### UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA
ANTHONY G. WHITE, SR., ) ) 

### Plaintiff, ) ) 

### v. ) Civil Action No. 11-2045 (RJL) ) 

### DEPARTMENT OFJUSTICE, ) ) 

### DefundanL )**•/L-~** 

### MEMORANDUM OPINION July+' 2013 [# 19] Plaintiff, proceedingprose, challenges the Department ofJustice's ("DOJ's") response to his request underthe Freedom oflnformationAct ("FOIA"), 5 U.S.C. § 552, for records pertainingto him. On September 26, 2012, the Court denied defendant's Motion to Dismiss or for Summary Judgment and directed itto supplementthe record with regard to the search for responsive records and the claimed exemptions. White v. DOJ, 893 F. Supp. 2d 24 (D.D.C. 2012). Defendantrenewed its motion for summary judgment, Def.'sRenewed Mot. for Summ. J., Dec. 6, 2012 [Dkt. # 19], and plaintiff opposed the motion. Pl.'sMem. in Response to Def.'sRenewed Mot. for Smnm. J. ("Pl.'s Opp'n"), Jan. 7, 2013 [Dkt. # 20]; Pl.'s Mem. in Response to the Court's Order of Jan. 9, 2013 ("Pl.'s Supp. Opp'n"), Jan. 15,2013 [Dkt. # 23]. Upon consideration ofthe parties' submissions and the entire record, the Court GRANTS defendant's Motion for Summary Judgment.



### 1BACKGROUND By letter dated January 16, 2010 and received by DOJ's Mail Referral Unit, plaintiffrequested "all records pertaining to [himself]." White, 893 F. Supp. 2d at 26. The request was forwarded to the Criminal Division for processing. In response to the Criminal Division's request for additional information, plaintiffcompleted a form indicatingthat he was requesting searches ofthe following sections: Appellate, Asset Forfeiture and Money Laundering, Fraud, Gang, Narcotic and Dangerous Drug (NDDS), Electronic Surveillance Unit, Organized Crime and Racketeering, Executive Office for Organized Crime DrugEnforcement Task Force (OCDETF), and National Gang Targeting, Enforcement & Coordination Center (GangTECC). !d. Defendant's "search ofthe appropriate indices ofCriminal Division records" located no responsive records. !d. While plaintiffs request was pending, OCDETF became an independent DOJ component, and that "portion of[plaintiffs] request" was referred to OCDETF for processing and a direct response to plaintiff. !d. OCDETF, in turn, referred three documents totaling 23 pages to DOJ'sExecutive Office for United States Attorneys ("EOUSA"). EOUSA withheld the pages in full under FOIA exemptions 2, 6, 7(C), 7(D), 7(E), and 7(F), see 5U.S.C. § 552(b), and Privacy Act exemption U)(2). !d. STANDARD OF REVIEW Summaryjudgmentmust be granted when the movant demonstrates "thatthere is

no genuine dispute as to any material fact and the movant is entitled tojudgment as a

2matter oflaw." Fed. R. Civ. P. 56(a). "When assessing a motion for summaryjudgment underFOIA, the Court shall determine the matterde novo." Judicial Watch, Inc. v. US. Dep 't of HomelandSec., 598 F. Supp. 2d 93, 95 (D.D.C. 2009) (citing 5U.S.C. § 552(a)(4)(B)). In aFOIA action, the Court may award summaryjudgmentbased solely on information provided in affidavits or declarations ifthey "describethe documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence ofagency bad faith." MilitaryAuditProjectv. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations "are accorded apresumption ofgood faith, which cannotbe rebutted by purely speculative claims about the existence and discoverability ofother documents." SafeCardServs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation and internal quotation marks omitted). To rebut the presumption, aplaintiff "mustpoint to evidence sufficient to put the Agency's good faith into doubt." Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981). "Ultimately, an agency's justification for invoking aFOIA exemption is sufficient ifit appears logical or plausible[,]" is adequately supported, and is not contradicted by the record. Larson v. Dep 't of State, 565 F.3d 857, 862, 864-65 (D.C. Cir. 2009) (citation and internal quotation marks omitted). The agency to which a FOIArequest is submitted is required to "make a good faith effort to conduct a search for the requested records, using methods which can 3reasonably be expected to produce the information requested." Int 'l Trade Overseas, Inc.

v. Agency forInt'lDev., 688 F. Supp. 33, 36 (D.D.C. 1988) (quotingMarrera v. DOJ, 622 F. Supp. 51, 54 (D.D.C. 1985)) (other citations omitted). "In determining the adequacy ofa [FOIA] search, the Court is guided by principles ofreasonableness." 

