UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Guillermo Ruiz, : : Plaintiff, : v. : Civil Action No. 08-1968 (CKK) : United States Department : of Justice et al., : : Defendants. :

MEMORANDUM OPINION

In this action brought under the Freedom of Information Act (“FOIA”), 5 U.S.C.§ 552,

plaintiff, proceeding pro se, challenges the Department of Justice’s Executive Office for United

States Attorney’s (“EOUSA”) response to his request for bond records. Defendant moves to

dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure and for summary judgment

under Rule 56. Based on the parties’ submissions and the entire record, the Court, relying on

matters beyond the pleadings, will grant defendant’s motion for summary judgment.

I. BACKGROUND

By letter of July 19, 2007, plaintiff sought “disclosure of criminal bonds, bonding, bid

bond, performance bonds, payment bond and Miller Act reinsurance bonds held by

Autotris/Cusip . . . and other government agencies.” Compl. Ex. 1. By letter dated August 21,

2007, EOUSA acknowledged receipt of plaintiff’s request for “Self (bonds only)/FLS [Southern

District of Florida].” Def.’s Mot., Decl. of Dione Jackson Stearns (“Stearns’ Decl.”), Ex. D. By

letter of August 27, 2007, plaintiff, “to try to reduce fees,” revised his request to “All Bid Bond,

Rerformance [sic] Bond, Payment Bond, Miller Act Reinsurance Bonds Held by Government

Agencies, Held by Cusip Number #248458589-248-45-8589, Case # 97-00099-CR.” Id., Ex. E. at 2. On March 5, 2008, EOUSA received six pages of records pertaining to plaintiff from the

United States Attorney’s Office in the Southern District of Florida, but determined that they were

not responsive to plaintiff’s request.1 Sterns Decl. ¶¶ 12-13. EOUSA informed plaintiff by letter

of March 13, 2008, that its search conducted in the Southern District of Florida located no

responsive records. Id., Ex. F.

Plaintiff appealed to the Office of Information and Privacy (“OIP”), which determined

that the aforementioned six pages were responsive and remanded plaintiff’s request to EOUSA

for processing of those pages. Id. ¶¶ 14-16. EOUSA, in turn, released the six pages to plaintiff

in their entirety by letter dated August 8, 2008. Id., Ex. J. Plaintiff filed this civil action on

November 17, 2008. By letter dated January 21, 2009, EOUSA released “as a matter of

discretion” an additional five pages in their entirety, described as “the Order on Sentencing.” Id.,

Ex. K.

II. LEGAL STANDARD

Summary judgment is appropriate upon a showing that there is “no genuine issue as to

any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). “[A] material fact is ‘genuine’ . . . if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party” on an element of the claim. Anderson v. Liberty

Lobby, Inc.,

(1986).

The FOIA requires a federal agency to release all records responsive to a properly

submitted request except those protected from disclosure by one or more of nine enumerated

1 EOUSA processes FOIA requests for the nation’s 94 United States Attorney’s offices. See Sterns Decl. ¶ 1.

2 exemptions. See

(b). The agency’s disclosure obligations are triggered by its

receipt of a request that “reasonably describes [the requested] records” and “is made in

accordance with published rules stating the time, place, fees (if any), and procedures to be

followed.”

(a)(3)(A). The FOIA authorizes the court only "to enjoin [a federal]

agency from withholding agency records or to order the production of any agency records

improperly withheld from the complainant.”

(a)(4)(B). Thus, the elements of a

FOIA claim are (1) improperly (2) withheld (3) agency records. “Judicial authority to devise

remedies and enjoin agencies can only be invoked under the jurisdictional grant conferred by [5

U.S.C.] § 552 [(a)(4)(B)], if the agency has contravened all three components of this obligation.”

Kissinger v. Reporters Comm. for Freedom of the Press,

(1980).

In a FOIA case, the Court may award summary judgment to an agency solely on the

information provided in 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 faith.” Military Audit Project v. Casey,

(D.C. Cir. 1981); see also Vaughn v. Rosen,

(D.C. Cir. 1973), cert. denied,

(1974). In opposing a summary judgment motion, plaintiff may not “replace

conclusory allegations of the complaint or answer with conclusory allegations of an affidavit,”

Lujan v. National Wildlife Federation,

(1990), but rather must “set forth

specific facts showing that there is a genuine issue for trial.” Anderson,

.

