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Schoenman v. Federal Bureau of Investigation

August 25, 2008

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 political activist and author, filed the above-captioned action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act of 1974 ("Privacy Act" or "PA"), 5 U.S.C. § 552a, seeking access to an array of records pertaining to himself, Lord Bertrand Russell, and six organizations, from a total of ten different named agencies and a number of unnamed agencies to which the named agencies might refer documents for a determination as to releasability (identified as "John Doe Agencies 1-10" in Plaintiff's Complaint). Plaintiff's Complaint named as Defendants: the Federal Bureau of Investigation ("FBI"), the Central Intelligence Agency ("CIA"), the Defense Intelligence Agency ("DIA"), 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. Compl. at 1 & ¶ 13.

In a Memorandum Opinion and Order dated March 31, 2006, the Court dismissed Plaintiff's Complaint against Defendants CIA, NARA, NSA, Air Force, Army, and Navy because Plaintiff either could not show that the agencies had received his FOIA/PA requests or could not show that he had exhausted his administrative remedies as to the agencies. See generally Schoenman v. FBI, Civ. A. No. 04-2202, 2006 WL 1126813 (D.D.C. Mar. 31, 2006). By Memorandum Opinion and Order dated June 5, 2006, the Court dismissed without prejudice certain portions of Plaintiff's Complaint against the FBI and the State Department. See generally Schoenman v. FBI, Civ. A. No. 04-2202, 2006 WL 1582253 (D.D.C. Jun. 5, 2006). The Defendants with remaining obligations to process documents in response to Plaintiff's request did so. Those Defendants, along with the agencies to whom they have referred documents for releasability determinations, have now begun moving for summary judgment, and Plaintiff has filed cross-motions for summary judgment. This Memorandum Opinion addresses only the Motion for Summary Judgment filed on behalf of the DIA, the Air Force, the Army, the Navy, and the Criminal Division of the DOJ ("Criminal Division") (collectively, the "Five Defendants"), as well as Plaintiff's Cross-Motion for Summary Judgment. See Mem. of Pts. and Auths. in Support of Mot. for Summ. J. on Behalf of Five Defs. (hereinafter "Five Defs.' MSJ"); Mem. of Pts. and Auths. in Support of Pl.'s Cross-Mot. for Summ. J. and in Opp'n to the Pending Mots. for Summ. J. by Defs. Dep'ts. Army, Air Force, Navy, and the DIA (hereinafter "Pl.'s Cross-MSJ"). Other motions for summary judgment either are not yet ripe, or will be addressed separately in subsequent opinions. As to the subject of this Memorandum Opinion--the cross-motions for summary judgment pending with respect to the Five Defendants--Plaintiff's Cross-Motion withdraws his request for the one document referred to the Criminal Division, the information that the DIA has withheld under FOIA Exemption 3, and the information that the Navy has withheld under FOIA Exemption 2. See Pl.'s Cross-MSJ at 1, 6. As such, the Court does not consider those withholdings in this Memorandum Opinion, and shall GRANT the Five Defendants' Motion for Summary Judgment insofar as it pertains to the Criminal Division.

With respect to the remaining issues, the Court concludes that Defendants DIA, Army, and Air Force have met their obligations under the FOIA and the Privacy Act. In light of the Court's previous partial dismissal of Plaintiff's Complaint, of the Five Defendants, only the DIA had an independent obligation to comply with Plaintiff's FOIA/PA request, and the DIA has shown that it conducted an adequate search for documents. The Army and Air Force were referred documents for releasability determinations by other Defendant agencies and they, along with the DIA, have shown that they have properly withheld material under various exemptions to the FOIA and have released all reasonably segregable material. Defendant Navy was also referred documents for review by the DIA and the FBI; however, the Court cannot reach a determination on the cross-motions for summary judgment as to the Navy because the Navy has not established the application of FOIA Exemption 7(C) to information withheld from one document. Accordingly, the Court shall GRANT-IN-PART the Five Defendants' [39] Motion for Summary Judgment insofar as it relates to the Criminal Division, DIA, Air Force, and Army, and shall DENY-IN-PART Plaintiff's [43] Cross-Motion for Summary Judgment as to those same Defendants. Further, the Court shall HOLD-IN-ABEYANCE both the Five Defendants' Motion for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment, insofar as each relates to the Navy, and shall order the Navy to provide additional factual support for its invocation of FOIA Exemption 7(C), consistent with the discussion below and the accompanying Order. If the Navy does not provide such additional factual support, the Court shall grant Plaintiff's Cross-Motion for Summary Judgment as to the Navy, and shall deny the Five Defendants' Motion for Summary Judgment as it relates to the Navy.

