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STONE v. DEFENSE INVESTIGATIVE SERV.

March 26, 1993

GREGORY MICHAEL STONE, Plaintiff,
v.
DEFENSE INVESTIGATIVE SERVICE, et al., Defendants.



The opinion of the court was delivered by: STANLEY S. HARRIS

 This matter is before the Court on defendants' motion for summary judgment, plaintiff's second motion to compel discovery, and the oppositions and replies thereto. Upon consideration of the entire record, the Court finds that it lacks subject matter jurisdiction over the individual defendants and that the agency defendants are entitled to summary judgment as a matter of law. Although "findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56," the Court nonetheless sets forth its analysis. See Fed. R. Civ. P. 52(a).

 Background

 On June 8, 1990, plaintiff, a pro se litigant, requested access to records maintained by defendant Defense Investigative Service ("DIS") pursuant to the Freedom of Information Act (the "FOIA"), 5 U.S.C. § 552, and the Privacy Act of 1974, 5 U.S.C. § 552a. Plaintiff requested ". . . a copy of any and all records the Defense Investigative Service may have on me." Plaintiff's Statement of Genuine Issues at P A(1). In response to a letter from defendant DIS explaining that a confirmation of identity was necessary for release of the requested records, plaintiff filed an executed DIS form 30 on July 23, 1990. Plaintiff sought from defendant DIS "all records and files including, but not limited to: investigative reports; investigative notes; reports of field interviews; complete information contained in background investigative file; complete information contained in special background investigative file; and all correspondence related to the requester including both inter/intra agency." Defendants' Ex. 1.

 By letter dated July 26, 1990, defendant DIS advised plaintiff that he was the subject of an ongoing personnel security investigation and that his requested records would not be released until the completion of this investigation. Plaintiff filed a complaint on August 13, 1991, and an amended complaint on August 21, 1991, against defendants DIS, John Donnelly, Dale Hartig, S.J. Demarco, and Donald Reuter seeking declaratory and injunctive relief. On September 19, 1991, and November 5, 1991, defendant DIS released in full to plaintiff a copy of his personnel security investigative file, industrial personnel security clearance file, and a Privacy Act accounting of disclosures. Defendant DIS referred additional records to six other federal agencies -- the Bureau of Alcohol, Tobacco and Firearms (the "BATF"), the Central Intelligence Agency (the "CIA"), The Federal Bureau of Investigation (the "FBI"), the Immigration and Naturalization Service (the "INS"), the Office of Personnel Management (the "OPM"), and the Air Force Office of Special Investigations (the "OSI") -- for review and direct response to plaintiff. *fn1" On October 18, 1991, this Court granted plaintiff's unopposed motion to join the OSI, the BATF, the OPM, and Anonymous Federal Agencies Numbers 1 and 2 as defendants to this action. On November 26, 1991, this Court, on the unopposed motion of plaintiff, joined the FBI as a defendant and dismissed Anonymous Federal Agencies Numbers 1 and 2.

 Eight pages of records referred to the BATF were returned to the DIS and then released to plaintiff by the DIS on December 23, 1991, and February 5, 1992. *fn2" The name of an FBI agent was withheld pursuant to the FOIA exemption 7(C), 5 U.S.C. § 552(b)(7)(C). On October 8, 1991, the OPM provided plaintiff with the referred records without deletion. The OSI furnished plaintiff with the referred records on January 16, 1992, January 23, 1992, and March 26, 1992, withholding certain information pursuant to the FOIA exemptions 2 and 7(C), 5 U.S.C. § 552(b)(2) and (7)(C). The FBI provided plaintiff with the referred records on January 24, 1992. It withheld certain information pursuant to the FOIA exemptions 7(C) and 7(D), 5 U.S.C. § 552(b)(7)(C) and (7)(D). The records referred to the CIA and the INS are not addressed in plaintiff's suit.

 In response to plaintiff's opposition to defendants' motion for summary judgment and plaintiff's second motion to compel, defendants conducted an additional search for information concerning plaintiff. This additional search located the same documents as were initially processed. *fn3" Hartig Declaration II at P 5.

 Defendants have moved for summary judgment, arguing that their search was adequate and their exemptions proper as a matter of law. Plaintiff contends that genuine issues of material fact exist concerning the adequacy of the search conducted, the completeness of the released information, and the propriety of the claimed exemptions. Plaintiff further contends that discovery is necessary to determine the facts relating to these issues. *fn4"

 Discussion

 Subject Matter Jurisdiction

 In addition to charging several federal agencies with violations of the FOIA and the Privacy Act, plaintiff has named three federal officials as defendants. This Court's jurisdiction to enforce the FOIA is limited to enjoining agency noncompliance. See 5 U.S.C. § 552(a)(4)(B). Therefore, plaintiff may not assert a FOIA claim against individual federal officials. See Whittle v. Moschelle, 756 F. Supp. 589, 596 (D.D.C. 1991); Sherwood Van Lines, Inc. v. United States Dep't of Navy, 732 F. Supp. 240, 241 (D.D.C. 1990).

 Under the Privacy Act, this Court has jurisdiction over individually named defendants only for unauthorized disclosure in violation of 5 U.S.C. § 552a(i). Although plaintiff states that unauthorized releases of records protected by the Privacy Act were made, plaintiff provides no support for these speculative assertions. See Plaintiff's Opposition at P 14(k); Plaintiff's 108(h) Statement at P C(2); Plaintiff's Supplemental Reply at P 9. Accordingly, the Court finds that it does not have jurisdiction. over defendants Donnelly, Hartig, and Demarco, and dismisses plaintiff's action as to these defendants.

 The FOIA Claims

 To obtain summary judgment in a FOIA action, an agency must prove that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law. Founding Church of Scientology, Inc. v. NSA, 197 U.S. App. D.C. 305, 610 F.2d 824, 836 (D.C. Cir. 1979). To meet this burden, the agency must "prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from [FOIA's] inspection requirements." National Cable Television Ass'n v. FCC, 156 U.S. App. D.C. 91, 479 F.2d 183, 186 (D.C. Cir. 1973). The Court may rely on agency affidavits in determining whether an agency has met its burden of proof. Goland v. CIA, 197 U.S. App. D.C. 25, 607 F.2d 339, 352 (D.C. Cir. 1978), cert. denied, 445 U.S. 927, 100 S. Ct. 1312, 63 L. Ed. 2d 759 (1980). These affidavits must be sufficiently detailed, nonconclusory, and submitted in good faith. Id. "If these requirements are met, the district judge has the discretion to forgo discovery and award summary judgment on the basis of the affidavits." Id.5

 Defendants assert that, as a matter of law, their search was adequate and that they properly invoked exemptions 2, 7(C), and 7(D). The Court ...


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