell v. D ep’t of Justice , 164 F.3d 20, 27 ( D.C. Cir. 1998), the a g ency

may submit affidavits or dec larations that ex plain in rea sonable de tail and in a

-13-nonconclusory fashion the sc ope and me thod of the sea rch, Perry v . Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In the abse nce of contra ry evidenc e, such a ffidavits or de clar ations are sufficie nt to demonstrate an a g ency ’s compliance with the FOIA. Id. at 127. A sea rch ne ed not be exhaustive, Miller v. De p’t of State, 779 F.2d 1378, 1383 ( 8th Cir. 1985), and the a dequac y of
a sea rch is not deter

mined by its results, but by

the method of the se arc h itself, W eisberg, 745 F.2d at 1485. An ag ency ’s fa ilure to find a pa rticular doc ument does not nec essar ily indicate that its searc h was inade quate. W ilbur v. CIA, 355 F.3d 675, 678 ( D.C. Cir. 2004); Nation Magazine v. United States Customs Serv., 71 F.3d 885, 892 n.7 ( D.C. Cir. 1995). As a matter

of jurisprudential doc trine, a F OIA re quester c annot maintain a c ivil action unless he ca

n demonstrate that he has fir st ex hausted his administrative re medies. Hidalgo, 344 F.3d at 1259 (“[T]he FOIA’s administrative sc heme f avors tre atingfailure to exhaust as a bar to judicial revie w.”) . In other wor ds, exhaustion of administ rative r emedies is a “ mandatory prer equisite” to filingsuit. W ilbur, 355 F.3d at 676. “Exhaustion does not occur until the require d fee s are paid or a n appea l is taken from the r efusa l to waive fe es.” Oglesby, 920 F.2d a t 66. “Reg ardle ss of whethe r the plaintiff f iled suit before or af

ter re ceiving

a re quest for pa

y ment, the plaintiff has a

n obligation to pay

for the r easona

ble copy ing a nd sear ch fe es asse ssed by the defe ndant.” Trueblood v. Dep’ t of the Treasury , 943 F. Supp. 64, 68 (D.D .C. 1996). Even whe n a fe e asse ssment comes “a fter the filing of [t he] lawsuit, [ a] plaintiff is obligated none theless to pay the fe e or to see k from the a g ency either a fee waiver

or a f ee r eduction.” Maydak

v. De p’t of Justice, 254 F. Supp. 2d 23, 50 (D.D .C. 2003). Fur thermore , DOJ reg ulations provide that wher e a F OIA plaintiff has pr eviously promised, but failed, to pa y the re lated proc essingfee s, the DOJ component ag ency

may ref use to proce ss any

new r equest until the arr ear ag e is paid.
-14-Where a reque ster has pr eviously

failed to pa

y a prope rly

char g ed F OIA fe e to any component or a g ency

within 30 day s of the date of billing, a component may require the re quester to pa y the full amount due, plus any applicable interest, and to make an a dvance pay

ment of the full amount of a ny anticipated f

ee, be fore the component beg ins to process a ne w re quest or continues to proc ess a pe nding reque st from that reque ster. 28 C.F.R. § 16.11(i)(3)
. A FO I A re quester ma

y be elig ible for a

waiver or re duction of fe es assoc iated with the reque st “if disclosure of

the information is in the public interest be cause it is l ikely to contribute signific antly

to public understanding

of the ope rations or a ctivities of the g overnme nt and is not primarily in the commerc ial interest of the reque ster.” 5 U .S.C. § 552(a)(4) (A)( iii); see also 28 C.F.R. § 16.11(k) ( DOJ’s regulations gove rningfee waiver s/reductions). The reque ster bea rs the burden of demonstratingthat he and his re quest qualify
. Physician’s Comm. for Re sponsible Medic ine v. De

p’t of Health &Human Svc s., 480 F. Supp. 2d 119, 123 (D.D .C. 2007). “[C] onclusory

statements that the disclosure of the re quested doc uments will serve the public interest ar e not suffic ient.” Judicial W atch, Inc . v. De

