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Hill v. Executive Office for United States Attorneys

United States District Court, W.D. Virginia

February 6, 2018



          Hon. Jackson L. Kiser Senior United States District Judge.

         Plaintiff Brian David Hill challenges Defendants', the Executive Office for the United States Attorneys (“EOUSA”) and the Department of Justice (“DOJ”), response to his Freedom of Information Act request. Defendants have filed a motion for summary judgment which has been fully briefed by the parties. Both parties consented to a decision on the briefs and without oral argument. I have reviewed the evidence, argument, and applicable law; the matter is now ripe for disposition. For the reasons stated herein, I will grant Defendants' motion for summary judgment.


         Plaintiff was indicted on November 25, 2013, in the Middle District of North Carolina for possession of child pornography. (United States v. Hill, No. 1:13-cr-00435 (M.D. N.C. Nov. 25, 2013) [ECF No. 1]). Plaintiff entered into a plea agreement and pleaded guilty to the single count of the Indictment on June 10, 2014.[1] (Id. [ECF No. 20].) As part of the plea agreement, Plaintiff agreed that he pleaded guilty “because he is, in fact guilty . . . .” (Id. [ECF No. 20 ¶ 4].) On November 10, 2014, Plaintiff was sentenced to ten months and twenty days. (Id. [ECF No. 54].)

         Even before he was sentenced, Plaintiff was asserting his innocence and attempting to withdraw his guilty plea. (See, e.g., id. [ECF No. 38].) At his guilty plea, however, his attorney advised that Plaintiff did not want to withdraw his plea. After his sentencing, Plaintiff continued his campaign to prove his “legal innocence.” (See, e.g., id. [ECF No. 60].) This case represents his latest attempt in that on-going effort.

         On July 25, 2016, Plaintiff submitted a Freedom of Information Act (“FOIA”) request to the EOUSA, seeking “any copies of email records, documents, memos, fax records, digital records, voice messages . . . in reference to ‘Brian David Hill' and any cases or research involving ‘Brian David Hill between the dates, January 2012 to August 2012.” (Decl. of Princina Stone ¶ 5, Dec. 22, 2017 [ECF No. 49-1].) The request was referred to Princina Stone, an attorney-advisor with FOIA staff for EOUSA and DOJ. (Id. ¶ 1.) On August 12, 2016, Stone asked the United States Attorney's Office for the Middle District of North Carolina (“MDNC”) to conduct a search for records that were responsive to Plaintiff's request. (Id. ¶ 6.)

         Carolyn Loye, the MDNC's FOIA liaison, received the EOUSA's search request and conducted the search for records responsive to Plaintiff's FOIA request. (Carolyn Loye Decl. ¶¶ 2-4, Dec. 21, 2017 [ECF No. 49-10].) Loye:

[E]mailed all employees advising them of the FOIA request and asking them to search for any documents related to Mr. Hill. [She] also searched [the] office electronic recording keeping system for any records related to Mr. Hill. That system contains all files opened in the . . . MDNC, including those that have been closed. [She] searched the system under the last name “Hill, ” with first name “Brian”[, ] as well as under last name “Hill” and first initial “B”.

(Id. ¶ 5.) Her search revealed two case files: one for Plaintiff's initial prosecution, and a second for Plaintiff's pro se appeal of his conviction to the Court of Appeals for the Fourth Circuit. (Id. ¶ 6.) Loye also consulted with Anand Ramaswamy, the assistant U.S. attorney who prosecuted Plaintiff. (Id. ¶ 7.) Ramaswamy turned over his case files and Loye “separated out all non-public responsive records.” (Id.)

         On September 5, 2016, Plaintiff sent a letter seeking to modify his FOIA request. (Stone Decl. ¶ 9.) His modified request sought records from U.S. Attorney for the Middle District of North Carolina, Ripley Rand, as well as Assistant U.S. Attorney Anand Ramaswamy. (Id. ¶ 10, Ex. 5 [ECF No. 49-6].) He also requested a “Fee Waiver” “on the specific ground of investigating the truth to help prove that [he] was ‘framed' with possession of child pornography to be found Actually Innocent.” (Id.) He further requested that the responding agency “not search beyond two hours, nor duplicate beyond 100 pages.” (Id.) He also asserted that he would pay up to $75.00 for search time. (Id.)

         On September 12, 2016, Loye notified EOUSA that she had completed the search on behalf of the MDNC and forwarded the results, on CD, to EOUSA. (Id. ¶ 13.) EOUSA reviewed the records provided by MDNC and disclosed 68 pages in full and 26 pages in part to Plaintiff. (Id. ¶ 14.) On February 23, 2017, Plaintiff filed an administrative appeal with the Office of Information Policy (“OIP”) regarding EOUSA's response to his FOIA request. (Id. ¶ 15.) On June 29, 2017, OIP affirmed EOUSA's determination regarding Plaintiff's FOIA request. (See id. ¶ 16; Ex. 8 [ECF No. 49-9].) OIP informed Plaintiff that it determined “EOUSA's response [to Plaintiff's FOIA request] was correct and that it conducted an adequate, reasonable search for responsive records subject to the FOIA.” (Id. Ex. 8.)

         Despite OIP's determination, Stone reviewed the MDNC records again. (Id. ¶ 19.) Upon further review, Stone “determined that further previously withheld information contained in four of the 26 released in part pages could be disclosed to [P]laintiff. Consequently, on September 23, 2017, EOUSA sent [P]laintiff a supplemental response and released in part additional information from the four pages.” (Id. ¶ 19.)

         Stone also prepared a Vaughn index which includes a listing of all undisclosed information, a narrative description of the information, and a statement of EOUSA's claimed exemption.[2] In virtually every instance, EOUSA asserts that the only thing that was not disclosed on the released-in-part pages were the names and badge numbers of Mayodan law enforcement officers. (See id. Ex. 1.) Also excluded from disclosure were the names of witnesses, telephone numbers of Mayodan law enforcement officers, names of state district attorneys, and legal strategies related to Plaintiff's criminal case. (See id.) In withholding this information, EOUSA has relied exclusively on Exemptions 6 and 7(C) (see id. ¶¶ 23-24, 26, Ex. 1), found in 5 U.S.C. § 552(b), which exclude disclosure of information that would constitute an “unwarranted invasion of personal privacy.”

         Unsatisfied with content of EOUSA's disclosures, Plaintiff brought suit in this Court on April 25, 2017. Following Plaintiff's unsuccessful interlocutory appeal of a discovery ruling by the magistrate judge, see Hill v. Exec. Office for U.S. Attorneys, et al., 699 F. App'x 188 (4th Cir. Oct. 19, 2017) (per curiam) (unpublished), EOUSA and DOJ moved for summary judgment on December 22, 2017. [ECF Nos. 48, 49.] Plaintiff responded with a brief in opposition on January 3, 2018. [ECF No. 53]. EOUSA and DOJ replied [ECF No. 60], and the parties submitted the issue for decision on brief and without oral argument. (See Pl.'s ...

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