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Schoenman v. Federal Bureau of Investigation

March 31, 2009

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

Plaintiff, Ralph Schoenman, a political activist and author, filed the above-captioned action 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, seeking access to an array of records pertaining to himself, Lord Bertrand Russell, and six organizations, from 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). Plaintiff's Complaint named as Defendants: the Federal Bureau of Investigation ("FBI"), the Central Intelligence Agency ("CIA"), the Defense Intelligence Agency ("DIA"), the Department of the Air Force ("Air Force"), the Department of Justice ("DOJ"), the Department of the Army ("Army"), the Department of the Navy ("Navy"), the Department of State ("State Department"), the National Archives and Records Administration "NARA"), the National Security Agency ("NSA"), and John Doe Agencies 1-10. Compl. at 1 & ¶ 13.

In a Memorandum Opinion and Order dated March 31, 2006, the Court dismissed certain portions of Plaintiff's Complaint against Defendants CIA, NARA, NSA, Air Force, Army, and Navy because Plaintiff either could not show that the agencies had received his FOIA/PA requests or could not show that he had exhausted his administrative remedies as to those agencies. See generally Schoenman v. FBI, Civ. A. No. 04-2202, 2006 WL 1126813 (D.D.C. Mar. 31, 2006). By a Memorandum Opinion and Order dated June 5, 2006, the Court dismissed without prejudice certain portions of Plaintiff's Complaint against the FBI and the State Department. See generally Schoenman v. FBI, Civ. A. No. 04-2202, 2006 WL 1582253 (D.D.C. Jun. 5, 2006). The Defendants with remaining obligations to process documents in response to Plaintiff's request did so. Those Defendants, along with the agencies to whom they have referred documents for releasability determinations, have now begun moving for summary judgment, and Plaintiff has filed cross-motions for summary judgment.*fn1 This Memorandum Opinion addresses the [73] Motion for Summary Judgment filed by the FBI and the [92] Cross-Motion for Partial Summary Judgment filed by Plaintiff. In addition, this Memorandum Opinion addresses Plaintiff's recently filed [105] Motion for an Order Requiring the FBI to Provide a Complete Vaughn Index, as it pertains directly to the issues raised in the parties' pending cross-motions for summary judgment.

The Court has conducted a searching review of the FBI's Preliminary Vaughn Index, the FBI's Motion for Summary Judgment, Plaintiff's Cross-Motion for Partial Summary Judgment/ Opposition, the FBI's Opposition/Reply, Plaintiff's Reply, the FBI's Supplemental Vaughn Index, Plaintiff's Motion for an Order Requiring the FBI to Provide a Complete Vaughn Index, Plaintiff's March 24, 2009 Notice to the Court, and the FBI's Partial Opposition to Plaintiff's Motion for an Order Requiring the FBI to Provide a Complete Vaughn Index, as well as the exhibits attached to those filings, the relevant statutes and case law, and the entire record herein. Based upon the foregoing, the Court shall: (1) GRANT-IN-PART the FBI's [73] Motion for Summary Judgment, finding in favor of the FBI with respect to the reasonableness of the FBI's search for responsive records; (2) DENY-IN-PART the FBI's [73] Motion for Summary Judgment and GRANT-IN-PART Plaintiff's [92] Cross-Motion for Partial Summary Judgment, with respect to the FBI's denial of Plaintiff's requests for a full fee waiver, finding that the FBI improperly denied Plaintiff's requests; and (3) GRANT Plaintiff's [105] Motion for an Order Requiring the FBI to Provide a Complete Vaughn Index. Finally, in light of the Court's determination that the FBI must submit a single, comprehensive Vaughn index, the Court shall DENY WITHOUT PREJUDICE the parties' cross-motions as they pertain to the merits of the FBI's withholdings and Plaintiff's request that the FBI be required to reprocess all responsive documents. The Court cannot resolve the merits of these issues until an adequate Vaughn index is compiled. Upon submission of the FBI's final Vaughn index, the parties may re-file their cross-motions as to the merits of the FBI's withholdings, as appropriate.