p't of Justice, 185 F. Supp. 2d 54, 60 (D.D.C. 2002). Acourt’s de novo revie w of a n ag ency ’s dec ision on a fee waiver is lim ited to the re cord be fore the ag ency . 5 U.S.C. § 552(a)(4) (A)( vii); Physician’s Comm., 480 F. Supp. 2d at 121 (c iting Nat’l Tr eas. Employe es Union v. G riffi n, 811 F.2d 644, 648 ( D.C. Cir. 1987)). ANALYSIS Saldana disputes the va

rious ag ency

deter minations reg ardingfee waiver , exhaustion and the ade quacy

of the sea

rche s. He doe s not dispute the exempti ons asserte d by the USMS and the FB I , which produc ed re sponsive rec ords with information withheld on the basis of F OIA

-15-Ex emptions 2, 6 and 7(C), and a cursor y examination of the claimed e x emptions leads to the conclusion that they

have be en appr opriately

and leg itimately

asser ted. Saldana r equeste d a fe e wa iver or r eduction fr om the USMS and the FB I . His two USMS reque sts in 2004 and his 2005 request to the F BI provided no supportingrationale
. See Bor dley Dec l., Ex . A, C; Hardy

Dec l. Ex . A. His May

2007 reque st to the USMS asser ted only that “[t] hese doc uments will also benefit the g ener al public conc erningthe ag ency policy in investigating c orruption in the U.S. Marsha ls office , and the r equest for waiver of fe es is appropr iate in this matter,” id. Ex . F at 2 (spelling a ltered) . The USMS affir matively denied his fee waiver

application, and the FB Inever addre ssed it. I t is not clear f rom the re cord that Saldana took administrative a ppeals with re spect to his waiver reque sts to either ag ency . In light of the re cord f

acts, howe ver, Salda

na’s c onclusory

statements do not entitle him to a fee waiver , and the USMS’s dec ision to deny him a waiver

will thus be affirme d. I. Exhau stion The re cord he re shows that Saldana did not pay $140 in searc h fee s that he had a g ree d to pay in connec tion with a previous FO I A re quest to the EOUSA. B oseker Dec l. ¶¶ 6-7 & Ex . A. There fore , pursuant to DOJ regulations, the EOUSA is entitled to refuse to do any more wor

k on any reque sts from Saldana until he has pa id the $140 in arre ars. 28 C.F .R. § 16.11(i)(3). Fur thermore , the EOUSA is also entitled to demand f ull pay ment in advanc e of pr ocessingany other re quests from Saldana
. Id. Saldana a rgues that bec ause he ref

ormulated his re quest, the ag ency ’s fa ilure to respond is illeg al. This argument is frivolous. The re cord pla inly shows that Saldana’ s ref

ormulations only

expanded, and did not re duce, the scope of the sea rch r equire d for the documents he was re questing . There is no ge nuine issue as to whe ther Saldana narr owed his -16-sear ch re quest or paid the r equire d fee . There fore , the EOUSA ha s shown that Saldana did not

exhaust his admini strative re medies, and summar y judgme nt will be gr anted on the c laims ag ainst the EOUSA. In response to Saldana’s January 2006 reque st to the BOP, the B OP informed Saldana that further

sear chingwould incur a

n estimated fe e of $392, a nd that he could do one of three things — a g ree to pay , “modify” his “re quest to meet a lowe r fe e,” or settle for the first two fre e hours of sea

rching . Gre ene D ecl. Att. 3. It is undisput ed that Saldana did not either agree to settle for the fre e sea

rch time or to pa

y the sea rch f ee. And Saldana’ s arg

ument that he ac cepte d the B OP’s invitation to m odify his request is to no avail. It is not a modified reque st alone that makes a differ ence , but only

