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BUTLER v. DEPARTMENT OF THE AIR FORCE

May 30, 1995

THOMAS BUTLER, Plaintiff,
v.
DEPARTMENT OF THE AIR FORCE, ET AL., Defendants.



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

 Before the Court in the above-captioned case is the Defendants' Motion to Dismiss or in the Alternative for Summary Judgment ("Def. Motion to Dismiss"); the Plaintiff's Opposition ("Plaintiff's Opp."); the Defendant's Reply ("Def. Reply"); the Plaintiff's Motion Under Vaughn v. Rosen to Require Detailed Justification, Itemization, and Indexing ("Plaintiff's Vaughn Motion"); Defendant's Response to the Court's March 9, 1995 Order and Opposition to Plaintiff's Motion Under Vaughn ("Def. Response"); and Plaintiff's Reply. This case has been brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act ("PA"), 5 U.S.C. § 552a. After consideration of the filings by both parties, the applicable law, and the record herein, the Court shall DENY Defendant's Motion to Dismiss, GRANT in part and DENY in part the Defendants' Motion for Summary Judgment, and DENY Plaintiff's Vaughn Motion.

 I. BACKGROUND

 The Plaintiff in this case, Thomas Butler, filed a pro se complaint ("Complaint") against the Department of the United States Air Force ("USAF") and the Air Force Office of Special Investigations ("AFOSI") on October 25, 1994. The basis for the Plaintiff's claim is that he has been improperly denied access to records maintained by the USAF and AFOSI.

 In January 1994, the AFOSI was notified that the Plaintiff was a prime suspect in the investigation of the murders of Plaintiff's fiance and her daughter conducted by the Prince George's County Police Department ("PGCPD"). Declaration of Chief of FOIA Release Division, Frank H. Batten, Jr. ("Batten Decl.") at P 8. That investigation is still ongoing. Id. at P 15. The AFOSI began an internal investigation based on PGCPD's murder investigation. Id. at P 8. The AFOSI also commenced an investigation of Plaintiff's alleged "stalking activities" following the murders. Id. The Plaintiff was arrested for stalking in January 1994. Plaintiff's Response at 14. A trial was held February 18, 1994 and the court dismissed the case. Id.

 The Plaintiff originally requested on May 12, 1994 that the AFOSI release

 
. . . a complete copy of all closed and interim reports of investigation and internal inquiry reports, spot reports, security determination statements, and other files, notes, or other documents formally or informally maintained on MSgt (Special Agent) THOMAS BUTLER, FR578-72-2302 by HQ AFOSI, Detachment 302 (AFOSI), and any other unit which may maintain such documents . . . .

 Batten Decl. at Exh. A. On June 2, 1994, Mr. Butler requested

 
. . . a copy of a personnel background report regarding me submitted to Detective Michael Burns, Prince George's County Police Department, Landover, Maryland. . . [and] the HQ AFOSI/IGQ coordination and AFOSI/CV authorization for the release of the report to the police.

 Batten Decl. at Exh. B. The Plaintiff characterizes the June 2, 1994 letter as a supplementary or addendum request. See, e.g., Complaint at P 9; Batten Decl. at Exh. B; Plaintiff's Response to Def. Statement of Material Facts at P 2. The Defendants characterize the June 2, 1994 letter as an additional request. See, e.g., Def. Statement of Material Facts at P 2; Batten Decl. at PP 2-3. Between June 2, 1994 and October 25, 1994, Mr. Butler wrote several follow up letters and called to inquire about the status of his FOIA requests. Complaint at PP 8, 12, 14, 16, 18, 21; Declaration of FOIA/PA Senior Information Release Specialist, Carolyn Ford Warren ("Warren Decl.") at P 12.

 On July 29, 1994, Frank Batten of AFOSI wrote a letter to the Plaintiff identifying two files responsive to the May 12, 1994 request and denying release based on Exemption 7(A), 5 U.S.C. § 552b (7)(A). Batten Decl. at Exh. C. In addition, Mr. Batten indicated that the June 2, 1994 request would be processed at a later time. Id. The Plaintiff appealed AFOSI's decision to withhold the two files to the Secretary of the Air Force on August 15, 1994. Id. at Exh. D.

 Plaintiff seeks from this Court an Order (i) enjoining Defendants from unlawfully withholding responsive documents; (ii) requiring Defendants to produce all nonexempt documents for inspection and copying; (iii) requiring Defendants to provide a detailed index of withheld documents; and (iv) compelling Defendants to exercise their discretion to provide Plaintiff with exempt documents. See Complaint at P 2.

 In response, on January 13, 1995, the Defendants filed a Motion to Dismiss, or in the alternative, for Summary Judgment. The Defendants' Motion to Dismiss was based on the grounds (1) that the court lacks subject matter jurisdiction because Plaintiff failed to exhaust AFOSI administrative remedies and (2) that the Plaintiff failed to state a claim upon which relief can be granted because Defendants properly withheld requested documents. The alternative Motion for Summary Judgment was based on the grounds that there are no material facts in dispute and that the Defendant is entitled to judgment in its favor as a matter of law.

 Defendants have acknowledged that Plaintiff exhausted the AFOSI administrative remedies. Def. Reply at 4. Thus, Defendants' first ground for dismissal is moot. With respect to the second ground for dismissal, the Defendants have not argued that the improper withholding of agency records would not constitute a claim upon which relief could be granted. Rather, the Defendants have endeavored to demonstrate that the agency records were properly withheld. Therefore, the Court shall DENY the Defendant's Motion to Dismiss and will now turn to the question of Summary Judgment.

 II. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

 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 (1986). In FOIA cases, the burden of justifying nondisclosure lies with the defendant agency. National Cable Television Ass'n, Inc. v. F.C.C., 479 F.2d 183 (D.C. Cir. 1973). Summary judgment in the defendant agency's 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." Id. at 186.

 When an agency seeks summary judgment on the basis of a FOIA exemption, it can fulfill its burden by "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 the 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. C.I.A., 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). However, the Court must review de novo an agency's decision to exempt information. 5 U.S.C. § 522(a)(4)(B).

 The pro se Plaintiff in this case has indicated an understanding of the standard for a 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. Plaintiff's Opp. at 2-3; 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 Plaintiff's demonstrated familiarity with the operation of the summary judgment rule, Plaintiff fails to ...


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