The opinion of the court was delivered by: REGGIE WALTON, District Judge
This matter is brought pursuant to the Freedom of Information
Act ("FOIA"), 5 U.S.C. § 552 (2000), as amended, the Privacy Act,
5 U.S.C. § 552a(g)(1) (2000), and the Administrative Procedure
Act, 5 U.S.C. §§ 701 et seq. (2000). Currently before the
Court is the summary judgment motion of the Board of Governors of
the Federal Reserve System (the "Board"). Defendant's Motion for
Summary Judgement 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 Mot.")
[D.E. # 9]. The motion is opposed by the plaintiff's
Court-Ordered Response 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 And Plaintiff's Motion for
Summary Judgment ("Pl.'s Mot."). Based upon the parties'
submissions and for the reasons set forth below, the Court grants
the defendant's motion for summary judgment.
The facts in this case were discussed in detail in this Court's
prior Memorandum Opinion and thus will only be reviewed here to the extent necessary to
resolve the pending motion. See Sciba v. Bd. of Governors of
the Fed. Reserve Sys., No. 04-1011, 2005 WL 758260, at *1
(D.D.C. Apr. 1, 2005).
Earlier, on August 23, 2004, the plaintiff filed a motion for
partial summary judgment. The defendant opposed the motion and
filed its own cross-motion for summary judgment on October 8,
2004. On March 31, 2005, this Court denied the plaintiff's
partial summary judgment motion but deferred ruling on the
defendant's motion for summary judgment until after the plaintiff
had an opportunity to respond properly to the defendant's FOIA
Exemption 3(A) and Privacy Act arguments. The Court also advised
the plaintiff, as a pro se party, that his failure to respond
to all aspects of the defendant's motion could result in summary
judgment being entered for the defendant. Sciba, 2005 WL
758260, at *3 n. 9, 4. In response to the Court's Order, on April
26, 2005, the plaintiff filed a motion opposing the defendant's
motion for summary judgment and again moved for summary judgment
on the grounds that the defendant has failed to satisfy its
burden of proving that it is entitled to prevail on its motion
and engaged in bad faith through the use of conflicting
affidavits and inconsistent proof. Pl.'s Mot. at 1. And the
plaintiff again requested that the Court compel production by the
defendant of the withheld suspicious activity reports ("SARs")
and currency transaction reports ("CTRs"). Id. at 19. The
defendant responded to the plaintiff's motion on May 25, 2005,
reiterating the position taken in its earlier motion for summary
judgment. Defendant's Opposition to Plaintiff's Court-Ordered
Response Opposing Defendant's Motion for Summary Judgment
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); 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 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 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 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) (citations omitted); Ground Saucer Watch, Inc.
v. Cent. Intelligence Agency, 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 in FOIA cases may be based on
affidavits.) Unless the plaintiff "submits his own affidavit or
other documentary evidence contradicting [the defendant's]
assertions," the Court will accept as true "any factual assertions contained in the affidavits and other
attachments in support of the motion" for summary judgment.
Butler v. Dep't of the Air Force, 888 F. Supp. 174, 178 (D.D.C.
1994) (citing Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir.
A. The Defendant's Motion for Summary Judgment
The defendant asserts that it is entitled to summary judgment
because the two suspicious activity reports ("SARs") and four
currency transaction reports ("CTRs") responsive to the
plaintiff's April 2004 document requests are exempt from
disclosure pursuant to Exemption 3(A) of the FOIA, in conjunction
with 31 U.S.C. § 5319 (2000), and the access provisions of the
Privacy Act. Def.'s Mot. at 1, 5, 16; Sciba, 2005 WL 758260, at
As an initial matter, the Court notes that the plaintiff has
again not responded directly to the defendant's FOIA Exemption
3(A) and Privacy Act arguments despite the Court's warning that
failure to do so could result in summary judgement being entered
for the defendant. See Order dated March 30, 2004. Instead, the
plaintiff questions the validity, consistency, and good faith of
the defendant's affidavits, thereby also questioning whether the
defendant has satisfied the standard necessary for the award of
summary judgment. Pl.'s Mot. at 1-2. But, the plaintiff has
proffered no factual material that raises doubt about the
veracity or adequacy of the affidavits. Id. at 1; Def.'s Opp'n
at 5.*fn1 The plaintiff also reiterates his previous
position that the defendant is not entitled to summary judgment because "[t]he
[g]overnment has not been consistent in its specification of
which exemptions apply." Pl.'s Mot. at 3 (footnote omitted).
However, while the defendant cited other exemptions as the bases
for withholding the documents, namely, FOIA exemptions 6, 7(A),
(C) and (D), the defendant indicated that because the documents
were so clearly exempt from disclosure under FOIA Exemption 3(A)
and 31 U.S.C. § 5319, that it would not provide briefing to the
Court on those other exemptions, unless otherwise requested by
the Court. Def.'s Mot. at 16-17 n. 4; Sciba, 2005 WL 758260, at
*1 n. 3, *2 n. 7. And the Court has not requested that the
defendant elucidate the bases for the other FOIA Exemptions.
Therefore, the plaintiff's argument that the defendant has failed
to satisfy its burden of proof for summary judgment entitlement
because it has inconsistently asserted exemptions, has no bearing
on whether entry of summary judgment is appropriate.*fn2
The Board asserts Exemption 3(A) of the FOIA in conjunction
with 31 U.S.C. § 5319 as one of its bases for withholding the two
SARs and four CTRs in their entirety from disclosure to the
plaintiff. Def.'s Mot. at 16. Exemption 3(A) permits the
withholding of information prohibited from disclosure by another
statute if that other 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. Cent. Intelligence Agency, 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.
"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. U.S. Dep't of Commerce,
317 F.3d 275, 280 (D.C. Cir. 2003) (alteration in original)
(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 ...