Nance v. Federal Bureau of Investigation

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_____________________________

)

JIMMY L. NANCE, )

)

Plaintiff, )

)

v. ) Civil Action No. 08-1643 (RWR)

)

FEDERAL BUREAU OF )

INVESTIGATION, )

)

Defendant. )

_____________________________ )

MEMORANDUM OPINION

Pro se plaintiff Jimmy L. Nance filed this complaint under

the Freedom of Information Act (“FOIA”), 5 U.S.C. § 522, against

the Federal Bureau of Investigation (“FBI”), alleging that the

FBI had wrongfully denied him access to forensic evidence he had

requested. The FBI has moved under Federal Rule of Civil

Procedure 56 for summary judgment, arguing that, although it

failed to locate a forensic test that Nance had requested, its

search was sufficiently reasonable and that it provided him with

all responsive non-exempt information. Because there is no

genuine factual dispute as to the reasonableness of the FBI’s

search and the FBI is entitled to judgment as a matter of law,

the motion for summary judgment will be granted.

BACKGROUND

In 1992, Nance was convicted of the murder of federal postal

employee Donna Stevenson and sentenced to life imprisonment.

During the investigation into Stevenson’s death, the U.S. Postal

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Inspection Service asked the FBI’s Laboratory Division to examine

certain items discovered during the investigation. According to

the FBI, the submitted items were examined, analyzed, documented,

and subsequently returned with their reports to the U.S. Postal

Service. Between 1996 and 2008, Nance submitted to the FBI a

number of FOIA requests seeking forensic evidence that he

believed would exonerate him of the murder conviction. (Compl.

¶¶ 3, 9; Def.’s Mem. in Supp. of Mot. for Summ. J. (“Def.’s

Mem.”) at 1, 4-10.) Nance claims that he received incomplete

responses to his requests and that he was unlawfully denied

access to information that the FBI possessed and that he had a

right to see. (Compl. ¶¶ 3, 5-9.)

On February 10, 2008 Nance sent to the FBI FOIA request

number 1111039-000, which asked for a verified copy of the Wythe

County Sheriff’s Office Narrative Summary of Nance’s criminal

case, verified copies of all negative control tests done on

Stevenson’s blood, or in the alternative a statement in writing

that negative control tests were not done. The FBI acknowledged

that request, and informed Nance that the only files located in

response to his request were Nance’s previous FOIA requests, and

that the only files pulled were the two he had previously

received. (Def.’s Stmt. of Mat. Facts (“Def.’s Stmt.”) ¶¶ 18-

20.)

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Nance filed the instant complaint seeking to compel the

defendant to provide him access to the following documents:

(1) “[n]egative control tests done on blood samples of Jimmy

Nance and Donna Stevenson”; (2) “[n]otes and findings of Agent(s)

Jennifer Lindsay and Audrey Lynch”; and (3) “[l]uminol test

results done on [Nance’s] vehicle and clothes[.]” (Compl. ¶ 9.)

The United States Attorney’s office sent a letter to Nance

confirming that negative control tests had been conducted,

stating that those tests and their results were no longer in the

FBI laboratory file pertaining to Nance’s criminal case,

informing Nance that the file appeared to contain all relevant

notes pertaining to the DNA examinations performed, and revealing

that no luminol tests on any items from Nance’s case had been

conducted at the FBI laboratory. (Pl.’s Opp’n at 22-23, Ex. 4.)

The FBI has moved for summary judgment under Rule 56,

arguing that Nance failed to exhaust his administrative remedies

with respect to all requests other than request number

1111039-000, and that the FBI performed reasonable searches of

its records in response to each of Nance’s requests and provided

Nance with all documents in its possession responsive to those

requests, subject to certain redactions in compliance with

applicable FOIA exemptions. (Def.’s Mem. at 12-14, 43-45.)

The FBI attached to its motion for summary judgment a

declaration from David M. Hardy, Chief of the Record/Information

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Dissemination Section, Records Management Division, at the FBI’s

