Francis v. United States Department of Justice Office of Information Policy, 267 F. Supp. 3d 9

Background

In January 2014 Henry Francis (a federal inmate convicted in the Middle District of Florida) submitted a FOIA request to EOUSA seeking: (1) evidence the U.S. Probation Officer relied on for Francis’s offense level calculation, and (2) documents relating to Agent U.K. Miller’s communications with the Jamaican government and related FD-302s.
EOUSA responded that some records might be held by the U.S. Probation Office (USPO) in Florida and advised Francis to contact that office; Francis administratively appealed to OIP.
OIP affirmed EOUSA’s action on modified grounds, concluding EOUSA conducted a reasonably adequate search and located no responsive records in its files.
Francis sued under FOIA challenging EOUSA’s no-records response. During litigation, the Middle District of Florida (MDFL) USAO conducted a further search and located no responsive records.
MDFL FOIA coordinator Megan Hoobler described the office’s search procedures (LIONS database check, identity confirmation, email to assigned AUSA/legal assistant, retrieval and review of physical case files, and forwarding responsive records to EOUSA) and performed a second, thorough search in response to the suit, finding no responsive documents.
The Court found EOUSA’s declarations (including Hoobler’s) credible, concluded the search was reasonably calculated to find responsive records, and granted summary judgment for DOJ.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Adequacy of EOUSA’s search for responsive records	Francis contends EOUSA’s search was non-responsive and insufficient; initial EOUSA statement improperly referred him to Probation	EOUSA/DOJ contends it performed reasonable searches, coordinated with MDFL, and later MDFL performed a thorough search locating no responsive records	Court held the search was adequate and reasonable; grants summary judgment for DOJ
Whether EOUSA must produce records in possession of U.S. Probation Office	Francis sought records Probation used—EOUSA should locate/produce them	DOJ: EOUSA does not maintain Probation’s internal records; FOIA does not require agencies to retrieve records they do not control	Court noted FOIA does not obligate agencies to produce records they do not possess or recreate records and EOUSA properly pointed Francis to Probation
Whether agency declarations were sufficient to support summary judgment	Francis argued declarations (esp. Luczynski) were generalized and uncorroborated	DOJ produced detailed declarations, including from MDFL FOIA coordinator who conducted a second search and described procedures	Court found the declarations sufficiently detailed and credited the search; plaintiff offered no substantial doubt to rebut them
Whether Francis’s requests were improperly framed as questions or requests for opinions	Francis framed parts of his request as questions about what evidence was relied upon	DOJ argued FOIA does not require answering questions or creating documents/opinions or re-creating records not in its possession	Court agreed FOIA does not require answering questions or creating records; such claims are not proper FOIA requests

Key Cases Cited

NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978) (FOIA’s purpose is to ensure an informed citizenry)
DiBacco v. U.S. Army, 795 F.3d 178 (D.C. Cir. 2015) (agency doesn’t violate FOIA when it lacks possession or control of requested records)
Oglesby v. U.S. Dep’t of Army, 920 F.2d 57 (D.C. Cir. 1990) (requester may challenge adequacy of an agency’s search)
Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504 (D.C. Cir. 2011) (agency must show its search was reasonably calculated to uncover relevant documents)
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) (agency declarations receive a presumption of good faith)
Perry v. Block, 684 F.2d 121 (D.C. Cir. 1982) (when agency has performed an adequate search, court has no further FOIA function)