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April 1, 2003


The opinion of the court was delivered by: Reggie B. Walton, United States District Judge


This action concerns a request made by plaintiff pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2000) and the Privacy Act ("PA"), 5 U.S.C. § 552a (2000). Currently before the Court are the defendant's motions to dismiss or, in the alternative, for summary judgment.*fn1 For the reasons stated below, defendant's motions are granted.


At the time plaintiff filed his complaint, plaintiff, who is proceeding pro se, was a federal prisoner in Texas. On April 14, 1999,*fn2 plaintiff submitted a FOIA/PA request to the defendant seeking "all records in agency files located in the FBI's Lexington, Kentucky Field Office[]" related to his criminal case, which the plaintiff designated case number 3-97-CR-254-P. Complaint ("Compl.") at 2*fn3; Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment ("Def.'s Mot. I"), Exhibit ("Ex.") A (FOIA/PA request from James Taylor to Federal Bureau of Investigation ("FBI") dated April 12, 1999). This request was forwarded by the FBI to its Louisville, Kentucky Division office on May 24, 1999, where the responsive documents were ultimately located and a processing number was assigned to plaintiff's request. Compl. at 2. Plaintiff sent a letter to the FBI on June 24, 1999, inquiring as to the status of his request and in response received a letter from the FBI's Louisville, Kentucky office dated June 30, 1999, stating that, due to the large volume of requests, his request could not be acted upon for "several months." Id. Plaintiff received a second letter, again from the FBI's Louisville Office, on July 27, 1999, which indicated that the FOIA/PA information he sought had been located but was "too voluminous" to be processed at the Louisville office, and had been forwarded to FBI headquarters in Washington, D.C. Id.

On August 10, 1999, plaintiff sent another letter to the FBI, wherein he attempted to narrow his request to records "relating to James Taylor, Competitive Edge Personnel Services, North Atlantic Consultants Group and Omnicron Corporation." Id. at 2-3. A response to this request was received by plaintiff on September 9, 1999, from the FBI's Washington, D.C. headquarters, stating that there were in excess of 25,000 pages responsive to this second request and as a result there would be a delay in processing the request. Id. at 3. In an effort to obtain expedited compliance with his request, plaintiff again sought to narrow his request by sending a letter to the FBI on September 14, 1999, in which he requested only the FD 302 reports that would be responsive to his initial request.*fn4 Id. Defendant responded to this third request in a letter dated October 7, 1999, stating that there were 375 documents responsive to this request and that this request had been placed on the "`small' track to process[ing] and would be forthcoming." Id.*fn5

On May 12, 2000, plaintiff received in excess of 150 pages of FBI 302's, which was "significantly less than the more than 375 previously referred to in the FBI's previous correspondence." Id.*fn6 Plaintiff alleges that over 75 percent of the information had been redacted by the defendant based on "standard, but unsubstantiated and unexplained, blanket FOIA/PA Exemptions." Id. Defendant asserts that it withheld the information pursuant to PA Exemption (j)(2) and FOIA Exemptions (b)(7)(C) and (b)(7)(D). See Def.'s Mot. I, Statement of Material Facts in Support of Defendant's Motion for Summary Judgment ("Def.'s Stmt. I") ¶ 15.

Plaintiff sent a letter to the Department of Justice's ("DOJ") Office of Information and Privacy ("OIP") on August 10, 2000, administratively appealing the extent of the disclosure, and on September 2, 2000, plaintiff sent an expanded FOIA/PA request to the FBI. Compl. at 3-4. After no response was received, plaintiff sent another letter to the OIP on October 2, 2000, administratively appealing the apparent denial of his September 2, 2000, request. Id. at 4. By letter dated February 12, 2001, FBI headquarters informed plaintiff that, as a result of his administrative appeal, all 190 pages had been re-processed and additional information was being released. Def.'s Stmt. I ¶ 19.*fn7 Information was again withheld, however, pursuant to PA Exemption (j)(2) and FOIA Exemption (b)(7)(C). Id.