III. DISCUSSION

Plaintiff claims that defendant committed fraud by initially providing a “no records”

3 response to his request but then later releasing records. See generally Pl.’s Opp’n [Dkt. No. 23].2

But “however fitful or delayed the release of information under the FOIA may be, once all

requested records are surrendered, federal courts have no further statutory function to perform.”

Perry v. Block,

(D.C. Cir. 1982); see Boyd v. Criminal Div. of U.S. Dep’t. of

Justice,

(D.C. Cir. 2007) (“[B]ecause the report was located in the work file

and subsequently disclosed, the issue is moot for purposes of this FOIA action.”) (citing Perry).

Moreover, such delay, without more, cannot support a finding of agency bad faith because

agency declarations are accorded "a presumption of good faith. . . . ,” Long v. U.S. Dep’t of

Justice,

(D.D.C. 2006) (citation and internal quotation marks omitted),

which plaintiff must rebut by providing “evidence sufficient to put the Agency's good faith into

doubt.” Ground Saucer Watch, Inc. v. C.I.A.,

(D.C. Cir. 1981). However,

“initial delays in responding to a FOIA request are rarely, if ever, grounds for discrediting later

affidavits by the agency.” Iturralde v. Comptroller of Currency,

(D.C. Cir.

2003) (citations omitted). The record demonstrates EOUSA’s good faith in releasing not only

the six pages of records OIP determined to be responsive but the additional five-page “Order On

Sentencing” Sterns Decl., Ex. K., notwithstanding its disagreement with OIP’s interpretation of

the records as responsive to plaintiff’s request for specific bond information.3 Sterns Decl. ¶ 18.

2 Captioned “Plaintiff’s Response to Defendant’s Motion to Dismiss and for Summary Judgment and for the Court to Dismiss Defendant’s Present Motion for Bringing a False Fraudulent Claim Against Plaintiff Pursuant to Fed. R. Civ. P. 9(B) and Title 31 USCS Section 3729(a)(7).” 3 The initial six pages consisted of “Plaintiff’s a five[-]page letter to the Court dated June 26, 2006 and the Court’s one[-]page order dated July 13, 2006." Stearns Decl. ¶ 13. The fifth page of the Order on Sentencing is captioned “Bond Recommendation.”

Ex. K.

4 To the extent that plaintiff is also challenging defendant’s search for records, see Pl.’s

Opp’n, Affidavit of Truth ¶¶ 6, 14, the Court is satisfied from Stearns’ description of the files

searched and the search methods employed, Stearns Decl. ¶¶ 20-21 & Ex. L (Declaration of

Carole M. Fernandez), that defendant performed a search reasonably calculated to locate all

responsive records. See Weisberg v. U.S. Dep’t. of Justice,

(D.C. Cir. 1983)

(in demonstrating the adequacy of the search, the agency "may rely upon affidavits . . . , as long

as they are relatively detailed and nonconclusory and . . . submitted in good faith") (citations

and quotation marks omitted). Because “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

search,” Iturralde,

, the fact that a desired document is not located does not

present a triable issue on the adequacy of an otherwise reasonably conducted search, Boyd,

. Moreover, because an agency is obligated to produce only those records in its

custody and control at the time of the FOIA request, McGehee v. CIA,

(D.C.

Cir. 1983), the fact that responsive records may have been maintained by “[t]he Court . . . or the

Probation Office,” Pl.’s Aff. ¶ 14, is immaterial to the issues at hand.4

IV. CONCLUSION

For the reasons stated above, the Court concludes that no genuine issue exists with

respect to defendant’s satisfaction of its disclosure obligations under the FOIA and that defendant

is entitled to judgment as a matter of law. A separate Order accompanies this Memorandum

Opinion.

__________s/s__________________ COLLEEN KOLLAR-KOTELLY DATE: July 20, 2009 United States District Judge

4 Courts and parts thereof, including probation offices, are excluded from the requirements of the FOIA. See

(defining agency).

5