UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) IBRAHIM ELGABROWNY, ) ) Plaintiff, ) ) v. ) Civil Action No. 17-cv-00066 (TSC) ) CENTRAL INTELLIGENCE ) AGENCY, et al., ) ) Defendants. ) )

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff Ibrahim Elgabrowny, proceeding pro se, has sued the Central Intelligence

Agency (“CIA”), Department of Justice (“DOJ”), Executive Office of United States Attorneys

(“EOUSA”), and the United States Department of State (“State Department”), alleging violations

of the Freedom of Information Act (“FOIA”),

, and Privacy Act (“Privacy Act” &

“PA”), 5 U.S.C. § 552a. Sec. Am. Compl., ECF No. 29 at 1. 1

The DOJ, FBI, and EOUSA filed a Motion for Summary Judgment, ECF No. 45, on May

17, 2018. The CIA filed its own Motion for Summary Judgment, ECF No. 47, on June 25, 2018.

Plaintiff filed Oppositions, ECF Nos. 53 (“Pl.’s MSJ Opp. I”), and then supplemented his

Oppositions, ECF Nos. 55, 57.

1 The court references the ECF-generated page numbers in citing to page numbers in Plaintiff’s filings.

1 On March 31, 2019, the court (1) granted FBI’s Motion for Summary Judgment; (2)

granted in part and denied in part, without prejudice, CIA’s Motion for Summary Judgment, and

(3) denied without prejudice EOUSA’s Motion for Summary Judgment. ECF Nos. 58, 59; 2

Elgabrowny v. CIA,

at *16 (D.D.C. Mar. 31, 2019).

In its Memorandum Opinion and Order, the court instructed EOUSA to file either a

renewed motion for summary judgment, or alternatively, a status report addressing production

and proposing a briefing schedule.

The court also specifically instructed EOUSA to fully

address, in either the renewed motion or status report, FOIA/Privacy Act Request Nos. FOIA-

2014-02098, FOIA-2016-04133, and the unassigned Request dated September 30, 2015.

EOUSA filed a Renewed Motion for Summary Judgment, ECF No. 62, which is currently

before the court. The Renewed Motion, however, inadequately addressed Request No. FOIA-

2014-02098, and further failed to address FOIA-2016-04133 and the unassigned September 30,

2015 Request. Plaintiff filed an Opposition (“Pl.’s MSJ Opp. II”), ECF No. 67, to EOUSA’s

Renewed Motion which also includes a Fourth Motion for In Camera Review (“Pl.’s Mot. In

Cam. IV”), ECF No. 67-1.

EOUSA then filed a Motion for Enlargement of Time to File Reply, ECF No. 75, which

included a request to address the omissions from its Renewed Motion for Summary Judgment.

The court granted EOUSA’s Motion for Enlargement, see Jun. 6, 2019 Min. Ord., ordering it to

file a reply in compliance with this court’s order. The court also provided Plaintiff with an

opportunity to address EOUSA’s new arguments by way of a surreply.

EOUSA filed a

2 Also pending before the court were Plaintiff’s Cross Motion for Summary Judgment, Motions to Strike, and Motions for In Camera Review & Discovery. These Motions were denied. See Elgabrowny at *14–*16. 2 comprehensive Reply (“Def.’s Reply”), ECF No. 76, on January 22, 2020. Plaintiff finally filed

a Surreply (“Pl.’s Surrep.”), ECF No. 81, on March 20, 2020.

In its Renewed Motion and supplemental filings, EOUSA argues that it conducted

adequate searches for responsive documents and satisfied its obligations under FOIA. For the

reasons stated herein, EOUSA’s Renewed Motion for Summary Judgment is GRANTED.

Plaintiff’s Fourth Motion for In Camera Review is DENIED.

II. FACTUAL BACKGROUND

Plaintiff’s FOIA/PA Requests primarily concern his and others’ prosecution, convictions,

and the underlying criminal investigation related to the 1993 World Trade Center bombing. Sec.

Am. Compl. at 4, 9–10, 18; Pl.’s MSJ Opp. I at 5–6; Pl.’s MSJ Opp. II at 1, 4–5.

FOIA/Privacy Act Request No. FOIA-2014-02098

On April 24, 2014, EOUSA received two FOIA/PA correspondences from Plaintiff, dated

April 10, 2014. Stone Decl. 3 ¶ 5; Stone Ex. B. EOUSA elected to treat the two correspondences

as a single FOIA request, assigning them Request No. 2014-02098. In his first correspondence,

Plaintiff provided the following details: “The government sent a letter to the defense counsel

(dated July 22, 1994) declaring it filed a petition for non-disclosure of classified information, I

am asking for a copy of that above mentioned (July 22, 1994) letter. 4”

In the second

correspondence, Plaintiff indicated that he now also sought “a single page, Exhibit C,” which

Plaintiff claims was attached to “a declaration by Hugh H. Price, Deputy Director of Operations,

3 In support of its Renewed Motion, and as it relates to Request No. FOIA-2014-02098, EOUSA resubmits the declaration of Principa Stone, an Attorney-Advisor with the FOIA/PA staff of EOUSA. The Stone Declaration included in the Renewed Motion is identical to her declaration submitted with the First Motion, as is the accompanying Vaughn Index. EOUSA also continues to rely on the exhibits included with Stone’s declaration in the First Motion. 4 Hereinafter, the “Government Letter.”

