UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) MICHAEL A. PEAK, ) ) Plaintiff, ) ) v. ) Civil Action No. 18-cv-3043 (TSC) ) UNITED STATES ) DEPARTMENT OF JUSTICE et al., ) ) Defendants. ) )

MEMORANDUM OPINION

Plaintiff Michael Peak, appearing pro se, challenges the Federal Bureau of

Investigation’s (“FBI”) response to his request under the Freedom of Information Act

(“FOIA”). The Department of Justice and the FBI have moved for summary judgment

under Federal Rule of Civil Procedure 56, ECF No. 13, and Plaintiff has cross-moved

for summary judgment, ECF No. 20. For the reasons explained below, Defendants’

motion will be GRANTED, and Plaintiff’s motion will be DENIED.

I. BACKGROUND

Plaintiff, a Kentucky state prisoner, was convicted by a jury of first-degree

murder and sentenced to life in prison. See Compl., ECF No. 1 at 2 (citing Peak v.

Com.,

(Ky. 2006)). On May 15, 2018, Plaintiff requested the following

from the FBI pertaining to his criminal case:

copies of all documents, inclusive of reports, notes, comparable test results, correspondence and follow-up between inter/intra agencies generated in relation to multiple biological/DNA evidence submissions to the FBI crime lab

1 from the Kentucky State Police (KSP) crime lab from 1999- 2007 with cross referencing KSP case and lab numbers: Case Nos. 05-99-0183; FA-99-09; Lab Nos. 99-0-01804; 99- 0-01906; 00-2-06281; 01-0-00374; and 01-0-07920.

Decl. of Michael G. Seidel ¶ 5, ECF No. 13-2, & Ex. A. 1 After Plaintiff submitted

additional information, by letter of June 28, 2018, the FBI responded to Plaintiff’s

Request No. 1406259-000, for “FBI LAB DATA FROM KSP 1999-2007.” Seidel

Decl., Ex. D (subject line). The letter stated in relevant part that a search of the FBI’s

Central Records System (“CRS”) had located no “main file records responsive to your

request,” that Plaintiff’s file was closed, and that he could appeal to the Office of

Information Policy (“OIP”) within 90 days.

The FBI invited Plaintiff to submit a

new FOIA request if he had “additional information pertaining to the subject of [the]

request” to enable “an additional search.”

On July 5, 2018, Plaintiff resubmitted his request “under the following

parameters:”

• All records of any DNA submission by any Kentucky State Official to one or all: F.B.I. Crime Laboratory, Missing Persons DNA Database, and CODIS on Miguel Angel Garcia, the victim in my criminal case, Jefferson Circuit Court No. 0l-CR- 584, Peak v. Commonwealth,

(Ky. 2006).

• I am seeking post-conviction DNA relief under KRS 422.285 et seq. and I am entitled as a defendant to have this information disclosed to me inclusive of cross­ referencing:

• Case Nos. 05-99-0183; FA-99-09

• Lab Nos. 99-0-01804; 99-0-01906; 00-2-06281; 01-0- 00374; 01-0-07920

1 Seidel is Assistant Section Chief of the FBI’s Record/Information Dissemination Section (“RIDS”), Information Management Division (“IMD”). 2 • All notes, correspondence inter/intra state and federal agencies involved in my case, comparison results, comparable DNA profiles generated in relation to multiple biological/DNA evidence submissions to the F.B.I. crime lab from the Kentucky State Police and Medical Examiner's Office between 1999-2007.

Seidel Decl., Ex. E at 1. Plaintiff added that no “privacy concerns” exist because “the

victim is deceased and the collection of DNA evidence in relation to my case . . . were

[sic] placed in the public domain” through the testimony of a forensic anthropologist

from the Kentucky Medical Examiner’s Office and detectives from the Kentucky State

Police.

On July 24, 2018, the FBI, referencing new Request No. 1406259-001 and

the above-mentioned subject line, informed Plaintiff that “a search of the locations or

entities where records responsive to your request would reasonably be found” had

located no responsive records. Seidel Decl., Ex. F. The letter again informed Plaintiff

of his right to appeal the decision to OIP. See

On August 15, 2018, Plaintiff submitted to OIP an “Appeal of Non-Disclosure,”

Seidel Decl., Ex. G., asserting that the FBI’s search was inadequate because “it failed to

employ” its “Automated Case Support System,” “the universal index (UNI),” and

“Sentinel, the FBI’s next generation case management system that became effective

FBI-wide on July 1, 2012.” Admin. Appeal at 2 (cleaned up). On September 23, 2018,

OIP affirmed the FBI’s action, concluding that it “had conducted an adequate,

reasonable search for [responsive] records.” Seidel Decl., Ex. I. OIP informed Plaintiff

that the requested records “are likely maintained by state or local authorities,” whereas

“federal FOIA applies only to records maintained by federal agencies that are subject to

the FOIA.”

