UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JEREMY PINSON, : : Plaintiff, : Civil Action No.: 12-1872 (RC) : v. : Re Document Nos.: 409, 412 : U.S. DEPARTMENT OF JUSTICE, et al., : : Defendants. :

MEMORANDUM OPINION

DENYING DEFENDANTS’ RENEWED MOTIONS FOR SUMMARY JUDGMENT

I. INTRODUCTION

Pro se Plaintiff Jeremy Pinson has filed multiple Freedom of Information Act (“FOIA”),

, requests with various components of the U.S. Department of Justice (“DOJ”). At

issue here are two requests she1 submitted to the Executive Office of the United States Attorneys

(“EOUSA”). Pinson has challenged EOUSA’s prior responses to these requests, but she has not

challenged the latest response. This Court has already granted in part and denied in part three

motions for summary judgment concerning her requests. See generally Pinson v. U.S. Dep’t of

Justice,

(D.D.C. 2015); Pinson v. U.S. Dep’t of Justice,

(D.D.C. 2016); Pinson v. U.S. Dep’t of Justice, No. 12-cv-1872,

(D.D.C.

Aug. 31, 2017).

Now before the Court are DOJ’s renewed motions for summary judgment as to two of

Pinson’s remaining FOIA requests. Defs.’ Renewed Mot. Summ. J. (“Defs.’ MSJ (409)”), ECF

1 Pinson identifies using feminine pronouns. This Court adopts Pinson’s usage. See Pinson v. U.S. Dep’t of Justice,

at 4 n.1 (D.D.C. 2017). The Court’s use of feminine pronouns does not convey any substantive or legal characterization. No. 409; Defs.’ Renewed Mot. Summ. J. (“Defs.’ MSJ (412)”), ECF No. 412. For the reasons set

forth below, the Court denies both motions for summary judgment.

II. BACKGROUND

The Court has explained the factual background of this case in detail in its prior

Memorandum Opinions. See Pinson, 145 F. Supp. 3d at 5–7; Pinson, 189 F. Supp. 3d at 141–45;

Pinson,

, at *1–7. The Court therefore confines its discussion to the facts most

relevant to the two requests at issue in the present motion.

A. Request No. 13-1085

Pinson submitted a FOIA request seeking, inter alia, “copies of all discovery material” in

the case of United States v. Garcia, No. 11-cr-68-EJL, in the District of Idaho. Luczynski Decl.

(Oct. 20, 2016), Ex. I, ECF No. 332-3. Pinson limited her request to “no more than 150 pages . . .

and no more than 2 hours search time.”

After EOUSA informed Pinson that it could not

release the information because such third-party information was protected, Pinson limited the

scope of her request to “seek only public records.” Luczynski Decl. (Feb. 23, 2015), Ex. UUU,

ECF No. 170-5; see also Luczynski Decl. (Feb. 23, 2015) ¶¶ 82–83, ECF No. 170-4.

After this Court denied DOJ’s third motion for summary judgment,2 EOUSA submitted

with its renewed motion a declaration from the FOIA contact who conducted the search for

Pinson’s requested materials. See Narkin Decl. (Oct. 24, 2017), ECF No. 409-3. Legal

Administrative Specialist Narkin conducted the search using Courtlink, LexisNexis’s docket

2 The Court denied DOJ’s third motion for summary judgment as to Request No. 13-1085 because DOJ did not submit an affidavit supporting its claim that it could not release information regarding the District of Idaho case due to discovery being subject to a protective order. Pinson,

, at *12. Rather, DOJ only pointed to the case’s docket.

The Court determined that merely pointing to the docket fell “short of the agency’s obligation to produce a reasonably detailed affidavit.”

2 research tool, and retrieved the docket for United States v. Apodaca, in which two of the eleven

co-defendants had the surname Garcia. See

. After searching for two hours and limiting

results to only public records, Narkin located 949 pages related to the Apodaca case.