3 Central Intelligence Agency, dated July 21, 1994.” Stone Ex. B. Plaintiff stated that he did not

seek the full Price Declaration, merely the attached Exhibit C, which he believes contains

exculpatory information. Plaintiff believed the Price Declaration and Exhibit C to be classified

documents submitted in July 1994 as part of an “ex parte motion” during the prosecution of U.S.

v. Elgabrowny, et al., No. 93-cr-00181 (MBM) (S.D.N.Y. filed 1993). 5

During the briefing of EOUSA’s First Motion for Summary Judgment, both Plaintiff and

the court were perplexed regarding EOUSA’s treatment of the Government Letter and Exhibit C.

See Pl.’s MSJ Opp. I at 9; Pl.’s Sec. Am. Compl. Ex. 36; Elgabrowny,

at *5.

The first issue was EOUSA’s implicit conflation of the Government Letter and Exhibit C without

explanation. While the two documents share commonalities, and were purportedly executed

around the same time, Plaintiff has specified that they are separate documents. See Pl.’s MSJ

Opp. I at 9; Pl.’s Sec. Am. Compl. Ex. 36; Pl.’s MSJ Opp. II at 3, 9, 11–12, 18.

Second, EOUSA indicated that “Exhibit C had been filed under seal,” and therefore could

not be released. Stone Decl. ¶¶ 21–2; Stone Ex. O. EOUSA then stated that it could not find any

such document, and instead proposed the release of a May 26, 1994 letter. Stone Decl. ¶¶ 25, 25

n.3. Based on a review of the docket entries in U.S. v. Elgabrowny, it appeared that Plaintiff was

requesting documents relating to ECF No. 675, and EOUSA instead released portions of a

document filed as ECF No. 250. See

; Stone Ex. S; Pl.’s MSJ Opp. I at 9. This was

doubly confusing because both entries relate to documents authored by Robert S. Khuzami,

rather than Hugh Price. See Elgabrowny, No. 93-cr-00181 at ECF Nos. 250, 675. While it was

5 The parties reference Plaintiff’s criminal case as “U.S. v. Elgabrowny” and “U.S. v. Rahman” interchangeably. Elgabrowny and Rahman are the same case; several co-defendants were prosecuted in that matter, including Rahman and Plaintiff. See

For purposes of clarity, the court will refer to the matter hereinafter as “U.S. v. Elgabrowny.” 4 clear that EOUSA found the May 26 letter responsive, questions remained regarding the

existence and status, if any, of Exhibit C or the Government letter, and what, if any, relationship

these documents had to one another or with the disclosed documents. See Stone Decl. ¶ 25;

Elgabrowny,

at *5.

This confusion continued into the initial briefing of the Renewed Motion, despite

EOUSA’s submission of a more detailed declaration from Darian Hodge (“Hodge Decl. I”), ECF

No. 62-4, the FOIA Contact/Coordinator for USAO-SDNY, who personally oversaw and

handled the agency’s searches. See Hodge Decl. I ¶¶ 1–11; Def.’s Renewed MSJ Memorandum

of Facts (“Def.’s Mem. II”) at 4, ECF No. 62-1. Now, however, through its Reply, EOUSA has

clarified the obscuration by providing new information and including a supplemental Hodge

Declaration (“Hodge Decl. II”), ECF No. 76-1, and a declaration from Theodore B. Smith

(“Smith Decl.”), ECF No. 71-7, an Attorney-Advisor with EOUSA’s FOIA/PA department, see

also Def.’s Reply at 2 n.1. These additional submissions, combined with the prior submissions,

have provided the court with a more comprehensive understanding of the Requests, documents

sought, and searches conducted, as summarized below.

On April 30, 2014, EOUSA requested that USAO-SDNY conduct a search for Exhibit C.

Stone Decl. ¶ 6; Hodge Decl. I ¶¶ 3-6; Hodge Decl. II ¶ 3. USAO-SDNY located 281 boxes of

potentially responsive records and estimated that it would take approximately 92 hours to review

the files. Stone Decl. ¶ 8.

On February 11, 2015, EOUSA notified Plaintiff that the estimated search fee was

$2,576.00.

; Stone Ex. C. Since the fee exceeded $25.00, EOUSA advised Plaintiff that

work would not be completed until he agreed to pay the anticipated fees, pursuant to 28 CFR

16.11(e).

However, after reviewing the U.S. v. Elgabrowny docket, and locating the case

5 records indices, USAO-SDNY was able to limit its search to fewer boxes, thus reducing the

projected hours and fees. Stone Decl. ¶ 10; Hodge Decl. II ¶ 5.

On June 17, 2015, June 30, 2015, and September 22, 2015, EOUSA sent Plaintiff letters

notifying him that USAO-SDNY would now only require approximately two hours of search

time, for an estimated search fee of $80.00. Stone Decl. ¶ 11; Stone Exs. D–F. Again, EOUSA

advised Plaintiff his Request would not be considered received and work would not be

completed until he agreed to pay the fee in accordance with 28 CFR 16.11(e). Plaintiff was

allotted 30 days to respond or suffer administrative closure.

