### UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CHRISTOPHER EARL STRUNK, Plaintiff,


### v. UNITED STATES DEPARTMENT OF STATE, 

### etal., Defendants. ) ) ) ) ) ) ) ) ) ) ) 

### Civil ActionNo. 08-2234 (RJL)



## --------------------------) MEMORANDUM OPINION

# March~l Plaintiffbrings this action under the Freedom oflnformation Act ("FOIA), 

### see 5 U.S.C. § 552, seeking information from the United States Departments ofState ("DOS") and Homeland Security ("DHS") about Stanley Ann Dunham, President Obama's deceased mother. This matter is before the Court on defendants' motion for summaryjudgment, and for the reasons discussed below, the motion will be granted in part and denied inpart without prejudice. 1 I. 

### BACKGROUND 

### A. FOIA Requests to the State Department 1. RequestNo. 200806553 Plaintiffsubmitted a FOIA request to the DOS, Am. Compi.**~** 

### 12, seeking the following:

The Court will grant defendants' motion for summaryjudgmentwithrespect to the DOS'sresponse to plaintiffs FOIA request, and plaintiffs "Notice ofMotion for an Order of the Department ofState to Release the FOIA Requested Information ofStanley-Ann Dunham" will be denied. 1[I]nformation or records related to Stanley Ann Dunham born November29, 1942atFortLeavenworthKS. U.S.,a.k.a. StanleyAnn Dunham Obama
... who died onNovember 7, 1995 underthe name Stanley Ann Dunham Soetoro (a.k.a. Sutoro) for any and or all exit andentryrecordsfortravel outsideoftheUSAfortheperiodbetween 1960 through 1963. 

### Id., Ex. A (Letter to the DOS from plaintiffdated October 16, 2008). The DOS assigned the request a control number, RequestNo. 200806553, and notified plaintiffthat this information likely would be maintained bythe Bureau ofCustoms and Border Protection ("CBP"), a component ofthe DHS. Mem. ofLaw in Supp. ofDefs.' Mot. for Summ. J. ("Defs.' Mem."), Decl. ofAlex Galovich ("Galovich Decl.")**~** 5. The DOS provided plaintiffthe address to which he could submit a FOIA request directly to the CBP, and closed the matter. 

### Id., Ex. 2 (Letter to plaintifffrom Patrick Scholl, Chief, Requester Communications Branch, DOS, dated January 12, 2009). 2. RequestNo. 200807238 Plaintiffsubmitted a separate request "electronic[ally] viathe [State] Department's FOIA website," Galovich Decl.**~** 6, for the following: [D]ocuments on ... Stanley Ann Dunham, a/kIa Ann Dunham a/kIa Stanley Ann Obama a/kJa Ann Obama a/kJa Stanley Ann Soetoro a/kJa Ann Soetoro a/kJa Stanley Ann Sutoro a/kJa Ann Sutoro a/kIa Stanley Ann Dunham Obama a/kIa Ann Dunham Obama, born November28, 1942 at FortLeavenworthKS U.S., a.k.a. StanleyAnn Dunham Obamaandwho died onNovember7, 1995 underthe name Stanley Ann Dunham Soetoro (a.k.a. Sutoro) Am. CompI., Ex. E (FOIA request dated November 22,2008, Ref. No. B8475).2 Specifically,

2 The Court already has resolved the portion ofplaintiffs FOIA request for records pertaining to then-President-Elect Barack Obama. 

