UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KEN EZEAH,

Plaintiff,

v. Case No. 24-cv-00077 (TNM)

EXECUTIVE OFFICE OF THE UNITED STATES ATTORNEYS,

Defendant.

MEMORANDUM OPINION

Ken Ezeah requested records under the Freedom of Information Act from the Executive

Office for United States Attorneys (EOUSA). EOUSA searched for responsive records but

located none, so it now moves for summary judgment. For the following reasons, the Court will

grant EOUSA’s motion in part.

I.

Ezeah is serving a 132-month prison sentence after pleading guilty in the U.S. District

Court for the Western District of Oklahoma to one count of conspiracy to commit wire fraud.

United States v. Ezeah,

, at *1 (W.D. Okla. Oct. 25, 2017). On January 18,

2023, Ezeah requested:

1) A copy of the affidavit in support of the search warrant prepared by Agent Christine Beining served on my property [in Houston, Texas in January 2016].

2) Copies of all email and text message correspondences between the prosecuting attorney for the government Tim Ogilvie and [m]y trial attorney Bob Wyatt pertaining to my prosecution from the period of the 27th of January 2017 till date [sic].

3) Preferably unredacted copies of all three proffer interviews I participated in with the F.B.I. Agent Tim Schmitz and my trial attorney Bob Wyatt, the first of which began on the 2nd of February 2017 at the Federal Court house [sic] in Oklahoma.

4) Copies of all email and text message communications between F.B.I. Agent Tim Schmitz and Prosecutor Tim Ogilvie pertaining [to the search warrant]. 1

5) Copy [sic] information pertaining to the owner and the terms of purchase of my property [in Houston, Texas].

FOIA Request, ECF No. 11-1. 2 Three months later, EOUSA acknowledged receipt of the

Freedom of Information Act (FOIA) request and assigned it tracking number 2023-001525. Am.

Compl. Ex. A, ECF No. 6-1. After waiting nearly a year, Ezeah filed this lawsuit because

EOUSA had “yet to turn over the documents[.]” Compl., ECF No. 1, at 1. A search ensued.

Decl. of Auborn Finney ¶ 7, ECF No. 22-2. EOUSA “does not maintain a centralized database”

for the 93 U.S. Attorney’s Offices it supports. Finney Decl. ¶¶ 6,1. Each district maintains its

own records. So EOUSA tasked the U.S. Attorney’s Office for the Western District of

Oklahoma (USAO-WDOK) with searching for potentially responsive records. “USAO-

WDOK’s search produced no documents responsive to [Ezeah’s] request.” Finney Decl. ¶ 13;

Letter from EOUSA to Ken Ezeah (Aug. 23, 2024), ECF No. 22-3.

EOUSA moved for summary judgment. Three days later, the Court advised Ezeah to

respond to EOUSA’s motion in sixty days. Fox-Neal Order, ECF No. 23. Ezeah requested and

was granted another thirty-day extension of time. Pl. Mot. Extension Time, ECF No. 24; Min.

1 “Special Agent Tim Schmitz of the FBI” “identified Ezeah as the resident of [an] address” in Houston, Texas, searched pursuant to a warrant. See United States v. Ezeah,

, at *2 (W.D. Okla. Dec. 22, 2016). 2 EOUSA’s declarant narrowly interprets the FOIA request as seeking only communications and correspondence. Finney Decl. ¶ 5. The affidavit refers the Court to “attachment A for a true and accurate statement of the contents.”

But Attachment A is EOUSA’s final no-records response. ECF No. 22-3. The actual request is an exhibit to Ezeah’s Motion to Supplement the Record, ECF No. 11.

2 Order 2/5/2025 (granting extension). Still, no response has been filed seven months later.

EOUSA’s motion for summary judgment is ripe for decision.

II.

A court cannot treat an unopposed summary judgment motion as conceded. It “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.’” Winston & Strawn v. McLean,

(D.C. Cir.

2016) (quoting Fed. R. Civ. P. 56(a)). A genuine issue of material fact “might affect the

outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc.,

(1986). The moving party must first carry the burden to show that it is entitled to judgment

as a matter of law.

Then the nonmoving party must establish more than “the mere existence

of a scintilla of evidence” in support of his position.

All facts and reasonable inferences

drawn from them must be interpreted in the light most favorable to the non-moving party.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

, 587–88 (1986).

FOIA generally requires federal agencies to “disclose information to the public upon

reasonable request unless the records at issue fall within specifically delineated exemptions.”

