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Wiesner v. Federal Bureau of Investigation

September 23, 2008

MARTIN F. WIESNER, PLAINTIFF,
v.
FEDERAL BUREAU OF INVESTIGATION AND CENTRAL INTELLIGENCE AGENCY, DEFENDANTS.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

Martin F. Wiesner, the pro se plaintiff in this civil lawsuit, seeks "the disclosure and release of agency records" allegedly withheld by the Federal Bureau of Investigation (the "FBI") and the Central Intelligence Agency pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (2001) (the "FOIA"). Complaint ¶ 1. On February 21, 2008, the FBI filed a motion to dismiss the plaintiff's complaint against it pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) or for summary judgment pursuant to Federal Rule of Civil Procedure 56. After carefully considering the plaintiff's complaint, the FBI's motion, and all memoranda of law and exhibits relating to that motion,*fn1 the Court concludes for the reasons that follow that it must grant the motion in part and deny without prejudice the remainder of the motion for the reasons that follow.

I. Background

The basic facts of this case are uncontested.*fn2 "By letter dated February 9, 2006," the plaintiff "made a request" under FOIA "for all FBI files maintained about him." FBI's Facts ¶ 1. The FBI searched "all" of its locations "likely to have records responsive" to that request, "including its Central Records System ('CRS') and Electronic Surveillance Indices ('ELSUR')." Id. ¶ 2. "The FBI was able to identify no responsive records in its possession," id., and notified the plaintiff of that fact in "letters dated February 28, 2006, and June 25, 2007," id. ¶ 3.

The plaintiff filed his complaint in this Court on September 7, 2007. In his complaint, the plaintiff alleges that his FOIA request "stem[s] from [his] involvement on a website, dating from September 21, 2002, where he discussed materials and methods used in suicide bombings, opposition to military action in Iraq, the impeachment of President Bush, and the 2002 [District of Columbia-]area sniper shootings." Compl. ¶ 6. The plaintiff further alleges that after receiving the February 28, 2006 letter from the FBI, his "attorney... appealed the FBI's response, citing all available information necessary to locate [the] plaintiff's records, including [the] name of the website [described above], all aliases used by [the] plaintiff to communicate on the website, and [the] specific topics of conversation [described above]." Id. ¶ 8. According to the plaintiff, his attorney also "indicated that the FBI should not only search [its] main index, but also... all files indexed in other ways," and requested "copies of the indexing materials themselves" as proof that the searches took place. Id.

The plaintiff also alleges that, after receiving the June 27, 2007 letter from the FBI denying his appeal, he spoke with FBI Special Agent Debbie Lopes by telephone on August 9, 2007, who informed him that "all FBI field offices had been searched upon [the] initial review of [the plaintiff's] appeal," and that "it was this search[] which prompted the... denial of [his] appeal." Id. ¶ 11. Lopes allegedly "contradicted her own statement" a few moments later, "declar[ing] that the appeal file showed [that] the search of all FBI field offices had actually only taken place in July of 2007, after a previous telephone conversation between [the] plaintiff and [Lopes]." Id. After the plaintiff allegedly "referenced that previous conversation," Lopes purportedly "again contradict[ed] her statement of a few seconds earlier,... explaining that as a matter of procedure[] all field office and cross-referenced files were searched in response to [the] plaintiff's appeal." Id. When the plaintiff "attempted to verify if all relevant information cited in [his] appeal letter had been searched in conjunction with [his] name," Lopes allegedly "informed [the] plaintiff that she needed to consult with [the] FBI's appeal attorney" and ended the call. Id.