### !d. (citing Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). Because the agency is the possessor ofthe records and is responsible for conducting the search, the Court may rely on "[a] reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that 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) (citations omitted). "Oncethe agency has shown that its search

was reasonable, the burden is on [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) (citingMiller v. U.S. Dep 't of State, 779 F.2d 1378, 1383 (8th Cir. 1985)). Summaryjudgment is inappropriate "ifa review ofthe record raises substantial doubt" about the adequacy ofthe search. Valencia-Lucena, 180 F.3d at 326 (citing Founding Church ofScientologyv. Nat'lSec. Agency, 610 F.2d 824, 837 (D.C. Cir. 1979)). However, the mere fact that aparticularrecord was not found does not render the search inadequate. Boydv. Crim. Div. ofU.S. DOJ, 475 F.3d 381,390-91 (D.C. Cir. 2007) (citingIturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)) (other citation omitted). "The adequacy ofaFOIA search is generally determined not by the fruits ofthe search, but by the appropriateness ofthe methods used to carry out the 4search." Santana v. DOJ, 828 F. Supp. 2d 204, 209 (D.D.C. 2011) (quotingIturralde, 315 F.3d at 315) (internal quotation marks and other citation omitted). 

### ANALYSIS Plaintiffcontests two elements ofdefendant'sresponse to his FOIA request. First, he suspects that more responsive material should have been discovered in response to his FOIArequest. See Pl.'s Opp'n at 2-3. Second, he contests thejustification for withholding the 23 pages from the EOUSAreferral. 

### !d. at 3-4. Unfortunately, for plaintiff, defendant has shown that it satisfied its search obligation and properly withheld the 23 pages. As such, I must grant defendant's renewed motion for summaryjudgment. 

### I. Defendant's Search for Records To demonstrate the adequacy ofits search, defendantproffers the second Declaration ofDavidLuczynski, Dec. 6, 2012 [Dkt. 

### # 19-3], Attorney Advisor for EOUSA, and the Declaration ofJohn E. Cunningham III, Dec. 5, 2012 [Dkt. 

### # 19-4], Trial Attorney in DOJ's Criminal Division. Both declarants state that they work in their respective FOIAunits and have acquired personal knowledge abouttheprocessing of plaintiffsrequest duringthe performance oftheir official duties. See Luczynski Decl. ,-r,-r 1-3; Cunningham Decl. ,-r,-r 1-4. "A declarant in aFOIA case satisfies the personal knowledge requirement in Rule 56[(c)(4)] ifin his declaration, he attests to his personal knowledge ofthe procedures used in handling aFOIArequest and his familiarity with the documents in question." Barnardv. Dep'tof HomelandSec., 531 F. Supp. 2d 131, 138 (D.D.C. 2008) (citations, internal quotation marks, and alterations omitted); see SafeCard



### 5Servs., Inc., 926 F.2d at 1201 (determining thatthe person in charge ofa search is "the most appropriate person to provide a comprehensive affidavit") (citation omitted). Cunningham states that, on May 14, 2010, the Criminal Division's FOIA/PA Unit searchedthe sectionsplaintiffhad identified using "the term 'Anthony Gerald White.' " CunninghamDecl.**~** 13. Each section "wouldhave [searched its] ownAutomated Case Tracking System ("ACTS"),"which "is a comprehensive electronic database that stores records [as far back as 1978] related to investigations conducted by attorneys throughout [the Criminal Division]

...." Jd. In addition, the Criminal Division "electronically searched CRM-001, the Central Criminal Division Index File, which is a system ofrecords consisting ofindices ofnames and associated records related to subjects/target ofinvestigations or defendants in prosecutions involving [the Criminal Division]." Id.**~** 14. This search utilized four variations ofplaintiff's name and covered "records related to the time period of'1980- Present,' and

... 'State/Offense: MD/Conspiracy to Distribute & Possess. Cocaine Base; Poss. ofFirearm & Poss. ofAmmunition.'" Jd. The foregoing searches failed to locate responsive records in the Criminal Division's control.**!d.~~** 13, 14. The Court is satisfied from Cunningham's description ofthe filing systems searched and the search methods employedthatthe Criminal Division conducted a search reasonably calculated to locate responsive records. Since the documents EOUSA processed were "sent as a referral from OCDETF," Luczynski Decl.**~** 13, EOUSA did not perform a search and had no obligation to do so in the absence ofa request made

6directly to it. 1 See 5 U.S.C. § 552(a)(3)(A) (agency's disclosure obligations triggered "upon any request for records which (i) reasonably describes such records and (ii) is made in accordance withpublished rules

..."); 28 C.P.R. § 16.3 ("In most cases, [a] FOIArequest [for DOJrecords] shouldbe sent to a component's central FOIA office."). II. Defendant's Claimed Exemptions Upon review ofthe claimed exemptions, the Court finds that defendant was entitled to withhold from plaintiffthe 23 pages from the EOUSA referral. Initially, EOUSAwithheld the 23 referred pages in full initially underFOIA exemptions 2, 6, 7(C), 7(D), 7(E), and 7(F). Luczynski Decl.**~** 5 & Ex. B. In this litigation, EOUSA relies upon only exemptions 5 and 7. Luczynski Decl.**~** 14; see Def.'sMem. ofP. & A in Supp. ofDef.'s RenewedMot. for Summ. J., Dec. 6, 2012 [Dkt. # 19-2] at 6 n.1 ("EOUSA is abandoning its use ofExemption (b)(2).").