### See Strunkv. 

### Us. Dep'ta/State, 693 F. Supp. 2d 112 (D.D.C. 2010). 2plaintiffsought:
a. applications for a

# u.s. Passport; b. entry and exit passport Records pertaining to the United Statesand KenyafromJanuary 1, 1960to December31, 1975 and from January 1,1979to December 31, 2005; c. entryandexitpassportrecordspertainingtotheUnited States and Indonesia from January 1,1960 to December 31,1973, and from January 1,1979to December 31,1985; d. travel records
. . . on aU.S. passport, Kenyan passport, Indonesian passport, or any other foreign passport orvisa; e. foreign birth certificate registered or filed with the U.S. Embassy in Kenya or Indonesia for Barack H. Obama; f. foreign birth registry filed by Stanley Ann Dunham withthe U.S. Embassy in Kenya or Indonesia for Barack H. Obama; and g. adoptionrecordsorothergovernmentrecordsacknowledging Barack H. Obama as Lolo Soetoro's son. See id at 1. "[A]n automated response acknowledging and summarizing Plaintiffsrequest was E-mailed to [him]." Galovich Decl.**~** 7; see id, Ex. 3 (E-mail message to plaintiffdated November 22, 2008). Acknowledging that Ms. Dunham "is widely known as a matter ofpublic record to be deceased," Galovich Decl.**~** 9, the DOS "process[ed] the request for records in category (a) of [plaintiffs FOIA] request under
... control number 200807238." Id; see id, Ex. 5 (Letter to plaintifffrom P. Scholl dated January 12,2009) at 1-2. A search ofrecords maintained by the Office ofPassport Services located six documents, all ofwhich were released to plaintiffin full. Id.**~** 12. The "other aspects ofhis FOIA request were assigned case control number 200807272." Id**~** 10. Records responsive to categories (b), (c), and (d) ofplaintiffs request "would be with the [DHS's] Bureau ofCustoms and Border Protection orwith the National Archives," andthe DOS provided plaintiffwith addresses ofthose agencies. Id

3B. 

### FOIA Request to the Department of HomelandSecurity In a separate FOIA request to CBP, 

### see Am. Compl.**~** 22, plaintiffsought the same information as that listed in his request to the DOS, 

### id, Ex. I (Letter to Mark Hanson, Director, FOIA Division, CBP, from plaintiffdated December 23,2008) at 1-2. A search ofthe TECS electronic database yielded "[o]ne page ofresponsive records for Stanley Ann Dunham." Defs.' Mem., Decl. ofDorothy Pullo ("Pullo Decl.")**~** 6. After redacting certain information under FOIA Exemptions 2 and 7(E), the CBP released the document to plaintiff. 

### Id**~** 7; 

### see id, Ex. A (Letter to plaintifffrom M. Hanson dated February 3, 2009). II. DISCUSSION 

### A. SummaryJudgment in a FOIA Case "[T]he court may ... grant summaryjudgment ifthe motion and supporting materials

- including the facts considered undisputed

- showthat the movant is entitled to it." FED. R. CIV. P.56(e). The moving party bears the burden ofdemonstrating the absence ofa genuine issue of material fact. 

### Celotex Corp. v. 

### Catrett, 477 U.S. 317, 322 (1986). "[A] material fact is 'genuine'

... ifthe evidence is such that a reasonablejury could return a verdict for the nonmoving party"
on an element ofthe claim. 

### Anderson v. 

### LibertyLobby, Inc., 477 U.S. 242, 248 (1986). Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits, declarations or documentary evidence to the contrary. 

### Neal v. 

### Kelly, 963 F.2d 453,456 (D.C. Cir. 1992). In a FOIA case, the Court may grant summaryjudgmentbased solely on information provided in an agency's affidavits or declarations ifthey are relatively detailed and when they describe "the documents and thejustifications for nondisclosure with reasonably specific detail,
4

### 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." MilitaryAuditProject v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are accorded "apresumption ofgood faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability ofother documents.'" SafeCard Servs., Inc. v. Sec. & 

### Exch. Comm 'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. Cent. IntelligenceAgency, 692 F.2d 770, 771 (D.C. Cir. 1981)). B. Searchesfor Records Responsive to Plaintiff's FOIA Requests "An agency fulfills its obligations under FOIA ifit can demonstrate beyond material doubt that its search was 'reasonably calculated to uncover all relevant documents.,,, ValenciaLucena v. 

## Us. Coast Guard, 180 F.3d 321,325 (D.C. Cir. 1999) (quoting Truitt v. Dep't of State, 897 F.2d 540,542 (D.C. Cir. 1990)); Campbell v. 

## us. Dep't of Justice, 164 F.3d 20,27 (D.C. Cir. 1998) (FOIA requires agency to conduct search using methods reasonably expected to produce requested information). The agency bears the burden ofshowingthat its search was calculated to uncover all relevant documents. Steinberg v. 