Based on these allegations, the plaintiff raises two claims against the FBI. First, he claims that the alleged inconsistencies in the representations made by Lopes in her August 9, 2007 telephone conversation with the plaintiff indicate bad faith on the part of the FBI. Id. ¶¶ 16-21. Second, he claims that the FBI's search was inadequate on its face. Id. ¶¶ 22-24. He therefore requests, inter alia, that the Court "[o]rder [the] FBI to produce a definitive and truthful record of [its] actions regarding [the] plaintiff's request," refer this matter to "the Special Counsel for investigation[] pursuant to 5 U.S.C. § 552(a)(4)(F)," and "[a]ward [the] plaintiff [his] costs and reasonable attorney[']s fees incurred in th[is] action." Id. at 10.

The FBI filed its motion to dismiss or for summary judgment on December 21, 2007. In support of its motion, the FBI argues that "summary judgment should be entered in favor of the FBI," Pl.'s Mem. at 3, because "the FBI has, in fact, conducted a reasonable search of all of the likely locations where responsive records would be maintained and found none," id. at 4 n.3. In the words of the FBI, "[t]he only claim possibly remaining would be [the p]laintiff's request for fees and costs," id. at 4, which are "not available to the [p]laintiff," id. at 5. It "submits that the only case or controversy remaining in this action is [the p]laintiff's asserted claim for costs[,] which must be dismissed." Id.

The plaintiff asserts in response that "what the [FBI] has depicted as some sort of misunderstanding concerning the'sequence' of the FBI's search[] are in fact severe factual inconsistencies in its administrative record that are nothing less than evidence of agency bad faith and an inadequate search." Pl.'s Opp'n at 3-4. He argues that "the [FBI]... has continually downplayed the fact that it is responsible for issuing an appeal determination through [Lopes,] which is wholly inconsistent with the administrative record it has provided to the Court," id. at 7, and that the declaration provided by FBI Section Chief David M. Hardy stating that the FBI's search was reasonable "fail[s] to meet the FOIA's requirements of being reasonably detailed enough to show that the [FBI's] search was reasonable, adequate, and in good faith," id. at 10. The plaintiff further contends that he is entitled to attorney's fees and costs notwithstanding the fact that he is representing himself pro se. Id. at 13-14. The FBI contests all of these arguments in its reply brief. See generally FBI's Reply.

II. Standard of Review

As noted above, the FBI seeks relief pursuant to both Rule 12 and Rule 56. However, the FBI's only argument for dismissal pursuant to Rule 12-that "'under the FOIA, "once the records are produced the substance of the controversy disappears and becomes moot,"'" FBI's Mem. at 2 (quoting Trueblood v. U.S. Dep't of Treasury, 943 F. Supp. 64, 67 (D.D.C. 1996) (quoting Crooker v. U.S. State Dep't, 628 F.2d 9, 10 (D.C. Cir. 1980)))-is not colorable given that no documents have been produced in this case and that the parties' dispute is over the adequacy of the FBI's search, not the withholding of documents. Thus, the only rule governing the Court's review in this case is Rule 56.

Under Rule 56, summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." When ruling on a Rule 56 motion, the Court must view the evidence in the light most favorable to the non-moving party. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000)). The Court must therefore draw "all justifiable inferences" in the non-moving party's favor and accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). The non-moving party, however, cannot rely on "mere allegations or denials," Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248) (internal quotation and citation omitted), for "conclusory allegations unsupported by factual data will not create a triable issue of fact," Pub. Citizen Health Research Group v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999) (internal quotation and citation omitted). If the Court concludes that "the non-moving party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof," then the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

III. Legal Analysis

The sole issue before the Court is whether the FBI's search for records responsive to the plaintiff's FOIA request was adequate. An agency that is responding to a FOIA request must make "a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Baker & Hostetler LLP v. Dep't of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006) (internal quotation and citation omitted); see also Steinberg v. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (stating that "[an] agency must demonstrate that it has conducted a search reasonably calculated to uncover all relevant documents" (internal quotation and citation omitted)). While "an agency cannot limit its search to only one record system if there are others that are likely to turn up the information requested," Campbell v. Dep't of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998) (internal quotation and citation omitted), the search "need not be perfect, only adequate, and adequacy is measured by the reasonableness of the ...


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