I. BACKGROUND

A. Plaintiff's FOIA/PA Requests

By letters dated July 24, 2001, and July, 27, 2001, Plaintiff, through counsel, filed FOIA/PA requests with the Paris Legal Attache and the London Legal Attache ("Legat") of the FBI as well as with the Los Angeles, New York City, and San Francisco Field Offices. See Second Decl. of David M. Hardy, Section Chief of the Record/Information Dissemination Section, Records Management Division, at the FBI Headquarters ("FBIHQ") (hereinafter "Second Hardy Decl."), submitted in support of the FBI's Motion for Summary Judgment, ¶¶ 5, 28, 41, 49, 61.*fn2 Each of Plaintiff's FOIA/PA requests is identical and sought access to records pertaining to himself, Lord Bertrand Russell, and six organizations*fn3 -and all records on any confidential source or informant who supplied information on any of the foregoing subjects as well as all "index references" to the foregoing subjects, all previous FOIA requests pertaining to those subjects, and all records used by the FBI in its searches in response to Plaintiff's requests. Id., Ex. A*fn4 In addition, Plaintiff requested a fee waiver of all duplication fees. See id.

Id. The relevant facts concerning the FBI's response to each of Plaintiff's requests are set forth below.

1. Paris Legat

By letter dated July 31, 2001, the Paris Legat notified Plaintiff that it had forwarded his request to FBIHQ. Id. ¶ 6. FBIHQ thereafter acknowledged receipt of Plaintiff's FOIA/PA request, and advised Plaintiff that it was opening a separate request for each subject of Plaintiff's FOIA/PA request. Id. ¶¶ 6-7. As an initial matter, the Court notes that, by Order dated June 5, 2006, it found that Plaintiff had failed to exhaust his administrative remedies as to certain portions of his FOIA/PA request to the FBI Paris Legat and therefore dismissed without prejudice Plaintiff's claim to the extent it concerned his request to the Paris Legat for records relating to the Who Killed Kennedy Committee and the Citizens Commission of Inquiry. See Schoenman v. FBI, Civ. Act. N. 04-2202, 2008 WL 1582253, *9-12 (D.D.C. Jun. 5, 2006) (CKK). Accordingly, the only aspects of Plaintiff's claim against the Paris Legat that remain relate to his request for records pertaining to himself, Lord Bertrand Russell, the Bertrand Russell Research Center, and the Bertrand Russell Peace Foundation (including the New York office), the International War Crimes Tribunal.

a. FOIA Request Number 947852 (Schoenman)

Plaintiff's request to the Paris Legat for records pertaining to himself was assigned FOIA Request Number 947852. Second Hardy Decl. ¶ 7. FBIHQ subsequently consolidated this request with Plaintiff's request to the Los Angeles Field Office ("LAFO"), discussed below. See infra pp. 10-12. Accordingly, the Court shall consider Plaintiff's challenges to this request as part of its discussion concerning the request to LAFO.

b. FOIA Request Number 948774 (Lord Bertrand Russell)

Plaintiff's request to the Paris Legat for records pertaining to Lord Bertrand Russell Center was assigned FOIA Request Number 948772. Id. ¶ 24. FBIHQ subsequently advised Plaintiff that no records were found responsive to his request. Id. Plaintiff thereafter appealed FBIHQ's "no records" determination, which determination was subsequently affirmed by the Office of Information and Privacy ("OIP"), the entity within DOJ that adjudicates FOIA appeals of the various DOJ components.*fn5 Id. ¶¶ 11, 25-27.

c. FOIA Request Number 948772 (Bertrand Russell Center)

