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James v. U.S. Secret Service

July 23, 2007

DONVILLE JAMES, PLAINTIFF,
v.
U.S. SECRET SERVICE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gladys Kessler United States District Judge

MEMORANDUM OPINION

Plaintiff, a federal inmate proceeding pro se, brought this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552.*fn1 Plaintiff challenges the disposition of his FOIA requests by the Federal Bureau of Investigation ("FBI") and the United States Secret Service ("Secret Service"). Defendants have moved for summary judgment and Plaintiff has filed an opposition thereto. Based on the undisputed facts, the applicable law, and the parties' briefs, exhibits, and declarations, the Court will grant the Defendants' motion.

I. BACKGROUND

A. Federal Bureau of Investigation

On August 17, 2005, Plaintiff sent a FOIA request to FBI's Headquarters seeking information in the agency's records pertaining to him, including investigative reports, agents assigned to investigate his criminal case, and information regarding a third party, Allen Duban. Compl. at 3-5; Decl. of David M. Hardy, Ex. A. On September 9, 2005, the FBI informed Plaintiff that a search of its central records system files yielded no records responsive to his request. Decl. of David M. Hardy, Ex. B. Plaintiff was also advised that he could file an administrative appeal to the Office of Information and Privacy ("OIP"). Id.

On September 27, 2005, Plaintiff submitted a FOIA request to the FBI's Chicago Field Office ("CFO") for all records pertaining to himself and Allen Duban. Id. ¶ 7 & Ex. C. After searching its files system, on December 14, 2005, the FBI advised Plaintiff that it had reviewed 77 pages of records responsive to his request, and that 13 pages were being released to him. Id. ¶ 9 & Ex. E. The remaining pages were withheld pursuant to Privacy Act Exemption (j)(2) and FOIA Exemptions 2, 6, (7)(C), (7)(D), and (7)(E). Id.

In its search for documents responsive to Plaintiff's FOIA request, the FBI also discovered documents which originated with or contained information concerning other government agencies. Id. The FBI referred this information to the other agencies for a direct response to Plaintiff. Id. Plaintiff was advised of his right to appeal to the OIP. Id.

On January 30, 2007, the FBI sent a supplemental response to Plaintiff's records requests. Id. ¶ 10 & Ex. F. The FBI released two additional pages to Plaintiff with redactions pursuant to Privacy Act Exemption (j)(2) and FOIA Exemptions 2,6, 7(C), and (7)(D). Id. The FBI's letter also informed Plaintiff that a search of its electronic surveillance records failed to disclose any responsive records and that absent a privacy waiver or proof of death, it could neither confirm nor deny the existence of records concerning Allen Duban. Id.

The OIP is the office authorized to review FOIA appeals of FBI release determinations. Id. The OIP has no record of Plaintiff filing an administrative appeal stemming from the FBI's September 9, 2005, December 14, 2005, and January 30, 2007 letters. Id. Plaintiff did not exhaust the administrative remedies available to him prior to initiating this litigation. Id.

B. United States Secret Service

In a letter to the Secret Service dated August 22, 2005, Plaintiff requested all information in the agency's files regarding its investigation of him and documents pertaining to a third party, Allen Duban. Decl. of Kathy J. Lyerly ¶ 4 & Ex. 1. The Secret Service located two files responsive to Plaintiff's request maintained in the Chicago Field Office, an Investigative File and an Asset Forfeiture File. Id. ¶¶ 11-13. The Investigative File consists of 361 pages of documents compiled in connection with the Secret Service's criminal investigation of Plaintiff. Id. ¶18.

On January 18, 2007, the Secret Service informed the Plaintiff that no responsive material could be released to him at this time pursuant to FOIA Exemption 7(A), since disclosure of the material could reasonably be expected to interfere with ongoing enforcement proceedings. Id. ¶ 6. Plaintiff's appeal of his criminal conviction is pending in the Court of Appeals for the Seventh Circuit. Id. ¶ 18. In addition, the agency invoked Exemption 7(C) to justify withholding the names and other identifying information of Secret Service personnel and third parties. Id. ¶ 24.

The other file responsive to Plaintiff's records request concerns a forfeiture action and property seized from the Plaintiff during the course of the criminal investigation of him. Id. ΒΆ13. The documents in this file, with redactions to protect the identity of law enforcement personnel and third ...


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