On September 17, 2015, EOUSA received another letter from Plaintiff, inquiring about

the status and delay in processing of his Request, specifically for Exhibit C. Stone Decl. ¶ 12;

Stone Ex. G. Plaintiff reiterated that he was seeking “a copy of Exhibit C that was attached to

the 1994 CIA Price Declaration that was submitted by the government to the District Court on

1994 for in [] camera review of classified information[.]” Plaintiff also requested expedited

processing and a fee waiver.

On October 6, 2015, EOUSA received another letter from

Plaintiff inquiring about the status of his requests for a fee waiver and expedited processing.

Stone Decl. ¶ 13; Stone Ex. H. On October 14, 2015, Plaintiff agreed “to pay the $80 for the two

hours search fee.” Stone Decl. ¶ 14; Stone Ex. I.

On December 3, 2015, EOUSA notified Plaintiff that his request for a fee waiver was

denied because it did not meet the requirements of

(k). Stone Decl. ¶ 15; Stone

Ex. J. On December 28, 2015, Plaintiff sent a letter asking about the status of his Request and

again requesting expedited processing. Stone Decl. ¶ 16; Stone Ex. K. On February 10, 2016,

EOUSA denied expedited processing. Stone Decl. ¶ 17; Stone Ex. I.

6 On October 14, 2015, Hodge personally conducted a manual search of the relevant U.S.

v. Elgabrowny file boxes and “the USAO records of the AUSAs who prosecuted Plaintiff[.]”

Hodge Decl. I ¶¶ 5–6; Hodge Decl. II ¶ 6. He inquired with various personnel and contacted

Security Officer Sharon E. Garvey and Records Manager Richard Gelbke, who searched the

USAO’s vault, where sensitive records are located. Hodge Decl. I ¶¶ 6, 8. Garvey and Gelbke

confirmed that Exhibit C was not in the USAO vault, and despite efforts, Hodge could not find

anyone else at USAO-SDNY who could “attest to whether Exhibit C was ever in the possession

of any employee of the USAO, and if so, whom.”

. Hodge avers that the only copy of

Exhibit C of which he is aware was provided to the U.S. District Court for the Southern District

of New York for in camera review during litigation in U.S. v. Elgabrowny, and was then filed

under seal, and he has no information that any other copies were ever stored at the USAO.

; Hodge Ex. 1.

USAO-SDNY informed EOUSA that it could not locate Exhibit C, but that the case

docket indicated that it once existed and had been filed under seal. See id; Stone Decl. ¶ 21. On

February 23, 2016, EOUSA notified Plaintiff that USAO-SDNY had completed its search and

was unable to locate Exhibit C. See Stone Decl. ¶ 20; see also Stone Ex. N. On May 3, 2016,

EOUSA sent a supplemental response to Plaintiff, stating again that it could not locate Exhibit C,

and that while the document is shown on the U.S. v. Elgabrowny docket, EOUSA has no

authority to release sealed court documents. Stone Decl. ¶ 22; Stone Ex. O.

On April 26, 2016, Plaintiff filed an administrative appeal with OIP, which affirmed

EOUSA’s conclusions. 6 Stone Decl. ¶¶ 23, 24; Stone Exs. P, Q. In early November 2016, OIP

6 Plaintiff also states that he filed other appeals with OIP. These were either addressed, superseded, or rendered moot. See Sec. Am. Compl. at 11–14.

7 contacted EOUSA and recommended that it send a discretionary release to Plaintiff. Stone Decl.

¶ 25. More specifically, EOUSA stated, “Plaintiff sought a July 22, 1994, letter that the

government [gave] to the defense counsel; however, because there was no such letter to be

found, OIP recommended that EOUSA make a discretionary release of a May 26, 1994[] letter

that appeared to be responsive to Plaintiff’s FOIA request.”

On November 9, 2016, EOUSA

released, in part, one page and released, in full, one page, of the May 26, 1994 letter.

;

Stone Ex. R. EOUSA withheld the name and signature of a government attorney associated with

Plaintiff’s prosecution, invoking FOIA Exemptions 6 and 7(C). 7

EOUSA finally fully clarifies, in its Renewed Statement of Facts (“Def.’s Stmt. II”), ECF

No. 62-2, that it, in fact, never found Exhibit C, and that its supplemental disclosure, while

perhaps responsive, did not include the document Plaintiff specifically requested. “Although the

USAO was unable to locate Exhibit C, at the recommendation of the Office of Information

Policy, EOUSA made a discretionary release of a May 26, 1994, letter that appeared to be

responsive to Plaintiff’s request for the letter of July 22, 1994.” Def.’s Stmt. II ¶ 10; see Def.’s

Mem. II at 5–6, 6 n.3; Stone Decl. ¶¶ 25, 25 n.3, 26; Hodge Ex. 1 at 27 (ECF No. 250). EOUSA

7 Plaintiff does not contest the redactions, or use of Exemptions 6 or 7(C), as to the supplemental release of the May 26, 1994 letter; he only alleges that he received this document as a “substitute” for the documents he actually sought. See Pl.’s MSJ Opp. II at 7. “Where the FOIA requester responds to the government's motion for summary judgment without taking issue with the government's decision to withhold or to redact specific documents, the Court can reasonably infer that the FOIA requester does not seek those specific records or information and that, as to those records or information, there is no case or controversy sufficient to sustain the Court's jurisdiction.” Shapiro v. Dep’t of Justice,

, 105–06 n.1 (D.D.C. 2017) (citing Lujan v. Defenders of Wildlife,

(1992)). “To the extent the FOIA requester does not seek to compel the release of the withheld information, moreover, the Court need not—and should not—enter summary judgment in favor of the government . . . there is simply no dispute to resolve.”