Interim Central Records Complex in Winchester, Virginia. (Id.,

Hardy Decl. at ¶ 1.) In this declaration, Hardy explained in

detail the processes by which the FBI conducts searches in

response to FOIA requests generally, and how it conducted

searches specifically in response to Nance’s requests, including

how and under what provisions of the FOIA it redacted certain

information from responsive documents. Hardy asserts that the

FBI searched its Automated Case Support System to search its

Central Records System (“CRS”) using Nance’s name, Nance’s social

security number, Nance’s birth date, and Stevenson’s name, in an

attempt to find documents responsive to Nance’s request. Hardy

said through each search of the CRS, the FBI found three

investigatory files responsive to Nance’s requests. File number

95A-HQ-1036805, the lab file from the criminal investigation, was

a closed file sent from the FBI’s Laboratory Division to be

stored at the FBI’s Alexandria Records Center (“ARC”). Hardy

states that the FBI requested that the ARC pull file number 95A-

HQ-1036805, and ship it to FBI headquarters for review and

processing. However, the lab file had been processed and its

contents released two previous times - - once to Nance during

previous litigation, and once to Nance’s son on Nance’s behalf

in 2007. (Hardy Decl. ¶ 19, 33; Def.’s Stmt. ¶¶ 14-15.) In

addition, Hardy’s searches revealed file 252A-RH-42534(HQ), which

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contained information that was forwarded to the National Center

for the Analysis of Violent Crime, processed, and released to

Nance in 2007. (Hardy Decl. ¶ 33) Further, Hardy’s search

revealed a Violent Crime Apprehension Program (“ViCap”) report in

file number 252A-IR-C983, serial 1993VA00013, which was held by

the FBI’s Critical Incident Response Group. However, Hardy noted

that the only file that would contain responsive information to

Nance’s complaint was the lab file, file number 95A-HQ-1036805.

(Id. ¶¶ 30-31.)

Hardy claims that the Record/Information Dissemination

Section (“RIDS”) consulted the DNA Analysis Unit of the FBI’s Lab

Division to locate the information specifically requested by

Nance. The DNA Analysis Unit informed RIDS that no testing

procedure that the FBI lab conducted supported the assertion that

human skin was found under Stevenson’s fingernails, and that

while human blood was identified under Stevenson’s fingernails,

there was insufficient material to enable further examination.

(Hardy Decl. ¶ 59.) The DNA Analysis Unit also informed RIDS

that the FBI lab did not perform luminol or saliva tests on items

from Nance’s case, and that the only negative control tests

associated with Stevenson’s blood samples would have been related

to the amplification of DNA for DQ alpha testing. However, the

pages that would have described the use of negative control tests

on Stevenson were absent from the lab file. RIDS attempted to

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locate the missing pages regarding the negative control tests by

contacting current employees who had worked in the Laboratory

Division or the DNA Legal Assistance Unit, but the former

employees could only speculate as to the reason that the pages

were missing or as to their location. (Id.)

Nance opposes the FBI’s motion for summary judgment, but

does not directly contradict the FBI’s assertion that he has

exhausted his administrative remedies only with respect to

request number 1111039-000.1 (See Pl.’s Mem. Br. in Supp. of

Opp’n (“Pl.’s Opp’n”) at 4.) Instead, Nance argues that “the

focal point of this case is now . . . [v]erified copies of all

negative control tests done on the blood of Donna Stevenson[.]”

(Id.) Nance also argues that summary judgment is not appropriate

here because “genuine issues of material fact remain in dispute

as it relates to the FBI’s search in the ‘pre-suit’ context.”

(Id. at 5.)

1

An earlier order informed Nance that, under Local Civil

Rule 7(h), any facts in the moving party’s statement of material

facts would be treated as admitted by Nance unless he denied or

rebutted such facts in his opposition. (See Docket Entry # 21 at

2; see also Def.’s Mem. at 1-2.) Because Nance was informed of

this requirement, he was required to comply with it despite being

a pro se litigant. See Neal v. Kelly, 963 F.2d 453, 456 (D.C.

Cir. 1992). Nance has not denied that he failed to exhaust his

administrative remedies with respect to his FOIA requests other

than request number 1111039-000 (see Def.’s Stmt. ¶¶ 12, 15, 17),

and thus he has conceded that issue. A FOIA claim will be

dismissed when the plaintiff failed to exhaust his administrative

remedies before filing suit. See Ebling v. United States DOJ,

796 F. Supp. 2d 52, 66 (D.D.C. 2011).

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DISCUSSION

“‘Summary judgment may be appropriately granted when the

moving party demonstrates that there is no genuine issue as to

any material fact and that moving party is entitled to judgment

as a matter of law.’” Pueschel v. Nat’l Air Traffic Controllers

Ass’n, 772 F. Supp. 2d 181, 183 (D.D.C. 2011) (quoting Bonaccorsy

v. Dist. of Columbia, 685 F. Supp. 2d 18, 22 (D.D.C. 2010)

(citing Fed. R. Civ. P. 56(c))). Courts draw all reasonable

inferences from the evidentiary record in favor of the non-moving

party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986). “A district court must conduct a de novo review of the

record in a FOIA case, and the agency resisting disclosure bears

the burden of persuasion in defending its action.” Milton v.

