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Schoenman v. Federal Bureau of Investigation

September 22, 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

This Memorandum Opinion addresses the discrete issue held in abeyance by the Court's August 25, 2008 Memorandum Opinion: the Department of the Navy's ("Navy") withholding of information from one document in response to Plaintiff's request 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. Plaintiff, Ralph Schoenman, a political activist and author, filed FOIA/PA requests seeking access to an array of records pertaining to himself, Lord Bertrand Russell, and six organizations, with 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).

The Court's August 25, 2008 Memorandum Opinion and Order addressed the Motion for Summary Judgment brought by Defendants the Criminal Division of the Department of Justice ("Criminal Division"), the Defense Intelligence Agency ("DIA"), the Department of the Air Force ("Air Force"), the Department of the Army ("Army"), and the Navy (collectively, the "Five Defendants"), as well as Plaintiff's Cross-Motion for Summary Judgment as to the Five Defendants' responses to his FOIA/PA request. The Court's August 25, 2008 Memorandum Opinion granted-in-part the Five Defendants' Motion for Summary Judgment and denied-in-part Plaintiff's Cross-Motion for Partial Summary Judgment, insofar as each related to the Criminal Division, DIA, Air Force, and Army. The Court found, however, that the Navy had failed to adequately justify its invocation of FOIA Exemption 7(C) to withhold the names of certain Navy personnel from Navy Document Number Two. The Court therefore held in abeyance the parties' cross-motions for summary judgment with respect to the Navy and required the Navy to provide additional factual support for its invocation of FOIA Exemption 7(C).

The Navy has since provided that information via a Declaration by Joseph P. Ceglio, Lieutenant, Judge Advocate General's Corps, United States Navy, Assistant Staff Judge Advocate to the Director, Naval Criminal Investigative Service ("NCIS"), Department of the Navy (hereinafter "Ceglio Decl."). In turn, Plaintiff has filed a motion to strike Lieutenant Ceglio's Declaration in part, asserting that it is not based upon person knowledge. Plaintiff's Motion to Strike, however, misunderstands the personal knowledge requirement as it applies to affidavits supporting motions for summary judgment in FOIA cases. The Court shall therefore DENY Plaintiff's [86] Motion to Strike. Further, based upon Mr. Ceglio's Declaration, and particularly in light of the fact that Plaintiff has not identified a public interest in the disclosure of the names at issue that outweighs the privacy interests of the individuals involved, the Court concludes that the Navy has properly withheld the names from Navy Document Number Two. The Court shall therefore GRANT the Five Defendants' [39] Motion for Summary Judgment and DENY Plaintiff's [43] Cross-Motion for Summary Judgment with respect to the Navy.

I. BACKGROUND

The factual background of this case is extensively discussed in this Court's August 25, 2008 Memorandum Opinion regarding the Five Defendants' Motion for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment. See Schoenman v. DOJ, Civ. A. No. 04-2202, slip op. (D.D.C. Aug. 25, 2008) (hereinafter "Five Defs.' MSJ Op."). The Court does not repeat that discussion herein, but assumes familiarity with it and expressly incorporates it herein. As noted above, the Court's August 25, 2008 Memorandum Opinion granted the majority of the Five Defendants' Motion for Summary Judgment, and denied the majority of Plaintiffs' Cross-Motion for Summary Judgment. The Court only held-in-abeyance those motions as they pertained to the Navy's withholding of information from Navy Document Number Two. Specifically, the Court found that the Navy had not adequately explained the law enforcement purpose behind Navy Document Number Two, but that releasing the information withheld from the document was not appropriate because the Court could not "determine from the record or from Plaintiff's Cross-Motion that the Navy improperly invoked FOIA Exemption 7(C)--i.e., that Navy Document Number Two does not actually have a law enforcement purpose." Five Defs.' MSJ Op. at 43-45. The Court therefore gave the Navy the opportunity to substantiate its invocation of FOIA Exemption 7(C) by submitting additional factual support in the form of an agency affidavit describing the law enforcement purpose behind Navy Document Number Two. See Five Defs.' MSJ Order, Docket No. [77]. The Court also gave Plaintiff the opportunity to respond to the Navy's additional factual submission, but ordered that any such response be filed no later than September 10, 2008. Id.

