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Schoenman v. Federal Bureau of Investigation

September 1, 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 by the State Department and the Cross-Motion for Partial Summary Judgment filed by Plaintiff. The Court notes at the outset that the parties agreed to brief these cross-motions based upon Plaintiff's selection of a sample of documents to be included in a Vaughn index. See 3/21/07 Joint Status Report, Docket No. [34] at 4; 7/11/07 Joint Status Report, Docket No. [37] at 2. The Court therefore resolves the pending cross-motions for summary judgment on that basis, as well as upon the State Department's declarations regarding the scope of its search, without opining on whether Plaintiff's selected sample is representative of the information more generally withheld by the State Department.

The Court has conducted a searching review of the State Department's Motion for Summary Judgment, Plaintiff's Cross-Motion for Partial Summary Judgment/Opposition, the State Department's Reply/Opposition, Plaintiff's Reply, the exhibits attached to those filings, the relevant statutes and case law, and the entire record herein. Based upon the foregoing, the Court shall GRANT-IN-PART the State Department's [52] Motion for Summary Judgment and shall DENY-IN-PART Plaintiff's [56] Cross-Motion for Partial Summary Judgment, insofar as each relates to the adequacy of the State Department's search, the State Department's segregation of non-exempt information, and the State Department's withholding of information from Documents P323 and P334. The Court cannot ultimately resolve the parties' cross-motions as to Documents P143 and P319 on the current record because a discrete issue remains. Specifically, the State Department has withheld the names of an FBI legal attaché and two FBI agents from those documents pursuant to FOIA Exemption 6 and 7(C) without indicating whether it made any efforts to determine whether those individuals are alive or dead before purporting to balance their privacy interests against any public interest in disclosure. In the absence of this information, the Court cannot determine whether the State Department's invocation of the FBI legal attaché's and agents' privacy interests represented a reasonable response to Plaintiff's FOIA/PA request. As such, the Court shall HOLD IN ABEYANCE the parties' cross-motions for summary judgment with respect to Documents P143 and P319 and--as set forth in the accompanying Order--shall require the State Department to indicate to the Court whether the FBI legal attaché and agents are alive or dead, so that the Court may consider the State Department's balancing under FOIA Exemptions 6 and 7(C).

I. BACKGROUND

By letter dated July 27, 2001, Plaintiff, through counsel, submitted a request to the State Department pursuant to the FOIA and the Privacy Act. See Second Decl. of Margaret P. Grafeld, Director of the Office of Information Programs and Services ("IPS"), State Department (hereinafter "Grafeld Decl."), submitted in support of the State Department's Motion for Summary Judgment, ¶ 4 & Ex. 1.*fn1 Plaintiff's request sought access to records pertaining to himself, Lord Bertrand Russell, six organizations, and twenty-six other subject matters, as well as all "index references" to the foregoing subjects, all previous FOIA requests pertaining to those subjects, and all records used by the State Department in its searches in response to Plaintiff's request. Id.*fn2 Along with his request, Plaintiff submitted a Privacy Act Authorization permitting the State Department to release records about him to his counsel. Id., Ex.1 at 4.

IPS acknowledged Plaintiff's request in two separate letters dated August 23, 2001, and advised Plaintiff that his request had been split administratively into two requests. Grafeld Decl. ¶ 5 & Exs. 2-3. Ms. Grafeld avers that "[t]his was done to streamline the administrative processing of material about plaintiff, which was potentially subject to the Privacy Act [versus] material solely subject to the FOIA." Id. ¶ 5. The State Department therefore created one file-- the so-called "Schoenman Request"--for Plaintiff's request for records concerning himself, see id. Ex. 2, and another request file--the so-called "Russell Request"--for Plaintiff's request for records pertaining to Lord Bertrand Russell and the organizations identified by Plaintiff in his request letter, see id., Ex. 3. See also Grafeld Decl. ¶ 5.

In his initial FOIA/PA request, Plaintiff asserted that he was the author of numerous published books, as well as a representative of the news media, and therefore requested that the State Department waive all search fees and copying costs. Id., Ex. 1 at 3. By letter dated August 23, 2001, the State Department informed Plaintiff that his request for a fee waiver had been denied. See Grafeld Decl., Ex. 3. Schoenman appealed the denial of his fee waiver request by letter dated September 16, 2001. Id., Ex. 13. The State Department upheld the denial of Plaintiff's fee waiver request by letter dated October 18, 2001. Id., Ex. 15.

