UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ESPIGMENIO HERNANDEZ, JR.,

Plaintiff, Case No. 15-CV-944 (JMC)

v.

U.S. DEPARTMENT OF JUSTICE, et al.,

Defendants.

MEMORANDUM OPINION Plaintiff Espigmenio Hernandez, Jr., proceeding pro se, filed suit against the U.S.

Department of Justice (DOJ) and the Executive Office for United States Attorneys (EOUSA)

(collectively, Defendants) seeking records related to his prosecution by the U.S. Attorney’s Office

for the Western District of Texas. Hernandez brings his civil action under the Freedom of

Information Act (FOIA),

, and the Privacy Act of 1974, 5 U.S.C. § 552a. For the

reasons below, the Court GRANTS Defendants’ motion for summary judgment, ECF 35, and

DENIES Hernandez’s cross-motion for summary judgment, ECF 38. 1

I. BACKGROUND

Hernandez was prosecuted in the Western District of Texas for possession with the intent

to distribute marijuana in violation of

(a)(1) and

. W.D. Tex. 4:11-

cr-442 (Tex.) ECF 16. He was found guilty and is incarcerated at the Fort Worth Federal

Correctional Institution. Tex. ECF 94 at 1; see ECF 52 at 3. On February 5, 2014, Hernandez sent

1 Unless otherwise indicated, the formatting of quoted materials has been modified throughout this opinion, for example, by omitting internal quotation marks and citations, and by incorporating emphases, changes to capitalization, and other bracketed alterations therein. All pincites to documents filed on the docket are to the automatically generated ECF Page ID number that appears at the top of each page.

1 a letter to the EOUSA “requesting access to any records about me” maintained by the EOUSA,

citing FOIA and the Privacy Act. ECF 13-3 at 10. The Office passed Hernandez’s letter on to the

United States Attorney’s Office for the Western District of Texas (USAO/TXW).

.

A paralegal with the USAO/TXW was responsible for locating records potentially

responsive to Hernandez’s request. In a form attached to a letter sent from the EOUSA to

Hernandez, the paralegal indicated that she had located 459 pages of potentially responsive

documents: 400 pages of public records, 21 pages of grand jury transcripts, 17 pages of

correspondence, 13 pages of attorney work product, and 8 pages originating from the Drug

Enforcement Agency (DEA). ECF 15 at 18–21. She determined that the public records and grand

jury transcripts were non-releasable, but she sent the remaining pages of correspondence, attorney

work product, and DEA documents to the EOUSA. ECF 15 at 21; ECF 19-1 ¶¶ 2–6. By her count,

she sent 38 pages. ECF 19-1 ¶ 5. The EOUSA then transferred the 8 pages of DEA documents

back to the DEA,

leaving 30 pages consisting of correspondence and attorney work-product,

ECF 19 at 3–4. The EOUSA determined that only 12 of those pages were responsive.

As to the 12 pages deemed responsive to his request, the EOUSA notified Hernandez that

the office was fully releasing 4 pages, partially releasing 1 page, and fully withholding 7 pages

based on FOIA exemptions. ECF 15 at 14–15. Hernandez administratively appealed the EOUSA’s

determination to the DOJ Office of Information Policy (OIP).

. Citing the USAO/TXW’s

form, Hernandez sought production of the full 30 pages of correspondence and attorney work

product that the USAO/TXW had located.

Although OIP received Hernandez’s filing, ECF 13-

3 at 20, the office never notified him of any decision on his timely appeal, ECF 1 ¶ 16.

Hernandez sued the DOJ and the EOUSA, alleging that Defendants violated FOIA and the

Privacy Act by failing to produce all records to which he is entitled. ECF 1 ¶ 11. The Parties

2 thereafter filed cross-motions for summary judgment. ECF 13; ECF 15. In partially resolving these

motions, this Court held that the grand jury transcripts were properly withheld, but the Court could

not determine whether the 18 pages of purportedly nonresponsive correspondence and attorney

work product were appropriately withheld by the EOUSA. ECF 25 at 13, 15. So, Defendants were

ordered to submit those 18 pages for in camera review.

. Rather than submit the 18 pages

to the Court for in camera review, however, the EOUSA reconsidered its withholding decision and

opted to release the 18 pages to Hernandez. ECF 26 at 1.

The EOUSA immediately faced a problem when releasing these previously withheld

documents. In searching for the key “18 pages,” the EOUSA could find “only 15 pages that were

withheld on grounds of non-responsiveness” and was “unable to determine why it previously

believed that it had withheld 18 pages.” ECF 26 at 1. But “[i]n any event,” the EOUSA released

those 15 pages in full.

Hernandez took issue with this supplemental production. He argued that

the EOUSA provided no explanation for the discrepancy between the “18 pages” initially withheld

and the 15 pages eventually produced, and further protested that these documents “featured no

correspondence or attorney work product” as the EOUSA claimed. ECF 27 at 2–3. To

“investigat[e] the alleged discrepancy,” the EOUSA indicated that it would reprocess the

responsive documents, ECF 28 at 1; ECF 29 at 1, and the Parties moved for summary judgment

shortly thereafter, ECF 35; ECF 38.

