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SCIBA v. BOARD OF GOVERNOR OF FEDERAL RESERVE SYSTEM

United States District Court for the District of Columbia


April 1, 2005.

JEFFREY-GENE SCIBA, Plaintiff,
v.
BOARD OF GOVERNOR OF THE FEDERAL RESERVE SYSTEM, Defendant.

The opinion of the court was delivered by: REGGIE B. WALTON, District Judge

MEMORANDUM OPINION

Currently before the Court is the Plaintiff's Motion for Partial Summary Judgment ("Pl.'s Mot.") [D.E. #3], and the Defendant's Motion for Summary Judgment and Memorandum of Points and Authorities in Support of Motion for Summary Judgment and in Opposition to Plaintiff's Motion for Partial Summary Judgment ("Def.'s Mem."), [D.E. # 9]. The plaintiff, proceeding pro se, brings this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, as amended, the Privacy Act, 5 U.S.C. § 552a(g)(1), and the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq., to require public disclosure of all records and other documents contained in the defendant's files involving the plaintiff and another individual over whom the plaintiff allegedly had power of attorney. Complaint ("Compl".) at 1. Based upon the submissions presented to the Court, the plaintiff's motion will be denied and the Court will defer ruling on the defendant's motion for the reasons set forth below.

I. Background

  On or about April 13, 2004, the plaintiff sent the Board of Governors of the Federal Reserve System (the "Board") a request pursuant to the FOIA and the Privacy Act, seeking access to a system of records known as "BGFRS-21" or the FRB-Supervisory Tracking and Reference System.*fn1 Compl. ¶ 6 & Exhibit ("Ex.") M1 (Letter to the Secretary of the Board of Governors of the Federal Reserve System dated April 13, 2004, requesting access to BGFRS-21). On or about April 14, 2004, the plaintiff sent the Board another nearly identical letter requesting documents relating to the Fedwire Funds Service ("Fedwire").*fn2 Compl. ¶ 11 & Ex. M2 (Letter to the Secretary of the Board of Governors of the Federal Reserve System dated April 14, 2004, requesting access to the Fedwire). Both letters sought information contained under the plaintiff's social security number and the social security number of Max-K. Akamai ("Akamai"), over whom the plaintiff had power of attorney. Compl. ¶¶ 7, 11 & Exs. M1 & M2. The plaintiff also requested trace of funds information regarding the Phoenix Private Free Market Association, the plaintiff, Akamai, and certain other entities. Id.

  With respect to the April 13, 2004 letter, the defendant exercised its statutory right to extend the time in which it had to respond to the letter until May 27, 2004, in order to "consult with another agency or with two or more components of the Board having a substantial interest in the determination of the request." Id. ¶ 8 & Exhibit M3 (Letter dated May 13, 2004, from the Board of Governors of the Federal Reserve System to Mr. Jeffrey-Gene Sciba). With respect to the April 14, 2004 letter, the defendant likewise extended the time it had to respond to the letter until June 2, 2004. Id. ¶ 14 & Exhibit M4 (Letter dated May 13, 2004 from the Board of Governors of the Federal Reserve System to Mr. Jeffrey-Gene Sciba). Ultimately on June 22, 2004, the Board sent the plaintiff two additional letters. The first letter informed the plaintiff that the Board had no information responsive to his request for Fedwire records. Def.'s Mem. at 4. The second letter informed the plaintiff that the Board located six documents, totaling 10 pages, responsive to his request for information from BGFRS-21. Id. However, the Board informed the plaintiff that those documents contained records compiled for law enforcement purposes and were being withheld pursuant to Exemption 7(A) of the FOIA.*fn3 Id. Additionally, the letter informed the plaintiff that the documents were exempt from the access provisions of the Privacy Act pursuant to subsection (k)(2) of the Act, 5 U.S.C. § 552a(k)(2). Id. (citing Plaintiff's Affidavit of Self-Authenticating Records and Ex. M30 (Letters dated June 22, 2004 from the Board of Governors of the Federal Reserve Board to Mr. Jeffrey-Gene Sciba)). However, prior to receiving the two letters from the Board responsive to his requests, the plaintiff filed his complaint seeking injunctive relief from this Court. Def.'s Mem. at 5. Thus, the underlying basis for the relief requested in the plaintiff's complaint was that the defendant was in default by not responding to his requests. See Compl. ¶ 16. However, after receiving the letters from the Board, the plaintiff filed his Motion for Partial Summary Judgment requesting that this Court "command" the Board to "release documents improperly held [and] search its records for further documents. . . ." Pl.'s Mot. at 1. The defendant has filed its opposition to the motion claiming that the six documents, totaling 10 pages, are the only documents in its possession that are responsive to the plaintiff's request and that they are exempt from disclosure pursuant to Exemption 3(A) of the FOIA and 31 U.S.C. § 5319, as well as other FOIA exemptions and the access provisions of the Privacy Act. Def.'s Mem. at 5.