Nevertheless, Ms. Grafeld's Supplemental Declaration explains that because the State Department does not charge requesters for processing Privacy Act requests, "all documents regarding the 'Schoenman request' were released to plaintiff free of charge." Suppl. Grafeld Decl. ¶ 4. Ms. Grafeld further explains that, although the State "Department initially denied plaintiff's request for a fee waiver, no search fees or duplication costs were charged to plaintiff for the processing of this request." Id. ¶ 5. Rather, "[a]ll documents concerning the 'Russell request' were released to plaintiff free of charge." Id. Thus, Plaintiff has not been charged any fees for the processing or release of documents in response to his FOIA/PA request.

A. The Schoenman Request

In its letter of August 23, 2001, the State Department advised Plaintiff that it required additional information before it could begin processing Plaintiff's request for records pertaining to himself. Id. ¶ 6 & Ex. 2. Plaintiff provided that additional information by letters dated September 15 and September 16, 2001. Id. ¶ 7 & Exs. 4, 14; see also State Dep't Stmt. ¶ 4. By letter dated October 12, 2001, the State Department informed Plaintiff that the Schoenman Request was being processed and that he would be notified when responsive material was retrieved and reviewed. Grafeld Decl. ¶ 8 & Ex. 5. The State Department also advised Plaintiff that State Department records predating 1975 were generally in the custody of NARA, and suggested that Plaintiff submit a FOIA request directly to NARA for any State Department records predating 1975. Id.

Ms. Grafeld avers that the State "Department's search for records responsive to plaintiff's request was designed to uncover all responsive records." Id. ¶ 21. As background, she explains that when the State Department receives a FOIA/PA request, "IPS evaluates the request and determines which offices, overseas posts, or other record systems within the [State] Department may reasonably be expected to contain the information requested . . . based on the description of records set forth in the request." Id. Ms. Grafeld continues to explain the manner in which the State Department's records are maintained, which includes both centralized and decentralized systems of records, and specifically describes the searches conducted of these various systems of records in response to Plaintiff's request. Id. ¶ 22. The State Department maintains a centralized records system--the Central Foreign Policy File, or "Central File"--which contains "documents of a substantive nature that establish, discuss, or define foreign policy, set precedents, or require action or use by more than one office." Id. The Central File includes "official record copies of almost all incoming and outgoing Departmental telegrams between the Department and Foreign Service posts" along with "other select substantive correspondence documents, including diplomatic notes, correspondence to and from the White House, members of Congress, and other federal agencies, position papers and reports, memoranda of conversations, and interoffice memoranda." Id.

The State Department uses an automatic interface, known as SAS (State Archiving System) to search the Central File. Id. SAS "searches the full text of approximately 30 million telegrams and the more recent of the other substantive correspondence documents in the Central File." Id. For those documents in the Central File that are not directly text searchable through SAS (including older correspondence documents), SAS searches "the text of a customized index reference that directs a searcher to a full copy of the document." Id. As a result, "a SAS search will encompass all documents in the Central File." Id. With respect to the Schoenman Request, IPS conducted two searches of the Central File: the first ("Search A") to identify any documents relating to Plaintiff, and the second ("Search B") to identify documents relating to Plaintiff as well as the twenty-six subjects listed in his request letter. Id. ¶ 23.

For Search A, IPS conducted a search using variations of Plaintiff's name, "including, for example, a search for documents concerning the text 'Schoenman,' and a search for documents containing both 'Ralph' and 'Schoenman' in the same document." Id. ¶ 24. The date range for Search A was mid-1973 (the date of the earliest records in SAS) through the date the search was initiated." Id. By letter dated March 21, 2003, the State Department informed Plaintiff that its search of the Central File and the records of the Office of IRM Programs and Services (the former name of IPS) had been completed and yielded seven responsive documents, all of which the State Department released in full. See id. ¶¶ 9, 24 & Ex. 6. Subsequently, IPS reexamined the earlier results of Search A and discovered two additional responsive documents. Id. ¶ 24. One of these documents was withheld in full by letter dated January 23, 2008, see id. & Ex. 12, while the other was released in full by letter dated February 7, 2008, see id. ¶ 24 & Ex. 19.

