UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

ANTHONY G. WHITE, SR., ) 

) 

Plaintiff, ) 

) 

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

) 

DEPARTMENT OF JUSTICE, ) 

) 

DefundanL ) 

•/L-~ 

MEMORANDUM OPINION 

July+' 2013 [# 19] 

Plaintiff, proceeding prose, challenges the Department of Justice's ("DOJ's") 

response to his request under the Freedom oflnformation Act ("FOIA"), 5 U.S.C. § 552, 

for records pertaining to him. On September 26, 2012, the Court denied defendant's 

Motion to Dismiss or for Summary Judgment and directed it to supplement the 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). Defendant renewed its motion for summary 

judgment, Def.'s Renewed Mot. for Summ. J., Dec. 6, 2012 [Dkt. # 19], and plaintiff 

opposed the motion. Pl.'s Mem. in Response to Def.'s Renewed 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. 

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BACKGROUND 

By letter dated January 16, 2010 and received by DOJ's Mail Referral Unit, 

plaintiff requested "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, plaintiff completed a form 

indicating that he was requesting searches of the 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 Drug Enforcement Task Force (OCDETF), and National Gang 

Targeting, Enforcement & Coordination Center (GangTECC). !d. 

Defendant's "search ofthe appropriate indices of Criminal 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's Executive Office for United 

States Attorneys ("EO USA"). EOUSA withheld the pages in full under FOIA 

exemptions 2, 6, 7(C), 7(D), 7(E), and 7(F), see 5 U.S.C. § 552(b), and Privacy Act 

exemption U)(2). !d. 

STANDARD OF REVIEW 

Summary judgment must be granted when the movant demonstrates "that there is 

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

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matter oflaw." Fed. R. Civ. P. 56( a). "When assessing a motion for summary judgment 

under FOIA, the Court shall determine the matter de novo." Judicial Watch, Inc. v. US. 

Dep 't of Homeland Sec., 598 F. Supp. 2d 93, 95 (D.D.C. 2009) (citing 5 U.S.C. § 

552(a)( 4)(B)). 

In a FOIA action, the Court may award summary judgment based solely on 

information provided in affidavits or declarations if they "describe the 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 of agency bad 

faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such 

affidavits or declarations "are accorded a presumption of good faith, which cannot be 

rebutted by purely speculative claims about the existence and discoverability of other 

documents." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) 

(citation and internal quotation marks omitted). To rebut the presumption, a plaintiff 

"must point 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 a FOIA exemption is sufficient if it 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 FOIA request is submitted is required to "make a good 

faith effort to conduct a search for the requested records, using methods which can 

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reasonably be expected to produce the information requested." Int 'l Trade Overseas, Inc. 

v. Agency for Int'l Dev., 688 F. Supp. 33, 36 (D.D.C. 1988) (quoting Marrera v. DOJ, 

622 F. Supp. 51, 54 (D.D.C. 1985)) (other citations omitted). "In determining the 

adequacy of a [FOIA] search, the Court is guided by principles of reasonableness." !d. 

(citing Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). Because the agency is 

the possessor of the 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 (if such 

records exist) were searched." Valencia-Lucena v. United States Coast Guard, 180 F .3d 

321, 326 (D.C. Cir. 1999) (citations omitted). "Once the 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) (citing Miller v. U.S. Dep 't of State, 779 F.2d 1378, 1383 (8th Cir. 

1985)). 

Summary judgment is inappropriate "if a review of the record raises substantial 

doubt" about the adequacy of the search. Valencia-Lucena, 180 F .3d at 326 (citing 

Founding Church ofScientology v. Nat'l Sec. Agency, 610 F.2d 824, 837 (D.C. Cir. 

1979)). However, the mere fact that a particular record 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) (citing Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)) 

(other citation omitted). "The adequacy of a FOIA search is generally determined not by 

the fruits of the search, but by the appropriateness of the methods used to carry out the 

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search." Santana v. DOJ, 828 F. Supp. 2d 204, 209 (D.D.C. 2011) (quoting Iturralde, 

315 F.3d at 315) (internal quotation marks and other citation omitted). 

ANALYSIS 

Plaintiff contests two elements of defendant's response to his FOIA request. First, 

he suspects that more responsive material should have been discovered in response to his 

FOIA request. See Pl.'s Opp'n at 2-3. Second, he contests the justification for 

withholding the 23 pages from the EOUSA referral. !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 summary judgment. 