  II. Standard of Review

  The Court may grant summary judgment when there is no genuine issue of material fact in dispute 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 gleaned from the facts before the Court must be construed in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In a FOIA case, to satisfy this standard, the "defending agency must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the (FOIA's) inspection requirements." Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982) (internal quotation marks and citation omitted). When reviewing an agency's denial of a plaintiff's FOIA request, "the court shall determine the matter de novo, and . . . the burden is on the agency to sustain its action." 5 U.S.C. 552(a)(4)(B) (2000); see also Founding Church of Scientology of Wash., D.C., Inc. v. Nat'l Sec. Agency, 610 F.2d 824, 830 (D.C. Cir. 1979). In carrying its burden, reliance on "agency affidavits is warranted if the affidavits describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by [n]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); Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981); Hayden v. Nat'l Sec. Agency, 608 F.2d 1381, 1387 (D.C. Cir. 1979) (summary judgment is appropriate in FOIA cases on the basis of affidavits.) Once the Court determines that the declarations are sufficient, it need not inquire further. Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001).

  III. Analysis

  A. The Plaintiff's Motion for Partial Summary Judgment

  The plaintiff moves the Court for entry of partial summary judgment pursuant to Rule 56(d).*fn4 Aside from the blanket request for an order commanding the defendant to release all responsive documents, the plaintiff's motion has several other requests. Specifically, the plaintiff requests that this Court require the defendant to submit a Vaughn Index.*fn5 Pl.'s Mot. at 11. The plaintiff also seeks a determination by this Court that the defendant's search for the BGFRS-21 documents was inadequate, and therefore order the agency to search the BGFRS-21 system of records for further documents. Id. Additionally, the plaintiff requests that this Court order the agency to submit affidavits that address how many documents, if any, were found and if any of the information was exempt from disclosure. Id.

  However, the defendant's motion for summary judgment and its opposition to the plaintiff's motion for partial summary judgment satisfy these additional requests. Specifically, the defendant has submitted a Vaughn Index which provides a detailed description of the withheld documents and the corresponding exemptions that purportedly apply to any withheld information. See Def.'s Mem., Ex. C (Index of Withheld Material). With respect to the adequacy of the Board's search and the plaintiff's request for supporting affidavits, the defendant has provided three declarations supporting its claimed exemptions.*fn6 See Def.'s Mem., Exs. 3, 4 & 5. However, the plaintiff has since withdrawn his request "for a second search of the records and for additional affidavits" pursuant to Federal Rule of Civil Procedure 41(a). Plaintiff's Response and Reply Opposing: Defendant's Motion for Summary Judgment and Memorandum of Points and Authorities in Support of Motion for Summary Judgment and in Opposition to Plaintiff's Motion for Partial Summary Judgment ("Pl.'s Opp'n") at 6. Moreover, with respect to the Fedwire documents, the plaintiff makes nearly identical requests as he did with the BGFRS-21 documents. However, pursuant to Fed.R.Civ.P. 41(a), the plaintiff "with[drew] his entire second cause of action, regarding the plaintiff's access to the Fedwire Service." Id. Therefore, the plaintiff's motion for partial summary judgment must be denied. This result is called for because the plaintiff's requests for a Vaughn Index is now moot by virtue of the defendant's filing of its motion for summary judgment and accompanying Vaughn Index. The plaintiff's motion must also be denied because the other issues raised by the plaintiff concerning the adequacy of the defendant's search efforts and the Fedwire documents were withdrawn. Id. Thus, the only issues remaining are whether the BGFRS-21 documents were properly withheld pursuant to the FOIA exemptions claimed by the Board and whether the plaintiff is entitled to those same documents under the Privacy Act.*fn7 These issues were addressed in the defendant's motion for summary judgment and will be resolved by the Court in the following discussion.

  B. The Defendant's Motion for Summary Judgment

  1. FOIA Exemption 3(A)

  The Board asserts, inter alia, Exemption 3(A) of the FOIA and 31 U.S.C. § 5319 as one of its basis for withholding the 6 documents, totaling ten pages, in their entirety from the plaintiff.*fn8 Def.'s Mem. at 16. Exemption 3(A) permits the withholding of information prohibited from disclosure by another statute if that statute "requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue." See 5 U.S.C. § 552(b)(3); Smith v. United States Dep't of Justice, 251 F.3d 1047, 1048-49 (D.C. Cir. 2001). In such situations "the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within that statute's coverage." Goland v. CIA, 607 F.2d 339, 350 (D.C. Cir. 1978) (footnote omitted); accord Ass'n of Retired R.R. Workers v. United States R.R. Ret. Bd., 830 F.2d 331, 335 (D.C. Cir. 1987).

  "To qualify as a withholding provision, a statute must be the `product of congressional appreciation of the dangers inherent in airing particular data' and must `incorporate? a formula whereby the administrator may determine precisely whether the disclosure in any instance would pose the hazard that Congress foresaw.'" Wis. Project on Nuclear Arms Control v. Dep't of Commerce, 317 F.3d 275, 280 (D.C. Cir. 2003) (quoting Am. Jewish Cong. v. Kreps, 574 F.2d 624, 628-29 (D.C. Cir. 1978) (alteration in original)). "In short, `only explicit nondisclosure statutes that evidence a congressional determination that certain materials ought to be kept in confidence will be sufficient to qualify under the exemption.'" Id. (citing Irons and Sears v. Dann, 606 F.2d 1215, 1220 (D.C. Cir. 1979).