For Search B, IPS conducted full text searches in SAS for documents containing the name "Ralph Schoenman" and each of the twenty-six subjects listed in Plaintiff's request letter. Id. ¶ 25 & Ex. 1.*fn3 For these searches, IPS used the time frames Plaintiff provided in his September 16, 2001 letter, except where limited by the earliest date of records available in SAS (mid-1973). Id. ¶ 25, see also Ex. 14. These searches yielded no responsive records. Id. ¶ 25.

In addition to the Central File, the State Department "has decentralized records systems maintained both in the Department's domestic offices and at Foreign Service posts overseas," which "generally are concerned with specialized and unique activities and programs of the Department rather than with general foreign policy issues." Id. ¶ 28. Ms. Grafeld explains that "each office within the Department, as well as each Foreign Service post and mission, maintains working files concerning foreign policy and other functional matters related to the daily operations of that office, post, or mission," and that these working files "consist generally of working copies of documents, information copies of documents maintained in the Central File, [and] other specialized documents prepared by or furnished to the office, post, or mission." Id.

Based on the information Plaintiff provided in his FOIA/PA request, the State Department conducted searches for records maintained by the following offices: the Bureau of Diplomatic Security (DS), the Office of the Legal Adviser (L), the Bureau of Intelligence and Research (INR), IPS, the Office of Overseas Citizens Services (OCS), and the Office of Passport Services (PPT). Id. ¶ 30. Ms. Grafeld avers that for each of these offices, "[t]horough searches of these records systems were conducted by professional employees familiar with their contents and organization, and those employees were provided with copies of plaintiff's letters." Id. ¶ 29. Ms. Grafeld also explains the function of each of the offices searched and the State Department's rationale in searching that office.

As she explains, DS maintains records relating to security matters, such as the protection of the Secretary of State and U.S. missions abroad. Id. ¶ 33. DS is also responsible for storing and safeguarding classified information, and conducts investigative activities, such as investigations of State Department personnel conduct. Id. DS was searched in response to the Schoenman Request because records identified during the search of PPT records indicated that DS might maintain responsive records. Id. The Office of the Legal Adviser is the State Department's general counsel office. Id. ¶ 34. It was searched in connection with the Schoenman Request because Plaintiff's September 15, 2001 letter providing additional information regarding his request noted that Plaintiff had been involved in passport-related litigation with the Department. Id. ¶ 34; see also Ex. 4 (9/15/01 Letter). INR "ensures that intelligence activities support foreign policy and national security purposes, and serves as the focal point in the Department for ensuring policy review of sensitive counterintelligence and law enforcement activities." Grafeld Decl. ¶ 35. INR was searched in response to the Schoenman Request because Plaintiff requested any references to himself in the "Covert Action Information Bulletin." Id. OCS and PPT are part of the Bureau of Consular Affairs. Id. ¶ 32. PPT accepts, examines, adjudicates and processes passport applications, issues passports to those determined to be qualified under the provisions of United States immigration and nationality laws, and amends, extends, and validates passports. Id. PPT was searched in response to the Schoenman Request because Plaintiff's September 15, 2001 letter indicated that he was denied a passport in the 1950s and that his passport was seized in the 1960s. Id. & Ex. 4. OCS provides emergency and non-emergency services to United States citizens residing or traveling abroad. Grafeld Decl. ¶ 32. OCS was searched in response to the Schoenman Request because the records identified in the search of SAS indicated that OCS might maintain responsive records. Id.

IPS maintains records of FOIA/PA requests submitted to the State Department through an automatic case tracking system. Id. ¶ 36. This system is text searchable and contains information on FOIA/PA requests received by IPS since the early 1980s. Id. In response to the Schoenman Request, IPS searched the system for any previous request pertaining to Plaintiff, and found no responsive records. Id. IPS also maintains an "antiquated" collection of index cards that were created during the 1960s-1990s, which are arranged by names and topics, and used by IPS researchers as "finding aids" to assist in locating documents by subject matter. Id. In response to the Schoenman Request, IPS searched the "finding aids" and found no responsive records. Id. IPS also searched retired or inactive files for the State Department's domestic offices and foreign service posts. Id. ¶ 37. The State Department retires records when they are no longer needed operationally--generally after two to three years--and stores them at an offsite storage facility. Id. In response to the Schoenman Request, IPS examined the retired records manifests for the foreign service posts in the countries that Plaintiff identified in his September 15, 2001 letter, based on the dates indicated in that letter. Id. ¶ 39; see also Ex. 4 (9/15/01 Letter). IPS found no responsive records in the retired records manifest. Grafeld Decl. ¶ 39. IPS also "confirmed with NARA that permanent foreign service post records predating 1976 have been transferred to the permanent custody of NARA," such that "[t]here is no reason to believe that the [State] Department still possesses or controls any material retired by the foreign service posts" described in Plaintiff's September 15, 2001 Letter. Id.