I: BACKGROUND

In the interest of clarity, the Court discusses the relevant factual background with respect to of the Five Defendants in a separate subsection. As Plaintiff has withdrawn his request for the document referred to the Criminal Division, see Pl.'s Cross-MSJ at 1, the Court does not discuss the facts relevant to that withholding. Instead, the Court focuses on the other four Defendants at issue in the pending cross-motions for summary judgment.

A. The Defense Intelligence Agency

The DIA is a component of the Department of Defense, and its "mission is to collect, analyze, and provide intelligence on the military capabilities of foreign military forces to the Secretary of Defense, the Joint Chiefs of Staff, and the other components of the Department of Defense." See Decl. of Brian S. Kinsey, Chief of the FOIA Staff, DIA (hereinafter "Kinsey Decl."), filed in support of Five Defs.' MSJ, ¶ 3.*fn1 According to Mr. Kinsey, in light of its mission, "the vast majority of [DIA] records are classified in the interests of national security in accordance with Executive Order 12958, as amended." Id.

By letter dated August 26, 2001, Plaintiff, through counsel, submitted a FOIA/PA request to the DIA for all records pertaining to himself, Lord Bertrand Russell, and several organizations that Plaintiff and Russell were associated with. Kinsey Dec. ¶ 4 & Ex. A. The DIA sent an acknowledgment of its receipt of Plaintiff's request to his counsel on August 30, 2001. Id. ¶ 4. In December 2001, the DIA initiated a search for responsive records in its research and reference resource library, as well as in other offices within the DIA that the agency concluded might hold responsive records. Id. ¶ 5.*fn2 These included the offices of Security (DAC), Inspector General (IG), Human Resources (HC), Joint Military Intelligence College (MC), and Directorate of Operations (DO). Id. The DIA searched all electronic databases dating back to 1987, searched the database to hardcopy files dating from 1965 to 1987, and searched the database of finished intelligence products from 1965 to the present. Id. ¶ 6.

In performing its search, the DIA used the following search terms: Ralph Schoenman, Bertrand Russell; American Foundation for Social Justice; Atlantic Peace Foundation; Studies in the Third World; Campaign of Nuclear Disarmament; Committee of 100; The Vietnam Solidarity Campaign; The Spokesman; The "Save Greece Now" Committee; American Workers and Artists for Solidarity; The Committee for Artistic and Intellectual Freedom of Iran; The Committee in Defense of the Palestinian Campaign; The Week; The Council of Human Needs; Bertrand Russell Peace Foundation; Bertrand Russell Peace Foundation, New York; International War Crimes Tribunal; Who Killed Kennedy Committee; Bertrand Russell Research Center; and Citizens Commission of Inquiry. Id. ¶ 7.*fn3 The DIA's search methods varied by database and both boolean and key words were used to search the databases. Id. ¶ 8. The DIA searched databases with indexed listings for each holding electronically using the key terms noted above. Id. When a search registered a "hit," the DIA examined the corresponding hardcopy document to determine its responsiveness to Plaintiff's request. Id. In addition, the DIA ordered some documents from The Washington National Records Center, a facility that provides records management services to headquarters and field offices of Federal agencies located in the District of Columbia, Maryland, Virginia, and West Virginia, and reviewed those records for responsiveness. Id.