## Us. Dep 't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail the scope and method ofthe agency's search. Perry v. Block, 684 

### F.2d 121, 126 (D.C. Cir. 1982). In the absence ofcontrary evidence, such affidavits or declarations are sufficient to demonstrate an agency's compliance with the FOIA. Id. at 127. If the record "leaves substantial doubt as to the sufficiency ofthe search, summaryjudgment for the agency is not proper." Truitt, 897 F.2d at 542.

51. State Department The DOS's Office ofInformation Programs and Services ("IPS") responds to FOIA requests. Galovich Decl.**~~** 1-2. Upon receipt ofa FOIA request, IPS staff"evaluate[] the request and determine[] which offices, overseas posts, or other records systems ... may reasonably be expected to contain" responsive records. 

### Id**~** 13. The "description ofthe records requested
... [and] the nature, scope, and complexity ofthe request" are considered in determining whether or where responsive records might be maintained. 

### Id With respect to plaintiffs Request No. 200807238 for Ms. Dunham's passport applications, IPS staff"determinedthat the Office ofPassport Services would be the only office that would reasonably be expected to maintain the records requested" because "Passport Services is charged with issuing passports to U.S. citizens." 

### Id**~** 14. Its Passport Information Electronic Records System ("PIERS") is an electronic database containing "the records ofsome 144 million passports that have been issued from 1978 to the present." 

### Id The DOS "also maintains paper records ofsome passport applications." 

### Id Using variations ofMs. Dunham's name, including those variations plaintiffsupplied inhis FOIA request, IPS staffsearched both PIERS and paper records. 

### Id**~** 15. The search yielded six responsive passport records, 

### id, all ofwhich were released to plaintiffin full, 

### id, Ex. J (Letterto plaintifffrom Jonathan M. Rolbin, Director, Office ofLegal Affairs and LawEnforcement Liaison, Bureau ofConsular Affairs, Passport Services, dated July 29,2010). The records themselves were not submitted with the agency's declaration. 3 However, the DOS's response to plaintiffs FOIA request indicated that "a 1965

3 

### It appears thatthe DOS released 12 pages ofrecords, copies ofwhich plaintiff submits inhis opposition as attachments to the Jacobsen Affidavit. See Pl.'s Decl. in Opp'nto (continued
...) 6passport application referenced in an application for amendment ofpassport that is included in the released documents" was not located, likely because "[m]anypassport applications
... from thatperiod were destroyed during the 1980s in accordance with guidance from the General Services Administration." 

### Id, Ex. J at 1. In addition, it was explained that "passportrecords typically consist ofapplications for United States passports and supporting evidence ofUnited States citizenship," and therefore they "do not include evidence oftravel such as entrance/exit stamps, visas, residence permits, etc., since this information is entered into the passport book after issuance." Galovich Decl.**~** 12; 

### see id, Ex. J at 1. Plaintiffresponds with the affidavit ofPhilip Hans Jacobsen, whose FOIA request for passportrecords about his deceased mother "dated from May 26, 1953 through October 28, 1985

... generally coincide[s] with the same time frame ofPlaintiff[']s request[] ofStanley Ann Dunham." Pl.'s Decl. in Opp'nto Def.'s Mot. for Summ. J. to Dismiss [Dkt. #39] (" Strunk Decl.")**~** 4; 

### see id, Ex. 1 (Jacobsen Aff.)**~~** 8-10. The DOS apparently searched records "from 1945 to present" and located five documents pertaining to Mr. Jacobsen's mother, including passport applications from 1953, 1956, 1957 and 1985, and applications for amendment ofa passport from 1957. 

### Id, Jacobsen Aff., Ex. B (Letter from Marionette Pleasant, Team Leader, Law Enforcement Liaison Division, Office ofLegal Affairs, Passport Services, dated January 25, 2010). From Mr. Jacobsen's review ofthe DOS and the National Archives and Records Administration websites and the Federal Register, 