  Here the defendant alleges that "an express statutory provision establishes that the documents are entirely `exempt from disclosure' under [the] FOIA. . . ." Def.'s Mem. at 18. The withheld documents consists of two suspicious activity reports ("SARs"), filed by financial institutions pursuant to 31 U.S.C. § 5318(g), and four currency transaction reports ("CTRs"), filed by financial institutions pursuant to 31 U.S.C. § 5313. Id. at 16 (citing Declaration of Susan M. Barnard ("Barnard Decl.") dated September 30, 2004) ¶¶ 3-6. Therefore, opines the defendant, section 5319 of title 31 makes all these reports "exempt from disclosure under section 552 of title 5." Id. (citing 31 U.S.C. § 5319).

  On the other hand, the plaintiff does not respond in any way to the Board's Exemption 3(A) analysis. Instead, the plaintiff briefly states that "the [d]efendant filed a motion for summary judgment against the plaintiff citing a multitude of additional defenses added after the [d]efendant's first responsive pleading." Plaintiff's Opposition to Defendant's Statement of Material Facts as to Which There is No Genuine Dispute ("Pl.'s Opp'n Stmt. Mat. Facts") at 2-3. In other words, the plaintiff has taken the position that the defendant is limited to only two defenses, namely, the plaintiff's failure to state a claim and the applicability of Exemption 7(A) of the FOIA, see supra note 3, and therefore he need not respond to any other defenses raised by the defendant for the withholding of the documents. See Pl.'s Opp'n at 5. The Court disagrees with the plaintiff's position, id., and because the plaintiff did not respond to the Board's Exemption 3(A) arguments, the Court defers issuing a ruling on this issue. The Court therefore directs the pro se plaintiff to respond to arguments raised by the defendant pertaining to Exemption 3(A) within thirty days from the date of this Court's Order issued on March 31, 2005.*fn9 The defendant will thereafter have the opportunity to reply to the plaintiff's response.

  2. The Privacy Act

  In addition to the FOIA requests, the plaintiff also requested access to the documents pursuant to the Privacy Act. The Privacy Act provides, in part:

(d) Access to records. — Each agency that maintains a system of records shall —
(1) upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him and upon his request, a person of his own choosing to accompany him, to review the record and have a copy made of all or any portion thereof in a form comprehensible to him, except that the agency may require the individual to furnish a written statement authorizing discussion of that individual's record in the accompanying person's presence;
5 U.S.C. § 552a(d)(1). Thus, the Privacy Act provides a right of access by any person to information pertaining to him contained in an agency's system of records. Pursuant to subsections (j) and (k) of the Privacy Act, an agency may promulgate rules exempting identified systems of records from the access provisions of the Act. 5 U.S.C. §§ 552a(j) and (k). Subsection (k)(2) permits an agency to exempt any system of records that contains "investigatory material compiled for law enforcement purposes." 5 U.S.C. § 552a(k)(2). The Board contends that "because [the information] contains investigatory material compiled for law enforcement purposes, the Board's regulations specifically exempt all information in BGFRS-21 from the access requirements of the Privacy Act. Def.'s Mem. at 22 (citation omitted). The Board therefore concludes that "[b]ecause the Board properly exempted BGFRS-21 from the Privacy Act, the plaintiff has no Privacy Act right of access to information in that system of records . . ." Id.

  Again, the plaintiff did not respond to defendant's arguments pertaining to the Privacy Act, presumably for the same reason expressed in response to the defendant raising Exemption 3(A). As previously stated, the plaintiff acknowledges that the defendant "cit[es] a multitude of additional defenses added after the [d]efendant's first responsive pleading," Pl.'s Opp'n Stmt. Mat. Facts. at 2-3. However, the plaintiff maintains that the defendant is precluded from raising any other defenses outside of Exemption 7(A) and the position that the defendant has failed to state a claim upon which relief may be granted. Again, this Court disagrees with the plaintiff and will afford the pro se plaintiff an opportunity to respond to the Board's arguments concerning the Privacy Act. Accordingly, the plaintiff is again required to submit a response to the defendant's arguments pertaining to the Privacy Act within thirty days from the date of this Court's Order issued on March 31, 2005. The defendant will thereafter have the opportunity to reply to the plaintiff's response.

  IV. Conclusion

  For the foregoing reasons, the plaintiff's Motion for Partial Summary Judgment is denied. The Court defers issuing a ruling on the Defendant's Motion for Summary Judgment and Memorandum of Points and Authorities in Support of Motion for Summary Judgment and in Opposition to Plaintiff's Motion for Partial Summary Judgment until the plaintiff has the opportunity to respond to the issues presented in the plaintiff's motion as indicated in this Memorandum Opinion*fn10

  SO ORDERED


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