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SCIBA v. BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM

November 4, 2005.

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



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

MEMORANDUM OPINION

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.

I. Background

  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 ("Def.'s Opp'n").

  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); 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. 1992)).

  III. Analysis

  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 *1.

  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

  1. FOIA Exemption 3(A)

  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. 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. 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 ...


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