The DIA initially identified 139 documents (consisting of 816 pages) as responsive to Plaintiff's request, none of which pertained to Plaintiff himself. See id. ¶ 11 & Tab A (DIA Vaughn Index); Five Defs.' Stmt. ¶ 12. The searches conducted by DIA elements DAC, IG, DAH, MC, and DO produced no documents responsive to Plaintiff's request, and each element provided a negative response. Kinsey Decl. ¶ 10. The DIA's review of the 139 documents identified as responsive to Plaintiff's request revealed that only two documents (consisting of six pages) were DIA records. Id. ¶ 11. The remaining 137 documents were referred to the following agencies on June 30, 2005: the Air Force; the U.S. Army Intelligence and Security Command (USAINSCOM); the Navy; the State Department; and the CIA. Id. The CIA subsequently determined that one of the documents referred to it by the DIA duplicated another referred document, and that a second referred document duplicated a document included in the CIA's response to Plaintiff's request. Id. Accordingly, the DIA now identifies the total number of responsive documents as 137, including the two DIA documents and 135 documents referred to other agencies. Id.

By letter dated October 14, 2005, the DIA sent Plaintiff's attorney a partial release of records. See id. ¶ 12 & Ex. B. The DIA advised Plaintiff that it had not located any responsive records regarding Plaintiff himself, but had located 139 documents responsive to the other subjects of Plaintiff's request, and had referred 137 of those documents to other government agencies for review and direct response to Plaintiff. Id. ¶ 12. The DIA also provided Plaintiff with a partial release of the two DIA documents, withholding portions of the documents under FOIA Exemptions 1, 2, and 3, 5 U.S.C. §§ 552(b)(1), (b)(2), and (b)(3). Id. As noted above, Plaintiff has withdrawn his request for the information that the DIA withheld under FOIA Exemption 3, and the Court therefore does not describe that withholding herein.

According to Mr. Kinsey's Declaration, the first DIA document, DIA Document Number One, was classified as CONFIDENTIAL, falls under the responsibility of the Directorate for Human Intelligence (DH), and was therefore "reviewed by an individual from that directorate who possesses the requisite classification authority." Id. ¶ 13. The second DIA document, DIA Document Number Two, is UNCLASSIFIED, and was also reviewed by the DH as it falls under that directorate's responsibility. Id. The DIA supports its withholding of information from DIA Document Number One with the Declaration of William B. Huntington, Deputy Director for Human Intelligence for the DIA (hereinafter "Huntington Declaration"). Mr. Huntington avers that he has served with the DIA in various positions since 1979, that "[h]aving worked in U.S. intelligence for over 25 years, [he] can identify classified material related to U.S. intelligence activities," and that he is "responsible for complying with Executive Branch and departmental policies for classifying and safeguarding national security information." Huntington Decl. ¶ 2. He specifically avers that he "exercise[s] Original Classification Authority under the provisions of Section 1.3 of Executive Order 12958, as amended by Executive Order 13292," and that this authority was delegated to him by the Director of the DIA. Id. Mr. Huntington's conclusion that the DIA properly classified and withheld portions of DIA Document Number One pursuant to Executive Order 12,958 and FOIA Exemption 1 are addressed in the discussion section below.

In addition to withholding information from Document Number One under FOIA Exemption 1, the DIA withheld portions of DIA Documents Numbers One and Two under FOIA Exemption 2. Kinsey Decl. ¶ 21. The withheld information includes "office symbols, internal document or messaging codes, routing directions and telephone identifiers of U.S. government agencies and offices engaged in the collection of foreign intelligence information," as well as the "intelligence information report (IIR) number and administrative number assigned to the preparer of the IIR." Id. ¶ 21. Mr. Kinsey avers that "[a]ll reasonably segregable portions" of DIA Document Number One and Document Number Two were released to Plaintiff on October 14, 2005. Id. ¶¶ 19, 21, 24.

