The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
Document No.: 55 (docketed in C.A. 96-120) *fn1
DENYING THE PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; REMANDING IN PART TO THE DEFENDANT FOR ADDITIONAL INFORMATION
This Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, case comes before the court on the Federal Bureau of Investigation's ("FBI" or "the defendant") motion for summary judgment and the plaintiff's cross-motion for summary judgment. The plaintiff, Donald Raulerson, Sr., argues that the FBI impermissibly withheld, and must now release, information that the plaintiff sought through a FOIA request. The defendant maintains that it validly withheld the contested information pursuant to numerous FOIA exemptions. Except to the extent that the defendant relied on implied confidentiality to withhold or excise information, the defendant met its burden under the FOIA and the court grants the defendant's motion accordingly. For all information that the defendant withheld under a theory of implied confidentiality, the court denies the defendant's motion and remands the matter to the defendant for better evidence that implied confidentiality in fact existed. Finally, because the plaintiff has not met the standard for a motion for summary judgment, the court denies the plaintiff's cross-motion.
On March 6, 1995, the plaintiff submitted a FOIA request to the FBI Miami Field Office ("MFO") and FBI Headquarters ("FBIHQ"). *fn3 See Def.'s Mot. for Summ. J. at 1. On April 28, 1995, the MFO notified the plaintiff that the FBIHQ would handle his entire request. See id. at 1-2. Nearly four years later, on April 7, 1999, the FBI provided the plaintiff with a list of the files located in response to his requests. See id. at 2. The list indicated that the government had located more than 69,000 pages of responsive documents. See id. at 4; Def.'s Mot. for Summ. J. Ex. C *fn4 (letter to the plaintiff from John M. Kelso, Chief, Freedom of Information--Privacy Acts ("FOI-PA") Section Office of Public and Congressional Affairs, dated April 7, 1999) (describing the vast number of documents found in response to the plaintiff's request and offering to accelerate the plaintiff's request if he agreed to limit its scope).
After negotiations, the plaintiff agreed to reduce the scope of his request. *fn5 On February 29, 2000, FBIHQ forwarded the plaintiff 563 pages of materials (for the most part concerning the plaintiff's attempt to kill a federal officer, racketeering, obstructing justice, and defrauding a financial institution charges). See Def.'s Mot. for Summ. J. at 2, 4, Ex. D. Nonetheless, the FBI did not forward the plaintiff all the information that he had expected. Instead, it withheld certain information (mostly by means of excision, but the FBI denied in full 78 pages) *fn6 pursuant to various FOIA exemptions. See Ex. D at 13. The FBI also informed the plaintiff that some documents he had requested originated with the Drug Enforcement Administration ("DEA") and Bureau of Prisons ("BOP"), and that those agencies would respond to the plaintiff directly. See Def.'s Mot. for Summ. J. at 3. Finally, the FBI denied in full 13 pages of information concerning certain audiotapes. See id.
The plaintiff filed his initial complaint with this court on November 3, 1995. On March 31, 1998, this court granted the motions for summary judgment filed by federal defendants Department of Justice, Criminal Division; Executive Office of the U.S. Attorneys; Customs Service; and Drug Enforcement Agency. See Mem. Op. dated March 31, 1998. On June 22, 2001, after numerous extensions of time, status reports, and motions for interlocutory appeal, the only remaining defendant, the FBI, filed the motion for summary judgment currently under consideration. Nearly five months later, after an extension of time, the plaintiff responded and filed a cross-motion for summary judgment.
A. Legal Standard for Summary Judgment in a FOIA-Review Case
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine which facts are "material," a court must look to the substantive law on which each claim rests. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. See Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248. In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. See Anderson, 477 U.S. at 255.
In a judicial review of an agency's response to a FOIA request, the defendant agency has the burden of justifying nondisclosure, and the court reviews de novo the agency's action. See 5 U.S.C. § 552(a)(4)(B); Al-Fayed v. CIA, 254 F.3d 300, 305 (D.C. Cir. 2001). The court may grant summary judgment to an agency on the basis of its affidavits if they (a) "describe the documents and the justifications for nondisclosure with reasonably specific detail," (b) "demonstrate that the information withheld logically falls within the claimed exemption," and (c) "are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). While an agency's affidavits are presumed to be in good faith, a plaintiff can rebut this presumption with evidence of bad faith. See Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981). But such evidence cannot be comprised of "purely speculative claims about the existence and discoverability of other documents." Id.
