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Kishore v. U.S. Dep't of Justice

September 8, 2008


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


In this action brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, plaintiff Sundeep Kishore sues the Department of Justice ("DOJ") and two DOJ components, the Federal Bureau of Investigation ("FBI") and the Executive Office for United States Attorneys ("EOUSA"), for allegedly improperly withholding records responsive to his FOIA requests. Defendants move collectively to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and (b)(6) and for summary judgment pursuant to Rule 56. Upon consideration of the parties' submissions and the entire record, and for the following reasons, the Court will deny defendants' motion to dismiss and will grant in part and deny in part defendants' motion for summary judgment.


FBI Records

In March 2005, Mr. Kishore requested from FBI Headquarters ("FBIHQ") "any and all" information deemed vital to his due process rights. Declaration of David M. Hardy ("Hardy Decl.") ¶ 5 & Ex. 1. Mr. Kishore indicated that the Oklahoma City Field Office ("OKFO") may have records and that he had received no response to his request for similar records made to that office in December 2004. Id. After requesting and receiving additional materials from Mr. Kishore, the FBI performed a search by checking the Central Records System ("CRS") at FBIHQ. On April 15, 2005, the FBI informed Mr. Kishore that its search had located no responsive records. Id. ¶ 8 & Ex. 4. Mr. Kishore unsuccessfully appealed the "no records" response to DOJ's Office of Information and Privacy ("OIP"). Id. ¶ 11 & Ex. 7.

In August 2005 and October 2005, Mr. Kishore submitted FOIA requests to the OKFO for records pertaining to the FBI's investigation of him in 2003. Id. ¶¶ 16, 23. On September 8, 2005, and December 13, 2005, the FBI notified Mr. Kishore that the records he requested were protected from disclosure pursuant to FOIA exemptions 7(A) and 7(C).*fn1 Id. ¶¶ 18, 24 & Exs. 14, 20. Mr. Kishore appealed the September 8, 2005 decision and on August 31, 2007, was notified by OIP that his request was being remanded for further processing because Exemption 7(A) no longer applied. Id. ¶ 21 & Ex. 17. On October 25, 2007, OIP informed Mr. Kishore that it was vacating its remand decision because of his filing of this lawsuit on July 23, 2007. Id. ¶ 22 & Ex. 18.

On January 30, 2006, Mr. Kishore submitted yet another FOIA request to the OKFO for records about himself, which included a lengthy list of questions about the FBI's investigation of him. Id. ¶ 26. On January 18, 2007, the FBI informed Mr. Kishore that a search of "the automated indices of the CRS at FBIHQ failed to locate" responsive records. Id. ¶ 29. On June 19, 2007, OIP notified Mr. Kishore that it was affirming the FBIHQ's "no records" response but added that the OKFO may have responsive records. It directed Mr. Kishore to submit a new request directly with the OKFO at the address provided and advised him of his appeal rights. Hardy Decl. ¶ 32. On August 21, 2007, however, the FBI acknowledged its mistake in searching only the files at FBIHQ, reopened Mr. Kishore's January 30, 2006 request, and eventually located responsive records at the OKFO. Id. ¶¶ 33-34. On November 19, 2007, the FBI informed Mr. Kishore that it had located 320 pages of responsive records, of which 308 pages were being released to him. The FBI assessed a duplication fee of $20.80 for records exceeding the first 100 pages. The FBI withheld 12 pages of material under Privacy Act Exemption (j)(2), see 5 U.S.C. § 552a, and FOIA exemptions 2, 3, 5, 6, 7(C), 7(D), and 7(E). Hardy Decl. ¶ 34 & Ex. 29. The FBI has no record of Mr. Kishore's payment of the assessed fee. Id. ¶ 35.

EOUSA Records

In March 2005, EOUSA received from its office in the Western District of Oklahoma ("WDOK") Mr. Kishore's request dated March 23, 2005, inquiring "to which U.S. Attorney FBI S.A. Swarens and Wagner reported [], in connection with the investigation, under this file no., and which supposedly ended on 3-1-03." Declaration of John F. Boseker ("Boseker Decl."), Ex. A. On April 15, 2005, EOUSA notified Mr. Kishore that he needed to provide proof of identity before his request could be fulfilled, informed him of his appeal rights and closed the FOIA request file. Boseker Decl. ¶¶ 7-8 & Ex. B.