B. Department of the Air Force

As noted above, by letter dated June 30, 2005, the DIA referred two documents (consisting of five pages) to the Air Force Office of Special Investigations ("AFOSI"). See Second Decl. of Anne C. Costa, Chief of the Info. Release Branch for Headquarters, AFOSI (hereinafter "Costa Decl."), submitted in support of Five Defs.' MSJ, ¶ 5 & Ex. 1.*fn4 "AFOSI is the Air Force's major investigative service," and "provides professional investigative service to commanders of all Air Force activities and reports to the Inspector General, Office of the Secretary of the Air Force." Id. ¶ 1. According to Ms. Costa, "AFOSI's primary responsibilities are criminal investigations and counterintelligence services." Id.

Ms. Costa's Declaration describes the two documents referred to AFOSI by the DIA: Air Force Document Number One is a three-page DoD Intelligence Information Report dated December 5, 1966, while Air Force Document Number Two is a two-page DoD Intelligence Information Report dated December 28, 1966. Id. ¶ 4. According to Ms. Costa, these documents originated with AFOSI, but were destroyed in 1982 pursuant to AFOSI's then retention period of 15 years for counterintelligence briefing records. Id. ¶ 5. Ms. Costa explains that the DIA initially referred the documents to the FOIA Office at the 11th Communications Squadron, The Pentagon, Washington, DC, which, in turn, referred the documents to AFOSI. Id.

Ms. Costa then referred Air Force Document Number One to HQ AFOSI Directorate of Operations ("HQ AFOSI/XO") for a declassification review because it was classified CONFIDENTIAL. Id. ¶ 6. In its initial review, HQ AFOSI/XO determined that Air Force Document Number One was still classified CONFIDENTIAL, and the Air Force therefore withheld Air Force Document Number One in its entirety in its initial March 21, 2007 response to Plaintiff. Id. & Ex. B. In that same response, the Air Force released in part Air Force Document Number Two to Plaintiff, withholding the names of four Air Force members, along with the Air Force serial numbers for two of them and the off-base home address and assignment for one of them, pursuant to FOIA Exemptions 6 and 7(C), 5 U.S.C. §§ 552(b)(6) and (b)(7)(C). Id. ¶ 10 & Ex. B.

HQ AFOSI/XO subsequently reviewed Air Force Document Number One in order to prepare a declaration explaining the classification and determined that, with the exception of one sentence, Air Force Document Number One could be declassified. Id. ¶ 7. The Air Force therefore provided Plaintiff with a supplemental release of Air Force Document Number One by letter dated August 16, 2007. Id. & Ex. 3. The Air Force continued to withhold one remaining classified sentence from Air Force Document Number One pursuant to FOIA Exemption 1, 5 U.S.C. § 552(b)(1), id. ¶¶ 7-8, and also withheld the names of three Air Force members, pursuant to FOIA Exemptions 6 and 7(C), 5 U.S.C. §§ 552(b)(6) and (b)(7)(C), id. ¶ 9. The Air Force's justifications for its withholdings--provided in Ms. Costa's Declaration as well as the Declaration and Second Declaration of Michael L. Bietsch, the Deputy Director of Operations for Headquarters, AFOSI--are addressed in the discussion section below. Finally, in her Declaration, Ms. Costa avers that AFOSI has "released all reasonably segregable portions of [Air Force Document Number One and Air Force Document Number Two] to plaintiff." Costa Decl. ¶ 11.

C. Department of the Navy

As noted above, by letter dated June 30, 2005, the DIA referred one three-page document to the Navy for review. See Decl. of Lieut. Comm. Nieva M.S. Brock, Judge Advocate General's Corps, United States Navy (hereinafter "Brock Decl."), submitted in support of Five Defs.' MSJ, ¶ 4.*fn5 Lieutenant Commander Brock explains that Navy Document Number One originated with NCIS, and that the three pages of the Document are numbered 143 through 145. Id.

The history of the Navy's withholding of information from Navy Document Number One is tortured,*fn6 and ultimately irrelevant, because Plaintiff has withdrawn his request for the information withheld from the Document. See Pl.'s Resp. to Def. Dept. of Navy's Suppl. Mot. for Summ. J., Docket No. [69]; Pl.'s Cross-MSJ at 6. The Court therefore does not consider the propriety of the Navy's withholding of information from Navy Document Number One in this Memorandum Opinion.

