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MASTER v. FBI

May 14, 1996

JOHN R. MASTER and JOHN H. NIX, Plaintiffs,
v.
FEDERAL BUREAU OF INVESTIGATION, Defendant.



The opinion of the court was delivered by: RICHEY

 UNITED STATES DISTRICT JUDGE

 INTRODUCTION

 Before the Court in the above-entitled case is the defendant's Motion for Summary Judgment. Also before the Court are the plaintiffs' Motion to Stay Consideration of the Defendant's Motion for Summary Judgment, Motion for Discovery, and Motion for In Camera Inspection of Documents Withheld by the Defendant. Upon careful consideration of the pleadings, the entire record herein, and the law applicable thereto, and for the reasons expressed below, the Court shall grant the defendant's Motion for Summary Judgment, and shall deny the plaintiffs' Motions for a Stay, for Discovery, and for an In Camera Inspection of Documents.

 BACKGROUND

 This case concerns a request by the plaintiffs filed pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. ยง 552, for documents and information in the defendant's possession or control concerning allegations of illegal wiretapping of the plaintiffs' phones by various individuals, including members of the City of Cleveland Police Department, and theft of Masters' bonds.

 In late 1993, the plaintiffs requested that the defendant FBI's Cleveland Field Office ("Field Office") investigate the theft of bonds from Master. Thereafter, in April 1994, the plaintiffs requested that the Field Office investigate the illegal wiretapping of the plaintiffs' phones. In April of 1994, Special Agent Richard B. Hoke advised plaintiff Nix that he believed that there was no evidence of illegal wiretapping. Plaints' Mot. to Stay at 1-2.

 Nix then requested an investigation into the wiretapping from the Department of Justice's Office of Professional Responsibility ("OPR"), which investigates allegations of serious misconduct and/or criminal activity by FBI employees. On April 12, 1995, Nix received a letter from OPR, informing him that "OPR's inquiry into your allegation that your telephones were wiretapped has determined your concerns are without merit or basis in fact." Id. at 2, Exh. 1.

 On December 5, 1994, the plaintiffs filed with the Field Office a FOIA request for access to the defendant's files "regarding the investigation into the theft of the bonds of John R. Master . . . ." Id. at Exh. 3. The Field Office informed the plaintiffs that their written authorizations were necessary, and the appropriate authorizations were forwarded to the Field Office on May 12, 1995. Id. at Exh. 4. On May 23, 1995, the Field Office notified the plaintiffs that, although a search of their files revealed records responsive to the plaintiffs' request, the Cleveland Office had referred the request to the FBI headquarters ("Headquarters") in Washington, DC, to "insure all records at [Headquarters] and Cleveland, relative to this information are processed." Id. at Exh. 5. Id. On June 13, 1995, the Field Office further informed the plaintiffs that, due to the Headquarter's backlog of requests, the processing time for the request would be another 18 months to three years. Id. at Exh. 6.

 By letter dated August 28, 1995, the Headquarters notified the plaintiffs that it had received their FOIA request from the Field Office and that approximately 4,650 pages are responsive to the plaintiffs' request. The letter requested an indication of the plaintiffs' willingness to pay the estimated duplication costs "so that further action can be taken on your request." Id. at Exh. 10. *fn1" The defendant located 1,689 pages responsive to the plaintiffs' FOIA request; it released 1,234 pages to the plaintiffs.

 The plaintiffs commenced the present action on September 14, 1995, seeking an order granting the plaintiffs' immediate access to the records requested. On January 26, 1996, the plaintiff filed the instant Motion for Summary Judgment and, on February 14, 1996, filed its Vaughn Index. The plaintiff responded on March 21, 1996, filing the instant Motion to Stay Consideration of the Defendant's Motion for Summary Judgment, a Motion for Discovery, and a Motion for In Camera Inspection of Documents Withheld by the Defendant. The defendant filed an Opposition on April 11, 1996, and the plaintiffs filed their Reply on April 25, 1996.

 In its motion, the defendant asserts that summary judgment is appropriate because it has released all nonexempt records responsive to the plaintiffs' FOIA request; because it has conducted an adequate search for those records; because it has properly withheld information under FOIA Exemptions 2 and 7(C); and because the plaintiffs' allegations of bad faith are without merit and irrelevant to this FOIA action. The plaintiffs oppose summary judgment, moving the Court for a stay of consideration of the defendant's motion for summary judgment, for discovery as to the adequacy of the defendant's search for responsive documents, and for an in camera inspection of all documents withheld by the defendant. The Court shall deny the plaintiffs' motions and shall rule that the defendant is entitled to judgment as a matter of law.

 DISCUSSION

 In a FOIA case, as in all others in the federal system, summary judgment may be granted only if the moving party establishes that no substantial and material facts are in issue and that the movant is entitled to judgment as a matter of law. Perry v. Block, 221 U.S. App. D.C. 347, 684 F.2d 121, 126 (D.C. Cir. 1982); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Fed. R. Civ. P. 56(c). To meet this standard in a FOIA suit, the defending agency must demonstrate beyond material doubt that it conducted a search reasonably calculated to uncover all relevant documents. Nation Magazine v. United States Customs Serv., 315 U.S. App. D.C. 177, 71 F.3d 885, 890 (D.C. Cir. 1995). The defending agency must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is ...


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