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WHITTLE v. MOSCHELLA

January 31, 1991

HIRIAM T. WHITTLE, et al., Plaintiffs,
v.
EMIL P. MOSCHELLA, et al., Defendants



The opinion of the court was delivered by: RICHEY

 The pro se plaintiff *fn1" filed the above-captioned suit based on his claims that the defendants Federal Bureau of Investigation ("FBI"), FBI employee Emil P. Moschella, FBI Director William Sessions, Attorney General Richard L. Thornburgh and the United States Department of Justice ("DOJ") have failed to comply with his requests for records pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. The plaintiff also asks the Court to order defendants Sessions, Thornburgh, FBI, and DOJ to conduct an investigation into the 1942 death of the plaintiff's brother, arguing that the Court has jurisdiction to do so pursuant to the Mandamus and Venue Act, 28 U.S.C. § 1361.

 Upon consideration of the motions and oppositions, the supporting declarations, the entire record in this case, and the underlying law, the Court holds that there are no genuine issues of material fact, and that summary judgment for the FBI and the DOJ is appropriate as a matter of law. Moreover, the Court finds that as to defendants Sessions, Thornburgh, and Moschella this case must be dismissed for lack of subject matter jurisdiction. Finally, the Court holds that the plaintiff has not demonstrated his entitlement, or even any probability that he might be entitled, to a writ of mandamus, and that the plaintiff's request for such an extraordinary remedy should be dismissed.

 I. Background

 By letter dated May 2, 1987 to Attorney General Edwin Meese, the plaintiff, through a private investigator, requested information pertaining to the July 7, 1942 death of the plaintiff's older brother, Edgar A. Whittle. The request was referred to FBI Headquarters ("FBIHQ") in Washington, D.C. Upon searching the FBIHQ record system, *fn2" the FBI found 18 pages of records responsive to the plaintiff's request. At first, the FBI determined that all 18 pages were exempt from FOIA disclosure under several exemptions. The plaintiff appealed this determination, and the FBI released some of the records. After the plaintiff filed this lawsuit, the FBI provided the plaintiff with all 18 pages of documents that it had determined were responsive to the plaintiff's request. However, the FBI made numerous deletions in four pages of these records, relying upon FOIA Exemptions 7(C) and 7(D). None of the documents identified by the FBI related directly to the death of Edgar Whittle, but they were prepared while the FBI was investigating the plaintiff's allegations of FBI involvement in Mr. Whittle's death, allegations apparently made in connection with the plaintiff's 1957 lawsuit against Edgar Whittle's former employer. The plaintiff has alleged some minor misstatements of fact in the records that were provided to him.

 II. Analysis

 A. FOIA

 The plaintiff seems to state two types of claims under FOIA. First, there is the alleged failure of the FBI to fully disclose records requested, *fn3" which the Court interprets as a challenge to the propriety of the redactions made in the documents provided by the FBI. The plaintiff also claims that the FBI is withholding additional records, which can be divided into two groups: those to which references were made in the records that were released *fn4" and those records that were not referred to in the records released and that the FBI did not find when conducting the requested search. *fn5"

 A plaintiff's ability to prevail in a FOIA complaint depends on a "showing that an agency has (1) 'improperly'; (2) 'withheld'; (3) 'agency records.'" Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150, 63 L. Ed. 2d 267, 100 S. Ct. 960 (1980) (quoting 5 U.S.C. § 552(a)(4)(B)). However, an agency is only charged with releasing those records, or portions of records, which are responsive to a request. Meeropol v. Meese, 252 U.S. App. D.C. 381, 790 F.2d 942, 954 (D.C. Cir. 1986). When the agency claims not to have located responsive records, the focus of the Court's inquiry is not whether there might be any undisclosed records, but whether the search conducted by the agency was reasonable. Weisberg v. United States Dep't of Justice, 240 U.S. App. D.C. 339, 745 F.2d 1476, 1485 (D.C. Cir. 1984). The agency is not required to search every record system, but need only search those systems in which it believes responsive records are likely to be located. Oglesby v. United States Dep't of Army, 287 U.S. App. D.C. 126, 920 F.2d 57, 68 (D.C. Cir. 1990). To be entitled to summary judgment, the agency must describe the search in such detail as to allow the Court to determine whether the search was adequate. Id.

 The FBI followed, and exhaustively described in an exhibit to its summary judgment motion, its standard FOIA search procedure in searching for records responsive to the plaintiff's request. See Declaration of Regina M. Superneau paras. 5-8. The FBI search did find records responsive to the plaintiff's request, and there is no indication that a search of any other record system would have been more effective. See Weisberg, 745 F.2d at 1487. The plaintiff presents no evidence, other than vague unspecified accusations of conspiracy and malfeasance, that this procedure either was not followed or was not reasonable. An agency search is not unreasonable merely because it fails to turn up records the plaintiff speculates might exist. Oglesby, 920 F.2d at 67 n. 13. In view of the foregoing, the Court concludes that the FBI search was conducted in a reasonable manner, and that, therefore, the FBI has not improperly withheld agency records that it did not find in the search undertaken.

 The FBI did release all the records found to be responsive to the plaintiff's requests, but redacted portions of some of the records pursuant to FOIA Exemptions 7(C) and 7(D). The plaintiff's second claim appears to be that these redactions were improper.

 When evaluating a claim under FOIA Exemption 7, the Court must undertake a two-step process, determining first whether the record was compiled for law enforcement purposes, FBI v. Abramson, 456 U.S. 615, 622, 72 L. Ed. 2d 376, 102 S. Ct. 2054 (1982), and then examining whether a specific claimed subsection of the exemption applies. This "law enforcement purposes" threshold issue is further divided into a two-part test designed to determine whether the agency could properly prepare law enforcement records. An agency may only invoke Exemption 7 if: (1) the records were created as part of an investigation related to the enforcement of federal laws and (2) that investigation was within the agency's law enforcement authority. Pratt v. Webster, 218 U.S. App. D.C. 17, 673 F.2d 408, 420-21 (D.C. Cir. 1982). The investigation need not result in an arrest or indictment, and the FBI's authority to conduct an investigation can rest on a plausible basis to believe that the law has been violated. King v. United States Dep't of Justice, 265 U.S. App. D.C. 62, 830 F.2d 210, 230-31 (D.C. Cir. 1987).

 The agency satisfies the first element of this threshold inquiry by identifying a particular individual whom it was investigating and the connection between that individual and an alleged violation of federal law. Pratt, 673 F.2d at 420. The portions of records that the FBI refused to disclose to plaintiff were created as part of the investigation arising out of the plaintiff's allegations that federal laws had been broken and clearly satisfy this first element of the threshold inquiry. Indeed, the ...


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