On February 8, 2007, the FBI referred a three-page document, entitled "FBI FOI/PA # 963707 Re: Citizens Commission of Inquiry," to the Navy for review. Id. ¶ 7. As Navy Document Number Two was classified as CONFIDENTIAL, it was forwarded to an NCIS Lead Investigations Review Specialist for declassification review. Id. The declassification review was completed on June 21, 2007, and Navy Document Number Two was partially declassified. Id. ¶ 8. By letter dated August 13, 2007, the Navy provided Plaintiff with a partial release of Navy Document Number Two, withholding information pursuant to FOIA Exemptions 1 and 7(C), 5 U.S.C. §§ 552(b)(1) and (b)(7)(C). Id. ¶¶ 7, 9 & Ex. 2. In particular, on the first page of Navy Document Number Two, the Navy withheld the name of the individual who prepared the investigative report under Exemption 7(C), id. ¶ 15, and redacted the "Comment" section to protect the identity of an NCIS special agent, id. On the second page of Navy Document Number Two, the Navy withheld an entire paragraph pursuant to FOIA Exemptions 1 and 7(C) to protect the identity of a confidential informant for the FBI. Id. ¶ 16. Finally, on the last page of Navy Document Number Two, the Navy withheld personal identifiers of the individuals who wrote, reviewed, and approved the investigative report. Id. ¶ 17.

NCIS subsequently conducted another review of Navy Document Number Two and determined that FOIA Exemption 1 is no longer applicable to the document. Suppl. Decl. of Lt. Comm. Brock, submitted in support of Five Defs.' Opp'n/Reply, ¶ 9. Accordingly, the Navy provided Plaintiff with a supplemental release of Navy Document Number Two that included all information previously withheld under FOIA Exemption 1. Id. & Ex. 3. The Navy continues to withhold information from Navy Document Number Two under FOIA Exemption 7(C), including the name of an of NCIS Special Agent and the names of the individuals who prepared, reviewed, and approved the investigative report at issue; however, this is the only remaining withholding by the Navy. Id. ¶ 9.

D. Department of the Army

The Army processed four sets of documents related to Plaintiff's FOIA/PA request: (1) a request dated July 17, 2002 for a "copy of the Army's notification to the President required by E.O. 12958" (referred to as USAINSCOM CASE NUMBER 816F-02); (2) a four-page referral from the DIA dated June 30, 2005 (referred to as USAINSCOM CASE NUMBER 834F-05); (3) a twenty-seven page referral from the FBI dated June 13, 2002 (referred to as USAINSCOM CASE NUMBER 705F-02, hereinafter the "First FBI Referral"); and (4) a twenty-two page referral from the FBI dated February 8, 2007 (referred to as USAINSCOM CASE NUMBER 237F-07, hereinafter the "Second FBI Referral"). See Decl. of Susan J. Butterfield (hereinafter "Butterfield Decl."), submitted in support of Five Defs.' MSJ, ¶¶ 2, 3, 6, 8, 14.*fn7

By letter dated July 17, 2002, Plaintiff requested a "copy of the Army's notification to the President required by E.O. 12958." Id. ¶ 3 & Ex. 1. The FOI/PO of USAINSCOM located a twenty-two page document in response to this request, and the Army provided Plaintiff with a final response on September 9, 2002. Id. ¶ 3 & Ex. 2. Initially, the Army released in full one page to Plaintiff, and withheld twenty-one pages in their entirety pursuant to FOIA Exemption 2. Id. ¶ 4. Thereafter, on August 29, 2007, USAINSCOM conducted a second review of the withheld pages and, as a result, the Army released all of the previously withheld pages in full to Plaintiff. Id. ¶ 5 & Ex. 3. As such, no issue remains as to this request.

