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

January 26, 2009


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


Plaintiff, proceeding pro se, has brought this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, to compel disclosure by the Federal Bureau of Investigation ("FBI") of records regarding his criminal case.*fn1 The FBI has produced some responsive documents, and defendant now moves for partial summary judgment with respect to those disclosures. For the reasons set forth below, the Court will grant defendant's motion.


This case originated with plaintiff's FOIA/Privacy Act request submitted to the FBI's Springfield, Illinois Field Office ("SIFO") in January 1995 for records concerning himself and third parties connected to his 1988 criminal case in the U.S. District Court for the Southern District of Illinois. Plaintiff was convicted in that jurisdiction of engaging in a continuing criminal enterprise involving the importation of large amounts of marijuana into the United States. (See Declaration of David M. Hardy, filed July 17, 2008 ["Second Hardy Decl."] ¶ 5.)*fn2

Many of the facts surrounding plaintiff's prior attempts to obtain records are set forth in this Court's earlier opinion denying defendant's motion to dismiss or, in the alternative, motion for summary judgment. See Fischer v. FBI, No. 07-2037, 2008 U.S. Dist. LEXIS 41603 (D.D.C. May 29, 2008). Those facts will not be repeated here. Rather, for purposes of this opinion, the Court notes only that after initially affirming the FBI's decision to withhold all records responsive to plaintiff's request in December 1996, the Justice Department's Office of Information and Privacy ("OIP") reversed itself in December 2006, thereby prompting the FBI's most recent records search and plaintiff's appeal.

Search of FBI Headquarters Records

Following OIP's remand of plaintiff's request for further processing, the FBI conducted a search of FBI headquarters ("FBIHQ"). The search yielded three FBI main files: 190-HQ-1200038, 281B-SI-45838, and 90A-PH-73768, from which the FBI identified approximately 580 pages that were potentially responsive to plaintiff's request. (See Second Hardy Decl. ¶¶ 17, 32.) After reviewing these records, however, the FBI determined that only 40 pages actually pertained to plaintiff and of these pages, it released 37 pages, including 15 pages in full and 22 pages redacted pursuant to Privacy Act Exemption (j)(2) and FOIA Exemptions 2, 6, 7(C), and 7(D). (Id. ¶ 4; Third Declaration of David M. Hardy ["Third Hardy Decl."] ¶ 4 & n.1.) The remaining three pages were withheld in full pursuant to the same exemptions. (Id.) Of the 40 pages deemed responsive by the FBI, 11 were contained in file 281B-SI-45838 and the remaining 29 pages were contained in files 190-HQ-1200038 and 90A-PH-73768. (Third Hardy Decl. ¶ 5.) The remainder of the 580 pages initially identified by the FBI as potentially responsive to plaintiff's request did not pertain to plaintiff and were therefore deemed "out of scope" of plaintiff's request.*fn3 (Id.; Second Hardy Decl. ¶ 17 n.5.)

Search of SIFO Records

Although plaintiff had submitted his FOIA/Privacy Act request to SIFO, that office's records were not searched following the remand by OIP because, due to an administrative coding error, the office of origin for plaintiff's request previously had been designated as FBIHQ and not SIFO.*fn4 (See Fourth Declaration of David M. Hardy ["Fourth Hardy Decl."] ¶ 5.) Therefore, FBI personnel performing the search were unaware that the original request had been made to SIFO. (Id. ¶ 6.) Upon discovery of this error, FBI personnel searched for potentially responsive SIFO files and determined that FBI main file 281B-SI-45838 contained many records in the SIFO portion of the file that had not previously been reviewed or processed.*fn5 (See id. ¶¶ 7-8.) Upon review, the FBI identified approximately 1,804 pages in the SIFO portion of the file that were responsive to plaintiff's request. (See Fifth Declaration of David M. Hardy ["Fifth Hardy Decl."] ¶ 7.) In order to give the FBI time to review and process these records, defendant has requested a stay of these proceedings until March 2, 2009.*fn6

Search of Public Source Records in SIFO Files

Pursuant to plaintiff's request, SIFO also conducted a search for public source information.*fn7 This search yielded approximately 300 pages of public source material contained in a sub-file of the 281B-SI-45838 file. (Third Hardy Decl. ¶ 6 and Ex. A thereto.) The FBI released 81 pages of this material to plaintiff in January 1997, with the names and identifying information of FBI Special Agents and FBI support employees redacted pursuant to FOIA Exemptions 6 and 7(C), but declined to release any additional pages on the basis that other subjects of the investigation remained at large.*fn8 (Id. and Exs. B-C.) During the pendency of this litigation, SIFO conducted a new search for public source material. (Id. at ¶ 7 and Ex. D.) This time, SIFO located approximately 278 pages in the 281B-SI-45838 sub-file. (Id.) Of these pages, 154 pages did not pertain to plaintiff, and 40 pages were duplicates of the 81 pages previously released. (Id.) Therefore, on October 24, 2008, the FBI released an additional 84 pages of public source material that it had withheld in 1997 due to the then-pending investigation, once again withholding pursuant to FOIA Exemptions 6 and 7(C) the names and identifying information of FBI Special Agents and FBI support employees as well as those of third parties merely mentioned in the records. (Id.) It appears that the newspaper articles and other public source documents were not redacted; rather, names and identifying information of FBI personnel and third parties were removed from notations made by agency personnel in the margins around the public source material. (See id. Ex. D.)

Because additional SIFO records remain to be processed, the only issues before the Court at this time are whether, as defendant claims, it has disclosed all responsive, non-exempt records located in FBIHQ's files and all responsive, non-exempt public source records in SIFO's files.


I. Summary Judgment Standard

In a FOIA case, summary judgment may be granted to the government if "the agency proves that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester." Greenberg v. U.S. Dep't of Treasury, 10 F. Supp. 2d 3, 11 (D.D.C. 1998); see Fed. R. Civ. P. 56(c). The Court may award summary judgment based solely on the information provided in affidavits or declarations when the affidavits or declarations 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 by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). An agency must prove that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements." Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) ...

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