.

DOJ claims that all 949 pages relating to Pinson’s request for materials concerning the 11-cr-68

case were released. Defs.’ Statement of Material Facts (“Defs.’ SMF (409)”) ¶ 6, ECF No. 409-

2. However, the materials DOJ submitted with its renewed motion indicate that 949 pages

relating to a case with the docket number 12-cr-236 were released. Luczynski Decl. (Dec. 13,

2017) at 2 & Ex. A, ECF No. 409-4. DOJ again moves for summary judgment, this time on the

basis that Pinson has received the materials she requested. See Mem. P. & A. Supp. Defs.’ MSJ

(“Defs.’ Mem. (409)”) at 3, ECF No. 409-1. Pinson did not submit an opposition to the motion.

B. Request No. 12-1757

In a letter dated February 26, 2012, Ms. Pinson requested the “production of all

documents, email, or records” for, inter alia, cases 10-cv-949 and 11-cv-1906. Luczynski Decl.

(Dec. 11, 2015), Ex. Y, ECF No. 254-4. Pinson did not explicitly limit the number of pages to be

produced or the search time to be occupied by this request. See

She did later clarify that this

request also sought public records, but was not limited to them. Luczynski Decl. (Dec. 11, 2015),

Ex. T, ECF No. 254-4.

After this Court denied DOJ’s third motion for summary judgment,3 EOUSA submitted

with its renewed motion an updated declaration from the FOIA contact who conducted the

3 The Court denied DOJ’s third motion for summary judgment as to Request No. 12-1757 because it was not sufficiently detailed. See Pinson,

, at *9–10. The Court suggested that DOJ submit an updated declaration that “adequately describes the search terms used to perform the search,” clarifies “if the search and released documents were limited to only public records,” and addresses “the discrepancy between the 197 pages located and the 200 pages apparently released.”

.

3 search for the materials Pinson requested. Matuszewski Decl. (Dec. 20, 2017) ¶ 15, ECF No.

412-3. Matuszewski’s updated declaration repeats information from her original declaration

regarding all the records systems that were searched, why those systems were likely to contain

all responsive records, and the amount of material produced. Compare Matuszewski Decl. (Dec.

20, 2017) with Matuszewski Decl. (Oct. 12, 2016), ECF No. 332-3. Additionally, Matuszewski

declares that she searched the computerized docketing case management system Caseview using

the terms “Jeremy Pinson” and civil case file numbers 11-cv-1906, 11-cv-1346, and 10-cv-949

to produce 197 pages of responsive material. See Matuszewski Decl. (Dec. 20, 2017) ¶¶ 16, 18–

20. She maintains that “all documents” found were forwarded to EOUSA. See

¶¶ 18–19.

DOJ again moves for summary judgment, contending that Matuszewski’s updated declaration

sufficiently demonstrates that EOUSA’s search was reasonably calculated to locate all

responsive documents, and that all such responsive documents were released. See Mem. P. & A.

Supp. Defs.’ MSJ (“Defs.’ Mem. (412)”) at 5, ECF No. 412-2. Pinson has not opposed this

motion either.

III. LEGAL STANDARD

“[T]o prevail in a Freedom of Information Act suit, ‘the defending agency must prove

that each document that falls within the class requested either has been produced, is

unidentifiable or is wholly exempt from the Act’s inspection requirements.’” Weisberg v. U.S.

Dep’t of Justice,

(D.C. Cir. 1980) (quoting Nat’l Cable Television Ass’n v.

FCC,

(D.C. Cir. 1973)). At the summary judgment stage, the agency does this

by showing “that there is no genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). This

showing requires the agency to demonstrate that its search was adequate and that all responsive

records were either released or properly withheld.

4 Under FOIA, an adequate search is one that is “reasonably calculated to uncover all

relevant documents.” Morley v. CIA,

(D.C. Cir. 2007) (internal quotation

marks and citation omitted). “To meet that burden, the agency may submit, and [the Court] may

rely on, reasonably detailed affidavit[s], setting forth the search terms and the type of search

performed, and averring that all files likely to contain responsive materials . . . were searched.”

