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QUEEN v. GONZALES

November 15, 2005.

SAMUEL R. QUEEN, JR., Plaintiff,
v.
ALBERTO GONZALES,[fn*] et al., Defendants.



The opinion of the court was delivered by: JANE RESTANI, Chief Judge[fn**] [fn**] This case was initially filed with this court on June 18, 1996, but was reassigned on November 18, 2004, to the Honorable Jane A. Restani, Chief Judge, United States Court of International Trade, sitting by designation.

[fn*] Although the complaint names Janet Reno as a defendant in this action, pursuant to Fed R. Civ. P. 25(d)(1), Alberto Gonzales substitutes as the proper defendant. When a public officer is a party to an action in his official capacity and during its pendency ceases to hold office, the officer's successor is automatically substituted as a party. Id.

MEMORANDUM OPINION

Samuel R. Queen ("Plaintiff") brings this suit against the Federal Bureau of Investigation ("FBI"), under the Freedom of Information Act and the Privacy Act (collectively the "FOIPA"), 5 U.S.C. §§ 552, 552a (2000), to obtain documents relating to the FBI's investigation into Plaintiff's involvement in a heroin distribution organization. The court granted Plaintiff's motion for a supplemental Vaughn Index, and the FBI responded by filing the Declaration of David M. Hardy, Section Chief of the FBI's Record/Information Dissemination Section ("Hardy Declaration"). See Hardy Decl. (June 1, 2005). The FBI also reprocessed Plaintiff's FOIPA request and attached the responsive pages to the Hardy Declaration. At present, the parties renew their cross-motions for summary judgment.*fn1 After careful review of the Hardy Declaration and the attached FBI response, the court grants summary judgment in favor of the government.

  BACKGROUND

  By letter dated June 13, 1995, Plaintiff submitted a FOIPA request to the FBI for records related to the FBI's criminal investigation of Plaintiff. Following a search of the automated indices to the Central Record System at the FBI headquarters ("FBIHQ") and the Baltimore Field Office, the FBI advised Plaintiff that it located approximately 20,000 responsive pages, and requested advance payment of processing fees of $1,990.00. By letter dated April 10, 1996, Plaintiff responded by narrowing his FOIPA request to "paperwork that pertains to money, property, real property, seizures, forfeitures, and all other materials within the definition of `property.'" Hardy Decl. Ex. A. On June 18, 1996, Plaintiff filed suit against the FBI under the FOIPA.*fn2

  Based on Plaintiff's narrowed request, the FBI reviewed its initial search file, and identified subfiles pertaining to Plaintiff's civil forfeiture of property resulting from the FBI's criminal investigation. By letter dated May 6, 1998, the FBI notified Plaintiff that it discovered 389 pages responsive to his request and 338 pages were being released. Hardy Decl. Ex. D. The FBI made redactions to protect certain information pursuant to Freedom of Information Act sections 552(b)(2) ("Exemption 2"), (b)(3) ("Exemption 3"), (b)(7)(C) ("Exemption 7(C)"), (b)(7)(D) ("Exemption 7(D)"), and (b)(7)(E) ("Exemption 7(D)"), and Privacy Act section 552a(j)(2) ("Exemption j(2)"). Id. On July 19, 1999, the FBI informed Plaintiff that it was discontinuing its reliance on Exemption (7)(E), and releasing ninety reprocessed pages in full, and five reprocessed pages in part. Hardy Decl. Ex. E.

  The parties filed cross-motions for summary judgment. The FBI attached to its motion the Second Declaration of Scott A. Hodes ("Hodes Declaration"), Hodes Decl. (July 19, 1999), and Plaintiff filed a motion requesting a supplemental Vaughn Index. By court order dated April 4, 2005, the court held that the Hodes Declaration did not satisfy the requirements of Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). Memorandum Opinion 5 (April 4, 2005). The court directed the FBI to file a supplemental Vaughn index responsive to Plaintiff's May 6, 1998 narrowed FOIPA request. Memorandum Opinion 5 n. 2.

  On June 1, 2005, the FBI filed the Hardy Declaration, which provides an explanation of the FBI's process for searching, reviewing and processing the records responsive to Plaintiff's narrowed FOIPA request and provides justifications for the FBI's withholdings. Pursuant to its preparation of the Hardy Declaration, the FBI reprocessed Plaintiff's narrowed FOIPA request and released additional withholdings. In summary, the FBI identified 424 pages of records responsive to Plaintiff's narrowed FOIPA request, of which 194 pages were released with redactions, 196 pages were released in full, and 34 pages were withheld as duplicates.*fn3 No pages were withheld in full pursuant to FOIPA exemptions. On the parties' renewed cross-motions for summary judgment, there is no dispute that the FBI has not provided Plaintiff with all 20,000 pages responsive to his initial FOIPA request. Plaintiff claims he is entitled to summary judgment directing the FBI to produce all 20,000 pages. Moreover, Plaintiff asserts that the FBI failed to adequately respond to his narrowed request because the FBI search did not uncover documents related to all of the property subject to Plaintiff's request and failed to justify its withholdings pursuant to the FOIPA. The FBI argues that summary judgment is appropriate because the undisputed evidence shows that its response to Plaintiff's narrowed request fully complied with the FOIPA's requirements.

  DISCUSSION

  Summary judgment for the government is appropriate where the evidence, when viewed in the light most favorable to the plaintiff, raises no genuine issue of material fact with regard to the agency's compliance with the FOIPA. Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). With respect to the adequacy of the search, the government must show "that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). With respect to the government's document production, the government must satisfy the court that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from [FOIPA's] inspection requirements." Nat'l Cable Television Ass'n, Inc. v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973).

  I. Adequacy of the Supplemental Vaughn Index

  When an agency withholds information pursuant to FOIPA exemptions, it must produce a "Vaughn index," providing a description of the records, or portions of records, withheld by the agency. See Vaughn, 484 F.2d at 827; Edmonds Inst. v. U.S. Dep't of Interior, 383 F. Supp. 2d 105, 107-108 (D.D.C. 2005). The index must include "a description of each document being withheld, and an explanation of the reason for the agency's nondisclosure." Oglesby v. United States Dep't of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996). Agency affidavits can satisfy Vaughn's requirements if they provide "the kind of detailed, scrupulous description that enables a District Court judge to perform a searching de novo review." Church of Scientology of Cal., Inc. v. Turner, 662 F.2d 784, 786 (D.C. Cir. 1980); see also Keys v. U.S. Dep't of Justice, 830 F.2d 337, 349 (D.C. Cir. 1987) (stating that "[i]t is the function, not the form, of the index that is important").

  By order dated April 5, 2005, this court held that the Hodes Declaration, submitted as the FBI's Vaughn Index, failed to meet the requirements of Vaughn, and directed the FBI to prepare a supplemental Vaughn Index. In response to that order, the FBI provided the Hardy Declaration, reprocessed Plaintiff's FOIPA request, and attached, as Exhibit F, copies of all of the pages the FBI found responsive to Plaintiff's FOIPA request. See Hardy Decl. Exhibit F. Each page of Exhibit F is consecutively numbered as "Queen 1" through "Queen 424." For each page withheld in its entirety, the FBI provided a deleted pages sheet ("DPS").*fn4 For each page withheld in part, the FBI labeled each redaction with an exemption code. In order to review the justification for each redaction, the reviewing party refers back to the Hardy Declaration, which describes the type of information withheld and provides the basis for redacting that type of information.*fn5 In addition to providing justifications for each exemption code, the Hardy Declaration lists all of the page numbers on which that exemption code is invoked.

  The court finds that the Hardy Declaration provides a "relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply." Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977). ...


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