### see Jacobsen Aff.**~~** 16-19, he concludes that "the U.S. Government either at the DOS, or the
... WashingtonNational Records Center, \
..continued) Def.'s Mot. for Summ. 1. to Dismiss [Dkt. #39], Ex. 1 (Jacobsen Aff. and Letter to plaintifffrom J.M. Rolbin dated July 29,2010 with attachments). 7Suitland, Maryland[,] must maintainpassport applications and related records for 100 years," id.**~** 21. Mr. Jacobsen further concludes thatthe government maintains paper records ofpassport issuances from 1909 to 1978, and "an electronic index ofall passport application records created since 1978 and some passport application records from 1962 to 1978." Id. Relying on this affidavit, plaintiffcontends that Mr. Jacobsen's success in obtaining records about his mother, which had been generated during the same time period as Ms. Dunham's records, "conflicts with the [DOS's] allegations and partial provision ofrecords." Strunk Decl.**~** 9. According to plaintiff, defendants' agents "have not made a good faith effort to search for and disclose records" responsive to his request and "have spoliated records associated with the commission ofhigh crimes and misdemeanors" committed by Barack Hussein Obama and others, resulting in Obama's "havingtaken the oath ofoffice to uphold the U.S. Constitution and protectthe [U]nited States ofAmerica and the People against all enemies foreign or domestic
... who at birth has multiple allegiances simultaneously to Great Britain and Kenya
... and
... is an Indonesian Citizen." Id.**~** 2. Next, plaintiffattacks the DOS's suggestion that responsive records may have been destroyed pursuantto a GSA directive. Plaintiffnotes that the DOS provided no authority for the alleged destruction ofresponsive records, an index or chain ofcustody for such documents, or confirmationthat such documents were indeed destroyed. Strunk Dec!.**~~** 10, 30; see generally P!"s Second Supp. Dec!. in Opp'nto Def.'s Mot. for Summ. J. to Dismiss [Dkt. #40]; see id., Ex. 11 (Richardson Aff.)**~~** 15,18. In support ofhis argument, plaintiffsubmits the declaration of William A. Richardson, who describes himselfas "abusiness system quality manager." Id., Richardson Aff.**~** 3. According to Mr. Richardson, "the GSA has Never, Ever, issued a directive
8to the [DOS] on record retentions to US citizens." 

### Id.**~** 15.4 Based onMr. Richardson's findings, plaintiffcontends that individuals conspired to "break[]
... into the [DOS's] passport database to effect spoliation ofdocuments in criminal violation oflaw," Strunk Decl.**~** 14, such that government officials are "withhold[ing] facts essential
... for proving that [Obama] is not a natural-born citizen [ofthe United States]," 

### id.**~** 18. 5 Further, plaintiffaccuses the DOS of "being disingenuous with the Court in bad faith," 

### id.**~** 29, and he "will not believe the records
were somehow eaten by the dog without the DOS provision ofproofthat the GSA backed up a forklift to put them into a dumpster," 

### id.**~** 30. Plaintiffs opinion and speculation as to the existence or wrongful destruction of responsive records are notrelevant considerations in this FOIA action. "The adequacy ofan agency's search is measured by a standard ofreasonableness, and is dependent upon the circumstances ofthe case." 

### Weisberg v. 

### Us. Dep't a/Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983) (internal citations and quotation marks omitted). Itis "determined not by the fruits ofthe search, butby the appropriateness ofthe methods used to carry out the search." 

### Iturralde v. 

### Comptroller a/Currency, 315 F.3d 311,315 (D.C. Cir. 2003)(citing

### Steinberg, 23 F.3d at 551).

4 It appears that one page ofMr. Richardson's affidavit, whichpresumably sets forth paragraphs 8 through 13, is missing. Plaintiffalso recounts the efforts ofanother FOIA requester who sought Ms. Dunham's passport records for the period from January 1, 1959 through December 31, 1962, and the denial ofher request for expeditious handling ofthe request. Pl.'s Supp. Dec!. in Opp'n to Def.'s Mot. for Summ. J. to Dismiss [Dkt. #41]**~** 3. Apparently plaintiffbelieves that expeditious handling ofthat individual's request is essential because Obama's presidency is itself a "grave matter ofnational security." 

### Id.**~** 2. Indeed, he claims that Ms. Dunham's "whereabouts
... is crucial as a matter oflaw," because it determines whether President Obama is a United States citizen. 

### Id.**~** 26.
9

### "The [mere] fact that a particular document was not found does not demonstrate the inadequacy ofa search." 

### Boydv. 

### CriminalDiv. o/US. Dep't

## 0/ Justice, 475 F.3d 381, 391 (D.C. Cir.) (citations omitted), 

### cert. denied, 552 U.S. 1007 (2007). Plaintiffs "assertion that an adequate search would have yielded more documents is mere speculation." 

