Wren v. U. S. Dep't of Justice
Wren v. U. S. Dep't of Justice
Opinion of the Court
On October 14, 2015, plaintiff Dajuan Lamarr Wren, a federal prisoner, filed a request under the Privacy Act, 5 U.S.C. § 552a,
While this lawsuit was pending, defendants provided plaintiff with much of the information that he sought in his FOIA request. For the limited information that remains at issue, the Court will grant defendants' motion. The government is not required to disclose information under FOIA where no such record exists. And because plaintiff is not eligible or entitled to fees, the Court will deny that request as well.
FACTUAL AND PROCEDURAL BACKGROUND
On October 14, 2015, plaintiff submitted a request under FOIA and the Privacy Act to the DEA, seeking information about Special Agent Bryan Sartori, who had testified in plaintiff's criminal trial. Compl. at 4; FOIA Request. Plaintiff requested the following information:
(a) The date Special Agent Sartori was hired by the DEA;
(b) His law enforcement experience, including his dates of employment prior to joining the DEA;
(c) The dates he was trained at Quantico, Virginia;
(d) His history of field postings following training; and
(e) A list of criminal cases in which he has testified, including the case names, case numbers, and the court(s) name and location(s).
See FOIA Request. In a letter dated November 5, 2015, the DEA responded that it would not conduct any searches for the requested records without "consent, proof of death, ... or an overriding public interest" because "any non-public records responsive to [plaintiff's] request would be categorically exempt from disclosure" under FOIA Exemption 7(C). Ex. B. to Compl. [Dkt. # 1].
Plaintiff filed an administrative appeal by letter dated November 19, 2015, asserting that the requested information was "neither non-public in nature nor an invasion of ... personal privacy," and he pointed out in that letter that Special Agent Sartori had already testified to much of this information during plaintiff's January 2011 criminal trial in "the Eastern Judicial District of Michigan, Criminal Case number 10-20137." Ex. C to Compl. [Dkt. # 1]. The DOJ's Office of Information Policy rejected plaintiff's appeal, citing FOIA Exemptions 6 and 7(C). Ex. D to Compl. [Dkt. # 1] ("Because any non-public records responsive to your request would be categorically exempt from disclosure, the FBI
Plaintiff then filed this lawsuit and defendants moved for summary judgment. Plaintiff opposed the motion, and in his opposition, he attached pages of the transcript from the criminal trial in which Special Agent Sartori testified as to many of the facts covered by his request. Pl.'s Opp. to Defs.' Mot. ("Pl.'s Opp."); Ex. 1 to Pl.'s Opp. [Dkt. # 14]. In their reply brief, defendants represented that plaintiff had, "for the first time, provided portions of the transcript from his criminal trial," in which Special Agent Sartori "testified about the biographical information that [p]laintiff sought in his FOIA request." Reply in Supp. of Defs.' Mot. [Dkt. # 20] ("Defs.' Reply") at 1-2. While defendants maintained their position that the information would likely still be protected by Exemptions 6 and 7(C), in the interest of avoiding "needlessly extend[ed] litigation," they provided the information sought by the first four parts of plaintiff's FOIA request.
The only information that remains at issue is a list "of criminal cases in which [Special Agent Sartori] has testified, including case name and case number, and the court(s) name and location(s)." See FOIA Request. Defendants claim that the DEA does not maintain a system of records that contains that information, and that even if such information existed, it would be exempt from disclosure under Exemptions 6 and 7(C). See Myrick Decl. ¶ 12. Plaintiff was granted leave to file a surreply; he did not respond to defendants' position on the remaining category of documents, but he did argue that he is entitled to fees in light of what he deems to be the government's bad faith in responding to his request. Pl.'s Surreply [Dkt. # 21] at 2.
STANDARD OF REVIEW
In a FOIA case, the district court reviews the agency's decisions de novo and "the burden is on the agency to sustain its action."
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 ,
The mere existence of an alleged factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc. ,
*222Laningham v. U.S. Navy ,
"Summary judgment may be granted on the basis of agency affidavits" in FOIA cases when those affidavits "contain reasonable specificity of detail rather than merely conclusory statements," and when "they are not called into question by contradictory evidence in the record or by evidence of agency bad faith." Judicial Watch, Inc. v. U.S. Secret Serv. ,
Even if the nonmoving party fails to respond to the motion for summary judgment, or portions of that motion, a court cannot grant the motion solely on the basis that it was conceded. Winston & Strawn, LLP v. McLean ,
Finally, the Court must take care to construe plaintiff's filings liberally, because complaints filed by pro se litigants are held to less stringent standards than formal pleadings drafted by lawyers. See Schnitzler v. United States ,
ANALYSIS
FOIA requires the release of government records upon request. Its purpose is "to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co. ,
To prevail in a FOIA action, an agency must first demonstrate that it has 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. U.S. Dep't of Army ,