1 In his opposition, plaintiffdeclares that he has "personal knowledge that grandjury testimony existed from his criminal case, and waspart ofthe government's files

...." Suppl. Aff. ofAnthony G. White, Sr. [Dkt. 

### # 23]**~** 7. The existence ofsuch records does not raise doubt about the reasonableness ofthe Criminal Division's search, since any grandjuryrecords are more likely maintained by EOUSA as the government's prosecuting arm. See, e.g., Adionserv. DOJ, 811 F. Supp. 2d 284 (D.D.C. 2011) (approving EOUSA's withholding ofgrandjuryrecords under FOIA exemption 3); Dipietro v. EOUSA, 357 F. Supp. 2d 177 (D.D.C. 2004) (same). Tobe clear, EOUSA is not a party defendant inthis action butratherprovides material evidence with regard to OCDETF'sreferral ofresponsive records. See Sussman v. US. Marshals Serv., 494 F.3d 1106, 1118 (D.C. Cir. 2007) (an agency must act upon receiving an initial request but "may acquit itselfthrough a referral, provided the referral does not lead to improper withholding undertheMcGehee test") (applyingMcGehee v. CIA, 697 F.2d 1095, 1110 (D.C. Cir. 1983)); 28 C.P.R.§ 16.4(c) (authorizing a DOJ componentto, inter alia, "refer" a record to "the componentbest able to determine whetherto disclose it

.... Ordinarily, the component ... that originated a record will be presumedto be best able to determine whetherto disclose it."). Hence, the outcome ofthis case has no bearing on any request plaintiffmight submitto EOUSA. 7FOIA Exemption 5protects from disclosure inter-agency or intra-agency letters or memoranda "which would not be available by law to a party ... in litigation with the agency." 5 U.S.C. § 552(b)(5). To qualify for this exemption, a document "must fall within the ambit ofaprivilege against discovery underjudicial standards that would govern litigation againstthe agency that holds it." Dep 't of the Interior v. Klamath Water Users ProtectiveAss 'n, 532 U.S. 1, 8 (2001). Courts have incorporated civil discovery privileges into this exemption, such as attorney work-product, attorney-client privilege, and "deliberativeprocess"privilege. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148-49 (1975); Coastal States Gas Corp. v. DOE, 617 F.2d 854, 866 (D.C. Cir. 1980). EOUSA asserts the attorney work-product privilege as the basis for withholding the referred pages in full. Luczynski DecI.**~~** 18-19. The pages are described as "OCDETF Forms" comprising three documents. !d., Ex. A (Referral Letter). The attorney work-productprivilegeprotects records prepared by or for an attorney in anticipation oflitigation. See Williams & Connolly v. SEC, 662 F.3d 1240, 1243 (D.C. Cir. 2011) (quoting Fed. R. Civ. P. 26(b)(3)(A)) (citing cases). "The OCDETF program is a multi-agency organization"that "supports the work of

... federal agents[,] prosecutors[,] and

... state and local law enforcement officers whoparticipate in OCDETF cases." Luczinsky Decl.**~** 19; Cunningham Decl., Ex. 3 (Descriptive List of Criminal Division Sections at 4). Luczinsky describes the OCDETF forms as "documents

... assembled by, or at the direction of, an attorney ... made in the course of

an investigation and in anticipation ofone or more prosecutions." Luczinsky Decl.**~** 18. The attorney uses the forms to "track and describe the status ofinvestigations and collect 8statistics on investigation." Id.**~** 19. Luczynski states that anyone completing the forms "is reading that [they] are 'LawEnforcement Sensitive.' " Id.**~** 18. In addition, the

cover sheet to the forms contains language that "alsorestricts [their] distribution." 

### ld. EOUSA properly withheld in full the 23 pages offorms under exemption 5 as attorney work-product. See Martin v. DOJ, 488 F.3d 446, 455-56 (D. C. Cir. 2007) (quotingJudicial Watch, Inc., 432 F.3d at 371 ("Ifa document is fully protected as [attorney] workproduct, then segregability is not required.")); Dipietro, 357 F. Supp. 2d at 184 (approving EOUSA's exemption 5 attorney work-productjustification). Hence, the Court need not address whetherthe pages were properly withheld also under exemption 7. See Martin, 488 F.3d at 456 (declining to address the propriety of withholding the same information under exemptions 6 and 7(C) where "the requested document is attorney work-product that would not have been subjectto routine disclosure"). CONCLUSION For the foregoing reasons, the Court GRANTS defendant's renewed Motion for Summary Judgment. A separate Order accompanies the Memorandum Opinion

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RICHARD 

### f._L_EbN United States DistrictJudge

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