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Schoenman v. Federal Bureau of Investigation

June 5, 2006

RALPH SCHOENMAN, PLAINTIFF,
v.
FEDERAL BUREAU OF INVESTIGATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff Ralph Schoenman, a longtime political activist and author, filed this action on December 20, 2004, pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2000 & Supp. II 2002), and the Privacy Act of 1974, 5 U.S.C. § 552a (2000), seeking access to an array of records pertaining to himself, Lord Bertrand Russell, and six particular organizations from a total of ten different named agencies and an unknown number of unnamed agencies. Plaintiff's Complaint names as Defendants: the Federal Bureau of Investigation ("FBI"); the Central Intelligence Agency ("CIA"); the Defense Intelligence Agency; the Department of the Air Force ("Air Force"); the Department of Justice ("DOJ"); the Department of the Army ("Army"); the Department of the Navy ("Navy"); the Department of State ("State Department"); the National Archives and Records Administration ("NARA"); the National Security Agency ("NSA"); and "John Doe Agencies 1-10," defined as "agencies of the United States Government to whom another agency has, or will, refer documents or information for a determination as to its releasability." See Compl.at 1 & ¶ 13.

Currently before the Court is a Motion for Partial Dismissal filed on January 20, 2006 by a subsection of the Defendants; specifically, Defendants FBI and State Department (collectively, "Defendants" for purposes of this motion) move to dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) on the ground that the Court lacks jurisdiction over their subject matter. Plaintiff filed an Opposition to this motion on March 20, 2006, and Defendants filed a subsequent Reply on April 28, 2006. Upon a searching examination of these filings, the attached affidavits and exhibits, the relevant case law, and the entire record herein, the Court shall grant-in-part and deny-in-part Defendants' Motion for Partial Dismissal.

I: BACKGROUND

For the purposes of organizational clarity, the Court's Background section shall discuss Plaintiff's actions with respect to Defendant agencies and requests in separate subsections.

A. Requests to the FBI's Paris Legat

By letter dated July 27, 2001, Plaintiff, through counsel, filed a FOIA and Privacy Act request with the Paris Legat of the FBI for access to records pertaining to a variety of subjects including himself, Lord Bertrand Russell, and six named organizations. See Decl. of David M. Hardy, Section Chief of Record/Information Dissemination Section ("RIDS"), Records Management Division ("RMD") at FBI Headquarters ("Hardy Decl.") ¶ 5 & Ex. A (Pl.'s 8/27/01 FOIA Req. to FBI Paris Legat). By letter dated July 31, 2001, the Paris Legat notified Plaintiff, through counsel, that it had forwarded his request to the FBI headquarters office ("FBIHQ"). See id. ¶ 6 & Ex. B (9/31/01 Letter to Pl's counsel from H. Enrique Ghimenti, Legal Attache, United States Embassy, Paris, France, referring FOIA request to FBIHQ). FBIHQ opened a separate request for each subject as discussed below.

1. FBI Request Number 948768 (re: Bertrand Russell Peace Foundation)

By letter dated August 21, 2001, FBIHQ acknowledged receipt of Plaintiff's FOIA request and assigned FOIPA Request Number 948768 to Plaintiff's request for documents concerning the Bertrand Russell Peace Foundation. See id.¶9& Ex. E (8/21/01 Letter to Pl's Counsel from John Kelso, Section Chief, FOIPA Section, Office of Public & Congressional Affairs, FBI, Department of Justice regarding request). By letter dated March 25, 2002, FBIHQ informed Plaintiff that it had located 372 pages responsive to his request and was releasing 270 of those pages, with redactions made pursuant to FOIA exemptions 5 U.S.C. §552(b)(1), (2), (3), (7)(C), and (7)(D). See id. ¶ 10 & Ex. F (3/25/02 Letter to Pl's Counsel from John Kelso). FBIHQ further informed Plaintiff that referrals of certain records had been made to other agencies, that his request for a fee waiver had been denied, and he was being assessed $17 in duplication fees. Id. FBIHQ also informed Plaintiff of his right to appeal the decision. Id.

