Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________
)
Kenneth Buholtz, )
)
Plaintiff, )
) v. ) Case No. 16-cv-00943 (APM) )
United States Marshals Service, et al. )
)
Defendants. )
_________________________________________ )
MEMORANDUM OPINION
I. INTRODUCTION
Plaintiff Kenneth Buholtz, proceeding pro se, brings this action under the Freedom of Information Act (“FOIA”) against the United States Marshals Service (“USMS” or “Defendant”), seeking medical, phone, and disciplinary records created during his incarceration at a USMS contract facility in Fannin County, Texas. 5 U.S.C. § 552. Defendant now moves for summary judgment, asserting that the documents Plaintiff seeks are not in its possession.
Based on the parties’ submissions and the record evidence, the court grants Defendant’s Motion for Summary Judgment.
II. BACKGROUND
From June 2011 to March 2013, Plaintiff was a prisoner at the Fannin County Detention Center, which operates as a contract facility for USMS. Compl., ECF No. 1 [hereinafter Compl.], ¶ 4.01; Mem. in Supp. of Def.’s Mot. for Summ. J., ECF No. 7, at 6–12 [hereinafter Def.’s Mem.], at 1, 6. On June 19, 2014, Plaintiff sent a request to USMS seeking all records *2 pertaining to him. Def.’s Stmt. of Undisputed Material Facts, ECF No. 7, at 2–5 [hereinafter Def.’s Stmt.], ¶ 1; Pet.’s Opp. to Summ. J., ECF No. 10 [hereinafter Pl.’s Opp.], at 1. The June 2014 FOIA Request is nowhere mentioned in Plaintiff’s Complaint—and thus does not appear to be a subject of this action—but the court discusses it by way of background.
USMS conducted a search for records, which yielded 51 pages of material. Def.’s Stmt. ¶¶ 2–4; Decl. of William Bordley, ECF No. 7-1 [hereinafter Bordley Decl.], ¶¶ 4, 6; Bordley Decl., Ex. A, ECF No. 7-2, at 1–2. On July 16, 2014, USMS released 50 pages of material to Plaintiff—33 pages in full and 17 pages with some information withheld pursuant to FOIA Exemptions 7(C) and 7(E), which protect from disclosure certain law enforcement records. Bordley Decl. ¶ 6; Bordley Decl., Ex. C, ECF No. 7-2 [hereinafter Bordley Decl., Ex. C], at 4–7; 5 U.S.C. § 552(b)(7). The remaining page originated with the Executive Office for U.S. Attorneys (EOUSA) and was referred to that agency for a response to Plaintiff’s request. Bordley Decl. ¶ 6; Bordley Decl., Ex. C. When it turned over the records, USMS advised Plaintiff that he could appeal USMS’ partial denial to the Department of Justice Office of Information Policy within 60 days. Id.
Plaintiff, however, filed his appeal on October 8, 2014, after the 60-day period expired. Bordley Decl. ¶ 7; Bordley Decl., Ex. D, ECF No. 7-2, at 8. Thereafter, the Office of Information Policy denied Plaintiff’s appeal as untimely. Bordley Decl. ¶¶ 7–8; Bordley Decl., Ex. E. ECF No. 7-2 [hereinafter Bordley Decl., Ex. E], at 10. In its letter denying the appeal, the Office of Information Policy instructed Plaintiff, “you are free to make a new request to USMS for any records that you might wish to receive.” Bordley Decl., Ex. E, at 10.
*3 Heeding that invitation, Plaintiff filed a series of follow-on FOIA requests starting in January 2015. On January 12, 2015, he sought from USMS his inmate phone account records and disciplinary records from the period he was held at the Fannin County Detention Center. Bordley Decl. ¶¶ 9–10; Bordley Decl., Ex. F, ECF No. 7-2 [hereinafter Bordley Decl., Ex. F], at 11. USMS advised Plaintiff that “[t]he records you seek are under the jurisdiction of Fannin County” and “to direct your request to the appropriate agency in that facility.” Bordley Decl., Ex. G, ECF No. 7-2, at 12.
