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Concepcion v. Federal Bureau of Investigation

March 27, 2009


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Docket Nos.: 19, 25


This matter is before the court on the parties' cross-motions for summary judgment.*fn1 For the reasons discussed herein, the defendants' motion will be granted in part and denied in part.


The plaintiff brings this civil action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, against the United States Department of Justice ("DOJ") and two of its components, the Federal Bureau of Investigation ("FBI") and the Executive Office for United States Attorneys ("EOUSA"). It appears that the plaintiff has submitted multiple requests for essentially the same information.

A. FOIA Requests to the FBI

1. Request No. 1030134

In September 2005, the plaintiff submitted to the Federal Bureau of Investigation's Newark, New Jersey field office ("NKFO") a request for: certified copys [sic] of any, and all documents pertaining to ALBERTO CONCEPCION, ET AL., which some are as follows: statements, criminal complaints, arrest warrants, Lab Report(s), and etc., including any other unmentioned documents. Compl. ¶ 11 & Ex. F-6 (Sept. 13, 2005 FOIA Req.) (capitalization in original). NKFO staff forwarded the request to the FBI Headquarters in Washington, DC ("FBIHQ"), and FBIHQ staff assigned it a tracking number, Request No. 1030134-000. Id. ¶ 12 & Ex. F-9 (Oct. 3, 2005 letter from D.M. Hardy, Section Chief, Record/Information Dissemination Section, Records Management Division, FBI).

In December 2005, the plaintiff submitted a separate request to the FBIHQ, referencing Request No. 1030134-000, for "a certified copy of the 'LAB REPORT'" associated with Criminal Case Nos. 99-6144-01-01 and 99-753 (AJL).*fn2 Compl. ¶ 13 & Ex. F-10 (Dec. 20, 2005 FOIA Req.). In addition, the plaintiff submitted a second FOIA request to the NKFO seeking:

A FULL DISCLOSURE, AND RELEASE OF ALL RECORDS, and/or data contained in the files of this Department, and/or Agency . . . under [the plaintiff's] name, and/or identifier to [his] name. This request soughted [sic] herein is for COMPLAINTS OF MISCONDUCT, SANCTIONS, DISCIPLINARY ACTIONS, DISCHARGE FROM EMPLOYMENT FROM EITHER THE STATES, AND/OR FEDERAL GOVERNMENT AS EMPLOYEES, INTERNAL AFFAIRS RECORDS, and etc., pursuant to title 5 U.S.C. § 552(a)(2)(A), and (B), records which are secured, and maintained by this Department, and/or Agency. . . and any, and all, records, and data concerning the Complaints filed by Victim's co-workers, associates, [etc.]

Defs.' Mot. for an Extension of Time to Respond to the Compl. [#15], Decl. of David M. Hardy ("Hardy I Decl.") ¶ 11 (capital letters in original).

The plaintiff's next request to the FBIHQ sought a "Lab Report, Search Warrant(s), & the wire tap Authorized Application for Federal Criminal Case # [99]-6144-01-01, & 99-753(AJL)." Compl., Ex. F-25 (June 13, 2006 FOIA Req.). Through his sister Vilma Cruz, to whom the plaintiff granted power of attorney, the plaintiff requested of the FBIHQ the following information:

Serial numbers, & dates [ONLY] on all the audio tapes for Federal Criminal Case #99-6614-01-06, & 99-753 (AJL); & a "Certified Copy of the Lab Report" for the above Federal Criminal Case. If there is no Lab Report for the above criminal case, Please put it in writing, & forward a copy of that response to both [the plaintiff and Ms. Cruz].

Hardy I Decl. ¶ 15; Compl., Ex. F-44 (Oct. 13, 2006 FOIA Req.).

A search of NKFO electronic records yielded "two investigative files, 245D-NK-97240[,] and another file that were responsive to plaintiff's [September 13, 2005] request." Hardy I Decl. ¶ 37. By letter dated August 11, 2006, FBIHQ staff notified the plaintiff that the records responsive to Request No. 1030134-000 were "in an investigative file which [was] exempt from disclosure pursuant to [FOIA Exemption 7(A)]."*fn3 Id. ¶ 13; see id. ¶ 37. The plaintiff successfully appealed this decision to the Justice Department's Office of Information and Privacy ("OIP"), which remanded the matter to the FBIHQ for further processing. Id. ¶¶ 17, 38. The OIP determined that Exemption 7(A) was no longer applicable, and notified the plaintiff by letter dated June 20, 2007 that the FBIHQ would be sending responsive records under a new tracking number, Request No. 1062945. Id. ¶ 17.