Aguiar v. DEA,

(D.C. Cir. 2017) (internal citation and quotation marks

omitted). The affidavit must do more than state in conclusory fashion that the agency “conducted

a review of [the files] which would contain information that [the plaintiff] requested” and did not

find anything responsive to the request. Weisberg, 627 F.2d at 370–71. On the other hand, once

the agency has provided a reasonably detailed affidavit describing its search, the burden shifts to

the FOIA requester to produce “countervailing evidence” suggesting that a genuine dispute of

material fact exists as to the adequacy of the search. Morley,

(citation omitted).

In a case such as this one, where the requester initially challenges the agency’s response

but does not consistently articulate specific objections to the agency’s releases, the Court is

mindful that summary judgment cannot be granted as conceded and that it must independently

evaluate whether any issues of material fact exist. “Under the Federal Rules of Civil Procedure, a

motion for summary judgment cannot be ‘conceded’ for want of opposition.” Winston & Strawn,

LLP v. McLean,

(D.C. Cir. 2016) (quoting Grimes v. District of Columbia,

(D.C. Cir. 2015) (Griffith, J., concurring)). “The burden is always on the movant

to demonstrate why summary judgment is warranted.”

“The nonmoving party’s failure to

oppose summary judgment does not shift that burden,” and “[t]he District Court ‘must always

determine for itself whether the record and any undisputed material facts justify granting

summary judgment.’”

5 IV. ANALYSIS

DOJ’s renewed motions for summary judgment argue that it has performed adequate

searches with respect to Request Nos. 13-1085 and 12-1757 and released all non-exempt

documents. Pinson has not raised any objections to these motions, but the Court nonetheless

considers whether DOJ has demonstrated that it is entitled to summary judgment.

A. Request No. 13-1085

DOJ asserts that EOUSA adequately searched and properly released records responsive

to Request No. 13-1085. Defs.’ Mem. (409) at 3. EOUSA’s declaration provides a general

description of the search, including details of the records system that was searched, the amount

of time used to conduct the search, and the scope of the search, which was limited to public

records. See Narkin Decl. (Oct. 24, 2017) at 2–3. However, the record does not clearly indicate

which docket number was used to conduct the search, and even suggests that the wrong docket

number may have been used. See, e.g., Luczynski Decl. (Dec. 13, 2017) at 2. For this reason, the

Court denies EOUSA’s motion for summary judgment as to Request No. 13-1085.4

FOIA searches are inadequate when the incorrect search term is used to retrieve

responsive records. See Kleinert v. Bureau of Land Mgmt.,

, 87–88 (D.D.C.

2015) (holding that an agency’s search was inadequate when the agency used an incorrect

spelling of requester’s name during its search). Discrepancies in the materials DOJ submitted

with its renewed motion for summary judgment indicate that the wrong case number may have

been used to search for Pinson’s requested materials. If so, EOUSA’s search was not sufficient to

warrant summary judgment.

4 Although the Court assumes that the incorrect docket number is simply a typographical error, summary judgment cannot be granted based on such an assumption.

6 Pinson’s FOIA request sought records in the District of Idaho case United States v.

Garcia, No. 11-cr-68. Defs.’ SMF (409) ¶ 1. DOJ claims in its briefing that it conducted a search

for records in that case, which is also called United States v. Apodaca, No. 11-cr-68. See

¶¶

3–4. However, while EOUSA’s FOIA contact in Idaho stated in her declaration that she “utilized

. . . Courtlink, to retrieve the criminal case docket of United States v. Apodaca,” Narkin Decl. ¶

9, she did not reference which case number was used in conducting the search. Additionally Mr.