For these reasons, the court will not address whether it was appropriate to withhold the May 26, 1994 letter or whether Exemptions 6 and 7(C) were properly invoked for the supplemental release.

8 has now made clear that (1) it thoroughly searched for but did not find Exhibit C; (2) it released

the May 26, 1994 letter relating to Robert S. Khuzami, also filed in U.S. v. Elgabrowny, because

OIP found it tangentially responsive to the Request, but (3) Exhibit C and the documents

released are not the same. See

Plaintiff filed another administrative appeal on January 5, 2017, alleging failure to release

Exhibit C and the July 22, 1994 letter. Stone Decl. ¶ 27; Stone Ex. S. On May 12, 2017, OIP

affirmed EOUSA’s determinations. Stone Decl. ¶ 28; Stone Ex. T.

In its Reply, EOUSA acknowledges that it initially and improperly conflated Exhibit C

with the Government Letter. Def.’s Reply at 2 n.1. However, EOUSA has since course

corrected, and undertook an independent search for the Government Letter in December 2019.

See Hodge Decl. II ¶¶ 7, 10. Hodge coordinated with Assistant U.S. Attorney John McEnany,

who personally reviewed the indices corresponding to 293 case file boxes from U.S. v.

Elgabrowny, among other case files. See id. ¶¶ 7, 9, 10. McEnany determined that 27 box

index entries were potentially relevant and told Hodge “where the documents at issue, if in

possession of the United States Attorney's Office, were likely to be found.” Id. ¶ 10. Hodge and

the USAO-SDNY Records Manager manually searched the relevant boxes and examined them

document-by-document but did not locate the Government Letter or any other responsive

records. Id.

FOIA/Privacy Act September 30, 2015 (Unassigned) & Request & No. FOIA-2016-04133

Plaintiff attests that he submitted another FOIA/PA Request and demand for fee waiver

and expedited processing to EOUSA on September 30, 2015, requesting “a copy of the 1995 FBI

agents[’] hand [written] notes of interviews with the mastermind of the 1993 WTC bombing

conspiracy (Abdul-Basit Mahmoud Abdul Karim) also known as [Ramzi Ahmad Yousef],”

9 arising out of (1) an interview with an FBI Special Agent on February 7, 1995 in Pakistan, and

(2) an interview with an FBI Special Agent on an airplane during Plaintiff’s extradition on

February 7, 1995. Sec. Am. Compl. at 15; Sec. Am. Compl. Ex. 37; Pl.’s MSJ Opp. I at 9–12.

He specifically requested that EOUSA search the files of its field offices at the USAO-SDNY.

According to Plaintiff, he sent this Request via certified mail with return receipt and never

received a response. See id.

Plaintiff filed an administrative appeal with OIP on December 21, 2015, asserting that

EOUSA had not yet responded to his FOIA request. Stone Decl. ¶ 18. On February 17, 2016,

OIP denied Plaintiff’s administrative appeal, informing Plaintiff that EOUSA was currently

processing his FOIA Request, and his fee waiver request was moot because EOUSA had

responded on December 3, 2015. Id.; Stone Ex. M.; Sec. Am. Compl. at 17; Sec. Am. Compl.

Ex. 39; Pl.’s MSJ Opp. I at 10. It appears that Plaintiff was attempting to appeal the lack of

response to his September 30, 2015 Request, while OIP interpreted this appeal to be related to

his first Request, No. 2014-02098. See id.

On September 1, 2016, Plaintiff submitted a “supplement” to his September 30, 2015

Request, additionally seeking handwritten agent “notes of interviews with Ramzi Yousef that

took place after his extradition and return back to the U.S[.] 8” Sec. Am. Compl. at 17; Sec. Am.

Compl. Ex. 40-A; Pl.’s MSJ Opp. I at 10. On October 14, 2016, EOUSA treated the supplement

as a new request, assigning Request No. FOIA-2016-04133. Sec. Am. Compl. at 17; Sec. Am.

Compl. Ex. 40-B; Pl.’s MSJ Opp. I at 10; see Smith Decl. ¶ 6, 7. EOUSA did not instruct

USAO-SDNY to search for records, Smith Decl. ¶ 8, and preliminarily denied the Request

8 Hereinafter the court refers to the documents requested in the September 30, 2015 Request and in Request No. FOIA-2016-04133 as “Yousef Interview Notes.” 10 because it sought information regarding a third-party, determining that such information would

be exempt from disclosure under the Privacy Act and under FOIA Exemptions 6 and 7(C) absent

(1) authorization and consent from Yousef, or (2) proof of Yousef's death, or (3) a finding that

the public interest in disclosure outweighed Yousef’s personal privacy. Sec. Am. Compl. at 17;

Sec. Am. Compl. Ex. 40-B; Pl.’s MSJ Opp. I at 10; Smith Decl. ¶ 7; Smith Ex. 1. Plaintiff

claims he appealed this denial to OIP on October 24, 2016 and has not yet received a response.

Sec. Am. Compl. at 17; Sec. Am. Compl. Ex. 40-C; Pl.’s MSJ Opp. I at 10.