B. The Defendant's Search for Documents is Adequate
An agency must respond to FOIA requests by conducting a search reasonably calculated to uncover all relevant documents. See Steinberg v. DOJ, 23 F.3d 548, 551 (D.C. Cir. 1994). The agency need not search every record system or conduct a "perfect," "epic," "hopeless," or "wasteful" search. See, e.g., Meeropol v. Meese, 790 F.2d 942, 952, 956 (D.C. Cir. 1986); SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991). Instead, the search must be reasonable, pursued in good faith, and conducted with methods likely to produce the requested information, if it exists. See, e.g., Campbell v. DOJ, 164 F.3d 20, 27 (D.C. Cir. 1998).
The plaintiff alleges in general terms that the FBI's method of searching the criminal division indices was not reasonably calculated to uncover all relevant documents. See Pl.'s Opp'n at 5; Pl.'s Mot. for Summ. J. at 3-6. Affording all appropriate deference to this pro se plaintiff, the court finds no evidence that the FBI conducted an inadequate search. In response to the plaintiff's FOIA request, FBIHQ and the MFO accessed the FBI's central record system ("CRS"). The CRS consists of "administrative, applicant, criminal, personnel, and other files compiled for law enforcement purposes." Ex. D at 4. In addition to the CRS records at FBIHQ, FBI field offices such as the MFO maintain certain relevant CRS files on site. See id. The FBI searched its records through "General Indices," which are "arranged in alphabetical order, and consist of an index on various subjects, including the names of individuals and organizations." Id. Through its searches of the indices, the MFO located roughly 68,700 pages of responsive documents on site, and the FBIHQ located roughly 800 pages. See id. at 8-9.
This Circuit has held that, "[w]hen a request does not specify the locations in which an agency should search, the agency has discretion to confine its inquiry to a central filing system if additional searches are unlikely to produce any marginal return . . . ." Campbell, 164 F.3d at 28. In other words, if the FBI believes that a search of its CRS is sufficient, it need not go further. However, if it discovers that relevant information might exist in another set of files or a separate record system, the agency must look at those sources as well. See id. at 28. Here, the plaintiff has not demonstrated that the FBI should have proceeded any differently than it did. The FBI located documents at the MFO relevant to the plaintiff's request, and the plaintiff did not request that the FBI consult additional records systems. Accordingly, the court determines that the FBI's search was adequate.
C. The Defendant's Vaughn Indices Generally Provide Reasonably Specific Detail
While there is no categorical formula for how an agency should articulate its justifications for nondisclosure, this Circuit, through what has become known as a "Vaughn index," has established a general standard for what information the agency's affidavits should contain. See Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C. Cir. 1973) (requiring affidavits that specifically describe the withheld or redacted documents and justify, in detail, why each withheld record that would be responsive to the request is exempt from disclosure under the FOIA); Spirko v. United States Postal Serv., 147 F.3d 992, 998 n.4 (D.C. Cir. 1998) (stating that the "form of the Vaughn index is unimportant and affidavits providing similar information can suffice"); Hayden v. Nat'l Sec. Agency, 608 F.2d 1381, 1387 (D.C. Cir. 1979) (observing that ". . . the affidavits must show, with reasonable specificity, why the documents fall within the exemption" and that the affidavits many not present conclusory, sweeping, or vague claims) (footnote omitted).
The plaintiff claims that the defendant failed to provide a proper Vaughn index. See Pl.'s Opp'n at 2-3; Pl.'s Mot. for Summ. J. at 8-9. The defendant responds that its index is adequate and consists of "one declaration by Nancy Steward, Paralegal Specialist, FBIHQ and three declarations by Scott A. Hodes, Acting Chief, Litigation Unit, [FOI-PA] Section, Office of ...