### Baker 

### &Hostetler LLP v. 

### Us. Dep'to/Commerce, 473 F.3d 312,318 (D.C. Cir. 2006). The DOS establishes that it looked for responsive records in the systems ofrecords most likely to contain Ms. Dunham's passport applications, using several variations ofthe subject's
name as searchterms, for the time period set forth in plaintiffs request. Its failure to locate a document to which another responsive record referred does not render its search inadequate. No agency is required to produce records that it does not possess. 

### See Rothschildv. 

### Dep't

## 0/ Energy, 6 F. Supp. 2d 38, 40 (D.D.C. 1998) (concluding that plaintiffwho identified two responsive documents which may be in the agency's possession but were not released merely "demonstrates that the government's search was not perfect," however "[p]erfection
... is not the standard"); 

### Jones v. 

### Fed Bureau o/Investigation, 41 F.3d 238,249 (6th Cir. 1994) (finding that the court cannot order an agency "to make amends for any documents destroyed prior to the request"). The Court concludes that the DOS has conducted a reasonable and adequate search for responsive records, notwithstanding the agency's lack ofsuccess in locating the particular documents plaintiffsought. Accordingly, defendants' motion will be granted in part with respect to plaintiffs FOIA request to the DOS. 2. Customs and Border Protection The CBP uses the TECS electronic database to "conduct enforcement checks on individuals seeking to enter or depart the United States." Defs.' Mem., Pullo Decl.**~** 

### 6. "TECS
10includes combined databases ofover 20 federal agencies," and since January 1982, TECS has captured "traveler arrivals and departures into and out ofthe United States." Id. Paperrecords predating TECS "no longer exist and are no longer archived." Id. Because TECS maintains arrival and departure records, it was considered "the system ... mostly likely to have entry and exit data pertaining to Ms. Dunham." Id. "Workingwith the CBP Office ofChiefCounsel, the FOIA Division conducted a search in the TECS database," and that searchyielded 

### "[0]ne page ofresponsive records for Stanley Ann Dunham." Id. This cursory description ofthe CBP's search provides no basis from which the Court can determine whetherthe search was adequate underthe circumstances. See Schoenman v. Fed. Bureau of Investigation, No. 04-2202,2009 WL 763065, at *15 (D.D.C. Mar. 19,2009) (finding that agency's searchwas inadequate where the declarant "fails to include sufficientreasonable detail
as to the specific search conducted in response to Plaintiffs FOIA[] Request"); Prison Legal News v. Lappin, 603 F. Supp. 2d 124, 126-27 (D.D.C. 2009) (noting supporting affidavit's failure to "outline the search methods undertaken
..., who would have conducted the searches, and
... how [the affiant] is personally aware ofthe search procedures or that he knows they were followed by each ofthe [Federal Bureau ofPrisons']s entities tasked with responding to this request"). Accordingly, the defendants' motion will be denied inpart without prejudice, and the Court will set a schedule for the filing ofa renewed motion. See McKinley v. Fed. DepositIns. Corp., No. 10-420,2010 WL 5209337 (D.D.C. Dec. 23, 2010) (inviting the agency to "either (1) conduct a new search (or searches) for the records sought by the plaintiffto ensure the search is adequate consistent with governing caselaw; or (2) provide the Court with declarations from which the Court can find thatthe declarants have personal knowledge that the search
11

### methodology, procedures, and searches actually conducted were reasonably designed to locate documents responsive to plaintiffs requests"). III. CONCLUSION The State Department has demonstrated its full compliance with the FOIA. Its declarant describes a search for records responsive to plaintiffs FOIA request that was reasonable under the circumstances, and that the records it located have been released to plaintiffin full. Plaintiffs speculation as to the existence ofadditional records and collusion or bad faith among government officials to wrongfully withhold or destroy responsive records is not sufficientto rebut the presumption ofgood faith accorded to DOS's supporting declaration. For these reasons, the defendants' motion for summaryjudgment is GRANTED IN PART. However, because the CBP has not demonstrated that its search for responsive records was adequate, defendants' motion will be DENIED IN PART without prejudice. The Court defers consideration ofthe CBP's decision to withhold records under Exemptions 2 and 7(E) and segregability. An Order is issued separately.

DATE:

12 

# Q"**Rl~~** United States District Judge