MOORE v. NATIONAL DNA, 08-5001 (D.C. Cir. 11-18-2008)

No. 08-5001.United States Court of Appeals, District of Columbia Circuit.
Filed On: November 18, 2008.

BEFORE: Henderson, Randolph, and Rogers, Circuit Judges

Per Curiam

ORDER
Upon consideration of appellant’s brief, the motion for remand, the opposition thereto and cross motion for summary affirmance, the opposition to the cross motion for summary affirmance, the reply, the lodged surreply, the court’s order to show cause filed August 28, 2008, the response thereto, the reply, and the supplement to the reply, it is

ORDERED that the order to show cause be discharged. It is

FURTHER ORDERED, on the court’s own motion, that the case be remanded for further proceedings concerning the adequacy of the appellees’ search for appellant’s DNA-related records. See, e.g., Oglesby v. UnitedStates Department of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (“In order to obtain summary judgment the agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.”).

As discussed in the court’s order to show cause, it appears that, with one exception, the appellees did not search the FBI Laboratory Division’s National DNA Index System (“NDIS”) or Combined DNA Index System (“CODIS”) for appellant’s DNA-related records. The declaration of Robert Fram, Chief of the Laboratory Division’s Scientific Analysis Section, states that the appellees searched the Federal Convicted Offender (“FCO”) Database, which is part of a program that “analyzes samples submitted by offenders who are convicted of qualifying federal offenses and uploads those profiles into NDIS.” Declaration at ¶ 7. As appellant was convicted of a state offense, however, not a federal offense, that database is of limited relevance here.

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The Fram declaration does not state that the appellees searched any other component of the NDIS and CODIS systems. The declaration instead explains that “[n]o names are used in CODIS, and only four pieces of information are listed: the laboratory identification number; the specimen identification number; the DNA profile; and the user who entered the data.” Declaration at ¶ 6.

In the order to show cause, the court held that the appellees’ failure to search CODIS for appellant’s name was reasonable in light of the fact that no names are used in CODIS. The court went on, however, to note various concerns about the appellees’ failure to search for the laboratory number (C04-1175), the specimen number (C0-02-0039), and the name of the “combined DNA system administrator” (Hope Olson) provided by appellant.

With respect to the laboratory number, the Fram declaration states that “[a]s neither the attached laboratory report nor the laboratory number were generated by the FBI Laboratory, I am unable to provide any additional information on either of these items.” Declaration at ¶ 9. The order to show cause stated that “[a]lthough this may mean that the number is not of the sort entered in CODIS, that is not clear from the declaration.”

As for the specimen number, the Fram declaration states that “I am unaware of the origin of that number, as provided by the plaintiff. It is not a specimen number within the FCO Database. If it refers to a specimen number belonging to a profile that has been uploaded by a state participant, then the FBI would have no means to validate whether that specimen actually came from the plaintiff, as he claims.” Declaration at ¶ 10. The order to show cause stated that “the fact that the specimen number is not within the FCO database seems to be irrelevant for the reasons stated above, and the vague and conclusory assertion that the FBI would have no way to validate whether the associated specimen actually came from appellant does not, by itself, establish that the failure to search for the specimen number was reasonable.”

The appellees now squarely assert that “it is impossible for the Federal Bureau of Investigation (`FBI’) to search the Combined DNA Index System (`CODIS’) directly using the laboratory and specimen numbers provided by Mr. Moore because they are uniquely associated with the State of North Dakota and are not used in CODIS.” Response at 1. Statements of counsel are not, however, evidence, see, e.g.,Brown v. INS, 775 F.2d 383, 388 (D.C. Cir. 1985), the court has already indicated that it is not clear from the Fram declaration that Fram’s statement concerning the laboratory number means that the number is not of the sort entered in CODIS, and the meaning of Fram’s statement that “I am unaware of the origin of [the specimen] number” is equally unclear.

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The appellees also assert that “[a]s the declaration of Robert Fram explains: `Only the agency that entered the information into CODIS has the identifiers necessary to access and retrieve DNA analysis relating to a specific individual.’ Declaration of Robert Fram, ¶ 6. Mr. Fram was aware of the laboratory number (C04-1175) and the specimen number (C0-02-0039) submitted by Mr. Moore and despite his familiarity with the FBI’s national DNA database, he was unable to locate any responsive information because the FBI has no way to determine the relationship, if any, between Mr. Moore and any DNA profile associated with those identifiers. Id. ¶¶ 9-10. Even if multiple assumptions about Mr. Moore [sic] underlying criminal case and its associated evidence are correct,id., only the State of North Dakota can confirm that a particular DNA profile is Mr. Moore’s. Seealso Declaration of Kimberly J. Del Greco.” Response at 3-4. The appellees add that “[c]onfirmation of a match is critical because Mr. Moore has no right to access information in CODIS from any person other than himself without a waiver.” Response at 4. The appellees do not, however, explain why appellant’s repeated (and seemingly undisputed) assertions that he is the subject of the analysis conducted under the relevant laboratory number, the 2004 Ondrea Miller laboratory report linking him to that number (a report of which Fram said he was aware, see Declaration at ¶ 9), and/or the 2006 Hope Olson letter linking him to the relevant laboratory and specimen numbers cannot be used to confirm that a particular DNA profile associated with those numbers is appellant’s.

Finally, the order to show cause noted that “[t]here is no indication that [the appellees] considered the name of the person identified by appellant as the `combined DNA system administrator’ (Hope [Olson]).” The appellees now assert that “[a]lthough the name of North Dakota’s state administrator (Hope [Olson]) could be used to search CODIS, the results would include all samples she has ever uploaded into the system and there would be no way for the FBI to narrow the results to identify records responsive to Mr. Moore’s FOIA request.” Response at 1. Although the appellees do not provide any evidence concerning the number of samples Olson has uploaded, the nature of the CODIS system suggests that she has uploaded multiple samples. Given the gaps in the appellees’ arguments concerning the role of the proffered laboratory and specimen numbers in the CODIS system, however, it is not clear that those numbers could not be used to narrow the results of a search using Olson’s name.

In light of the foregoing, it is not clear that the appellees conducted a search using methods which can be reasonably expected to produce the information requested. See,e.g., Oglesby, 920 F.2d at 68. We therefore remand the case for further proceedings concerning the adequacy of their search.

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Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc.See Fed.R.App.P. 41(b); D.C. Cir. Rule 41.

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