It suggested that Plaintiff direct his request “to the proper state or local

authority in accordance with the appropriate state or local records access law.”

3 Finally, OIP advised Plaintiff of his right to sue. Plaintiff initiated this action on

November 28, 2018, seeking “to enjoin” Defendants “from refusing to search and

produce” records. Compl. ¶ 1.

II. LEGAL STANDARD

Summary judgment is appropriate where the record shows there is no genuine

issue of material fact and the movant is entitled to judgment as a matter of law. See

Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,

(1986); Waterhouse

v. District of Columbia,

(D.C. Cir. 2002). “FOIA cases typically and

appropriately are decided on motions for summary judgment.” Georgacarakos v. FBI,

(D.D.C. 2012) (citation omitted).

“FOIA provides a ‘statutory right of public access to documents and records’

held by federal government agencies.” Citizens for Responsibility & Ethics in

Washington v. DOJ,

(D.D.C. 2009) (quoting Pratt v.

Webster,

(D.C. Cir. 1982)). FOIA requires that federal agencies

comply with requests to make their records available to the public, unless such

“information is exempted under [one of nine] clearly delineated statutory language.”

(internal quotation marks omitted); see also

(a), (b). A plaintiff

prevails “only if he has demonstrated that an agency has (1) improperly (2) withheld

(3) agency records.” Johnson v. United States,

(D.D.C. 2017)

(citation and internal quotation marks omitted).

In deciding whether an agency has fulfilled its obligations under FOIA, “the

court shall determine the matter de novo . . . and the burden is on the agency to

sustain its action.”

(a)(4)(B). The court may rely solely on

4 information provided in an agency’s supporting affidavits or declarations if they are

relatively detailed and “are not controverted by either contrary evidence in the record

[or] by evidence of agency bad faith.” Military Audit Project v. Casey,

(D.C. Cir. 1981). “To successfully challenge an agency’s showing that it complied

with the FOIA,” the plaintiff “must come forward with ‘specific facts’ demonstrating

that there is a genuine issue with respect to whether the agency has improperly withheld

extant agency records.” Span v. U.S. Dep’t of Justice,

(D.D.C. 2010) (quoting Dep’t of Justice v. Tax Analysts,

(1989)).

III. ANALYSIS

An agency responding to a FOIA request must make “a good faith effort to

conduct a search for the requested records, using methods which can be reasonably

expected to produce the information requested.” Baker & Hostetler LLP v. U.S. Dep't

of Commerce,

(D.C. Cir. 2006). “When a plaintiff questions the

adequacy of the search . . ., the factual question it raises is whether the search was

reasonably calculated to discover the requested documents, not whether it actually

uncovered every document extant.” SafeCard Servs., Inc. v. SEC,

(D.C. Cir. 1991). An agency will be granted summary judgment on the adequacy of its

search if it “show[s] beyond material doubt [ ] that it has conducted a search reasonably

calculated to uncover all relevant documents.” Morley v. CIA,

(D.C. Cir. 2007) (quoting Weisberg v. U.S. Dep't of Justice,

(D.C.

Cir. 1983) (Weisberg II)).

An agency can show “reasonableness” by “setting forth the search terms and the

type of search performed, and averring that all files likely to contain responsive

5 materials (if such records exist) were searched.” Sanders v. Obama,

(D.D.C. 2010), aff'd sub nom., Sanders v. U.S. Dep't of Justice, No. 10-5273,

(D.C. Cir. Apr. 21, 2011) (internal citation omitted). Adequacy “is

judged by a standard of reasonableness and depends, not surprisingly, on the facts of

each case.” Weisberg v. U.S. Dep't of Justice,

(D.C. Cir. 1984)

(Weisberg III).

An agency need not search every record system. Rather, a search is reasonable if

it includes all systems “that are likely to turn up the information requested.” Oglesby v.

U.S. Dep't of the Army,

(D.C. Cir. 1990). “Once an agency has made a

prima facie showing of adequacy, the burden shifts to the plaintiff to provide

countervailing evidence . . . sufficient to raise substantial doubt concerning the

adequacy of the agency’s search.” Rodriguez v. U.S. Dep't of Def.,

(D.D.C. 2017) (internal citation omitted). Speculation that records exist is not

grounds to require a further search. Kowalczyk v. Dep’t of Justice,

(D.C. Cir. 1996).

Defendants’ declarant provides a comprehensive description of the FBI’s vast

Central Records System (CRS), which encompasses the Automated Case Support (ACS)

system, the Sentinel case management system, and the Universal Index (UNI) that

Plaintiff claims were not searched. Compare Seidel Decl. ¶¶ 15-23 with Ex. G (Admin.

Appeal). The declarant adequately describes the search methodology, which indeed

encompassed the foregoing systems, see Seidel Decl.¶¶ 25-26, and plausibly explains

why and how the search terms (variations of Plaintiff’s name) were utilized, see id. ¶

26. In addition to the CRS, the FBI searched “its manual indices for the Louisville

6 Field Office using the same search terms,” id. ¶ 27, and prompted “a targeted search”

by “subject matter experts” of its Laboratory Division Case Files maintained by the

Forensic Analysis Support Unit of the Science and Technology Branch, id. ¶¶ 28, 31.