a modified re quest that reduc es the re lated sea rch f ee. H ere , too, the
rec ord shows unequivoc ally that Saldana ne ver se nt the BO P a modified reque st that would have reduc ed the sc ope of the sear ch and its re lated fe e, as e ach modific ation made a dditional requests without withdrawingany prior re quests. There fore , it is i mmaterial that the B OP did not rece ive some of the r equests Saldana sent; conseque ntly , Saldana’ s motion for discovery on the issue of sent and re ceive d mail will be denied as f utile. Be cause there is no ge nuine issue that Saldana did not ex haust his administrative reme dies, the B OP is entitl ed to summary judgme nt on the claims arisingfrom Saldana ’s J anuar y 2006 reque st. The B OP treate d Saldana’ s Dec ember 2007 reque st for re cording s of telephone
conver sations as a ne w re quest. Had the BO P treated the reque st as a modification of the ea rlier reque st, it would nothave be en oblig ated to re spond, as the De cembe r 2007 re quest would have
mere ly expanded the scope of the January 2006 reque st. The B OP responded to the D ece mber 2007 reque st by

telling did Saldana

that it did not have the re cords he soug ht, which had be en

-17-automatically purg ed. Id. Att. 9. Saldana did not appea l this response, and ther efor e he is not entitled to maintain any

judicial revie w of it. The c orre spondence Saldana se nt to the BOP’s F DC in Miami, in which he posed two questions, is not a proper F OIA re quest bec ause it aske d questions instead of see king e x isting ag ency rec ords. Had the BO P rece ived it, the FOIA would not have r equire d BO P to provide any
answe rs. The B OP is therefor e entitled to judg ment on this unex hausted re quest, as we ll. The USMS argues that Saldana ’s re fusal to pay the $40 fe e for

copying 400 r ecor ds from its CATS file oper ates to bar all of his claims as unexhausted. The U SMS cannot pr evail on this argument. The USMS did not rely on any promise from Saldana

to pay the $40 in duplicating costs, and Saldana

is free to decline a

n offe r to copy

rec ords he doe s not want. The r ecor d 5 evidenc e shows that Saldana does not want the 400 CATS re cords. B ordley Dec l. Ex . F ( “Your ag ency provided me w ith some documents. The doc uments that Ireque sted doesn’t [sic]
corr espond to the docume nts that I am trying to obtain. I

will refor mulate my

reque st . . . .”). Whil e his “no thank you” stanc e as to the 400 CATS re cords ba rs any challeng e re g arding

them, it does not deprive him of his rig ht to challeng e the a dequac y of the sea

rch that produce d them or to assert c halleng es with respe ct to the two other r equests he dir ecte d to the USMS. 6

Saldana initially

promised to pay

duplicatingcosts, but the rec ord shows that the USMS 5 did not rely

on that promise, and e x pressly stated that “[b]efore w e proc eed w ith y our re quest, must have your agree ment to pay all fee s that may

be cha rg ed to you for satisfying your re quest.” Bor dley Dec l. Ex . E. Her e ag ain, Saldana’ s attempt to turn his later re quests into modifications of his 6 orig inal reque st is point less artifice , beca use the modifications only expanded the scope of his orig inal reque st. The USMS did nottreat the so-ca lled modifications as such, a nd nor will the Court. -18-II. Searches

The USMS opened thre e re quests for Saldana , Nos. 2004USMS7629, 2005USM S8415, and 2007USMS10808. The FB Ialso opene d three reque sts for Saldana, N os. 1014622-000, 1080531-000 and 1104474- 000. In response to No. 1014622-000, the F BI admitted to Saldana that it could not find a file that it should have re tained. It never ag ain re fer

red to that file. I

n response to Nos. 1080531-000 and 1104474- 000, the FB I repor ted to Saldana that it did not locate a ny responsive doc uments. Only afte r Saldana

filed this lawsuit, prompting the F BI to
sear ch ag ain, did the FB Irepor t that it had located r esponsive docume nts — in it s Miami Field Offic e — and pr oduce some of them. The U SMS was e ven less straightforwa rd with Saldana. It did not report its missi ngFRC file until it filed its dispositi ve motion in this suit. Saldana c halleng es the a dequac y of the F BI

and USMS searc hes. Most of the ar g uments he ra ises are meritless. As an initial matter, ther e is no rea son to think t hat some of the documents Saldana