Judicial Watch, Inc. v. FBI,

, 365–66 (D.C. Cir. 2008). An agency may obtain

summary judgment in a FOIA case by relying on “relatively detailed” and “nonconclusory”

declarations. McGehee v. CIA,

(D.C. Cir. 1983). Those declarations may

not be contradicted by record evidence “or by evidence of agency bad faith.” See Aguiar v.

DEA,

, 734–35 (D.C. Cir. 2017). Such declarations receive “a presumption of good

faith.” SafeCard Servs., Inc. v. SEC,

(D.C. Cir. 1991).

3 III.

When an agency’s search yields no responsive records, the sole question on summary

judgment is whether the agency “has discharged its FOIA responsibilities” by conducting an

adequate search. Larson v. Dep’t of State,

(D.C. Cir. 2009). The “search

need not be perfect, only adequate, and adequacy is measured by the reasonableness of the effort

in light of the specific request.” Meeropol v. Meese,

(D.C. Cir. 1986). An

inadequate search for records is an improper withholding under FOIA. See Steinberg v. Dep’t of

Justice,

, 551–52 (D.C. Cir. 1994).

A FOIA search’s reasonableness depends on the “appropriateness of [its] methods,” not

its “fruits.” Iturralde v. Comptroller of Currency,

(D.C. Cir. 2003). The key

question is “whether the search was reasonably calculated to discover the requested documents,

not whether it actually uncovered every document extant.” SafeCard Servs., Inc.,

. An agency must show through “a reasonably detailed affidavit,” Iturralde, 315 F.3d at

313–14, “that it made a good faith effort to conduct a search for the requested records, using

methods which can be reasonably expected to produce the information requested,” Oglesby v.

Dep’t of Army,

(D.C. Cir. 1990). This entails “setting forth the search terms and

the type of search performed.”

EOUSA has partly carried its burden. Recall that each U.S. Attorney’s Office maintains

its own records. EOUSA plausibly explains why, as the prosecuting office, the Western District

of Oklahoma was “the only District with potentially responsive documents[.]” Finney Decl.

¶¶ 6, 12. That office “performed an electronic search” of CaseView, which tracks “civil and

criminal cases, appellate investigations, and matters within the USAO-WDOK” by parties’

names, USAO case jacket numbers, and Court case docket numbers. Finney Decl. ¶¶ 8–9.

4 When the search commenced, Ogilvie had retired from the Department of Justice, and the

prosecuting office “no longer ha[d] access to his emails.” Finney Decl. ¶ 11. So the legal

assistant who worked with Ogilvie “was asked to search her files for any responsive documents.”

Staff also “searched the case file CR # 5:16 CR-0029-D-1 and CV # 5:19-CV-00939-D,”

both cited in the FOIA request. Finney Decl. ¶ 10. Those “files did not contain any

correspondence between Bob Wyatt and Tim Ogilvie or between Tim Ogilvie and Tim Schmitz.”

Neither did they “contain any emails.”

EOUSA has demonstrated a reasonably adequate search for records responsive to items

two and four of the FOIA request. FOIA Request, ECF No. 11-1, at 1. Not so for unaddressed

items one, three, and five.

It is quite conceivable that EOUSA would not have a retired

prosecutor’s text messages or any other documents relating to these items, but it has not said as

much in the current record. Finney Decl. passim. In similar FOIA cases, the Court has granted

plaintiffs’ cross-motions for summary judgment for inadequate or incomplete searches, requiring

the agency to fill holes in its searches and produce any responsive documents. E.g., Louise

Trauma Ctr., LLC v. DHS,

, at *6 (D.D.C. Apr. 11, 2022). But these cases

involved cross-motions for summary judgment, which Ezeah has not filed. Id. at *1.

Nonetheless, the summary judgment rule allows the Court to “grant summary judgment

for a nonmovant” “[a]fter giving notice and a reasonable time to respond.” Fed. R. Civ. P.

56(f)(1). Accordingly, the Court hereby gives notice to the Government that it intends to grant

summary judgment to Ezeah as to its inadequate searches on items one, three, and five in his

FOIA request. The Government may respond by September 10, 2025, with further information

about searches accomplished vis-à-vis those requests.

5 CONCLUSION

For the foregoing reasons, the Court will grant in part and deny in part EOUSA’s motion

for summary judgment. A separate order will issue today.

2025.07.21 ________________________ 10:48:37 -04'00' Dated: July 21, 2025 TREVOR N. McFADDEN United States District Judge

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