In its First Motion for Summary Judgment, EOUSA did not address the unassigned

September 30, 2015 Request or Request No. FOIA-2016-04133. Elgabrowny,

at *6. In its Renewed Motion, EOUSA also inadvertently failed to address these

Requests. See Def.’s Reply at 2 n.1, 3. However, EOUSA has since remedied this omission

through its Reply.

In its Reply, EOUSA asserts that it never received the September 30, 2015 Request. See

Smith Decl. ¶ 5; Hodge Decl. ¶¶ 2, 8. Smith also attests that the contents of Plaintiff’s

September 30, 2015 Request, namely for Yousef’s interview notes from February 7, 1995

interviews, would have automatically been considered as part of Request No. FOIA-2016-04133;

according to Smith, the content of the latter Request and resulting search was expansive enough

to include the information sought in the September 30, 2015 Request. See Smith Decl. ¶ 6.

EOUSA also claims that Exemptions 6 and 7(C) would apply equally to the information

requested in the September 30, 2015 Request because it likewise sought information about a

third party. See

¶¶ 6–8; Def.’s Reply at 3. Nonetheless, “given [EOUSA’s] failure to brief

these issues in its initial motion for summary judgment and its renewed motion . . . EOUSA

requested that the USAO-SDNY conduct a new search” for the Yousef Interview Notes, based

11 on the content in both the September 30, 2015 Request and Request No. FOIA-2016-04133. See

Smith Decl. ¶ 9; Def.’s Reply at 3.

According to Hodge, EOUSA undertook its search for all the Yousef Interview Notes in

December 2019. See Hodge Decl. II ¶¶ 7, 8. It first determined that Yousef was prosecuted in

U.S. v. Salameh, et al., No. 93-CR-0180 (S.D.N.Y.).

. USAO-SDNY apparently

maintains 387 storage boxes from that case.

. McEnany again reviewed the indices for the

U.S. v. Elgabrowny and U.S. v. Salameh case files and boxes.

. He found 27 box index

entries potentially relevant to the Yousef Interview Notes. Hodge then personally searched all

the documents in the corresponding boxes but did not find any responsive records. 9

III. STANDARD OF REVIEW

In a FOIA case, a district court reviews the agency's decisions de novo and “the burden is

on the agency to sustain its action.”

(a)(4)(B); Military Audit Project v. Casey,

(D.C. Cir. 1981). “[T]he vast majority of FOIA cases can be resolved on

summary judgment.” Brayton v. Office of U.S. Trade Rep.,

(D.C. Cir. 2011).

Summary judgment is appropriate “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). The party seeking summary judgment “bears the initial responsibility of informing the

district court of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

Corp. v. Catrett,

(1986) (internal quotation marks omitted). To defeat

9 FBI also conducted a search for the Yousef Interview Notes and could not find any responsive documents. See Elgabrowny,

at *3. 12 summary judgment, the non-moving party must “designate specific facts showing that there is a

genuine issue for trial.”

(internal quotation marks omitted).

The mere existence of a factual dispute is insufficient to preclude summary judgment.

Anderson v. Liberty Lobby, Inc.,

, 247–48 (1986). A dispute is “genuine” only if a

reasonable fact-finder could find for the non-moving party; a fact is “material” only if it can

affect the outcome of the litigation.

; Laningham v. U.S. Navy,

(D.C. Cir. 1987). In the FOIA context, “the sufficiency of the agency's identification or retrieval

procedure” must be “genuinely in issue” to defeat summary judgment. Weisberg v. Dep’t of

Justice,

, 371 n.54 (D.C. Cir. 1980) (internal quotation marks omitted). In

assessing a defendant’s motion, a court must “view the facts and draw reasonable inferences in

the light most favorable” to the plaintiff. Scott v. Harris,

(2007).

In FOIA cases, summary judgment may be granted on the basis of an agency declaration.

Judicial Watch v. U.S. Secret Serv.,

(D.C. Cir. 2013) (citation omitted).

Agency declarations are afforded a “presumption of good faith” and can be rebutted only with

evidence that the agency did not act in good faith. Defenders of Wildlife v. 77 U.S. Border

Patrol,

(D.D.C. 2009). However, a plaintiff cannot rebut the good faith

presumption afforded to an agency's supporting affidavits through “purely speculative claims . .

.” SafeCard Servs. v. SEC,

(D.C. Cir. 1991) (citation omitted).

In a Privacy Act access case, a court may similarly rely on agency affidavits or

declarations to enter summary judgment. See Chambers v. U.S. Dep't of the Interior,

(D.C. Cir. 2009). At the summary judgment stage, where the agency has the burden to

show that it acted in accordance with the statute, a court may rely on a reasonably detailed

affidavit, setting forth the type of search performed, and averring that all files likely to contain

13 responsive materials (if such records exist) were searched. Jimenez v. Executive Office for U.S.

Attorneys,

, 179–80 (D.D.C. 2001) (citing Chambers,

).

The movant bears the burden of showing why summary judgment is warranted. Winston &

Strawn, LLP v. McLean,

(D.C. Cir. 2016) (citation omitted). A district court

“must determine for itself that there is no genuine dispute as to any material fact and that the

movant is entitled to judgment as a matter of law, and then ‘should state on the record the

reasons for granting or denying the motion.’”

at 508–09 (quoting Fed. R. Civ. P. 56(a)).