U.S. Dept. of Justice, 783 F. Supp. 2d 55, 57 (D.D.C. 2011)

(citing 5 U.S.C. § 552(a)(4)(B)). In a FOIA case, a court will

grant summary judgment in favor of an agency where the agency

demonstrates that no material facts are in dispute and that it

conducted a search of records in its custody or control that was

reasonably forecast to divulge all relevant information, Weisberg

v. U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984),

and that the information found through the search has either been

released to the requestor or is exempt from disclosure. See

Skinner v. U.S. Dept. of Justice, 806 F. Supp. 2d 105, 111

(D.D.C. 2011) (citing Students Against Genocide v. Dep’t of

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State, 257 F.3d 828, 833 (D.C. Cir. 2001)). To show that the

agency’s search used methods which were reasonably expected to

produce the desired information, Morley v. CIA, 508 F.3d 1108,

1114 (D.C. Cir. 2007), the agency may submit declarations that

explain in reasonable detail the scope and method of the search.

Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). Without

contrary evidence, the agency’s amply detailed affidavits are

sufficient to demonstrate compliance with the FOIA. Perry, 684

F.2d at 127. A search does not have to be exhaustive, and

whether a search is adequate is determined by methods, not

results. Weisberg, 745 F.2d at 1485. An agency’s failure to

locate a specific responsive document will not, on its own,

render an otherwise reasonable search inadequate. See Brown v.

FBI, 675 F. Supp. 2d 122, 125-26 (D.D.C. 2009) (citing Weisberg,

745 F.2d at 1485, and Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir.

2004)).

Nance argues that the FBI’s pre-suit searches failed to meet

the standard required for an adequate search, but Nance admits

that the FBI’s post-suit acknowledgment that the negative control

tests were conducted rendered what he calls their adequate search

defense “viable and almost legally sufficient to prevail on

summary judgment [in the ‘post-suit’ context].” (Pl.’s Opp’n at

4-5) (emphasis added). However, at summary judgment in a FOIA

case, the timing of a search is irrelevant, so long as an

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adequate search has been conducted and all redactions from

responsive documents are justified. See Landmark Legal

Foundation v. EPA, 272 F. Supp. 2d 59, 62-63 (D.D.C. 2003)

(citing Atkins v. Dep’t of Justice, No. 90-5095, 1991 WL 185084,

at *1 (D.C. Cir. Sept. 18, 1991) (stating that “[t]he question

whether [the defendant] complied with the [FOIA’s] time

limitations in responding to [plaintiff’s] request [was] moot”

where the defendant had responded prior to filing a motion for

summary judgment). If the FBI demonstrates that it conducted an

adequate search with proper redactions at some point prior to

filing for summary judgment, Nance’s distinction between pre-suit

and post-suit searches becomes irrelevant. See also National

Institute of Military Justice v. U.S. Dept. of Defense, 404 F.

Supp. 2d 325, 350 (D.D.C. 2005) (granting agency’s motion for

summary judgment where defendant conducted an adequate search

after litigation had begun).

Nance also argues that the FBI’s searches were inadequate

because the FBI misplaced the negative control tests and results,

and systematically reduced the amount of documents that it

provided in response to Nance’s requests.2 (Pl.’s Opp’n at 14-

2

Nance suggests that the FBI must be compelled to comply

with all relevant procedures under the Federal Records Act to

locate the materials that it admits are missing from its files

and prosecute those responsible. (Pl.’s Opp’n at 17.) However,

if the FBI’s search was adequate, Nance would need something more

than speculation to demonstrate why he believes the file could

be found. See Ground Saucer Watch, Inc. v. CIA., 692 F.2d 770,

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18.) The adequacy of a search, however, “is not determined by

its results, but by the method of the search itself[,]” and “[a]n

agency’s failure to find a particular document does not

necessarily indicate that its search was inadequate.” Brown, 675

F. Supp. 2d at 125-26 (citing Weisberg, 745 F.2d at 1485, and

Wilbur, 355 F.3d at 678 (finding that a defendant agency’s search

for materials responsive to a FOIA request was not rendered

inadequate because of its failure to locate one specific report,

even though it was undisputed that the report existed) (internal

citation omitted)). In Oglesby v. U.S. Dept. of Army, 920 F.2d

57, 68 (D.C. Cir. 1990) (citing Weisberg v. U.S. Dept. of

Justice, 627 F.2d 365, 371 (D.C. Cir. 1980) (internal citations

omitted), the D.C. Circuit explained that an agency could

demonstrate appropriate, reasonable search methods by

demonstrating a “systematic approach to document location.”