By letter dated April 26, 2005, the State Department advised Plaintiff that its searches of the Office of the Legal Adviser, PPT, and DS had located 446 responsive documents. Id. ¶ 10 & Ex. 7. Of these 446 documents, the State Department released 338 in full, released 16 in part, and withheld 45 in full. Id. Information was withheld pursuant to PA Exemptions (d)(5) and (k)(2), as well as FOIA Exemptions 5 and 6. Id. The State Department's April 26, 2005 Letter also informed Plaintiff that 20 of the 446 documents identified required further inter- or intra-agency coordination before a final determination could be made, and that 27 of the 446 documents originated with other government agencies (the FBI, DOJ, the CIA, and the Department of Homeland Security (DHS)) and had therefore been referred to those agencies for review and direct response to Plaintiff. Id.

By letter dated June 15, 2005, the State Department advised Plaintiff that the review of 6 of the 20 documents requiring inter- or intra-agency coordination was complete, and released all six documents in full to Plaintiff. Id. ¶ 11 & Ex. 8. By letter dated August 12, 2005, the State Department advised Plaintiff that the review of 13 of the 20 documents was complete, released 5 documents in full, and withheld 8 documents in part, pursuant to PA Exemptions (j)(1), (j)(2), and (k)(1), as well as FOIA Exemptions 1, 3, 6, and 7(C). Id. ¶ 12 & Ex. 9. By letter dated September 20, 2005, the State Department informed Plaintiff that the review of the last of the 20 documents was complete, and released the document in part, withholding information under FOIA Exemption 3. Id. ¶ 13 & Ex. 10. In the same letter, the State Department advised Plaintiff that DHS had returned the documents previously referred to DHS to IPS. Id. By letter dated October 4, 2005, the State Department advised Plaintiff that the review of these 3 documents had been completed and released all 3 documents in full. Id. ¶ 14 & Ex. 11. Plaintiff was advised that the State Department had completed the processing of the Schoenman Request. Id. ¶ 14.

B. The Russell Request

In its second letter of August 23, 2001, the State Department advised Plaintiff that it required additional information in order to process the Russell Request. Id. ¶ 16 & Ex. 3. Plaintiff provided the requested information by letter dated September 16, 2001. Id. ¶ 18 & Ex. 14. By letter dated October 18, 2001, the State Department informed Plaintiff that it had begun processing the Russell request and would notify him when responsive material was located and processed. Id. ¶ 19 & Ex. 15. The State Department also advised Plaintiff that State Department documents predating 1975 are generally in the custody of NARA and suggested that he submit a FOIA request directly to NARA for any State Department documents predating 1975. Id.

The State Department then proceeded to conduct a search of the Central File using SAS. Id. ¶ 26. IPS conducted full text searches using variations of Bertrand Russell's name, with a date range from mid-1973 to the date the search was initiated. Id. ¶ 27. No responsive records were found. Id. The State Department also conducted searches of its decentralized records systems, searching those offices that were viewed as likely to have responsive records. Id. ¶ 31. In particular, the State Department searched the records of the Bureau of Diplomatic Security (DS), the Office of Visa Services (VO), and the Bureau of Intelligence and Research (INR). Id. VO handles all aspects of visa issuance to aliens, supports and advises foreign service posts on visa matters, and maintains liaison with other government agencies on all aspects of US immigration law. Id. ¶ 32. The State Department searched VO because Bertrand Russell was a British citizen who may have applied for a visa in order to enter the United States at some point. Grafeld Suppl. Decl. ¶ 8. The State Department searched DS and INR, out of an abundance of caution, due to "the close association between Bertrand Russell and plaintiff, and the background information provided by plaintiff in connection with the 'Schoenman Request.'" Id. None of these searches located responsive records. Id.