IV. ANALYSIS

The adequacy of an agency's search is measured by a standard of reasonableness under

the attendant circumstances. Truitt v. U.S. Dep't of State,

(D.C. Cir. 1990).

“In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate

an agency's compliance . . .” North v. U.S. Dep't of Justice,

(D.D.C.

2011) (citing Perry v. Block,

(D.C. Cir. 1982)). A search need not be

exhaustive, and the adequacy of a search is not determined by its results, but by the method of

the search itself. Brown v. FBI,

, 125–26 (D.D.C. 2009) (citing Miller v.

United States Dep't of State,

(8th Cir. 1985) and Weisberg v. Dep't of

Justice,

(D.C. Cir. 1984)).

Once the agency has provided a “reasonably detailed” affidavit, 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 v. CIA,

(D.C.

Cir. 2007) (internal citation and quotation marks omitted).

EOUSA has submitted declarations, authored by individuals with authority and detailed

personal knowledge, establishing that the searches were reasonable and adequate. The affiants

14 clearly (1) identify the sources and locations searched; (2) explain why the relevant information,

if possessed, would be stored in those sources and locations; (3) pinpoint the personnel involved

with the searches; and (4) define the methodology, timeline, and scope of the searches. In

addition to being reasonably detailed, the declarations appear to have been made in good faith.

Therefore, the court finds the searches to have been adequate and reasonable. Because EOUSA

searched and was unable to locate the documents, its preliminary invocations of the Exemptions

are now moot and need not be addressed. See Def.’s Reply at 3; Smith Decl. ¶¶ 7, 8.

Plaintiff argues that EOUSA must be intentionally concealing Exhibit C because the

document exists on the U.S. v. Elgabrowny case docket. See Pl.’s MSJ Opp. II at 7, 13.

However, merely because a document exists, or once existed, does not mean that EOUSA

possesses it, and “[a]n agency's failure to find a particular document does not necessarily indicate

that its search was inadequate.” Brown, 675 F. Supp. 2d at 125–26 (citing Wilbur v. CIA,

(D.C. Cir. 2004) and Nation Magazine v. United States Customs Serv.,

, 892 n.7 (D.C. Cir. 1995)).

Plaintiff also argues that EOUSA must possess Exhibit C because policy mandates such

retention. See Pl.’s MSJ Opp. II at 19–20; Pl.’s MSJ Opp. II Ex. 1. He cites to and holds out as

authority, the “Security Procedures Established Pursuant to Pub. L. 96–456,

, By

the Chief Justice [Burger] of the United States for the Protection of Classified Information”

(“Court Security Procedures”). Pl.’s MSJ Opp. II at 20. More specifically, he relies on a 1981

memorandum, apparently issued in furtherance of these Court Security Procedures, and

seemingly directed to the attention of the “United States Department of Justice Litigation

Security Group.” Id.; Pl.’s MSJ Opp. II Ex. 1 ¶ 11. Plaintiff focuses on paragraph 11 of the

memorandum:

15 Final Disposition: Within a reasonable amount of time after all proceedings in the case have concluded, including appeals, the court shall release to the court security officer all materials containing classified information. The court security officer shall then transmit them to the Department of Justice Security Officer who shall consult with the originating agency to determine the appropriate disposition of such materials. Upon the motion of the government, the court may order the return of the classified documents and materials to the department or agency which originated them. The materials shall be transmitted in the manner specified in §7(c) of these procedures and shall be accompanied by the appropriate accountability records required by §9(b) of these procedures.

Id. Plaintiff provides no other context or information regarding the Court Security Procedures,

the accompanying memorandum, or the DOJ Litigation Security Group. Even assuming this

memorandum governed EOUSA procedures relating to U.S. v. Elgabrowny, the memorandum

fails to advance Plaintiff’s argument. Its plain language clearly delegates post-trial responsibility

for handling classified information to the court, not the relevant agency. Thereafter, DOJ

Security Officers are directed to coordinate with the “originating agency” to collectively

determine, but not handle, the disposition of the materials. See id.

Plaintiff implies that EOUSA was responsible for retrieving and permanently storing

Exhibit C at the conclusion of his criminal proceedings. See Pl.’s MSJ Opp. II at 20. However,

it is not even clear that EOUSA was the originating agency 10 of Exhibit C. Additionally,

paragraph 11 of the memorandum mandates that the court, in its discretion, may return classified

documents to the originating agency, only “[u]pon the motion of the government[,]” Id. at 19–

20; Pl.’s MSJ Opp. II Ex. 1 ¶ 11, and it is unclear whether the government ever made any such

motion.

10 In fact, in this litigation, the CIA located Exhibit C, and the court found that it properly withheld the document pursuant to

(b)(3). Elgabrowny,

at *11, *14. 16 More pressing, and notwithstanding Plaintiff’s unwarranted reliance on the Court

Security Procedures and accompanying memorandum, Plaintiff seeks documents that are nearly

thirty years old and which be difficult to locate, even if they had been returned to EOUSA.

FOIA does not impose a duty on agencies to keep their records indefinitely, and a requester is

only entitled to records that an agency has actually retained. Bonfilio v. Occupational Safety &

Health Administration,

(D.D.C. 2018) (citing Wilbur,

and Yeager v. DEA,

(D.C. Cir. 1982)).

