United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN District Judge.
O'Neill, a federal prisoner who is representing himself,
filed an action under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, alleging that
defendants failed to produce certain documents he requested
under the law. ECF No. 1. I screened the complaint pursuant
to 28 U.S.C. § 1915A and allowed him to proceed with a
claim that the Federal Bureau of Investigation
(“FBI”) and the United States Marshal's
Service (“USMS”) improperly withheld a 56-page
courtroom security plan, along with documents related to a
murder plot, that plaintiff requested in 2015. ECF No. 4. I
asked defendants to answer by July 20, 2016, and they instead
filed a motion for summary judgment on that date. ECF No. 10.
Plaintiff then filed a “motion for judicial notice and
a motion to expand the record” on December 6, 2016. ECF
No. 16. The motions are now fully briefed and ready for
decision and order.
is an inmate at the Oxford Federal Correctional Institution.
Compl., ¶ 5. From early March 2000 to June 15, 2000, he
was one of nine defendants on trial for racketeering at the
Eastern District of Wisconsin. Id., ¶ 8. On or
about April 15, 2000, individuals with the USMS lost a
56-page courtroom security plan that they created for the
trial. Id., ¶ 9. They apparently left the
security plan in the lobby of the Hyatt Hotel where they were
staying for the trial. Id., ¶ 9. A reporter
published a story on the incident entitled “US Marshals
lose copy of security plan in Outlaws federal racketeering
trial: U.S. Marshals blow their cover at racketeering trial
of nine bikers; abandon 56-page security plan after agent
leaves copy in hotel lobby.” See
http://www.putnampit.com/outlaws.html. The news story
stated that plaintiff arranged to have Assistant U.S.
Attorney Paul Kanter killed for a certain amount of money and
that the FBI had to assign in-district personal protection on
Kanter as a result of the threat. Id. Plaintiff was
eventually convicted of racketeering, and he is still in
prison for that conviction.
fifteen years later, on April 28, 2015, plaintiff
“became aware” that the USMS had lost the 56-page
courtroom security plan and that a news story had been
published on the incident with details regarding
plaintiff's murder plot. Id., ¶ 13. That
same day, plaintiff drafted a FOIA request letter addressed
to Teresa L. Carlson at the FBI, and he served it on the
USMS, the FBI, and the Executive Office for United States
Attorneys. ECF No. 1-1 at 2-5. The letter stated:
“I am requesting a copy of the 56-page document the
reporter acquired for this story, as well as any other
records the FBI maintains with a nexus to the alleged plot
your agency conveyed to the U.S. Marshals Service which
resulted in (then) Chief Deputy U.S. Marshal ‘[Joseph]
Tindal direct[ing] the establishment of an in-district
personal protection assignment on…[AUSA] Kanter, '
as well as the implementation of other extreme security
Id. at 2.
Response to Plaintiff's FOIA Request
response to the plaintiff's FOIA request, the USMS
Milwaukee office, who created the 56-page courtroom security
plan for plaintiff's trial, searched their paper and
electronic records for the documents plaintiff requested.
Bordley Dec., ECF No. 11-1, ¶ 3. William E. Bordley, the
Associate General Counsel and Freedom of Information/Privacy
Act Officer for the USMS, provided a declaration with
information on how and why the USMS stores records, and how
they processed plaintiff's FOIA request in this case.
Id., ¶ 1.
explained that the USMS is responsible for
“investigating fugitive matters, ”
“executing warrants, ” and “receiving,
processing, transferring and maintaining custody of federal
prisoners.” Id., ¶ 4. To aid in carrying
out these responsibilities, the USMS stores information in
two electronic databases: the “Prisoner Processing and
Population Management/Prisoner Tracking System” and the
“Warrant Information Network.” Id. Both
of these databases are searched by an individual's name
and/or his personal identifiers, i.e., the
individual's date or place of birth, social security
number, and prisoner registration number. Id.
USMS also stores records on individual office computers.
Id., ¶ 6. USMS employees have access to an
individual office computer where they can create and save
documents, and they also have access to the office's
“shared drive” which contains templates for
employee use. Id., ¶ 6. In 2000, office
practice was to use a template and save
“high-risk” security plans on an employee's
individual office computer. Id. The office's
individual computers were most recently replaced in 2006-07,
and no copies of the old computer drives were saved.
the USMS also has limited paper files. Id., ¶
5-6. Once the USMS completes its responsibilities relating to
a particular trial, it does not save paper copies of the
security plan for that trial, other than possibly as a
template for future cases. Id., ¶ 5.
response to plaintiff's FOIA request, the USMS searched
their Prisoner Processing and Population Management/Prisoner
Tracking System and the Warrant Information Network using
plaintiff's name and personal identifiers. Id.,
¶ 3. They found some information relating to plaintiff,
but they did not locate a copy of the security plan.
Id., ¶ 4. They searched their individual
computers and shared drives, but could not find a copy of the
security plan. Id. USMS also searched their paper
files but could not find a copy of the security plan.
Id., ¶ 6. By letter dated July 22, 2016, the
USMS informed plaintiff that their search for records did not
yield any responsive documents. Id., ¶ 7.
Response to Plaintiff's FOIA Request
response to the plaintiff's FOIA request, the FBI also
searched their paper and electronic records for the documents
plaintiff requested. Hardy Dec., ECF No. 11-2, ¶¶
7-8. David M. Hardy, the Section Chief of the FBI's
Record/Information Dissemination Section (“RIDS”)
provided a declaration with information on the FBI's