2. Request No. 1062945

"While FBIHQ was handling the original [FOIA] requests to NKFO and FBIHQ, numerous requests from plaintiff were continually being received by NKFO and FBIHQ." Hardy I Decl. ¶ 40. In October and November 2006, the plaintiff submitted three nearly identical FOIA requests to the NKFO for the following information:

The serial numbers, & dates [ONLY] on all the audio tapes for Federal Criminal Case #99-6614-01-06, & 99-753 (AJL); & a "CERTIFIED COPY OF THE LAB REPORT" for the above Federal Criminal Case. If there is no Lab Report for the above criminal case, please put it in writing, & forward a copy of that response to [both the plaintiff and Ms. Cruz].

Compl., Ex. F-52 (Oct. 20, 2006 FOIA Req.); see id., Ex. F-62 (Nov. 8, 2006 FOIA Req.), F-67 (Nov. 14, 2006 FOIA Req.); Hardy I Decl. ¶ 18. In addition, the plaintiff submitted three more requests for the same information to the FBIHQ. Compl., Ex. F-48 (Oct. 13, 2006 FOIA Req.), F-58 (Oct. 24, 2006 FOIA Req.), and F-78 (Mar. 14, 2007 FOIA Req.); Hardy I Decl. ¶ 19. FBIHQ staff did not open files for the new requests "inasmuch as it was determined that they were duplicate requests." Hardy I Decl. ¶ 40.

Initially, because NKFO investigative file 245D-NK-97240 "was a multi-subject file, with multiple sub-files, only the documents in the plaintiff's sub-file were reviewed for processing," and the remaining documents and sub-files "were excluded as out of the scope of the [September 13, 2005 FOIA] request." Id. ¶ 38. After this lawsuit began, FBIHQ staff reviewed the entire NKFO investigative file for processing. Id. ¶ 39. In addition to the records it released on June 14, 2007, the FBI released more records to the plaintiff on February 25, 2008, March 24, 2008 and March 27, 2008. Notice of Filing [#23], Second Decl. of David M. Hardy ("Hardy II Decl.") ¶¶ 8-11.

3. Referrals

The FBI referred 20 pages of records to the DOJ, 608 pages of records to the Drug Enforcement Administration ("DEA"), and 3 pages of records to the Bureau of Customs and Border Protection ("CBP") for each component's direct response to plaintiff. Hardy II Decl. ¶ 5. Because the documents referred to the DOJ originated from the EOUSA, DOJ staff referred those 20 pages of records to the EOUSA for processing. Id.


On May 9, 2008, the FBI received a referral from the EOUSA of 214 pages of material, most pages of which were duplicates of material the FBI already had processed. Id. ¶ 7. The FBI responded directly to plaintiff and advised him of its decision to release only one of these 214 pages. Id.; Mem. of P. & A. in Supp. of Defs.' Mot. for Summ. J. ("Defs.' Mot. for Summ. J.") [#25], Third Decl. of David M. Hardy ("Hardy III Decl.") ¶ 7 & Ex. C (May 19, 2008 letter from D.M. Hardy).

b. DEA

The materials referred to the DEA were "multiple copies of the DEA Form 7 (April 1982) Report of Drug Property Collected, Purchased or Seized." Notice of Filing [#24], Decl. of William C. Little, Jr. ("Little Decl.") ¶ 12. The DEA returned these materials, which were lab reports, to the FBI on February 25, 2008. Hardy III Decl. ¶ 6 & Ex. B (May 13, 2008 letter from K.L. Myrick, Chief, Operations Unit, FOIA/Records Management Section). Of the 608 pages referred, "only 74 pages contained the plaintiff[']s name or other identifying information." Id. ¶

6. The DEA recommended that "the names of DEA laboratory personnel . . . be withheld." Little Decl. ¶ 15. Because the DEA "could not determine whether the remaining 534 pages were responsive to the plaintiff, [it asked] that the FBI make the determination." Hardy III Decl. ¶ 6. From the lab reports, the FBI, in turn, redacted "only the names of the FBI Special Agents contained therein" under FOIA Exemptions 6 and 7(C), id. ¶ 8, and released the 74 redacted pages to plaintiff on June 16, 2008. Defs.' Reply Brief in Supp. of Mot. for Summ. J. ("Defs.' Reply"), Fourth Decl. of David M. Hardy ("Hardy IV Decl.") ¶ 12 & Ex. A (June 18, 2008 letter from D.M. Hardy).

c. CBP

The three pages of records referred by the FBIHQ to the CBP were described as "two pages of [Treasury Enforcement Communications System ("TECS")] documents (Document Numbers 001 and 002)" and "an additional, related page from TECS (Document Number 003)." Notice of Filing [#24], Decl. of Mark Hanson ("Hanson Decl.") ¶ 4 & Ex. A (Vaughn Index). The CBP released these records in part after redacting information under Exemptions 2, 6 and 7(C). See id. ¶¶ 9, 11, 14 &, Ex. A.