Here, unlike in Weisberg - - where the court of appeals found

that the thoroughness of an FBI search remained in dispute since

the agency’s affidavit gave no detail as to the scope of the

search - - the FBI demonstrated the adequacy of its search by

providing a detailed account of the scope of their investigation

by explaining the methods of their search, the search terms used,

771 (D.C. Cir. 1981) (“Agency affidavits enjoy a presumption of

good faith, which will withstand purely speculative claims about

the existence and discoverability of other documents.”) (internal

citation omitted).

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the indices searched, and additional efforts that went into the

search, such as communication with and review of files from the

Richmond field office. (See Hardy Decl. at 16-17.) Nance does

not offer any evidence to suggest that the FBI failed to search

an appropriate number of records systems, failed to review files

likely to contain relevant information, or used incorrect or

insufficient search terms.

Nance challenges the sufficiency of Hardy’s declaration,

arguing that it “constitutes a conclusory account of . . . the

negative control tests and results” and that it fails to explain

why no mention was made of those tests for a period of over 15

years or why those tests are not now in the FBI’s laboratory

file. (Pl.’s Opp’n at 25.) An affidavit is considered

sufficiently detailed and non-conclusory where it contains

“search terms and the type of search performed, and averring that

all files likely to contain responsive materials (if such records

exist) were searched[.]”). Oglesby, 920 F.2d at 68. While

agency affidavits must be reasonably detailed, non-conclusory and

submitted in good faith, they are also “accorded a presumption of

good faith,” forcing a FOIA plaintiff to rebut agency affidavits

with something more than pure speculation. SafeCard Services,

Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C. Cir. 1991).

Additionally, the FOIA does not require agencies to create

documents, answer questions, or explain what may have happened to

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documents that may have existed at one point but are no longer in

the agency’s possession. See Saldana v. Fed. Bureau of Prisons,

715 F. Supp. 2d 10, 19 (D.D.C. 2010); Anderson v. U.S. Dept. of

Justice, 518 F. Supp. 2d 1, 10-11 (D.D.C. 2007) (“To the extent

that plaintiff’s FOIA requests are questions or requests for

explanations of policies or procedures, these are not proper FOIA

requests.”) (internal citations omitted); Ferranti v. U.S. Dept.

of Justice, Civil Action No. 03-2385 (RMC), 2005 WL 3040823, at

*2 (D.D.C. Jan. 28, 2005) (holding that a defendant agency was

not responsible under the FOIA for accounting for previously

possessed records because an agency “is responsible for releasing

only those records it possessed and controlled at the time of the

FOIA request”) (citing McGehee v. Central Intelligence Agency,

697 F.2d 1095, 1110 (D.C. Cir. 1983).

Nance concedes that Hardy’s declaration is “extremely

detailed” but argues that it fails to meet the “nonconclusory”

element of the standard because it does not explain how or why

the FBI failed to admit or deny the existence of the negative

control tests for an extended period of time.3 (Pl.’s Opp’n at

24-25.) Hardy’s declaration contains all that is required to

render an agency affidavit concerning its search non-conclusory:

a detailed explanation of the scope of the search, including

3

Nance also explicitly states that he does not dispute that

Hardy’s declaration was submitted in good faith. (Pl.’s Opp’n at

23.)

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search terms, and records systems searched, as well as the

assertion that all files likely to contain responsive documents

were searched. (See Hardy Decl. at 16-34.) The fact that the

declaration does not explain how or why the negative control

tests and their results are not currently in the FBI’s laboratory

file does not render them conclusory, as the FBI is not

responsible for providing such explanations so long as they

demonstrate that they have conducted an adequate search. Because

Hardy’s declaration contains a detailed explanation of a search

reasonably calculated to uncover all relevant information, and

Nance offers no evidence sufficient to contradict this affidavit,

Nance fails to establish that Hardy’s declaration is conclusory.

The FBI’s failure in this case to locate the negative

control tests and results does not render its search inadequate.

See Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C.

Cir. 1994) (explaining that adequacy of a FOIA search is

determined not by the fruits of the search but by the

appropriateness of methods used to carry out the search).

CONCLUSION

The FBI has demonstrated that it conducted a search

reasonably calculated to uncover all information relevant to

Nance’s FOIA request through a reasonably detailed nonconclusory

affidavit. There are no genuine issues of material fact

regarding the adequacy of the defendant’s search, and the FBI

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therefore is entitled to judgment as a matter of law. An

appropriate final order accompanies this memorandum opinion.

SIGNED this 28th day of February, 2012.

/s/

RICHARD W. ROBERTS

United States District Judge