BOYD v. EXECUTIVE OFFICE FOR U.S. ATTORNEYS

The USAO/MOE maintains a "manual log . . . tracking all file requests made to the Federal Records Center." Def.'s Reply, Michels Decl. ¶ 7. According to the log, the USAO/MOE sent the Miller and Kerr file to the Federal Records Center in March 2001. Id. ¶ 6. On June 22, 2001, the USAO/MOE requested the Miller and Kerr file from the Federal Records Center, it received the file on June 28, 2001, and returned the file in August 2003. Id.; see id., Attach. 2 (excerpt from log). On December 2, 2008, the USAO/MOE requested the Miller file a second time. Id. ¶ 6. A handwritten notation on the request form indicated "that the file was already signed out to [the USAO/MOE]." Id.; see id., Attachment 1 (Reference Request for Folder 1996R01194 — Byron James Miller). "[N]o other requests had been made for the Miller/Kerr file until the November 2008 request pursuant to the FOIA request of Willie Boyd." Id. ¶ 8.

Notwithstanding the defendant's further clarification of its search efforts, the plaintiff insists that its search was inadequate. He contends that the defendants "failed to identify with any particularity what internal administrative number was used, what district court case number [was] used, or whether the assigned Assistant United States Attorney's name was used," such that neither the plaintiff nor the Court can be sure that the EOUSA located the correct file. Plaintiff's Surreply to the Government's Reply to Plaintiff's Opposition to Motion to Dismiss or, in the Alternative, for Summary Judgment at 2. In support of his position, he submits the declarations of Byron James Miller, who is a federal inmate and who attests to the purported existence of responsive public records in his criminal case file. See id., Supp. Decl. of Byron James Miller ¶¶ 1-2; see also Pl.'s Opp'n, Decl. of Byron James Miller.

Notwithstanding the submission of Miller's declarations, the plaintiff offers mere speculation as to the existence of records pertaining to Bryant Troupe maintained in EOUSA or USAO/MOE files. Such speculation does not undermine declarations which are presumed to have been prepared and submitted in good faith. See, e.g., Judicial Watch, Inc. v. U.S. Dep't of Health and Human Servs., 27 F. Supp. 2d 240, 244 (D.D.C. 1998) (concluding that "plaintiff's speculation as to the trustworthiness of the Clinton administration and [agency's] failure to release documents that plaintiff apparently expected to be released is insufficient as a matter of law to defeat defendant's motion for summary judgment as to the adequacy of the FOIA search"). Neither the plaintiff nor his declarant attests to having personal knowledge of the existence of responsive records or the agency's methods of recordkeeping, or even if the agency at one time maintained records pertaining to Bryant Troupe. In any event, an agency can release only those documents it has in its files at the time its searches were conducted. "Nothing in the law requires the agency to document the fate of documents it cannot find," Roberts v. U.S. Dep't of Justice, No. 92-1707, 1995 WL 356320, at *2 (D.D.C. Jan. 29, 1993), or to produce records that it does not possess, see Rothschild v. Dep't of Energy, 6 F. Supp. 2d 38, 40 (D.D.C. 1998), or to retrieve documents which previously had been in its possession, see Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152 (1980) (noting FOIA's requirement that an agency "provide access to those [agency records] which it in fact has created and retained"); cf. Jones v. FBI, 41 F.3d 238, 249 (6th Cir. 1994) (court cannot order agency "to make amends for any documents destroyed prior to the request").

The defendants' declarations adequately explain the means by which their staff conducted the searches, including searches of computerized databases and index card systems, informal inquiries to AUSAs who may have knowledge of the matter, and requests to and responses from the Federal Records Center regarding the Miller and Kerr file. Furthermore, it is reasonable that the agency treated the request as a third-party request, that is, a request from the plaintiff for records pertaining to another person, Bryant Troupe. And because it is not a first-party request, that is, a request for records pertaining to the plaintiff himself, the agency need not explain its methods for locating records pertaining to the plaintiff because he was not the subject of the FOIA request. See Voinche v. FBI, No. 96-5304, 1997 WL 411685, at *1 (D.C. Cir. June 19, 1997) (ruling that the agency was not obliged to "search for records beyond the scope of the request"); Kidder v. FBI, 517 F. Supp. 2d 17, 23-24 (D.D.C. 2007) (finding that, because requester did not reference aliases under which the FBI might maintain records pertaining to the subject of her FOIA request, "the FBI [was] under no obligation to search its records for information regarding any names other than [the subject's name]"); cf. Wheeler v. Exec. Office of U.S. Attorneys, No. 05-1133, 2008 WL 178451, at *8-9 (D.D.C. Jan. 17, 2008) (finding agency's search unreasonable because it did not search requester's co-defendant's files where the request was for records related to the criminal case, not just the requester, and where the requester also notified agency of this search deficiency).

It matters not that the declarations do not provide administrative case numbers, court case numbers, or the names of AUSAs associated with the events related to the searches. And because "[i]t is settled law that the results of a search do not determine whether the search is adequate," Zavala v. Drug Enforcement Admin., 667 F. Supp. 2d 85, 95 (D.D.C. 2009) (citations omitted), the plaintiff's dissatisfaction with the results of the search is not relevant. Thus, the EOUSA's inability to locate all the records the plaintiff desires does not defeat the defendant's motion for summary judgment "so long as the [EOUSA] establishes that its staff located no records responsive to plaintiff's request after a reasonable search using methods reasonably expected to produce the information requested." Id. (internal quotation marks and brackets omitted) (citations omitted).

Based on the defendants' declarations, the Court concludes that the EOUSA conducted searches reasonably designed to locate records responsive to the plaintiff's FOIA request. The EOUSA therefore has demonstrated that there are no genuine issues of material fact in dispute regarding its compliance with the FOIA and that it is entitled to judgment as a matter of law. Accordingly, the Court will grant the defendants' motion for summary judgment. An Order accompanies this Memorandum Opinion.

DATE: September 28, 2010