I. Defendants are not required to create a record to respond to item "(e)" of the FOIA request.
Because a fundamental principle behind FOIA "is public access to government documents," courts require agencies "to follow through on obvious leads to discover requested documents." Valencia-Lucena v. U.S. Coast Guard ,
To demonstrate that it has performed an adequate search for responsive documents, an agency must submit a reasonably detailed affidavit describing the search. Oglesby ,
"Agency affidavits are accorded a presumption of good faith," SafeCard Servs. ,
While agencies have a duty to search for responsive records, they are under no obligation to create records in response to a FOIA request. Forsham v. Harris ,
In this case, only one category of records remains at issue: a "list of criminal cases in which [Special Agent Sartori] has testified, including case name and case number, and the court(s) name and locations(s)." See FOIA Request. The agency addressed its response to that part of the search in the declaration of Katherine L. Myrick, the Chief of the Freedom of Information / Privacy Act Unit at the DEA. See Myrick Decl. Ms. Myrick, who has served in that role for almost twenty years, avers that she is "familiar with the policies and practices of DEA and DOJ related to searching for, processing, and the release of DEA information responsive to" FOIA and Privacy Act requests, and she states that there is "no system of records maintained by DEA that lists, by name of a DEA Special Agent, the criminal cases in which a DEA Special Agent has testified, including case name and case number, and the court(s) name and location(s)." Id. ¶¶ 2, 12. So defendants argue that no search has been undertaken because there is no system of records to search. Defs.' Reply at 3-4.
Agency affidavits are afforded a presumption of good faith, Defs. of Wildlife v. U.S. Dep't of Interior ,
Plaintiff seeks the list of cases in an attempt to prove that Special Agent Sartori is not credible; he alleges, for instance, that while Special Agent Sartori claims to have testified in over a hundred cases, there is only proof of two cases in a database that Wren has searched. See Pl.'s Opp. at 4 ("[A] search of the federal-court database available to Wren in his federal prison identified but a single case where Sartori's name appears: Wren's current criminal case. Recently, a second case was identified ...."). But there is no database where that information would be found, Myrick Decl. ¶ 12, and the DEA is not required to undertake research in response to a FOIA request. So the Court finds that the agency's search-asking a person with personal knowledge and experience with the agency's recordkeeping where records might be found-and concluding that there is no applicable database, satisfies the agency's obligations under FOIA to conduct an adequate search. Plaintiff has not argued otherwise.
II. Plaintiff is not entitled to recover litigation costs.
Plaintiff requested litigation costs in his surreply. Pl.'s Surreply [Dkt. # 21] at 2. Courts "may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred" in any FOIA case where "the complainant *225has substantially prevailed."
If the requester is eligible for a fee award, the Court "proceeds to the entitlement prong and considers a variety of factors to determine whether the plaintiff should receive fees." Brayton ,
Plaintiff asks this Court to award fees for his litigation costs, which he itemizes as a $400 filing fee, $250 in "out of pocket costs," and $10,000 of general "litigation" costs. Pl.'s Surreply [Dkt. # 21] at 2. Plaintiff provides no detail substantiating the $250 in out of pocket costs, and he does not explain why a pro se litigant would have incurred or should be awarded $10,000 in "litigation" costs. In any event, "[a]n individual who litigates pro se is ineligible for attorney's fees under the Freedom of Information Act (FOIA)." Nat'l Sec. Counselors v. CIA ,
While it is true that plaintiff obtained relief in this lawsuit when defendants unilaterally changed their position and produced information, the Court questions whether one can characterize plaintiff's attempt to probe the veracity of the Special Agent's testimony about his own background and credentials as a "not insubstantial" claim.
But even if he were eligible for fees, he is not entitled to them. The first factor, the "public benefit derived from the case," considers "both the effect of the litigation for which fees are requested and the potential public value of the information sought." Davy ,
The second and third factors-the commercial benefit of the request and the plaintiff's interest-are often considered together. Tax Analysts v. DOJ ,
Finally, the fourth factor, the reasonableness of the agency's withholding, is in equipoise. Courts must consider whether the agency's withholding of records "had a reasonable basis in law." Tax Analysts ,
The DEA initially declined to release information related to plaintiff's entire FOIA request because they argued that information about Special Agent Sartori's employment history, training, and experience testifying in criminal trials would be exempt from disclosure under FOIA Exemption 7(C). Ex. B. to Compl. [Dkt # 1]; see also Myrick Decl. ¶ 6. That position may not have been fully justified, because the Special Agent testified in open court, and there is a transcript of those proceedings. See ACLU v. DOJ ,
Because the first three factors favor the government, and the final factor is in equipoise, the Court finds that plaintiff is not entitled to recover litigation costs.
CONCLUSION
For those reasons, the Court will grant defendants' motion for summary judgment. A separate order will issue.
While plaintiff brought suit under the Privacy Act, that statute does not apply to this situation because plaintiff seeks records about a federal official, not about himself. The Privacy Act provides that "[n]o agency shall disclose any record which is contained in a system of records ... except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains," except if one of the statutory exceptions applies. 5 U.S.C. § 552a(b). The "Privacy Act allows for amendment of factual or historical errors. It is not ... a vehicle for amending the judgments of federal officials or ... others [that] are reflected in records maintained by federal agencies." Kleiman v. Dep't of Energy ,
The reference to the "FBI" appears to be in error; plaintiff's request was filed with the "DEA," which is a separate component of the United States Department of Justice.
While one might reasonably question the DEA's thoroughness-it failed to identify the transcript from the outset notwithstanding the fact that plaintiff's appeal letter cited the court, docket number, and date that Special Agent Sartori testified in the criminal case, Ex. C to Compl. [Dkt. # 1]-the confusion has since been resolved, and there is no other evidence that the agency acted in bad faith.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.