United States District Court, D. Maryland, Northern Division
SIM B. MOORE, JR., Plaintiff,
UNITED STATES OF AMERICA, Defendant.
WILLIAM D. QUARLES, Jr., District Judge.
Sim B. Moore, Jr., pro se, sued the United States of America for violating the Freedom of Information Act ("FOIA"). ECF No. 1. Pending is the defendant's motion to dismiss or for summary judgment. ECF No. 9. No hearing is necessary. Local Rule 105.6 (D. Md. 2011). For the following reasons, summary judgment will be granted.
From February 1991 to October 2002, Moore was employed by the U.S. Department of Justice Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"). See ECF No. 9-3 at 1. On May 7, 2013, he submitted a FOIA request to ATF requesting "a copy of the following documents (or documents containing the following information) [:] [m]y complete ATF personnel file including all reports, correspondences, emails, and records during my service with ATF." Id. On May 20, 2013, ATF's Disclosure Division (the "Division") sent a letter to Moore informing him that he needed to submit a certification of identity form (Form DOJ-361), which is required by DOJ regulations for FOIA and Privacy Act requests. Id. at 2-3. On June 3, 2013, Moore provided the completed form to the Division. Id. at 5-6. On June 11, 2013, the Division informed Moore by letter that his request was received and assigned number 13-1056. Id. at 6.
After ATF failed to produce the requested documents, on August 13, 2013, Moore sued the United States, alleging that ATF "ha[d] wrongfully withheld the requested records from him" by not responding to his FOIA request. See ECF No. 1 at 3. Moore sought: (1) a Court order requiring the defendant "to disclose the requested records in their [entirety] and make copies available... without redaction or cost;" (2) five hundred dollars in damages; and (3) litigation costs. Id.
On September 30, 2013, the Division told Moore that his official personnel file ("OPF") was located at the National Personnel Records Center ("NPRC") in Valmeyer, Illinois where OPFs of former government employees are usually kept. See ECF No. 9-3 at 8. Moore subsequently contacted the NPRC, which informed him that ATF had requested a copy of his OPF on April 20, 2012, and accordingly instructed him to contact ATF. See id. at 13. On November 14, 2013, Moore gave a copy of the NPRC's letter to the Division, which located his OPF in the Litigation Division of the Chief Counsel's Office. See ECF Nos. 9-2 at 3, 9-3 at 14.
On November 18, 2013, the Division provided Moore with a complete copy of his OPF (154 pages) without charge. ECF Nos. 9-2 at 3, 9-3 at 15. The Division did not withhold any documents from Moore's OPF and only redacted the social security numbers of third parties. See id.
Believing that ATF's response was incomplete, Moore provided ATF with a list of six categories of documents that he believed should be in his OPF: (1) proposals for, and decisions on, disciplinary actions; (2) emails and correspondence on disciplinary actions; (3) the signed settlement agreement between him and ATF after ATF "attempted [to] remov[e him] in 1998 for medical [u]nsuitability;" (4) medical reports and records provided to ATF at its request from his physician, and from a physician selected by ATF; and (5) "AD of Inspection approvals of discipline." ECF No. 9-2 at 3-4.
After receiving Moore's list, Stephanie M. Boucher, Chief of the Division, contacted ATF's Payroll Processing department, which "handles ATF's [OPFs]." Id. at 4. The Branch Chief of Payroll told Boucher that "the items listed by Mr. Moore are not the types of items that are filed in the OPF." Id.
On December 16, 2013, the government moved to dismiss or for summary judgment. ECF No. 9. Attached to the motion is a declaration from Boucher. ECF No. 9-2. She declares that her statements describing ATF's process of responding to Moore's request "are based on knowledge [she acquired] through the performance of [her] official duties, " and that she is "familiar with the procedures followed by this office in responding to [Moore's] FOIA request." Id. at 1
On January 6, 2014, Moore opposed the government's motion. ECF No. 11. On January 23, 2014, the government replied. ECF No. 12.
A. Legal Standard
The Court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In considering the motion, the judge's function is "not... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. A dispute about a material fact is ...