Finally, in response to this lawsuit, the FBI “conducted subsequent searches for records

concerning: A. Subject, Michael A. Peak” and “B. Subject, Miguel Angel Garcia

(deceased).” Id. ¶ 29. The former repeated “a CRS index search” using variations of

Plaintiff’s name “for potentially responsive records employing the ACS indices

available through Sentinel and a search of [the FBI’s] manual indices for its Louisville

Field Office”; the latter involved “a CRS index search for potentially responsive

laboratory-related records, utilizing the deceased/victim’s name, employing the ACS

indices available through Sentinel.” Id.; see id. ¶¶ 19-23 (describing automated and

manual databases). The declarant avers that “all systems and locations likely to contain

responsive records” were searched and “there are no other systems or locations likely to

contain” responsive records. Seidel Decl. ¶ 30.

Plaintiff does not question the reasonableness of the foregoing searches but

rather the completeness of the FBI’s search. Citing “the Government’s NMPDD and

NamUs databases,” he argues that the government “has presented no evidence why

these federal databases are not connected to CRS and would not provide the records

responsive to Peak’s FOIA requests, or that it was not required to search these

databases like it did regarding CODIS.” Opp’n, ECF No. 19 at 7. Contrary to

Plaintiff’s first point, Defendants’ initial declaration adequately describes the

Combined DNA Index System (CODIS) as “an automated DNA database system” --

wholly separate from the CRS -- that supports the National DNA Index System (NDIS)

7 and State and Local DNA Index Systems under the DNA Identification Act of 1994.

Seidel Decl.¶ 33 (citing the

); see

(elaborating on CODIS

functions). Subsequently, Defendants clarify that the National Missing Persons DNA

Database or NMPDD “is one of the indices within CODIS, not a separate database, and

is subject to the same use restrictions.” Reply, ECF No. 23 at 2. Plaintiff does not

dispute the FBI’s plausible reasons for not searching CODIS and, by extension,

NMPDD. See Opp’n at 18 ¶¶ 33-35 (admitting “the Government’s statements regarding

accessing CODIS”); cf. Seidel Decl. ¶¶ 32, 35 (noting that “the indices of CODIS are

not searchable by name, identifying information, or similar information offered by

Plaintiff,” nor is CODIS “indexed by name, case number, contributing agency, or any

personally identifying information” to enable the FBI “to identify a DNA profile

responsive to Plaintiff’s request”); see accord Lockett v. Wray,

(D.D.C. 2017) (finding “reasonable” FBI declarant’s explanation why a search of

CODIS “by the laboratory number, even if possible, would yield no responsive

records”); Moore v. Nat'l DNA Index Sys.,

, 138 n.3 (D.D.C. 2009)

(observing “[t]hat the very design of the NDIS makes such a search impossible is a

testament to the government’s well-placed concerns for the personal privacy of any

individual whose DNA records are stored in the NDIS.”). And where a search for

records “is, by design, literally impossible for the defendants to conduct not searching

satisfies the FOIA requirement of conducting a search that is reasonably calculated to

uncover responsive documents.” Moore,

.

Regarding the National Missing and Unidentified Persons System or NamUs, the

FBI asserts that it was not required to search that entity’s files because NamUs “is not

8 an FBI database.” Reply at 3. The Court agrees. See https://www.namus.gov

(describing NamUs as a national clearinghouse funded and administered by the National

Institute of Justice (NIJ)); https://www.nij.ojp.gov (describing NIJ as DOJ’s “research,

development and evaluation agency”). An agency’s FOIA obligations are triggered by

its receipt of a request that “is made in accordance with [the agency's] published rules.”

(a)(3)(A). Under DOJ’s “decentralized system for responding to FOIA

requests,” a requester “should write directly to the FOIA office of the component that

maintains the records being sought,” which may be identified through the Department’s

FOIA Reference Guide.

(a). Alternatively, FOIA requests may be

addressed “to the FOIA/PA Mail Referral Unit, Justice Management Division,

Department of Justice,” which “will forward the request to the component(s) that it

determines to be most likely to maintain the records that are sought.”

§ 16.3(a)(2).

Such procedures impose no duty on one DOJ component to search the files of another

component for responsive records.

The court finds that Defendants have fully complied with FOIA by conducting

reasonably adequate searches. Because no responsive records were found, much less

withheld, the court declines to address whether “[t]he DNA records Plaintiff seeks are

alternatively protected from disclosure under FOIA Exemption 3.” Defs.’ Mem. at 9.

9 IV. CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment will be

GRANTED and Plaintiff’s motion for summary judgment will be DENIED. A

corresponding order will issue separately.

Date: October 1, 2020 Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

10