United States District Court, S.D. California
ORDER GRANTING DEFENDANT'S RENEWED MOTION FOR
SUMMARY JUDGMENT (ECF No. 21)
Janis L. Sammartino United States District Judge
before the Court is Defendant Executive Office for United
States Attorneys' Renewed Motion for Summary Judgment.
("Renewed MS J, " ECF No. 21.) Also before the
Court are Plaintiff David Scott Harrison's Response in
Opposition to Defendant's Renewed MSJ, ("Renewed MSJ
Opp'n, " ECF No. 23), and Defendant's Reply in
Support of its Renewed MSJ, ("Renewed MSJ Reply, "
ECF No. 24). The Court vacated the hearing on the matter and
took it under submission pursuant to Civil Local Rule
7.1(d)(1). (ECF No. 25.) After considering the parties'
arguments and the law, the Court GRANTS
Defendant's Renewed Motion for Summary Judgment.
filed suit against Defendant for improper withholding of
public documents, records, and writings pursuant to the
Freedom of Information Act ("FOIA"). (See
generally Compl., ECF No. 1.) On February 10, 2015,
Plaintiff wrote a letter to Judge Larry A. Burns.
(Id. ¶ 3, Ex. A.) The letter addressed
Plaintiffs 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 Plaintiffs
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
[Plaintiffs] 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
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
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
(Id. Ex. E.
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.)
April 9, 2015, the EOUSA rejected Plaintiffs 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.
¶ 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.)
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.)
filed this FOIA case against Defendant on May 31, 2016. (ECF
No. 1.) Defendant answered on September 28, 2016. (ECF No.
8.) Defendant filed its original MS J on November 3, 2016.
(ECF No. 11.) On March 30, 2017, the Court denied
Defendant's original MSJ on the grounds that Defendant
failed to conduct an adequate search in response to
Plaintiffs FOIA requests. (See generally "MSJ
Order, " ECF No. 20.) Specifically, the Court found
inadequate (1) a single phone call to the target of
the FOIA request asking for responsive documents and (2) a
conclusory statement that there were no other searches that
could possibly yield responsive documents. (Id.) Ill
Defendant filed its Renewed MS J on April 28, ...