B. FOIA Requests to the EOUSA*fn4

1. Request No. 06-1738

On March 8, 2006, the plaintiff submitted a FOIA request to the EOUSA seeking the following information:


Compl., Ex. F-22 (Mar. 8, 2006 FOIA Req.) (capitalization in original); see Defs.' Mot. for an Extension of Time to Respond to the Compl. [#15], Decl. of Dione Jackson Stearns ("Stearns I Decl.") ¶ 20. Although the EOUSA received three subsequent requests from the plaintiff, see Compl., Ex. F-25 (June 13, 2006 FOIA Req.), F-30 (July 31, 2006 FOIA Req.), and F-40 (Aug. 29, 2006 FOIA Req.), staff searched only for records responsive to the March 8, 2006 request; the subsequent requests "would have enlarged the scope of the initial March 8, 2006 request." Stearns I Decl. ¶ 24. From "criminal case file 99-753 in the District of New Jersey," EOUSA staff located and released in full the plaintiff's indictment and Rule 11 application. Id. ¶ 25. There were no lab reports or audio tapes in the file. Id. The plaintiff did not file an administrative appeal. Id. ¶ 26.

2. Request No. 07-49

On January 23, 2006, the plaintiff submitted another FOIA request to the EOUSA for the following: Lab report, certified as a true & correct copy of the original. This request is for Federal Criminal case #99-6144-01 & 99-753 (AJL).

Compl., Ex. F-13 (Jan. 23, 2006 FOIA Req.); Stearns I Decl. ¶ 27. In subsequent FOIA requests, the plaintiff sought, in addition to the lab report, see Compl., Ex. F-44 (Oct. 13, 2006 FOIA Req.) and F-75 (Dec. 28, 2005 FOIA Req.), the "Serial numbers, & dates [ONLY] on all of the audio tapes for Federal Criminal Case #99-6144-01-06, & 99-753 (AJL)." Id., Ex. F-57 (Oct. 24, 2006 FOIA Req.) at 1; see Stearns I Decl. ¶ 28. Because the subsequent requests expanded the scope of the initial request, EOUSA staff searched only for the materials described in the January 23, 2006 request, that is, the lab report. Stearns I Decl. ¶ 30. No responsive records were located, and the OIP affirmed this decision on administrative appeal. Id. ¶¶ 31-32.


A. Summary Judgment Standard

The court grants a motion for summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits or declarations, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). The moving party bears the burden of demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual assertions in the moving party's affidavits may be accepted as true unless the opposing party submits his own affidavits or declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

In a FOIA case, the court grants summary judgment based on the information provided in 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 Hertzberg v. Veneman, 273 F. Supp. 2d 67, 74 (D.D.C. 2003). Such affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).

The defendants have withheld records in full or in part under FOIA Exemptions 2, 3, 5, 6, 7(C), 7(D), and 7(E), see Hardy II Decl. ¶ 12 & Ex. F; Rev. Stearns II Decl. & Ex. A; Rev. Stearns II Decl., Ex. D; Hanson Decl., Ex. A; Little Decl. ¶ 15, yet the plaintiff's opposition to the defendants' summary judgment motion raises no objection to the decisions to withhold information under any of the claimed exemptions. The court is mindful that the plaintiff is a pro se litigant whose pleadings and other submissions are construed liberally. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972). For this reason, the court relies on the plaintiff's one assertion, that none of the requested records are exempt from disclosure under any provisions of the FOIA, see Pl.'s Opp'n at 3, as a sign that the plaintiff does not concede the defendants' motion, notwithstanding his utter failure to address substantively any of the claimed exemptions. The court will address each of the claimed exemptions below.

B. Defendants' Searches for Responsive Records

"An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was 'reasonably calculated to uncover all relevant documents.'" ValenciaLucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990)); Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998) (noting that FOIA requires an agency to conduct a search using methods reasonably expected to produce the requested information). The agency bears the burden of showing that its search was calculated to uncover all relevant documents. Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail the scope and method of the agency's search. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency's compliance with the FOIA. Id. at 127. If the record "leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper." Truitt, 897 F.2d at 542.

1. FBI

With the Central Records System ("CRS"), the FBI maintains "administrative, applicant, criminal, personnel, and other files" acquired and compiled in the course of conducting "its mandated law enforcement responsibilities." Hardy I Decl. ΒΆ 26. The "CRS is organized into a numerical sequence of files, called FBI 'classifications,' which are broken down according to subject matter," which may correspond to an individual, organization, activity, or foreign intelligence matter. Id. Certain records in the CRS are maintained at the FBI's Washington, D.C. headquarters; ...

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