Luczynski, an Attorney Advisor at EOUSA, stated in his declaration that the 949 pages of

materials produced by the FOIA contact’s search came from a District of Idaho case numbered

12-cr-236, rather than one numbered 11-cr-68, see Luczynski Decl. (Dec. 13, 2017) at 2, and in a

letter from the Assistant Director of EOUSA to Pinson regarding the release of 949 pages of

public records purportedly responsive to Request No. 13-1085, the subject of the request was

listed as “12-cr-236 (D ID),” Luczynski Decl. (Dec. 13, 2017), Ex. A. EOUSA’s two references

to 12-cr-236, along with the absence of a search term mentioned in the FOIA contact’s

declaration, suggests that the wrong case number may have been used in searching for materials

Pinson requested. Therefore, the Court will deny summary judgment as to Request No. 13-1085

until EOUSA clarifies that the correct search terms were used to perform a search reasonably

calculated to uncover all relevant documents.

B. Request No. 12-1757

DOJ also asserts that EOUSA adequately searched and properly released records

responsive to Request No. 12-1757. See Defs.’ Mem. (412) at 5. However, because EOUSA has

not explained how it conducted the search with sufficient detail, summary judgment is denied.

EOUSA’s original declaration provided a “general description of the search, including

describing all of the records systems that were searched and explaining why those systems were

7 likely to contain all responsive records.” Pinson,

, at *9. EOUSA’s updated

declaration includes the original details provided as well as a description of the search terms

used. See Matuszewski Decl. (Dec. 20, 2017) ¶¶ 7–20 (stating that the terms “Jeremy Pinson”

and the Middle District of Pennsylvania civil case file numbers 11-cv-1906, 11-cv-1346, and 10-

cv-949 were used in the search). However, just as in the original declaration, EOUSA’s updated

declaration does not contain a clarification of whether “the search and released documents were

limited to only public records,” nor does it contain an explanation of “the discrepancy between

the 197 pages located and the 200 pages apparently released.” Pinson,

, at

*10.

While DOJ indicates in its brief that the search was performed “with an intent to provide

all documents contained therein, including public records,” Defs.’ Mem. (412) at 4 (emphasis in

original), DOJ’s submitted materials have not explained why Luczynski’s October 20, 2016

declaration stated that a search was conducted for only “publicly filed responsive records,”

Luczynski Decl. (Oct. 20, 2016) ¶ 13 (emphasis added). And although Matuszewski’s updated

declaration maintains that “all documents” found were forwarded to EOUSA, this was a mere

restatement of her original declaration, which the Court found to be unclear as to whether the

search was limited to only public documents. Matuszewski Decl. (Dec. 20, 2017) ¶¶ 18–19; see

Pinson,

, at *9–10. Additionally, DOJ has made no attempt in its renewed

motion to explain the discrepancy between the 197 pages mentioned in Matuszewski’s

declaration and the 200 pages apparently released. See Matuszewski Decl. (Oct. 12, 2016) ¶¶ 17–

18.

Therefore, although EOUSA’s updated declaration sufficiently explains the search terms

used, it fails to clarify the other matters this Court highlighted when denying in part DOJ’s third

8 motion for summary judgment as to Request 12-1757. Therefore, the Court once again denies

summary judgment as to this request, and will continue to do so until EOUSA provides a

declaration that adequately explains whether the FOIA contact’s search was limited to public

documents, as well as the discrepancy between the pages located and those released. If the

discrepancy is simply due to mistake, error, and/or sloppiness, then EOUSA must state so. But

simply providing slightly different sworn statements with each subsequent motion, without

explaining the discrepancies that exist in prior sworn statements, will not do.

V. CONCLUSION

For the foregoing reasons, Defendants’ Renewed Motions for Summary Judgment with

respect to EOUSA (ECF Nos. 409, 412) are DENIED. An order consistent with this

Memorandum Opinion is separately and contemporaneously issued.

Dated: May 23, 2018 RUDOLPH CONTRERAS United States District Judge

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