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CUDZICH v. UNITED STATES INS

May 22, 1995

ANDRZEJ CUDZICH, Plaintiff,
v.
UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Defendant.



The opinion of the court was delivered by: CHARLES R. RICHEY

 Before the Court in the above-entitled cause is the Defendant's Response to the Court's May 3, 1995 Order in which the Court granted the Defendant's Motion for Summary Judgment, in part, and gave the Defendant until May 19, 1995 to satisfy its burden of proof with respect to its assertion of 5 U.S.C. § 552a(j)(2) and § 552(b)(7)(A) to justify the withholding of requested information. Upon careful consideration of the parties' pleadings, the applicable law, and the entire record herein, the Court shall GRANT the Defendant's instant Motion for Summary Judgment.

 I. BACKGROUND

 Plaintiff, an inmate at the Milan Federal Correctional Institution in Milan, Michigan whose lawful permanent resident status was revoked on July 14, 1986, files the above-entitled cause pro se and in forma pauperis against the United States Immigration and Naturalization Service ("INS") under the Privacy Act ("PA"), 5 U.S.C. § 552(a), and the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, claiming that he has been improperly denied access to "immigration and naturalization records, documents, and other useful information [necessary] to contest the legality of his sentence." Plaintiff's Objection to Defendant's Answer and Response, at 2.

 Plaintiff's initial FOIA request, whereby he requested copies of all records maintained by the INS pertaining to "[his] arrest on November 12, 1991, his initial deportation, the warrant, [and] any and all investigative forms that were completed (entire file)", Plaintiff's' FOIA/PA Request, attached to Defendant's Reply as Exhibit 1, was received by the Chicago District Office of the INS on May 19, 1994. Defendant's Statement of Material Facts Not in Genuine Issue ("Defendant's Statement") P 1, Declaration of FOIA/PA Officer Anita Goss-Fields ("Declaration I") P 2. By letter dated May 19, 1994, Plaintiffs FOIA request was acknowledged. Defendant's Statement P 2; Declaration I P 3. On June 29, 1994, Plaintiff was provided all of the records located pursuant to his request in full. Defendant's Statement P 3; Declaration I P 4.

 By letter dated July 18, 1994, Plaintiff alleged that the INS had not located all of the records responsive to his request. Defendant's Statement P 4; Declaration P 5. Subsequently, by letter dated August 5, 1994, Plaintiff was advised that, upon a second search for records it was determined that there were additional records responsive to his request that had not been processed. Defendant's Statement P 5; Declaration P 6. By letter dated December 13, 1994, Plaintiff was advised that of the 376 pages of information located responsive to his request, 345 were being released to him in full and that 31 pages were being withheld in full pursuant to FOIA Exemption (b)(2) , (b)(6), and (b)(7)(A) Defendant's Statement P 6; Second Declaration of FOIA/PA Officer Anita Goss-Fields ("Declaration II") P 2.

 Upon further review, the INS determined that, of the 31 pages being withheld in full, 2 pages were releasable in part with redactions made pursuant to FOIA Exemption (b)(6); in addition, the INS determined that 2 pages previously withheld pursuant to FOIA Exemption (b)(2), were, in fact, properly withheld pursuant to Exemption (b)(7)(A). Defendant's Statement P 7; Declaration II PP 3, 4. As to the remaining 27 pages withheld in full, the INS asserted FOIA Exemption (b)(3) to withhold 2 pages of information pertaining to grand jury proceedings, Defendant's Statement P 9; Declaration II P 5; Exemption (b)(6) to withhold 8 pages of information which contained information about other individuals, Defendant's Statement P 10; Declaration II P 3; and Exemption (b)(7)(A) to withhold 17 pages of information pertaining to an on-going law enforcement investigation being conducted by other agencies. Defendant's Statement P 11; Declaration II P 6.

 The Court entered an Order on May 3, 1995 granting the Defendant's Motion for Summary Judgment with respect to its assertion of 5 U.S.C. § 552(b)(3) and (b)(6) to justify the withholding of requested information. The Court denied the Defendant Motion for Summary Judgment with respect to its assertion of 5 U.S.C. § 552a(j)(2) and § 552(b)(7)(A), yet gave Defendant until May 19, 1995 to satisfy its burden with regard to its assertion of those exemptions. Defendant filed its Response, in which it asserts 5 U.S.C. § 552a(a)(2), § 552(b)(7)(A), and § 552(b)(7)(D) to justify the withholding of requested information. The Court will construe Defendant's Response as a Motion for Summary Judgment.

 II. THE COURT SHALL GRANT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON THE BASES OF ITS ASSERTION OF 5 U.S.C. § 552a(a)(2), § 552(b)(7)(A), AND § 552(b)(7)(D) TO JUSTIFY THE WITHHOLDING OF REQUESTED INFORMATION.

 Summary judgment should be granted to the movant if it has shown, when the facts are viewed in the light most favorable to the nonmovant, that there is no genuine issue of material fact and it is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (196). In FOIA cases, the burden of justifying nondisclosure lies with the defendant agency, and summary judgment in its favor is appropriate only where the agency can "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, 479 F.2d 183, 186, 156 U.S. App. D.C. 91 (D.C. Cir. 1973).

 When an agency seeks summary judgment on the basis of a FOIA exemption, it can discharge its burden by providing a relatively detailed justification, specifically identifying the reasons why a particular justification is relevant and correlating those claims with the particular part of a withheld document to which they apply." Mead Data Central, Inc. v. Dep't of the Air Force, 184 U.S. App. D.C. 350, 566 F.2d 242, 251 (D.C. Cir. 1977). The Court may grant summary judgment solely on basis of affidavits or declarations that explain how requested information falls within a claimed exemption if the affidavits or declarations are sufficiently detailed, nonconclusory, and submitted in good faith. 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, 63 L. Ed. 2d 759, 100 S. Ct. 1312 (1980); Military Audit Project v. Casey, 211 U.S. App. D.C. 135, 656 F.2d 724, 738 (D.C. Cir. 1981). Still, the Court must review de novo an agency's decision to exempt information. 5 U.S.C. § 522(a)(4)(B).

 Consistent with the liberal treatment generally afforded pro se litigants, Defendant has provided notice to the Plaintiff in its Motion for Summary Judgment that any factual assertions contained in the affidavits and other attachments in support of the Motion will be accepted by the Court as true unless Plaintiff submits his own affidavit or other documentary evidence contradicting such assertions. See Neal v. Kelly, 295 U.S. App. D.C. 350, 963 F.2d 453, 456 (D.C. Cir. 1992); Local Rule 108; FED. R. CIV. P. 56(e). Notwithstanding the provision of adequate notice to Plaintiff by Defendant of the operation of the summary judgment rule, Plaintiff has failed to file an affidavit contravening the factual assertions contained in Defendant's Motion regarding the assertion of various exemptions by Defendant. Accordingly, the Court will accept as true the factual assertions underlying the various grounds upon which Defendant's Motion rests.

 
A. SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANT ON THE BASIS OF ITS ASSERTION OF 5 U.S.C. § 552a(a)(2) TO JUSTIFY WITHHOLDING INFORMATION REQUESTED UNDER THE PRIVACY ACT IS APPROPRIATE BECAUSE PLAINTIFF IS NOT AN "INDIVIDUAL" FOR THE PURPOSES OF THE ACT.

 Defendant asserts 5 U.S.C. § 552a(a)(2) to justify the withholding of information requested under the Privacy Act. Because Plaintiff is no longer a lawful permanent resident, summary judgment in favor of the Defendant ...


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