By letter dated June 30, 2005, the DIA referred four pages to the FOI/PO of USAINSCOM. Id. ¶ 6 & Ex. 4. Ms. Butterfield avers that, in accordance with Executive Order 12,958, USAINSCOM conducted a mandatory declassification review of the four pages and determined that the responsive information no longer required security classification protection. Id. ¶ 7. Accordingly, by letter dated September 7, 2005, the Army released the responsive information to Plaintiff in its entirety and informed Plaintiff that the remaining information was considered non-responsive to his request. Id. ¶¶ 6-7. Again, no issue remains as to this referral.

By letter dated June 13, 2002, the FBI referred twenty-seven (27) pages of records pertaining to the Citizens Commission of Inquiry (the "First FBI Referral") to the FOI/PO of USAINSCOM. Id. ¶ 8; Ex. 6. Ms. Butterfield's Supplemental Declaration avers that a mandatory declassification review of the First FBI Referral was conducted. Butterfield Suppl. Decl. ¶¶ 2, 4. By letter dated June 24, 2002, the Army provided Plaintiff with a partial release of the First FBI Referral, releasing in full fourteen (14) pages. Butterfield Decl. ¶¶ 8-9 & Ex. 9. Of the remaining thirteen (13) pages, the Army released in part seven (7) pages, and withheld in full six (6) pages, pursuant to FOIA Exemption 1 on the grounds that the withheld information would reveal intelligence activities (including special activities) or intelligence sources or methods. Id. Ms. Butterfield's Declaration explains the specific reasons for the Army's invocation of FOIA Exemption 1, and avers that a line-by-line review of the First FBI Referral was conducted and that all nonexempt, reasonably segregable information was released to Plaintiff. Id. ¶¶ 12-14.

By letter dated July 17, 2002, Plaintiff appealed the Army's withholdings from the First FBI Referral. Id. ¶ 8 & Ex. 1. The FOI/PO of USAINSCOM acknowledged receipt of Plaintiff's appeal on August 8, 2002, and informed Plaintiff that his appeal had been forwarded to the Army's Office of the General Counsel for adjudication. Id. ¶ 8 & Ex. 8. By letter dated May 11, 2004, the Army's Office of the General Counsel affirmed USAINSCOM's withholdings pursuant to FOIA Exemption 1. Id. ¶ 8 & Ex. 9. USAINSCOM conducted a second review of the First FBI Referral on November 27, 2007. Suppl. Butterfield Decl. ¶ 6. As a result of this review, the Army released segregable portions of pages 23 and 25 through 27 of the First FBI Referral to Plaintiff by letter dated December 3, 2007. Id. & Ex. A.

By letter dated February 8, 2007, the FBI referred an additional twenty-two pages of records pertaining to the Citizens Commission of Inquiry (the "Second FBI Referral") to the FOI/PO of USAINSCOM. Butterfield Decl. ¶ 14 & Ex. 11. On February 22, 2007, the Army provided Plaintiff with a partial release of the Second FBI Referral, releasing in full six (6) pages. Id. ¶¶ 14-15 & Ex. 12. The Army withheld in part thirteen (13) pages under FOIA Exemptions 1 and 6, and withheld in full three pages pursuant to FOIA Exemption 1. Id. ¶ 15-19 & Exs. 12-13. Ms. Butterfield's Declaration avers that the information withheld under Exemption 1 would reveal intelligence activities (including special activities) or intelligence sources or methods, id. ¶¶ 17-18, and that the information withheld under FOIA Exemption 6 includes the names of United States government personnel and third parties along with other identifying information, including social security numbers and birthdates. Id. ¶ 19. Ms. Butterfield avers that USAINSCOM conducted a line-by-line review of the Second FBI Referral and released all nonexempt, reasonably segregable information. Id. ¶¶ 20021. She further avers that, for the three pages withheld in full from the Second FBI Referral, "the information was so inextricably intertwined that releasing any portions of these three pages would disclose information that needed protecting." Id. ¶ 21.

Finally, in her Supplemental Declaration, Ms. Butterfield explains that USAINSCOM conducted a second review of the Second FBI Referral on November 27, 2007. Butterfield Suppl. Decl. ΒΆ 11. As a result of that review, the Army declassified Page 8 of the Second FBI Referral and released it ...


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