IPS also searched for previous FOIA requests as well as its "finding aids" pertaining to Bertrand Russell and the six organizations identified in Plaintiff's request letter. Grafeld Decl. ¶ 36. IPS did not locate any previous FOIA requests on Bertrand Russell or the six organizations, but did find one "finding aid" that appeared responsive to Plaintiff's request. Id. The State Department released this "finding aid" in full to Plaintiff by letter dated January 23, 2008, id. & Ex. 12, and Ms. Grafeld avers that "[t]he content of this finding aid does not indicate that any places should have been searched other than where the [State] Department had already searched," id. ¶ 36. By letter dated February 28, 2002, the State Department informed Plaintiff that the Russell Request had been closed. Id. ¶ 20 & Ex. 16. The State Department explained to Plaintiff that the Russell Request sought records predating 1975, which were generally in the custody of NARA, and suggested that Plaintiff write directly to NARA to seek such records. Id.

In his Cross-Motion/Opposition, Plaintiff seized upon this suggestion, and alleged that the State Department failed to search for records responsive to the Russell Request predating 1975. See Pl.'s Cross-MSJ at 13. Plaintiff asserted that "[i]f State still may have some records, the fact that others have been transferred to NARA does not exempt State from having to search for those that remain in its possession." Id. at 13-14. As a result, Ms. Grafeld's Supplemental Declaration provides a "clarification regarding the [State] Department's searches for records predating 1975 in response to [the Russell Request]." Grafeld Suppl. Decl. ¶ 6. Specifically, Ms. Grafeld clarifies that, although records more than 25 years old "are generally transferred to, and legally accessioned by" NARA, id. ¶ 7, the State Department does retain some records longer than 25 years, id. ¶ 8. Ms. Grafeld avers that "in processing the 'Russell Request,' the [State] Department searched all its records systems with a reasonable likelihood of retaining any responsive records, whether pre-dating or post-dating 1975." Id. She further clarifies that the State Department searched Central File records dating back to mid-1973, and that the VO, DS, and INR--all of which the State Department searched in connection with the Russell Request--retain certain records longer than 25 years. Id. None of these searches, however, yielded responsive documents. Id. Further, the State Department located one "finding aid," created sometime between the 1960s and the 1990s, responsive to the Russell Request and released that document in its entirety to Plaintiff. Id. ¶ 9.

C. Additional Searches

By letters dated January 23, 2008 and February 7, 2008, the State Department informed Plaintiff that it had conducted additional searches of the Central File, INR, VO, and retired files regarding both the Schoenman Request and the Russell Request. Grafeld Decl. ¶¶ 15-20 & Exs. 12, 19. These searches located three documents, of which two were released in full and one was withheld in full pursuant to FOIA Exemptions 3 and 6. Id.

In total, the State Department processed 456 documents. Id. ¶ 76. Of these documents, the State Department released 361 in full to Plaintiff, released 25 documents in part to Plaintiff, and withheld 46 documents in full. Id.

C. Procedural History

As noted above, the parties agreed to proceed with their cross-motions for summary judgment based upon a sample--to be selected by Plaintiff--of the documents withheld in full or in part by the State Department. See 3/21/07 Joint Status Report, Docket No. [34] at 4; 7/11/07 Joint Status Report, Docket No. [37] at 2. By letter dated October 10, 2007, Plaintiff provided the State Department with a list of nine items to be the subject of the State Department's Vaughn index. Grafeld Decl. ¶ 40 & Ex. 17. In January 2008, Plaintiff withdrew one of his selected documents, thus leaving eight documents for inclusion in the State Department's Vaughn index. Id. ¶ 40 & Ex. 18. As set forth above, after Plaintiff's selection of documents, the State Department conducted additional searches that located three responsive documents, of which one was withheld in full. Id. ¶ 15. The State Department included a description of that document, along with the eight identified by Plaintiff, in Ms. Grafeld's Declaration, which serves as the State Department's Vaughn index. Her detailed explanations for each withholding are addressed in the discussion section below.

The State Department filed its Motion for Summary Judgment on February 8, 2008, and Plaintiff filed his Cross-Motion/Opposition on April 7, 2008. The State Department filed its Reply/Opposition on May 7, 2008, and Plaintiff filed his Reply on May 19, 2008. Accordingly, ...


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