Ball v. United States Marshal Serv.

MEMORANDUM OPINION

JAMES E. BOASBERG United States District Judge

Federal prisoner William B. Ball brought this pro se Freedom of Information Act and Privacy Act suit in relation to requests he sent to several federal agencies seeking information about his criminal case. Three Defendants - the Department of Homeland Security, the U.S. Marshals Service, and the Department of Treasury - remain after this Court's previous dismissal of two others. These Defendants now move for summary judgment, contending that they adequately searched for records, relied on the appropriate exemptions, reasonably segregated information, and identified foreseeable harm. Although Plaintiff disagrees and cross-moves for summary judgment himself, the Court believes Defendants have the stronger position and grants their motion.

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I. Background

A. Factual Background

Because the Court focuses on Defendants' Motion for Summary Judgment, it will construe the facts in the light most favorable to Plaintiff. See Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011).

Ball is presently confined in the low-custody Federal Correctional Complex in Coleman, Florida. See ECF No. 51-1 at 30 (Pl. SMF), ¶ 2. He was arrested in February 2018 in Florida for enticement and child-pornography charges. Id., ¶ 1. In December 2018, he submitted FOIA requests to DHS, USMS, Treasury's Office of Intelligence and Analysis, the Secret Service, and the Federal Bureau of Investigation. In those requests he sought the following records relating to himself that were listed under his name or other identifier:

[A]ny and all records whatsoever . . . including but not limited to 1) arrest reports; 2) investigatory records including hand-written notes and final drafts; 3) reports on evidentiary and/or scientific information, findings, and conclusions; 4) plea agreements of co-defendants; 5) charging documents; 6) classifications of the charged offenses; 7) video tapes and/or DVDs; 8) telephonic recordings; 9) computer discs and storage devices; 10) computerized notepad discs; 11) photographs; and 12) all other information, data and reports of any kind not listed above and exempt by law

ECF No. 52-3 (Def. Resp. to Pl. SMF), ¶ 6; see also ECF No. 30-4, Exh. 1 (FOIA Request) at 1.

Shortly after this suit was filed in April 2019, Immigration and Customs Enforcement - the section of DHS relevant to this case - conducted a search and informed Plaintiff that it had identified 47 responsive pages from its Office of Homeland Security Investigations. See ECF No. 30-3 (Declaration of Toni Fuentes), ¶¶ 8, 14 & Exh. 3 (ICE FOIA Resp.); see also Def. Resp. to Pl. SMF, ¶ 7. These pages were produced with redactions made under FOIA Exemptions 3, 6, 7(C), and 7(E). See ICE FOIA Resp. at 1-2. ICE subsequently reconsidered

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some of those redactions and released further records to Plaintiff. See Def. Resp. to Pl. SMF, ¶ 10. In April 2021, ICE conducted a supplemental search and produced 154 pages to Ball, 54 of which were redacted in part under Exemptions 6, 7(C), and 7(E). See ECF No. 47-2 (Declaration of Fernando Pineiro), ¶ 10.

Meanwhile, in August 2019, USMS informed Plaintiff that its office in the Middle District of Florida had undertaken a search that uncovered 21 pages of responsive records. These records had redactions based on Exemptions 6, 7(C), 7(E), and 7(F). See ECF No. 30-4 (Declaration of Charlotte Luckstone), ¶ 23 & Exh. 2 (USMS FOIA Resp.). Later that year, Treasury reported that OIA lacked any records that would be responsive to Plaintiff's request. ECF No. 30-5 (Declaration of Michael Neufeld), ¶ 4 & Exh. 3 (OIA FOIA Resp.) at 1.

B. Procedural History

Plaintiff sued Defendants on April 26, 2019, and asked the Court to order them to produce the requested records. See ECF No. 1 (Compl.). This Court dismissed two of the original Defendants in the case - the FBI and the Secret Service - in March 2020. See ECF Nos. 22 & 23. The remaining Defendants moved for summary judgment in July 2020, see ECF No. 30, and the Court originally granted their motion, see ECF Nos. 37 (Order) & 38 (Mem. Op.), after Ball did not file a response following a series of extensions. See Mem. Op. at 1 (noting extensions and missed filing). Plaintiff's Opposition, which had been delivered to the prison mailing system on January 13, 2021, was entered on the public docket on January 27, 2021, although it was deemed filed five days earlier. See ECF No. 42. The next month he moved for reconsideration of the Court's previous summary-judgment decision, see ECF No. 41, which this Court granted, vacating its previous Opinion. See ECF No. 43. At the Court's Order,

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Defendants filed a renewed Motion for Summary Judgment, see ECF No. 47 (Def. MSJ), and Plaintiff cross-moved for summary judgment. See ECF No. 51 (Pl. Cross-Mot.).

II. Legal Standard

Summary judgment must be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it can affect the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is “genuine” “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Liberty Lobby, 477 U.S. at 248; see also Scott v. Harris, 550 U.S. 372, 380 (2007); Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion” by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

“FOIA cases typically and appropriately are decided on motions for summary judgment.” Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009); Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case, a court may grant summary judgment based solely on information provided in an agency's affidavits or declarations when they “describe 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

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faith.” Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citation omitted). 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). “Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to sustain its action' and directs the district courts to ‘determine the matter de novo.'” Dep't of Justice v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)). Summary judgment is only proper when the court is assured that the record justifies the result. See Ctr. For Investigative Reporting v. U.S. Customs & Border Prot., 436 F.Supp.3d 90, 100 (D.D.C. 2019).

III. Analysis

FOIA provides that “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules[, ] . . . shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). The Government need not, however, turn over requested information that falls into one of nine statutorily created exemptions from FOIA's broad directive. Id. § 552(b)(1)-(9). “Those exemptions are as much a part of FOIA's purposes and policies as the statute's disclosure requirement.” Food Mktg. Inst. v. Argus Leader Media, 139 S.Ct. 2356, 2366 (2019) (cleaned up) (quoting Encino Motorcars, LLC v. Navarro, 138 S.Ct. 1134, 1142 (2018)). Where an agency withholds records, it must show that at least one of the exemptions applies. See Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975). To carry that burden, the Government “must provide a relatively detailed justification” for its withholding, “specifically identifying the reasons why a particular

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exemption is relevant.” Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir. 2007) (internal quotation marks omitted) (quoting King v. Dep't of Justice, 830 F.2d 210, 219 (D.C. Cir. 1987)). Courts can compel the release of any records that do not satisfy the requirements of at least one exemption. See Reps. Comm., 489 U.S. at 755.

Before turning to the heart of the analysis on the exemptions and the agencies' searches, the Court disposes of three points no longer at issue. First, Plaintiff does not “raise any new issues regarding OIA” and agrees that it lacks responsive records. See Pl. Cross-Mot. at 4. Second, to the extent that he objects to USMS's failure to counter arguments he raised in the prior round of summary-judgment briefing, see Pl. Cross-Mot. at 6-7, USMS was under no obligation to respond since that earlier briefing has been superseded by this round of motions. Third, his only beef with ICE's search is that he believes that agency must look harder for the “HSI Enforcement Operation...