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Harrison v. Executive Office For United States Attorneys

United States District Court, S.D. California

March 30, 2017



          Hon. Janis L. Sammartino United States District Judge.

         Presently before the Court is Defendant Executive Office for United States Attorneys' Motion for Summary Judgment. (“MSJ, ” ECF No. 11.) Also before the Court are Plaintiff David Scott Harrison's Response in Opposition to Defendant's MSJ, (“MSJ Opp'n, ” ECF No. 14), and Defendant's Reply in Support of its MSJ, (“Reply ISO MSJ, ” ECF No. 15). The Court vacated the hearing on the matter and took it under submission pursuant to Civil Local Rule 7.1(d)(1). After considering the parties' arguments and the law, the Court DENIES Defendant's Motion for Summary Judgment.


         Plaintiff filed suit against Defendant for improper withholding of public documents, records, and writings pursuant to the Freedom of Information Act (“FOIA”).[1] (See generally Complaint (“Compl.”), ECF No. 1.) On February 10, 2015, Plaintiff wrote a letter to Judge Larry A. Burns. (Id. ¶ 3, Ex. A.) The letter addressed Plaintiff's belief that his federal conviction was invalid, and Plaintiff sent a copy of this letter to the Office of the United States Attorney, Southern District of California, San Diego County Office. (Id.) On March 10, 2015, Assistant United States Attorney (“AUSA”) Michael G. Wheat responded to the letter, noting that Plaintiff's letter to Judge Burns served “no legitimate purpose” and that Plaintiff has a long “history of engaging in various forms of harassing and threatening communications.” (Id. Ex. B.) Wheat concluded the letter by stating that he was “sending a copy of [Plaintiff's] letter and this response to the appropriate investigative agencies so that they are aware of, and can monitor your activities.” (Id. ¶ 4, Ex. B.) Plaintiff responded to Mr. Wheat's letter by asserting that he would file a FOIA request “concerning acts you claim in your letter to have taken against me” and that he would contact United States Attorney Laura E. Duffy concerning the same. (Id. ¶ 5, Exs. C, D.) Plaintiff filed his FOIA request with Duffy, requesting four categories of records. (Id. ¶ 6, Ex. E.) Specifically, Plaintiff requested

all records, documents, information, writings, and tangible things, including electronically stored and/or transmitted:
1. that identify each and every one of the “appropriate investigative agencies” suggested in the March 10, 2015, letter; provide also street addresses;
2. that identify each and every other agency that was provided information about me due to my letter of February 10, 2015 (copy attached), as addressed to Judge, Larry A. Burns; provide also street addresses;
3. that identify each and every law enforcement agent, non-law enforcement and other persons, department/agency employees, heads, functionaries, office holders, officials, public servants, and all other persons and citizens, to whom were sent information, at the identified agencies (see, #1 and #2, above) and to any other location; identify also, the agency and location each identified individual is attached to; provide also the street address for each identified individual; and
4. from November 14, 1988 through March 10, 2015, provide copies of all “harassing and threatening communications, . . . vexing, harassing, or threatening letters[]” suggested by the March 10, 2015, letter that I have ever sent. Identify in each communication and/or letter the offending part, and identify to whom, and the address sent to, of any communication and/or letter I am accused of sending.

(Id. Ex. E.)

         On March 30, 2015, Plaintiff was notified that his FOIA request had been rerouted to the Freedom of Information/Privacy Act Unit at the Executive Office for United States Attorneys (“EOUSA”) in Washington, D.C. (Id. ¶ 7, Ex. F.)

         On April 9, 2015, the EOUSA rejected Plaintiff's FOIA request, finding that “[t]he Freedom of Information Act only applies to records already in existence and does not require an agency to conduct research, create new records, or answer questions presented as FOIA requests.” (Id. ¶ 8, Ex. G.) Plaintiff appealed the denial of his FOIA request to the Director, Office of Information Policy on April 16, 2015. (Id. ¶ 9, Ex. H.) On August 31, 2015, the Office of Information Policy affirmed, on partly modified grounds, the denial. (Id. ¶ 10, Ex. I.) The letter suggested contacting the Office of Government Information Services (“OGIS”) for mediation services to resolve FOIA disputes as a non-exclusive alternative to litigation. (Id.) On September 16, 2015, Plaintiff wrote to the OGIS for help resolving the dispute. (Id. ¶ 10, Ex. J.) But on October 7, 2015, Plaintiff received a letter from the EOUSA notifying him of its receipt of his “Freedom of Information Act/-Privacy Act request dated September 16, 2015.” (Id. ¶ 12, Ex. K.) And on October 8, 2015, the OGIS notified Plaintiff of receiving his request for mediation services. (Id. ¶ 13, Ex. L.) On October 30, 2015, Plaintiff notified the OGIS that the EOUSA was processing the FOIA request, and thus Plaintiff no longer needed mediation services. (Id. ¶ 15, Ex. N.)

         On November 16, 2015, the EOUSA informed Plaintiff that “[a] search for records located in the United States Attorney's Office(s) for the Southern District of California has revealed no responsive records regarding the above subject.” (Id. ¶ 16, Ex. O (emphasis in original).) Plaintiff appealed this decision on November 21, 2015. (Id. ¶ 17, Ex. P.) The Office of Information Policy affirmed the denial of Plaintiff's FOIA request on January 6, 2016, and again offered mediation services through the OGIS. (Id. ¶ 18, Ex. Q.) On January 15, 2016, Plaintiff again sought mediation services through the OGIS. (Id. ¶ 19, Ex. R.) And on April 14, 2016, the OGIS informed Plaintiff that the “EOUSA confirmed the field office completed a search and determined there were not responsive records.” (Id. ¶ 20, Ex. S.)

         Plaintiff filed this FOIA case against Defendant on May 31, 2016. (ECF No. 1.) Defendant answered on September 28, 2016. (ECF No. 8.) Defendant ...

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