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Moore v. Bush

February 23, 2009

JOHN E. MOORE, PLAINTIFF,
v.
GEORGE W. BUSH, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

John Moore filed a complaint against numerous defendants alleging that he was "implanted with a micro-chip" for the purpose of controlling his brain and that he was the victim of a conspiracy to develop and use brainwave technology for warrantless surveillance. He also seeks records related to such alleged brainwave technology and surveillance via the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Compl. ¶¶ 16, 29, 33 & 40. Previously, the Court dismissed all claims, other than the FOIA claim, and all defendants, other than the Department of Justice ("DOJ") and the National Security Agency ("NSA"). See Mem. Op. [Dkt. # 45] filed Feb. 26, 2008. Now, DOJ and NSA seek summary judgment on the remaining FOIA claim.*fn1 Because they conducted an adequate search for documents and because various exemptions apply, their motion will be granted. I. FACTS

Mr. Moore's claim against DOJ arises from three separate requests for records from its constituent agency, the Federal Bureau of Investigation ("FBI").*fn2 First, on September 5, 2002, Mr. Moore submitted a request to the FBI's Boston Field Office requesting a copy of a "personnel information form that I filled out that morning and special agents [sic] name who interviewed me. Also any other information in your file pertaining to me or any other agency that was contacted." Defs.' Mem. in Supp. of Mot. to Dismiss, or for Summ. J. ("Defs.' Mem.") [Dkt. # 49], Hardy Decl., Ex. A. The Boston Field Office conducted a search of the General Indices of the FBI's Central Records System ("CRS") using the name Moore, John Edmond. Id. ¶¶ 25-26. This search would locate records using the phonetic sounds of "Moore, John Edmond," "Moore, John E.," "Moore, J. Edmond," "Moore, Edmond," and "Moore, J.E." Id. ¶ 26. The FBI then used Mr. Moore's "birth date and social security number to facilitate the identification of responsive records." Id. The FBI conducted a second search of CRS and identified an additional potentially responsive document. Id. ¶ 27. However, the FBI could not corroborate whether the document was responsive because the file containing the document was destroyed pursuant to standard record destruction policies on January 18, 2007. Id. As a result of its search, the Boston Field Office released two pages to Mr. Moore, but withheld the name of an FBI Special Agent and the name and phone number of an FBI support employee asserting that release of these names and phone number would constitute an unwarranted invasion of personal privacy and thus the release of such information was exempt under FOIA Exemptions 6 and 7C, 5 U.S.C. §§ 552(b)(6) & (7)(C). Id. ¶¶ 4, 7, 29-43. Mr. Moore appealed, and the DOJ Office of Information and Policy affirmed the FBI's action on Mr. Moore's request. Id. ¶¶ 9-10.

Mr. Moore submitted a second request for records, this time submitting his request to the FBI's Jacksonville Field Office on approximately February 3, 2003.*fn3 Id. ¶ 17. According to the FBI's FOIA and Privacy Act Document Processing System, the FBI's repository for FOIA request records, the Jacksonville Office advised Mr. Moore that no responsive records were located. Id. The request and response itself are not available because the file containing such documents was destroyed pursuant to routine record destruction policies on April 15, 2007. Id. No appeal was filed. Id. §19.

Third, on August 31, 2006, Mr. Moore submitted a request to FBI headquarters seeking all records related to himself. Id. ¶ 12. After a search of the FBI's CRS, the FBI responded that it had no such records. Id. ¶ 14. Mr. Moore did not appeal. Id. ¶ 16.

Mr. Moore's FOIA claim against NSA arises from an August 31, 2006, letter to NSA, which sought: (1) information pertaining to himself within NSA databases; (2) a "statement pertaining to the existence of brainwave technology"; (3) whether "the system instruction [was] disseminated at Falls Church[,] VA."; and (4) whether "the system detector chip [was] implanted in the temporal bone area." Defs.' Mem., Siers Decl., Attach. A. NSA responded to Mr. Moore's request on September 15, 2006. Siers Decl. ¶ 11. Concerning Mr. Moores' first request, NSA indicated that it had searched its databases that would contain information on current or former NSA affiliates, (i.e., employees, applicants, military members, contractors and visitors) including security, personnel, and training files. Siers Decl. ¶¶ 11 & 13. Because Mr. Moore had never been affiliated with NSA, it could not locate any responsive records within those filing systems. Id. Also, because Mr. Moore requested all records the agency maintains on him, NSA responded as though he had asked for records on "the surveillance, targeting, and/or domestic collection of him by NSA." Id. ¶ 14. NSA could not confirm or deny whether such records exist because any response would disclose information that is classified or secret pursuant to Executive Order and statute and that is thereby exempt from release under FOIA Exemptions 1 and 3, 5 U.S.C. §§ 552(b)(1) & (3). Id. ¶¶ 11, 15-23.

As to Mr. Moore's second through fourth requests, NSA did not provide any information because those requests seek statements by NSA and FOIA does not require agencies to create records. Id. ¶ 24. Mr. Moore did not appeal the response to his first and third requests, but he did appeal the NSA's refusal to provide information with regard to the second and fourth requests. The NSA denied his appeal. Id., Attach. D.

Mr. Moore filed this suit challenging the FBI and NSA's responses to his requests for documents. He insists that he is a "target" who is "plugged in" to NSA's brainwave tracking system and therefore NSA should respond to his request for statements regarding the existence of brainwave technology and implantation of a micro-chip. Pl.'s Mem. in Supp. of Mot. to Dismiss Defs.' Mot. [Dkt. # 54] ("Pl.'s Opp'n") at 2, 7, 11. He also seeks the name of the FBI agent who interviewed him in Boston, asserting, "Plaintiff claims this agent in his zeal to twist the facts, use[d] 'paranoid tendencies' in his descriptive comment describing this short interview. As he continues his statement contending that plaintiff believes that he 'is being watched' is absolutely devoid of merit and ludicrous." Id. at 2. Further, Mr. Moore requests that the FBI and NSA "disclose to Plaintiff all unlawful surveillance of Plaintiffs' Communication [sic], also the use of Brainwave Technology carried out pursuant to the program." Id. at 15.

II. STANDARD OF REVIEW

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when "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." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted against a party who "after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252.

FOIA cases are typically and appropriately decided on motions for summary judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Rushford v. Civiletti, 485 F. Supp. 477, 481 n.13 (D.D.C. 1980).In a FOIA case, a court may award summary judgment solely on the basis of information provided by the agency in declarations when the declarations describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstratethat 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).

III. ANALYSIS

A. Exhaustion of Administrative Remedies

Prior to filing a lawsuit, a FOIA requester is required to exhaust his administrative remedies, Dettmann v. Dep't of Justice, 802 F.2d 1472, 1477 (D.C. Cir. 1986), including administrative appeals. Oglesby v. Dep't of Army, 920 F.2d 57, 61-62 (D.C. Cir. 1990). Mr. Moore failed to appeal the denial of information by the FBI's Jacksonville ...


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