Petrucelli v. Department of Justice

                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


John A. Petrucelli,                   :
                                      :
               Plaintiff,             :
       v.                             :              Civil Action No. 18-0729 (CKK)
                                      :
Department of Justice,                :
                                      :
               Defendant.             :


                                 MEMORANDUM OPINION

       Plaintiff brought this action pro se to compel records under the Freedom of Information

Act (“FOIA”), 5 U.S.C. § 552, from Department of Justice (“DOJ”) components Bureau of

Prisons (“BOP”) and Executive Office for United States Attorneys (“EOUSA”). On March 20,

2020, the Court granted DOJ’s motion for summary judgment as to BOP and denied the motion

as to EOUSA without prejudice and with leave to supplement the record. Order [Dkt. # 58]; see

Mem. Op. at 13 [Dkt. # 59] (“Mem. Op. I”) (finding insufficient evidence on EOUSA’s search

for responsive records). Pending before the Court is DOJ’s Renewed Motion for Summary

Judgment [Dkt. # 62], which plaintiff has opposed [Dkt. # 69]. For the reasons explained below,

the motion will be granted.

                                      I. BACKGROUND

       As before, the Court is compelled “to identify the issues that are properly before it.”

Mem. Op. I at 6. In his opposition, plaintiff discusses matters unrelated to this supplemental

record and this case. In the “Preliminary Statement,” for example, plaintiff asserts that “EOUSA

arbitrarily and capriciously withheld information under FOIA Exemptions 6, 7(c), and 7(f) in

response to [his] various FOIA requests,” Opp’n at 6, even though the remainder of this case
                                                 1
does not concern the withholding of information. 1 The Court reiterates that it will not consider

matters “beyond the scope of this litigation.” Mem. Op. I at 1-2. Solely at issue is EOUSA’s

processing of the following two requests.

       Request Number 2017-00301

       In a letter to EOUSA dated October 24, 2016, plaintiff requested “copies of the

untranscribed transcripts and tape recording of [his] criminal trial arraignment,” which occurred

on February 1, 2002, in the U.S. District Court for the Southern District of New York (“SDNY”).

Decl. of Natasha Hudgins, Ex. A [Dkt. # 32-9 at 1]. By letter of November 28, 2016, EOUSA

acknowledged the request as seeking first-party records and public records and extended the

statutory response time based on its assessment of “unusual circumstances[.]”

Id., Ex. B. By

letter of November 16, 2017, EOUSA informed plaintiff that a search of the U.S.

Attorney’s Office for the SDNY for “a tape recording of your arraignment” had located no

responsive records. “That record,” EOUSA explained, “is maintained at the courthouse where

you were arraigned and not at the U.S. Attorney’s Office for the Southern District of New York.

Furthermore, the District does not have a transcript of your arraignment, which is all that we

would have been able to provide to you.”

Id., Ex. C. DOJ’s

Office of Information Policy

affirmed EOUSA’s decision by letter of March 16, 2018.

Id., Ex. D. Request

Number 2018-002349

       In a letter to EOUSA dated January 21, 2018, plaintiff requested “copies of all payments

made by me to [the] U.S. Attorney’s Office of the Southern District,” including “the dates they

were made and the amount of each.” Hudgins Decl., Ex. E. By letter of July 3, 2018, EOUSA


1
   The page citations are the numbers automatically assigned by the electronic case filing
system.
                                                 2
released “two pages . . . in full” and informed plaintiff that “the official records regarding

restitution payments are judicial records, and can be retrieved from the Court where the

proceedings took place.”

Id., Ex. I. In

this Court’s initial proceedings, plaintiff questioned EOUSA’s search for “audio

tapes.” Mem. Op. I at 13 (quoting Petrucelli Second Decl. ¶ 4 [Dkt. # 36 at 24]). The “sparse

information” in EOUSA’s declaration precluded a proper examination of the search. Id.; see

id. at 7-8

(discussing review standard at summary judgment phase). DOJ has supplemented the

record with the Declaration of Darian Hodge, FOIA Officer for the United States Attorney’s

Office for the Southern District of New York (“USAO-SDNY”), who has been that office’s

“point of contact” with EOUSA “since 2014.” Supp. Hodge Decl. ¶ 1 [Dkt. # 62-2].

                                     II. LEGAL STANDARD

       At this stage of the proceedings, EOUSA “must show 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. U.S. Dep't of the Army, 

920 F.2d 57

, 68 (D.C.

Cir. 1990). The Court may rely on EOUSA’s declaration if it is “reasonably detailed,” sets

“forth the search terms and the type of search performed,” and avers “that all files likely to

contain responsive materials (if such records exist) were searched.” Valencia-Lucena v. U.S.