Meanwhile, on April 12, 2005, EOUSA received a letter from Mr. Kishore requesting expedition of his request forwarded from the WDOK. Id. ¶ 9 & Ex. C. On August 8, 2005, EOUSA informed Mr. Kishore that a search of the files at the WDOK located no responsive records and further informed him of his appeal rights. Id. ¶ 12 & Ex. F. Mr. Kishore unsuccessfully appealed the "no records" response to OIP. Id. ¶¶ 13-15.

On February 6, 2006, EOUSA received from the WDOK Mr. Kishore's letter containing several questions concerning the FBI's investigation of him in 2003. EOUSA responded that the FOIA applies to existing records and that it was not required "to conduct research, create new records or answer questions disguised as FOIA requests." Boseker Decl., Ex. K. Plaintiff unsuccessfully appealed this decision to the OIP. Id., Exs. M, O.

In a letter dated May 21, 2007, Mr. Kishore complained to EOUSA about the lack of a response to his request made "in March 2007" for information pertaining to the FBI's investigation "supervised by" the WDOK, which resulted in criminal charges against him in Oklahoma. Boseker Decl., Ex. P. He requested a search of "your Central System and your core of five file keeping system, specifically the criminal flag master-filed, and the criminal immediate declination file, and the criminal charged file." Id. On July 23, 2007, EOUSA informed Mr. Kishore that he needed to provide a certification of identity and a sufficient description of the records sought. It further advised Mr. Kishore of his appeal rights and closed the file. Id., Ex. Q.

During the course of this litigation, the WDOK conducted "another search for all of Mr. Kishore's records" and located responsive records. Boseker Decl. ¶¶ 25-26. On September 5, 2007, EOUSA released to Mr. Kishore 14 unredacted pages and one redacted page of information. It withheld portions from the one page pursuant to FOIA Exemption 5 and Privacy Act Exemption (j)(2). In addition, EOUSA referred 11 pages to the FBI to determine the releasability of those records. Boseker Decl., Ex. S. The FBI released the referred pages as part of the aforementioned 308 pages it released to plaintiff on November 19, 2007.


Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).

In considering whether there is a triable issue of fact, the Court must draw all reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; see also Washington Post Co. v. United States Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989). The party opposing a motion for summary judgment, however, "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248. The mere existence of a factual dispute is not enough to bar summary judgment, and the non-moving party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To be material, the fact must be capable of affecting the outcome of the litigation; to be genuine, the issue must be supported by admissible evidence sufficient for a reasonable trier of fact to find in favor of the nonmoving party. See Anderson, 477 U.S. at 247-48; Laningham v. United States Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987). Finally, "any factual assertions in the movant's affidavits will be accepted as being true unless [the opposing party] submits his own affidavits or other documentary evidence contradicting the assertion." Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir.1992) (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir.1982)).

Summary judgment is the frequent vehicle for resolution of a FOIA action because the pleadings and declarations in such cases often provide undisputed facts on which the moving parties are entitled to judgment as a matter of law. McLaughlin v. U.S. Dep't of Justice, 530 F. Supp.2d 210, 212 (D.D.C. 2008) (citations omitted). Agencies may rely on affidavits or declarations of government officials, as long as they are sufficiently clear and detailed and submitted in good faith. See Oglesby v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The Court may award summary judgment solely on the basis of information provided in such affidavits or declarations when they describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). A "court shall accord substantial weight to an affidavit of an agency concerning the agency's determination as to . . . subsection (b)" exempted material. 5 U.S.C. § 552(a)(4)(B).

An inadequate search for records also constitutes an improper withholding under the FOIA. See Maydak v. U.S. Dep't of Justice, 254 F. Supp.2d 23, 44 (D.D.C. 2003) (citations omitted). Thus, when an agency's search is questioned, the Court must determine the adequacy of the agency's search, guided by principles of reasonableness. See Campbell v. United States Dep't of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998). The agency is required "to make a good faith effort to conduct a search for the requested records, using methods which can reasonably be expected to produce the information requested." Oglesby, 920 F.2d at 68. Such methods include following through "on obvious leads." Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (citation omitted). Although an agency need not search every record system, it "cannot limit its search to only one record system if there are others that are likely to turn up the information requested." Oglesby, 920 F.2d at 68. Because the agency is the possessor of the records and is responsible for conducting the search, the Court may rely on "[a] reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched." Valencia-Lucena, 180 F.3d at 326 (quoting Oglesby, 920 F.2d at 68). ...

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