After the EOUSA reprocessed the records, there was still one page unaccounted for.

Defendants assert that when the EOUSA initially requested responsive documents from the

USAO/TXW, it had received only 37 pages—not 38 pages, as listed on the initial form. ECF 35-

2 at 2. Defendants dismiss this discrepancy as a “typographical error” or a potentially “lost” page.

Defendants further represent that, when the EOUSA requested responsive records a second

3 time for the purpose of reprocessing, the USAO/TXW once again transferred 37 pages. ECF 35-1

at 4–5. Excepting the 8 pages transferred to the DEA, the entire set of 29 pages were released to

Hernandez (16 pages in full, 13 pages in part). ECF 35-1 at 5; ECF 35-2 at 7–8. With this

reprocessing and release completed, Defendants assert that they have adequately searched for

records responsive to Hernandez’s FOIA request and have produced all the records to which he is

entitled. ECF 35-1 at 3.

In his cross motion, Hernandez does not contest the adequacy of the search that the EOUSA

conducted during reprocessing, nor does he dispute the bases for the office’s partial withholding

of 13 pages under FOIA exemptions. He only takes issue with the gap between the number of

documents that the EOUSA initially deemed to be unresponsive (18) and the number that the

Office later released to him (15) before it decided to reprocess the entire batch of documents.

ECF 38 at 4–6. Hernandez asks this Court to “enter summary judgment in [his] favor and order

that the Defendant surrender the original 18-pages or provide a cogent sworn explanation of their

failure to do so.”

.

The Court had questions about the “clear inconsistency (regarding both number and nature)

between the 15 documents that EOUSA produced to Hernandez in response to this Court’s first in

camera review order and the 18 documents that EOUSA originally deemed non-responsive to

Hernandez’s request.” ECF 45 at 4. As such, this Court ordered the EOUSA to submit for in camera

review (1) the full set of documents that the EOUSA initially obtained from the USAO/TXW when

the office first referred Hernandez’s request to that jurisdiction; and (2) the full set of documents

that the EOUSA obtained from the USAO/TXW for reprocessing.

. These two sets of

documents were submitted, received, and reviewed in camera. The Court now resolves the cross-

motions for summary judgment on the merits.

4 II. ANALYSIS

The sole issue at the center of these cross motions is a narrow one. Hernandez only asks

this Court to determine whether Defendants have “surrend[ered] the original 18-pages or

provide[d] a cogent sworn explanation of their failure to do so.” ECF 38 at 12. The Court now

concludes that they have.

The Court has reviewed the set of documents that the EOUSA initially obtained from the

USAO/TXW, the set of documents that were later reprocessed, and the sworn declaration

accompanying Defendants’ summary judgment motion that explains the USAO/TXW’s initial

error. See ECF 35-2 at 2–3. Based on this record, the Court finds that the EOUSA obtained 37

pages from the USAO/TXW when it first referred Hernandez’s records request (not 38 pages, as

indicated on the office’s initial form). Those 37 pages received from the USAO/TXW match the

37 pages that were later reprocessed. Excluding the 8 pages transferred to the DEA during both

initial processing and reprocessing leaves two sets of the same 29 pages. Thus, whatever set of “18

pages” the EOUSA deemed nonresponsive during its initial processing of 29 pages must be part

of the second set of 29 pages that were reprocessed because the two sets are identical. And because

these 29 pages have now been produced to Plaintiff in full or in part, the contested “18 pages”

must have been surrendered—there are simply no other documents to find, review, or turn over.

To the extent that, given the partial redactions, some information may have been withheld from

these documents, Hernandez does not contest the scope of the EOUSA’s search during

reprocessing or its bases for redaction. See generally ECF 38. Thus, with the “18 pages” at issue

now indisputably surrendered or cogently accounted for via sworn testimony, see ECF 35-2 at 2,

the Court’s inquiry is at an end.

III. CONCLUSION

5 The record establishes that the EOUSA made a mistake. The first set of 37 pages is identical

to the second, which means the EOUSA mischaracterized or miscounted the “18 pages” at issue

when it received the first set of documents from the USAO/TXW. The Court understands

Hernandez’s frustration that the EOUSA “cannot explain th[is] discrepancy.” ECF 26-1 at 1. But

the EOUSA’s error does not change the fact that Hernandez has now received all materials

responsive to his request, with some documents subject to only partial redactions (which

Hernandez does not challenge). The Court is satisfied that Defendants have adequately searched

for records responsive to Plaintiff’s FOIA request and have produced all the records to which he

is entitled.

Because Defendants have shouldered their burden under FOIA and the Privacy Act, the

Court GRANTS Defendants’ motion for summary judgment, ECF 35, and DENIES Hernandez’s

cross-motion for summary judgment, ECF 38. A separate order accompanies this memorandum

opinion.

SO ORDERED.

JIA M. COBB U.S. District Court Judge

Date: January 19, 2024

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