Coast Guard, 

180 F.3d 321

, 326 (D.C. Cir. 1999) (quoting 

Oglesby, 920 F.2d at 68

) (internal

quotation marks omitted)). Such declarations are “accorded a presumption of good faith, which

cannot be rebutted by purely speculative claims about the existence and discoverability of other

documents.” SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 

926 F.2d 1197

, 1200 (D.C. Cir.

1991) (citation and internal quotation marks omitted). “Once an agency has made a prima facie

showing of adequacy, the burden shifts to the plaintiff to provide countervailing evidence . . .
                                                  3
sufficient to raise substantial doubt concerning the adequacy of the agency’s search.” Rodriguez

v. U.S. Dep't of Def., 

236 F. Supp. 3d 26

, 35 (D.D.C. 2017) (internal citation omitted).

       Summary judgment is inappropriate if “the record leaves substantial doubt as to the

sufficiency of the search[.]” Truitt v. Dep't of State, 

897 F.2d 540

, 542 (D.C. Cir. 1990)

(footnote and citations omitted). Substantial doubt may arise from, among other things, an

agency’s failure “to follow through on obvious leads to discover requested documents.”

Valencia-Lucena, 180 F.3d at 325

(citation omitted); see

id. at 327

(finding grant of summary

judgment inappropriate where the Coast Guard had informed the requester that additional

responsive records “may be located” at the federal records center in Georgia but declined to

search that location).

                                       III. DISCUSSION

       Request Number 2017-00301

       Hodge states that in response to this request for a recording of plaintiff’s arraignment, he

“performed electronic searches in Lexis CourtLink (a public access platform for court electronic

records) using the search term ‘Petrucelli’ in all possible permutations with ‘John’ ‘John A.’

‘John Anthony,’ and the Lexis CourtLink results included the case number contained in FOIA

Request 2017-301, Crim. No. 1:02-cr-99.” Supp. Hodge Decl. ¶ 4 (parenthesis in original).

Using the case number, Hodge then searched CaseView, which is “a district specific electronic

database containing information about all of the cases (civil and criminal) handled by the

SDNY.”

Id. Hodge discovered “that

USAO-SDNY had sent sixteen boxes of records associated

with 1:02-cr-99 to the Federal Records Center on 11/28/2011,” which he retrieved utilizing “the

accession number ‘XXX-XX-XXXX’ placed on each of the sixteen boxes before they were sent to the

Federal Records Center.”

Id. Based on the

terms of the FOIA request “and the policies and
                                                 4
procedures followed by the USAO-SDNY for compiling official records for matters,” Hodge

“determined that the only location likely to contain an audio recording or transcript of the

arraignment in criminal case 1:02-cr-99 was the case files that had been sent to the Federal

Records Center in November 2011.”

Id. After retrieving the

sixteen boxes from the Federal Records Center, Hodge “searched

each file in each box by hand” and “looked for any storage medium that might contain an audio

recording,” such as “a cassette tape or a microcassette tape.”

Id. ¶ 5.

He also “searched for any

optical storage media including CDs, and DVDs” and “examined each record to determine if it

was, or included, a transcript of a court proceeding.”

Id. Hodge’s supervisor “also

reviewed the

boxes looking for audio tapes and court transcripts.”

Id. Neither “located any

audio recordings

in any of the sixteen boxes,” and the transcripts found were not of plaintiff’s arraignment.

Id. In addition, neither

Hodge nor his supervisor saw “any indication that any order was placed by the

USAO-SDNY for reproduction of the audio or preparation of a transcript of the arraignment.”

Id. On April 17,

2017, Hodge emailed plaintiff’s FOIA request to two Assistant United

States Attorneys (“AUSA”) assigned to “matters involving Plaintiff’s filing of petitions under 28

U.S.C. § 2255,” asking “if their files contained either an audio recording or a transcript of

Plaintiff’s arraignment.”

Id. ¶ 6.

He “received an e-mail back from one of the AUSA, which

copied the other AUSA, indicating that they did not know of any records responsive to Plaintiff’s

FOIA Request 2017-301.”

Id. In response to

this lawsuit, Hodge and his supervisor “again carefully, and independently

of each other, reviewed the contents of the sixteen boxes of records from the SDNY’s


                                                 5
prosecution of the Plaintiff” but “did not locate either an audio recording or a transcript of

Plaintiff’s arraignment.”

Id. ¶ 7.

       Finally, Hodge prompted a search by the USAO-SDNY Systems Division of “all of the

active computer network files using the search terms ‘Petrucelli’ in all possible permutations

with ‘John’ ‘John A.’ ‘John Anthony,’” which identified no responsive records

, id. ¶ 8,

and he

“reviewed agency records involving other FOIA requests the Plaintiff had submitted in the past

seeking records from USAO-SDNY in his criminal case,”

id. ¶ 9.

