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SHORES v. F.B.I.
February 4, 2002
FRED SHORES JR., PLAINTIFF,
FEDERAL BUREAU OF INVESTIGATION, ET AL. DEFENDANTS.
The opinion of the court was delivered by: Kessler, District Judge.
Plaintiff, an inmate proceeding pro se, brings this lawsuit in
order to obtain access to certain documents under the Freedom of
Information Act ("FOIA"), 5 U.S.C. § 552, and Privacy Act, 5
U.S.C § 552a, from Defendants Federal Bureau of
Investigation, United States Department of Justice (Office of
Information and Privacy), and United States of America. In
response, Defendants have filed a Motion for Summary Judgment [#
40]. Defendants ask the Court to rule that they conducted an
adequate search and that the requested documents are exempt from
disclosure under the Privacy Act and FOIA Exemptions 2, 7(C),
7(D), 7(E), and 7(F). Upon consideration of the Motion, all
related pleadings, and the record herein, Defendants' Motion is
Between November 23, 1993 and February 4, 1998, Plaintiff made
four requests for documents allegedly held by Defendants. The
documents at issue in this case relate to Plaintiffs request for
all documents concerning himself located in the Federal Bureau
of Investigation's ("FBI") Norfolk, Virginia and Myrtle Beach,
South Carolina offices. See Compl. ¶¶ 5-7.
In a letter dated May 6, 1999, FBI Headquarters informed
Plaintiff that, in response to his four requests,*fn1 454
pages of 699 reviewed records had been processed and would be
released after Plaintiff reimbursed it for copying expenses.
See id. ¶ 18. After Plaintiff paid the copying expenses, he
received the 454 pages in a letter dated May 21, 1999. See id.
The May 21, 1999 letter also indicated that 245 of 699 pages
had been withheld pursuant to 5 U.S.C. § 552a (j)(2) and
5 U.S.C. § 552(b)(2), (b)(7)(C), (b)(7)(D), (b)(7)(E), and
(b)(7)(F). See id.*fn2
In his Complaint, Plaintiff seeks unredacted copies of all
documents requested from the FBI's Norfolk, Virginia and Myrtle
Beach, South Carolina offices. Defendants now move for summary
A motion for summary judgment should be granted if the moving
party demonstrates that there are no genuine issues of material
fact and that 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, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In considering
whether there is a triable issue of fact, "the evidence of the
non-movant is to be believed, and all justifiable inferences are
to be drawn in its favor." Anderson v. Liberty Lobby,
477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party
opposing a motion for summary judgment "may not rest upon the
mere allegations or denials of his pleading, but . . . must set
forth specific facts showing that there is a genuine issue for
trial." Id. at 248, 106 S.Ct. 2505. Moreover, "any factual
assertions in the movant's affidavits; will be accepted as being
true unless [the opposing party] submits his own affidavits or
other documentary evidence contradicting the assertion." Neal
v. Kelly, 963 F.2d 453, 456 (D.C.Cir. 1992) (quoting Lewis v.
Faulkner, 689 F.2d 100, 102 (7th Cir. 1982)); Washington Post
Co. v. United States Dep't of Health and Human Services,
865 F.2d 320, 325 (D.C.Cir. 1989).
FOIA requires an agency responding to a FOIA request to
reasonable search using methods which can be reasonably expected
to produce the information requested. See Campbell v. United
States Dep't of Justice, 164 F.3d 20, 27 (D.C.Cir. 1998). The
burden of proof is on the agency to show that its search was
reasonably calculated to uncover all relevant documents. See
Steinberg v. United States Dep't of Justice, 23 F.3d 548, 551
(D.C.Cir. 1994). In meeting this burden, the agency may submit
affidavits or declarations that explain, in reasonable detail,
the scope and method of the agency's search. "In the absence of
countervailing evidence or apparent inconsistency of proof,
[such affidavits] will suffice to demonstrate compliance with
the obligations imposed by the FOIA." Perry v. Block,
684 F.2d 121, 127 (D.C.Cir. 1982).
To document their search, Defendants submitted the Third
Declaration of Scott A. Hodes, Acting Chief of the Litigation
Unit of the FBI's Freedom of Information-Privacy Acts Section.
Plaintiff claims that Defendants refused to send him documents
responsive to his request. However, a search is not inadequate
simply because it failed to yield every document that Plaintiff
seeks. See Cleary, Gottlieb, Steen & Hamilton v. Dep't of
Health and Human Servs., 844 F. Supp. 770, 776, 777 n. 4 (D.C.
1993). Significantly, Plaintiff does not challenge the scope and
method of Defendants' search for ...