By letter dated May 25, 2002, Plaintiff appealed FBIHQ's decision as to its withholdings as well as the fee waiver denial to the Office of Information and Privacy ("OIP"), as directed in the FBIHQ letter of March 25, 2002. See id. ¶ 12 & Ex. G (Pl.'s 5/25/02 FOIA Appeal to OIP). By letter dated November 18, 2003, OIP made a supplemental release of additional portions of six pages, affirmed the other withholdings, and affirmed FBIHQ's denial of a fee waiver. See id. ¶ 14 & Ex. I (11/18/03 Letter to Pl.'s counsel from Richard Huff, Co-Director, OIP, Department of Justice). OIP's letter also indicated that Plaintiff may seek judicial review if dissatisfied with the present decision, in accordance with 5 U.S.C. §552(a)(4)(B). See id.

2. FBI Request Number 948771 (re: Who Killed Kennedy Committee)

By letter dated September 19, 2001, FBIHQ assigned FOIPA Request Number 948771 to Plaintiff's request for documents from the Paris Legat concerning the Who Killed Kennedy Committee. See Hardy Decl. ¶ 15 & Ex. J (9/19/01 Letter to Pl's Counsel from John Kelso, Section Chief). In the same letter, FBIHQ informed Plaintiff that it found no records responsive to his request and informed Plaintiff of his right to appeal the decision. See id.

Plaintiff has not appealed the decision. Id. According to James H. Lesar, Plaintiff's counsel,

Defendants state that by letter dated September 19, 2001, it advised Schoenman that its Paris Legat had no records responsive to his request for records on the Who Killed Kennedy Committee. I have searched high and low for any record of this request and have not found it. I do not believe I ever received it.

Decl. of James H. Lesar, Counsel for Plaintiff ("Lesar Decl.") ¶ 8.

3. FBI Request Number 948773 (re: Citizens Commission of Inquiry)

FBIHQ assigned FOIPA Request Number 948773 to Plaintiff's request for records from the Paris Legat concerning the Citizens Commission of Inquiry ("CCI"). See Hardy Decl. ¶ 16. By letter dated June 14, 2002, FBIHQ informed Plaintiff that 336 of 360 responsive pages were being released, with redactions made pursuant to FOIA exemptions 1, 2, 7(C), and 7(D). See id. & Ex.K (6/14/02 Letter to Pl.'s Counsel from Robert Moran, Acting Section Chief, FOIPA Section, Records Management Division, FBI, Department of Justice). FBIHQ also informed Plaintiff of referrals made to other agencies, the denial of his request for a fee waiver, the charging of $23.60 in duplication fees, and his right to appeal the decision. Id. Plaintiff has not appealed this decision nor paid the assessed duplication fees. Id. Plaintiff accepts that the Court does not have jurisdiction over this matter, admitting that misplacement of records "apparently explains why no appeal was lodged." See Pl.'s Opp'n at 4.

Additionally, FBIHQ referred 27 pages of material responsive to Plaintiff's FOIA request for records pertaining to the CCI to the Department of the Army ("Army"). See Hardy Decl. ¶ 17. By letter dated June 24, 2002, the Army released 21 pages of the material to Plaintiff, with redactions made by the Army pursuant to FOIA exemption 1 and other redactions made by the FBI pursuant to FOIA exemptions 1, 2, and 7(C). See id.& Ex.L (6/24/02 Letter to Pl.'s Counsel from Russell Nichols, Chief, Freedom of Information/Privacy Office, Department of the Army). The Army further informed Plaintiff that he could appeal the redactions made by the FBI to OIP. See id.