       Hodge cites two revealing documents. First, in the FOIA request at issue, plaintiff wrote:

“I attempted to obtain these materials via court reporter Acti28-753. I was given a tape my

arraignment was not on. I have no other avenue to use other than FOIA.” Supp. Hodge Decl.,

Ex. A. Although Hodge did not recognize the purported identifier “as referring to or identifying

any records within the SDNY,” he “ran” it “as a search term in CaseView, which did not return

any results.” Supp. Hodge Decl. ¶ 9. Second, in an Affidavit, a licensed New York State Private

Investigator recounts his visit to the federal courthouse on June 9, 2014, where he “obtained

from courtroom technology unit personnel” the audio cassette recording of the February 1, 2002

“federal court arraignment proceeding pertaining to” plaintiff. Supp. Hodge Decl., Ex. B. The

investigator “listened to [the recording] for any conversations, references and/or discussions

related to . . . Mr. John Petrucelli” but “was unable to distinguish [] such conversations,

references and/or discussions relating to Mr. John Petrucelli.”

Id. This led Hodge

to surmise

reasonably “that the district court’s files do not contain an audio recording of Plaintiff’s

arraignment.” Supp. Hodge Decl. ¶ 10.

       Plaintiff counters that “Hodge made no mention of searching for the transcript with the

Court Reporter for the Southern District Reporters,” Opp’n at 15, and “shows no attempt to
                                                  6
retrieve these documents or records from either Court Reporters, Courtroom Technology, or

PACER[,]”

id. at 16.

Plaintiff misapprehends FOIA, however. Apart from the fact that federal

courts, which employ court reporters and manage PACER, “are exempt from the reach of

FOIA,” Byers v. United States Tax Court, 

211 F. Supp. 3d 240

, 245 (D.D.C. 2016) (citing cases),

FOIA imposes no duty on EOUSA to produce records that it did not maintain, possess, nor

control at the time of the request. See Judicial Watch, Inc. v. U.S. Secret Serv., 

726 F.3d 208

,

216-18 (D.C. Cir. 2013) (describing the scope of “agency records” subject to FOIA disclosure);

Yeager v. Drug Enf't Admin., 

678 F.2d 315

, 321 (D.C. Cir. 1982) (“It is well settled that an

agency is not required by FOIA to create a document that does not exist in order to satisfy a

request” or “to obtain or regain possession of a record in order to satisfy a FOIA request.”); see

also Nat'l Veterans Legal Servs. Program v. United States, 

968 F.3d 1340

, 1343-44 (Fed. Cir.

2020) (discussing the Judicial Conference’s inception of PACER, which is “used today for

online access to federal court dockets and case records” and operates as one of the federal

judiciary’s “self-funded services”).

       In contrast to plaintiff’s assertion that “[d]efendant did a limited search,” Opp’n at 14, the

supplemental declaration establishes that EOUSA searched “all places likely to contain records

responsive to FOIA Request 2017-301” and exhausted “all obvious leads.” Supp. Hodge Decl.

¶ 11. Therefore, the Court will now grant summary judgment to defendant on the adequacy of

EOUSA’s search for the requested recording and/or transcript of plaintiff’s arraignment.

       Request Number 2018-002349

       In response to plaintiff’s request for records pertaining to his restitution payments, Hodge

“identified the Financial Litigation Unit (“FLU”) as [ ] the only part of the office likely to have

any responsive records because the FLU maintains a database” of “information obtained from
                                                  7
the U.S. District Court for the Southern District of New York about restitution payments made

pursuant to judgments of convictions entered in criminal cases.” Supp. Hodge Decl. ¶ 13.

Restitution payments are made “directly to the district court, and the USAO-SDNY does not

maintain any paper records or files concerning restitution payments.”

Id. Nevertheless, “a data

analyst in the FLU created and formatted a report using information about Plaintiff’s restitution

payments from the FLU database.”

Id. ¶ 14.

On July 3, 2018, EOUSA provided plaintiff an

unredacted “list of [his] restitution payments between January 10, 2011 and March 10, 2018.”

Id. & Ex. C.

Therefore, any claim arising from plaintiff’s request for restitution payment

records is moot. See Bayala v. United States Dep't of Homeland Sec., Office of Gen. Counsel,

827 F.3d 31

, 34 (D.C. Cir. 2016) (noting that “once all the documents are released to the

requesting party, there no longer is any case or controversy” as to those documents).

                                      IV. CONCLUSION

       For the foregoing reasons, the Court concludes that EOUSA has satisfactorily discharged

its obligations under FOIA. A separate judgment accompanies this Memorandum Opinion.




                                             __________s/s__________________
                                             COLLEEN KOLLAR-KOTELLY
                                             United States District Judge
DATE: October 15, 2020




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