Apparently unsatisfied with that response, Plaintiff submitted additional requests for the same records in April and June 2015, which USMS treated as duplicate requests and took no action. Bordley Decl. ¶¶ 11–12; Bordley Decl., Exs. H & I, ECF No. 7-2 at 13–14. Plaintiff then filed a complaint in this court on May 19, 2016. See Compl.
III. LEGAL STANDARD
Most FOIA cases are appropriately decided on motions for summary judgment.
See Defenders of Wildlife v. U.S. Border Patrol
,
IV. DISCUSSION
Defendant seeks summary judgment on a simple ground—it does not possess the records that Plaintiff seeks. Def.’s Mem. at 6. It contends that, if the records are to be found anywhere, they would be in the possession of the state or local agency that operates the Fannin County Detention Center. Id. Plaintiff responds that Defendant’s lack of physical possession of the records does not absolve it of the obligation to produce them. Pl.’s Opp. at 3–5. As he puts it, because the Fannin County Detention Center was a USMS contract facility, all it had to do was make a “phone call to attempt to [retrieve] these records.” Id. at 3–4. Plaintiff is wrong for two reasons.
First, the requested records are not “agency records” for purposes of FOIA. Under FOIA,
federal courts are empowered to “order the production of any agency records improperly
withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). The Supreme Court has held that for
documents to qualify as “agency records” the agency must both (1) “create or obtain” the
requested materials, and (2) “be in control of [them] at the time the FOIA request is made.”
U.S.
Dep’t of Justice v. Tax Analysts
,
The fact that the Fannin County Detention Center was a USMS contract facility does not
convert its records into records created or controlled by USMS. USMS did not exercise the kind
of “extensive supervision and control” over the records’ creation for the court to conclude that
the contract facility acted on behalf of USMS in creating the records.
See
Bordley Decl. ¶ 13
(“USMS contract jails are responsible for the day-to-day care of USMS prisoners, including
housing and non-emergency medical care.”);
cf. Burka v. U.S. Dep’t of Health and Human
Servs.
,
Second, FOIA imposes no obligation upon USMS to, as Plaintiff suggests, pick up the phone and request the records. FOIA “imposes no obligation to compile or procure a record in *6 response to a request.” Kissinger v. Reporters Committee for Freedom of the Press , 445 U.S. 136, 151 (1980) (quoting Attorney General’s Memorandum on the Public Information Section of the Administrative Procedure Act 23–24 (June 1967), Source Book I, pp. 222–23). Because the USMS is not required to retrieve documents from a third party to comply with FOIA, the court rejects Plaintiff’s argument that USMS must do so.
V. CONCLUSION
For the foregoing reasons, the court grants Defendant USMS’ Motion for Summary Judgment, as well as Defendant Donnie Foster’s Motion to Dismiss.
A separate final order accompanies this Memorandum Opinion. Dated: January 16, 2017 Amit P. Mehta
United States District Judge
Notes
[1] Plaintiff also named as a defendant Donnie Foster, former Sheriff of Fannin County, Texas. Defendant Foster moved to dismiss, and Plaintiff appropriately conceded the motion. See Buholtz Consent Resp. to Def. Foster’s Mot. to Dismiss, ECF No. 9. Accordingly, Defendant Foster’s Motion to Dismiss is granted.
[2] Even if the Complaint could be construed to challenge the agency’s response to the June 14, 2014 FOIA Request, Plaintiff has offered no argument in response to Defendant’s Motion for Summary Judgment as to that request. In any event, the court is satisfied that Defendant has adequately justified its withholdings to that request.
[3] Nor does 5 U.S.C. § 552(f)(2)(B) compel a different result. That provision provides that documents maintained for
an agency by a government contractor, “for the purposes of records management,” are subject to FOIA.
See id.
Section 552(f)(2)(B) “primarily addresses the availability of physical documents committed to the custody of a
third-party for storage, and does not necessarily impose an affirmative obligation to search for and produce
documents in the possession of third party contractors.”
Ryan v. FBI
,