seeks e ver e x isted, or if they ever did, that they

do now. For

example, he presumes that a deputy

marshal made handwr itten notes of an a lleg ed conve rsation with a judg e that alleg edly

occur red a pproxi mately

ten y ear s befor e he ma de his FO I A re quest. A cha lleng e to an ag ency ’s sea

rch be cause it did not l ocate documents that may never have be en cr eate d in the first instance, or

may never have be en re tained as a g ency rec ords, ca

nnot succe ed. An a g ency ’s failure to find a par

ticular doc ument does not nec essar ily indicate that its sear ch wa s inadequate. W ilbur v. CIA, 355 F.3d 675, 678 ( D.C. Cir. 2004); Nation Magazine v. United States Customs Serv., 71 F.3d 885, 892 n.7 ( D.C. Cir. 1995). In any case , an ag ency

is not required to c onduct interviews, to sea

rch in plac es whe re the reque sted documents ar e not likely to be found, or to
sear ch exhaustively
. See M iller, 779 F.2d at 1383. Saldana’s r efe renc es to sear chingDeputy

-19-Correa l’s, or the F BI ag ent’s “inter

nal and e x terna l office s” is not only unclea r, but ig nores the
rea lity of the situation. Neither ag ency , howeve r, has a dequate ly addre ssed the matter

of its missi ngfiles. The Court cannot disce rn whe n the USMS determined that the F RC file was missing and whether it has conduc ted any

subsequent sea

rche s for that file. T he cor responde nce be tween the USMS and Saldana ne ver disclose d that a docume nted file c ould not be located, a nd the B ordley

Dec laration does not reve al when the USMS l ear ned that the F RC st aff

could not locate Salda

na’s f ile. Given the nature of the infor

mation Saldana appe ars to be se eking , it seems likely that responsive documents, if ther e ar e any , would be stored in the F RC file. On the basis of the r ecor d as it now stands, the Court cannot c onclude that the U SMS has conduc ted a r easona ble sea rch a s require d by the law. As to the F BI ’s sea rch, while it reported the missing FB I HQ file to Saldana in response to his first request, it has fa iled to apprise e ither Saldana or the Court of the c urre nt status of that file or a

ny eff orts undertaken subseque nt to 2005 to locate that file. Without t hat information, the Court is not in a position t o conclude that the FB I ’s sea rch w as a r easona

ble one in response to the r equests made . Acc ording ly , ruling s on the motions filed by the FB Iand the USMS wil l be def

err ed, and e ach a g ency

will be require d to submita supplementa l declar ation that provides a mor e complete and deta iled explanation of the sear ches it under took with respec t to eac h of Saldana ’s FO I A re quests and the r esults of those sea rche s. CONCLUSION For the re asons stated a

bove, the B OP and the EOU SA’s motions are g rante d and ea ch is
awa rded summar

y judgme nt on the claims ag ainst it. S aldana ’s motion for discover y is denied. Ruling on the motions filed by the FB Iand USMS will be defer red until afte r ea ch has -20-supplemented its decla ration to provide a dditional information about the sea rche s undertake n with respec t to each of

the three reque sts that each a g ency opened in r esponse to Saldana ’s inquiries. Acc ording ly , it is hereby ORDERED that the B OP’s motion [ 13] i s GRANTED; it is FURTHE R ORDERED that the EOUSA’s motion [27] is GRANTED; it is FURTHE R ORDERED that the plaintiff’s motion for discove ry is DENI ED; it is FURTHE R ORDERED that ruling on the motions filed by the FB I[28] and the USMS [ 29] i s DEFE RRED; and it is FURTHE R ORDERED that the FB Iand USMS are e ach dir ecte d to file on or bef ore May 28, 2010, a supplementa l declar ation that provides a mor e complete and deta iled explanation of the sear ches it under took in response to Saldana ’s re quests, with particular attention to the missing files that may contain re sponsive information.

/s/ J OHN D. B ATES Date: Apr il 27, 2010 United States District J udg e

-21-