“[I]t is long settled that the failure of an agency to turn up one specific document in its

search does not alone render a search inadequate.” Ancient Coin Collectors Guild v. U.S. Dept.

of State,

(D.C. Cir. 2011) (quoting Iturralde v. Comptroller of Currency,

(D.C. Cir. 2003)); see also Bey v. U.S. Dept. of Justice,

(D.D.C. 2007) (quoting Miller,

) (an agency “is not required by [the FOIA] to

account for documents which the requester has in some way identified if it has made a diligent

search for those documents in the places in which they might be expected to be found”). Even

though some of the records Plaintiff seeks once existed, that fact does not guarantee or even

obligate EOUSA to have retained possession of those records. Plaintiff also argues that EOUSA

failed to segregate non-exempt information, Pl.’s MSJ Opp. II at 19, but EOUSA cannot

segregate information from documents it does not possess.

Next, Plaintiff argues that EOUSA failed to specify its search terms.

at 20–1. This

argument is unavailing because EOUSA conducted a manual search of physical files for specific

documents, rather than an electronic search which would require use of terms. Where a

declaration is clear that an agency manually searched physical boxes and/or documents, and the

relevant documents are “susceptible to a manual search of every page,” then the issue of search

17 terms is resolved. See Aguiar v. Drug Enforcement Administration,

(D.C. Cir.

2017). Here, Hodge states that he and “the Records Manager retrieved the[] boxes and manually

searched them document-by-document,” and other personnel conducted manual searches of the

sensitive records vault and the records of the AUSAs who prosecuted U.S. v. Elgabrowny and

U.S. v. Salameh. Hodge Decl. I ¶¶ 5–9; Hodge Decl. II ¶ 8–10. The court finds that the

declarations submitted are sufficiently detailed, particularly given that they need not “set forth

with meticulous documentation the details of an epic search for the requested records.” Perry,

.

Plaintiff also advocates that the records will reveal “highly material exculpatory

information regard[ing] plaintiff and his co-defendants[,]” Pl.’s MSJ Opp. II at 3, purportedly

intentionally concealed at trial, and will assist in proving his innocence, see id. at 1, 3–5, 7–8. He

claims that a public interest in this information exists because disclosure will raise questions about

“the government’s integrity while administering justice in Plaintiff’s trial[.]” Id. at 1.

First, the public interest in this information, if any, is irrelevant because EOUSA could

not locate the requested documents. Second, even if EOUSA had retrieved the documents,

Plaintiff’s arguments do not establish a public interest. A plaintiff’s “personal interest in

“seeking documents that should have been produced and made available to him at his criminal

trial . . . does not suffice.” Petrucelli v. DOJ,

(D.D.C. 2014) (finding

that while plaintiff may have a personal stake in obtaining FBI records to attack his criminal

conviction, it did not contribute to any public interest in disclosure) (internal citations and

quotation marks omitted); see also Oguaju v. United States,

(D.C. Cir. 2002)

(finding that a requester's “personal stake in using the requested records to attack his convictions

does not count in the calculation of the public interest”), vacated on other grounds and

18 remanded,

(2004), on remand,

(D.C. Cir. 2004) (reaffirming prior

decision), cert. denied,

(2005); Engelking v. DEA,

, 980–81 (D.C. Cir.

1997) (per curiam) (“To the extent [the appellant] argues that he seeks exculpatory information,

[his] personal need for information is immaterial to whether that information is protected from

disclosure by one of the exemptions to the FOIA.”); Lazaridis v. U.S. Dep’t of Justice,

(D.D.C. 2011) (holding that disclosure was unwarranted where plaintiff

requested documents to assist in proving violations under Brady v. Maryland,

(1963)); Brown v. DOJ,

(D.D.C. 2010) (“Assuming that plaintiff seeks

documents responsive to his request in order to challenge his conviction and/or bring to light

possible government misconduct, the Court finds that plaintiff has not demonstrated that either of

these reasons constitute[s] a ‘significant’ public interest in documents concerning [a third

party].”).

Plaintiff’s contention that there is “a generic public “interest in the administration of

justice” is equally futile. Petrucelli,

(internal citations and quotation marks

omitted); see also McCutchen v. Dep't of Health & Human Servs.,

(D.C. Cir.

1994) (“A mere desire to review how an agency is doing its job, coupled with allegations that it

is not, does not create a public interest sufficient to override the privacy interests[.]”).

Finally, Plaintiff relies on a finding in U.S. v. Rahman,

(S.D.N.Y.

1994), in which, during the course of the prosecution, the court ruled on the government’s

petition for non-disclosure. See Pl.’s Opp. II at 19. As part of that petition, the documents at

issue were attached as exhibits to the Price Declaration, the Khuzami Declaration, and

accompanied by a Memorandum of Law (“Memorandum”). See Rahman,

.

Both parties concede that, the Price Declaration included Exhibit C. See

. The court

19 found certain exhibits discoverable and certain exhibits protected but ruled that the

Memorandum and Declarations would all be classified because they contained “the substance of

the classified information submitted for review, and other classified information, and need not be

disclosed.”

.