Plaintiff filed his complaint in this Court on November 11, 2000. Plaintiff then filed a Proposed Scheduling Order and Request for Vaughn index*fn8 on March 26, 2001, to which defendant filed an opposition. On June 14, 2001, defendant filed its initial motion for summary judgment. Plaintiff filed his opposition to this motion on July 3, 2001. In his opposition to defendant's motion, plaintiff raised the issue of his expanded FOIA request that was made on September 2, 2000, which he had pled in his complaint. Upon reviewing the complaint defendant conceded that a fair reading of the complaint included plaintiff's allegations regarding the "Expanded Second FOIA" request. As a result of the volumious nature of the "Expanded Second FOIA" request, defendant filed a Motion for an Open America Stay on August 17, 2001.

Plaintiff opposed the FBI's motion for the stay, and on August 27, 2001, plaintiff filed a motion for settlement, seeking to limit his "Expanded Second Request" to solely encompass "any criminal record or criminal case history including any cooperating informant or witness agreements on James Roark and Michael Whitis." On October 25, 2001, defendant filed its Motion for Summary Judgment as to Plaintiff's Narrowed Freedom of Information Act Request("Def.s' Mot. II"), to which plaintiff filed an opposition.*fn9


The court may grant summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 321-23 (1986). In resolving a motion for summary judgment, all reasonable inferences that may be drawn from the facts before the court must be drawn in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In determining whether summary judgment in a PA/FOIA case is appropriate, the Court must conduct a de novo review of the record. 5 U.S.C. § 552(a)(4)(B). The defendant agency has the burden of justifying the withholding of requested documents. Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989); Beck v. Dep't of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993) (citations omitted).


Defendant filed its first motion to dismiss, or, in the alternative for summary judgment, on June 14, 2001.*fn10 This motion addresses plaintiff's request which, by letter dated September 14, 1999, was limited solely to the FD-302s. Def.'s Stmt. I ¶ 11.

As already stated, defendant produced to plaintiff 190 pages of responsive materials, which are redacted. Def.'s Mot. I, Def.'s Stmt. I ¶ 15. In its motion, defendant argues that it has properly withheld information contained in the FD-302's pursuant to PA Exemption (j)(2) and FOIA Exemption (b)(7)(C). Def.'s Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment ("Def.'s Mem. I") at 4. In addition, defendant argues that the declaration of Scott A. Hodes, Acting Unit Chief, Freedom of Information-Privacy Acts Section, Office of Public and Congressional Affairs, FBI Headquarters, ("Hodes Decl. I") suffices as its Vaughn index. Id. at 6-7. In plaintiff's opposition to defendant's motion, he argues that the defendant's motion fails to address his expanded request and that the Hodes Declaration does not suffice as a Vaughn index. Plaintiff's Opposition to Defendant's Motion to Dismiss or, in the Alternative for Summary Judgment and Second Request for Vaughn Index ("Pl.'s Opp'n") at 1-2.*fn11 For the reasons that follow, the Court concludes that the agency has wholly satisfied its burden regarding plaintiff's FD-302 request, and therefore grants the defendant's motion for partial summary judgment regarding this aspect of plaintiff's request.

1. Defendant's Vaughn Index

As indicated, defendant argues that the Hodes declaration suffices as its Vaughn index for plaintiff's FD 302 request. Plaintiff takes exception with this position.

In a letter dated October 7, 1999, defendant initially informed plaintiff that there were approximately 375 documents that were relevant to plaintiff's FD 302 request. Hodes Decl. I ¶ 16; Def.'s Mot. I Ex. M (Letter to James Taylor from FBI dated October 7, 1999). However, in a letter to plaintiff dated February 12, 2001, the FBI informed plaintiff that although it had estimated that there were over 375 pages of documents responsive to his FD 302 request, "the actual hand count totaled 190 pages." Def.'s Mot., Ex. S (Letter to James Taylor from FBI dated February 12, 2001). The Hodes declaration states that all of the documents, being a part of the FBI's Central Records System ("CRS"), were all "exempt from disclosure under [PA] Exemption (j)(2)." Hodes Decl. I ¶ 33. The records were however, processed pursuant to the FOIA, evaluated for segregability, and allegedly redacted where appropriate. Def.'s Mem. at 17-18.

The District of Columbia Circuit has held that an agency must provide a "detailed justification" in support of any claims of exemption with "adequate specificity." Vaughn, 484 F.2d at 826-27. For example, an agency contending that certain parts of a document are exempt could satisfy this standard "by formulating a system of itemizing and indexing that would correlate statements made in the Government's refusal justification with the actual portions of the document." Id. at 827. The defendant has submitted to the Court the 190 pages produced to plaintiff in their redacted ...

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