I. Defendant's Search for Records 

To demonstrate the adequacy of its search, defendant proffers the second 

Declaration ofDavid Luczynski, Dec. 6, 2012 [Dkt. # 19-3], Attorney Advisor for 

EOUSA, and the Declaration of John 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 FOIA units and have acquired personal knowledge about the processing of 

plaintiffs request during the performance of their official duties. See Luczynski Decl. ,-r,-r 

1-3; Cunningham Decl. ,-r,-r 1-4. "A declarant in a FOIA case satisfies the personal 

knowledge requirement in Rule 56[(c)(4)] if in his declaration, he attests to his personal 

knowledge of the procedures used in handling a FOIA request and his familiarity with the 

documents in question." Barnard v. Dep't of Homeland Sec., 531 F. Supp. 2d 131, 138 

(D.D.C. 2008) (citations, internal quotation marks, and alterations omitted); see SafeCard 

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Servs., Inc., 926 F .2d at 1201 (determining that the person in charge of a 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 

searched the sections plaintiff had identified using "the term 'Anthony Gerald White.' " 

Cunningham Decl. ~ 13. Each section "would have [searched its] own Automated 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-00 1, the Central 

Criminal Division Index File, which is a system of records consisting of indices of names 

and associated records related to subjects/target of investigations or defendants in 

prosecutions involving [the Criminal Division]." Id. ~ 14. This search utilized four 

variations of plaintiff'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. of Ammunition.'" 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 of the filing systems 

searched and the search methods employed that the 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 of a request made 

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directly 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 with published rules ... "); 28 C.P.R. § 16.3 ("In most cases, [a] 

FOIA request [for DOJ records] should be sent to a component's central FOIA office."). 

II. Defendant's Claimed Exemptions 

Upon review of the claimed exemptions, the Court finds that defendant was 

entitled to withhold from plaintiff the 23 pages from the EOUSA referral. Initially, 

EOUSA withheld the 23 referred pages in full initially under FOIA 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.'s Mem. ofP. & A 

in Supp. ofDef.'s Renewed Mot. 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, plaintiff declares that he has "personal knowledge that grand jury 

testimony existed from his criminal case, and was part of the government's files .... " 

Suppl. Aff. of Anthony G. White, Sr. [Dkt. # 23] ~ 7. The existence of such records does 

not raise doubt about the reasonableness of the Criminal Division's search, since any 

grand jury records are more likely maintained by EOUSA as the government's 

prosecuting arm. See, e.g., Adionser v. DOJ, 811 F. Supp. 2d 284 (D.D.C. 2011) 

(approving EOUSA's withholding of grand jury records under FOIA exemption 3); 

Dipietro v. EOUSA, 357 F. Supp. 2d 177 (D.D.C. 2004) (same). To be clear, EOUSA is 

not a party defendant in this action but rather provides material evidence with regard to 

OCDETF's referral of responsive 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 itself through a referral, provided the referral does not lead to improper 

withholding under the McGehee test") (applying McGehee v. CIA, 697 F.2d 1095, 1110 

(D.C. Cir. 1983)); 28 C.P.R.§ 16.4(c) (authorizing a DOJ component to, inter alia, 

"refer" a record to "the component best able to determine whether to disclose it .... 

Ordinarily, the component ... that originated a record will be presumed to be best able to 

determine whether to disclose it."). Hence, the outcome of this case has no bearing on 

any request plaintiff might submit to EO USA. 

7 
FOIA Exemption 5 protects 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 of a privilege against discovery under judicial standards that would 

govern litigation against the agency that holds it." Dep 't of the Interior v. Klamath Water 

Users Protective Ass '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 "deliberative process" 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 Dec I. ~~ 18-19. The pages are described as 

"OCDETF Forms" comprising three documents. !d., Ex. A (Referral Letter). The 

attorney work-product privilege protects records prepared by or for an attorney in 

anticipation of litigation. 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 who participate 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 of one or more prosecutions." Luczinsky Decl. ~ 18. 

The attorney uses the forms to "track and describe the status of investigations and collect 

8 
statistics on investigation." I d. ~ 19. Luczynski states that anyone completing the forms 

"is reading that [they] are 'Law Enforcement Sensitive.' " I d. ~ 18. In addition, the 

cover sheet to the forms contains language that "also restricts [their] distribution." ld. 

EO USA properly withheld in full the 23 pages of forms under exemption 5 as 

attorney work-product. See Martin v. DOJ, 488 F.3d 446, 455-56 (D. C. Cir. 2007) 

(quoting Judicial Watch, Inc., 432 F.3d at 371 ("If a document is fully protected as 

[attorney] work product, then segregability is not required.")); Dipietro, 357 F. Supp. 2d 

at 184 (approving EOUSA's exemption 5 attorney work-product justification). Hence, 

the Court need not address whether the 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 subject to routine 

disclosure"). 

CONCLUSION 

For the foregoing reasons, the Court GRANTS defendant's renewed Motion for 

Summary Judgment. A separate Order accompanies the Memorandum Opinion . 

. / I 

1 I {(:L~\{vw RICHARD f._ L_EbN 

United States District Judge 

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