Plaintiff now argues that, pursuant to Request No. FOIA-2014-02098, EOUSA should

have searched its case files for the Khuzami Declaration and Memorandum, because those

documents likely refer to Exhibit C. See Pl.’s Opp. II at 16, 19; Pl.’s Surrep. at 3–4, 7. He

acknowledges that he neither specifically requested the Khuzami Declaration nor the

Memorandum, but that EOUSA interpreted his Request “too narrowly” and that the focus should

have been on the “information” contained within Exhibit C, rather than Exhibit C itself. Pl.’s

Surrep. at 4. The court disagrees, finding that Plaintiff now improperly seeks to broaden his

search beyond the parameters of his actual Request. See Houser v. Church,

(D.D.C. 2017) (holding that a requester shall not expand the scope of his FOIA request in

the course of litigation). This finding is supported by the language of Plaintiff’s Request.

Plaintiff unambiguously requested only Exhibit C, specifying “[t]o be clear and to

reiterate, the record sought her[e]in is a single page, Exhibit C, that was attached to the Price

Declaration, that accompanied the government’s July 1994 motion . . . therefore, there is no need

to search the entire case file. The information provided is sufficient to point your agency directly

to the requested document.” Stone Ex. B. Despite Plaintiff’s claims, “[a]gencies . . . need not

expand their searches beyond ‘the four corners of the request,’ nor are they ‘required to divine a

requester's intent.’” American Chemistry Council, Inc. v. U.S. Dep't of Health & Human Servs.,

(D.D.C. 2013) (quoting Landmark Legal Found. v. EPA,

(D.D.C. 2003)); Kowalczyk v. Department of Justice,

(D.C. Cir. 1996)

20 (holding that an agency “is not required to speculate about potential leads,” nor “look beyond the

four corners of the request for leads[.]”) Plaintiff indisputably sought one page, Exhibit C, and

despite the fact that he knew the Declarations and Memorandum existed, he declined to request

them. See Stone Ex. B. Plaintiff went so far as to instruct EOUSA to refrain from searching its

case files, which the agency nonetheless endeavored to do. See

EOUSA has therefore “not

run afoul of FOIA by failing to search for or produce records” that were not part of his narrowly-

tailored Request. Day v. Dep’t of State, No. 17-1418 (EGS),

at *6 (D.D.C.

Mar. 6, 2020).

The court finds that Plaintiff has not shown that EOUSA failed to conduct an adequate

search, and his supplemental arguments are likewise unpersuasive. Consequently, the court finds

that EOUSA’s searches were reasonable under existing attendant circumstances based on its

good faith declarations and other supporting documentation. See White v. DOJ,

(D.D.C. 2012).

V. PLAINTIFF’S FOURTH MOTION FOR IN CAMERA REVIEW

Plaintiff files a Fourth Motion for In Camera Review. His First and Second Motions,

ECF Nos. 51 at 41–4, 45–6, requested in camera review and discovery of documents purportedly

in FBI’s possession, including Exhibit C. Third Mot. In Cam. at 1–3. These Motions were

denied because FBI searched its records and did not find any of the requested documents.

Elgabrowny,

at *16.

Plaintiff’s Third Motion for In Camera Review, ECF No. 56, sought inspection of the

CIA’s retrieved Exhibit C. That motion was denied because the court found that Exhibit C was

properly withheld in full under Exemption 3.

.

21 Plaintiff’s Fourth Motion requests an “in camera inspection to the search slips and

processing notes the FOIA unit of USAO SDNY created during its search for [E]xhibit C.” Pl.’s

Mot. In Cam. IV ¶ 2; Pl.’s Surrep. at 1–2. He insists, without any basis, that EOUSA must have

Exhibit C and accuses the agency of deliberately refusing to produce it for fear of exposure of

alleged prosecutorial misconduct. See Pl.’s Mot. In Cam. IV ¶¶ 1–2; Pl.’s Surrep. at 1–3.

The D.C. Circuit has set forth criteria for determining the need for in camera review in

FOIA/PA cases. See Allen v. CIA,

(D.C. Cir. 1980), abrogated on other

grounds by Founding Church of Scientology, 721 F. 2d at 831–32. These criteria do not limit the

court’s discretion to decide whether to conduct in camera review, but provide a list of factors to

consider, including: (1) judicial economy, (2) the conclusory nature of the agency affidavits, (3)

possible bad faith on the part of the agency, (4) whether the agency proposes in camera review,

(5) disputes concerning the content of the document, and (6) the strong public interest in

disclosure.

at 1297–299.

In light of the Allen factors, the court finds there is no basis to conduct an in camera

review. EOUSA submitted detailed declarations, made in good faith, and a review of its search

slips or processing notes is thus unnecessary and contrary to judicial economy. The agency has

not joined in this request, and this appears to be Plaintiff’s first demand for these particular

documents; there is no indication that he has formally requested them through FOIA or the

Privacy Act. Plaintiff’s speculation that EOUSA must have engaged in some impropriety cannot

form the basis for in camera review. See DiViaio v. Kelley,

(10th Cir. 1978)

(finding that if courts were to conduct an in camera review each time a requester alleged the

possibility of untruthfulness or existence of nonexempt material, an in camera review would be

22 required in every FOIA case, which is “clearly not what congress intended[.])” Therefore,

Plaintiff’s Fourth Motion for In Camera Review is denied.

VI. CONCLUSION

For all the foregoing reasons, EOUSA’s Renewed Motion for Summary Judgment is

GRANTED and the case against EOUSA and DOJ is dismissed with prejudice.

Plaintiff’s Fourth Motion for In Camera Review is DENIED.

An Order consistent with this Memorandum Opinion is separately and

contemporaneously issued.

Date: March 25, 2020

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

23