The FBI has no record documenting Plaintiff's appeal of these redactions. Id. According to the Declaration of James Lesar, Plaintiff's counsel,

Defendants say that Schoenman never appealed the redactions made in documents which the FBI referred to the Army and were re-leased by it on June 24, 2002. However, I located copies of appeals both to the Army and the FBI [on my computer].

Lesar Decl. ¶ 10 & Ex. 1 & 2 (Drafts of FOIA Appeal to OIP, dated 7/1/02, and to Army dated 7/17/02, from Lesar's Computer). Having learned as a consequence of Defendants' motion that OIP and the Army never received Plaintiff's appeals, Plaintiff indicates that he has now (re)submitted the appeals. See Pl.'s Opp'n at 4.

B. Requests to the FBI's Los Angeles Field Office

By letter dated July 24, 2001, Plaintiff, through his counsel, filed a FOIA and Privacy Act request with the FBI's Los Angeles Field Office ("LAFO") for access to records pertaining to a variety of subjects including himself, Lord Bertrand Russell, and six named organizations. See Hardy Decl. ¶ 18 & Ex. M (Pl.'s 7/24/01 FOIA Request to LAFO). The LAFO assigned Request Number 190-C2-E-1451 to this request. See id. By letter dated August 14, 2001, LAFO informed Plaintiff that, upon initial review, no records were found responsive to his request and that proof of death was needed before a search could be conducted regarding Lord Russell. See id. ¶ 19 & Ex. N (8/14/01 Letter to Pl.'s Counsel from Luis G. Flores, Acting Assistant Director in Charge, Chief Division Counsel, FBI, Department of Justice). Plaintiff's counsel subsequently appealed LAFO's "no records" response to OIP by letter dated September 22, 2001. See id. ¶ 20 & Ex. O (9/22/01 Letter of Appeal from Pl.'s Counsel to OIP).

By letter dated January 16, 2002, LAFO informed Plaintiff that records regarding the Plaintiff and Lord Russell had been located and were being forwarded to FBIHQ for processing, and also that no records responsive to the other subjects of the request had been located. See id. ¶ 23 & Ex. R (1/16/02 Letter from Ronald Iden, Assistant Director in Charge, Chief Division Counsel, FBI, Department of Justice to Pl.'s Counsel).

1. FBIHQ Request Number 954762 (re: Bertrand Russell)

By letter dated January 29, 2002, FBIHQ acknowledged receipt of Plaintiff's FOIA request from the LAFO and indicated that his request for records concerning Lord Russell had been assigned FOIPA Request Number 954762. See id. ¶ 24 & Ex. S (1/29/02 Letter from John Kelso to Pl.'s Counsel). By letter dated August 13, 2002, FBIHQ informed Plaintiff that it was releasing 334 of 340 pages responsive to his request regarding Lord Russell, with redactions made pursuant to exemptions 1, 2, 3, 7(C), and 7(D) of the FOIA. See id. ¶ 28 & Ex. W (8/13/02 Letter to Pl.'s Counsel from David Hardy). FBIHQ further informed Plaintiff that referrals were made to other agencies, that his fee waiver request was denied, that he was being charged $23.40 in duplication fees, and could appeal the decision to OIP. Id. Plaintiff has not appealed the decision nor has he paid the duplication fees. Id.

According to Plaintiff's Counsel,

The files of plaintiff's counsel indicate that he did receive this release of documents but failed to appeal the determinations made in connection therewith. As a result, this Court does not presently have jurisdiction over the fee waiver issue or the validity of the exemptions claimed.

Pl.'s Opp'n at 5.

Furthermore, FBIHQ referred one document responsive to this request to the State Department. See id. ΒΆ 29. By letter dated May 1, 2003, The State Department released the document with redactions made by the FBI pursuant to FOIA exemption 7(C) and informed Plaintiff of his right to appeal the redactions made by the FBI to OIP. See id. & Ex. X (5/1/03 Letter to Pl.'s Counsel from Margaret Grafeld, ...


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