On September 11, 2008, i.e., one day out of time, Plaintiff filed his Motion to Strike Lieutenant Ceglio's Declaration in part. Plaintiff did not substantively respond to the factual assertions in Lieutenant Ceglio's Declaration, but rather requested that he be permitted to file his substantive response no later than seven days from the date of the Court's order regarding his Motion to Strike. See Pl.'s Mot. to Strike, Docket No.[86]. On September 15, 2008, having reviewed Plaintiff's Motion to Strike, the Court issued another Order noting that Plaintiff's Motion correctly pointed out that neither Lieutenant Ceglio's Declaration nor the Navy's original declarations supporting its Motion for Summary Judgmentindicated whether the Navy had made efforts to ascertain the life status of those individuals whose names it withheld from Navy Document Number Two. See 9/15/08 Minute Order. The Court therefore required that the Navy file a Declaration indicating its understanding of the individuals' life status, what efforts the Navy undertook to ascertain that information, and when such efforts were undertaken, no later than 5:00 p.m. on September 19, 2008. Id. In response, the Navy filed the Second Declaration of Lieutenant Ceglio.

LEGAL STANDARD

A party is entitled to summary judgment if the pleadings, depositions, and affidavits demonstrate that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). Under the summary judgment standard, the State Department, as the moving party, bears the "initial responsibility of informing the district court of the basis for [its] motion, and identifying those portions of the pleadings . . . together with the affidavits which [it] believe[s] demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Plaintiff, in response to Defendant's motion, must "go beyond the pleadings and . . . designate specific facts showing that there is a genuine issue for trial." Id. at 324 (internal quotation marks omitted).

In reviewing a motion for summary judgment under the FOIA, the Court must conduct a de novo review of the record. See 5 U.S.C. § 552(a)(4)(B). All underlying facts and inferences are analyzed in the light most favorable to the FOIA requester; as such, summary judgment is only appropriate where an agency proves that it has fully discharged its FOIA obligations. Moore v. Aspin, 916 F. Supp 32, 35 (D.D.C. 1996) (citing Weisberg v. DOJ, 705 F.2d 1344, 1350 (D.C. Cir. 1983)). Summary judgment may be granted on the basis of accompanying agency affidavits or declarations if they describe "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 evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). These affidavits may be submitted by an official who coordinated the search, and need not be from each individual who participated in the search. See SafeCard Servs., Inc., v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). Courts must "accord substantial weight" to an agency's affidavits regarding FOIA exemptions. 5 U.S.C. § 552(a)(4)(B) (2004); see also Carney v. DOJ, 19 F.3d 807, 812 (2d Cir. 1994) ("Affidavits submitted by an agency are 'accorded a presumption of good faith.'") (quoting SafeCard Servs., Inc., 926 F.2d at 1200). Significantly, in opposing a motion for summary judgment or cross-moving for summary judgment, a FOIA plaintiff must offer more than conclusory statements. See Broaddrick v. Exec. Office of President, 139 F. Supp. 2d 55, 65 (D.D.C. 2001) (citing Laningham v. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987)).

II. DISCUSSION

Before turning to the substantive issue of the Navy's withholding of names from Navy Document Number Two, the Court addresses Plaintiff's motion to strike in part Lieutenant Ceglio's Declaration.

A. Plaintiff's Motion to Strike

Plaintiff moves to strike in part Lieutenant Ceglio's Declaration, arguing that it is not based on personal knowledge and thus fails to comply with Federal Rules of Civil Procedure Rule 56(e). Pl.'s Mot. to Strike at 2-4. According to Plaintiff, "[g]iven the fact that the document in question is 38 years old, it is implausible that Ceglio has any personal knowledge of the privacy concerns of the persons on whose behalf he has invoked Exemption 7(C)." Id. at 3. Plaintiff also notes that "Ceglio makes no claim that he was personally involved in the document's creation or the underlying event it records." Id. at 4. Pursuant to Rule 56(e) "'[s]supporting and opposing affidavits' on summary-judgment motions 'shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.'" Londrigan v. FBI, 670 F.2d 1164, 1174 (D.C. ...


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