Plaintiff's request to the Paris Legat for records pertaining to the Bertrand Russell Center was assigned FOIA Request Number 948772. Second Hardy Decl. ¶ 19. FBIHQ subsequently advised Plaintiff that no records were found responsive to this request. Id. ¶ 19. Plaintiff thereafter appealed FBIHQ's "no records" determination, which was subsequently affirmed by OIP on appeal. Id. ¶¶ 20-22.

d. FOIA Request Number 948768 (Bertrand Russell Peace Foundation)

By letter dated August 21, 2001, FBIHQ acknowledged receipt of Plaintiff's request for records pertaining to the Bertrand Russell Peace Foundation (including specific to the New York office) and advised Plaintiff that the request had been assigned FOIA Request Number 948768. Id. ¶ 9. Thereafter, FBIHQ informed Plaintiff that it had located 372 pages responsive to his request and was releasing 270 of those pages, with redactions made pursuant to FOIA Exemptions 1, 2, 3, 7(C), and 7(D). Id. ¶ 10. FBIHQ also informed Plaintiff that responsive documents had been referred to other agencies for review and direct response to Plaintiff. Id.*fn6

Finally, FBIQ advised Plaintiff that his request for a fee waiver was denied because the FBI "concluded that [Plaintiff's] interest in these records is personal in nature and that the information pertains primarily to him," and that he had therefore been assessed duplication fees totaling $17. Id. and Ex. F.

Plaintiff subsequently appealed the withholdings and denial of his fee waiver to OIP. Id. ¶ 11. Specific to the fee waiver issue, Plaintiff argued that the FBI had wrongly concluded that his interest in the records is personal in nature and that the information pertains primarily to him, noting that the request at issue relates to the Bertrand Russell Peace Foundation-not to Schoenman himself. Id., Ex. G. In addition, Plaintiff stated that:

The materials contained in the file deal with political opposition to the war in Vietnam. The fact that the FBI compiled a rather large file in its Paris office regarding the anti-war activities of this organization certainly sheds light on the 'operations and activities' of the Government. Mr. Schoenman, a published author, intends to use these materials in a political memoir he is writing.

Id.

By letter dated November 18, 2003, OIP made a supplemental release of additional portions of six pages previously released to Plaintiff but affirmed all other withholdings by the FBI. Id. ¶ 14. In addition, OIP affirmed the FBI's denial of a fee waiver. Id. OIP conceded that Plaintiff had "amply demonstrated that [he] has the capacity to disseminate the requested information and that he does not appear to have an overriding commercial interest in the records." Id., Ex. I. However, OIP contended that Plaintiff had not shown that disclosure of the records is likely to contribute significantly to public understanding of the operations and activities of the government and concluded that the released material largely consisted of information that would not contribute to the public understanding of the FBI's operations and activities because: (1) 200 of the 270 pages of released materials are copies of publications by the Bertrand Russell Peace Foundation and therefore originate outside of the government; (2) an additional portion of the materials contain biographical information about or public statements by persons affiliated with the Foundation; and (3) a small portion of the released material contain only administrative materials that do not include substantive content. Id. Accordingly, the imposition of $17.00 in duplication fees was upheld. Id.

e. FOIA Request Number 948769 (International War Crimes Tribunal)

Plaintiff's request pertaining to the International War Crimes Tribunal was assigned FOIA Request Number 948769. Id. ¶ 15. By letter dated November 3, 2003, FBHIQ advised Plaintiff that 775 pages of 1,458 pages of responsive material were being released and that the relevant withholdings had been made pursuant to FOIA Exemptions 1, 2, 3, 7(C) and 7(D). Id. ¶¶ 15-16. FBIHQ also informed Plaintiff that referrals of responsive documents had been made to other agencies. Id. ¶ 16. Finally, FBIHQ advised Plaintiff that his request for a fee waiver was denied because Plaintiff had "not demonstrate[d] the ability to disseminate information to the public at large" and Plaintiff was therefore assessed duplicating fees totaling $67.50. Id. & Ex. K.

By letter dated November 8, 2003, Plaintiff appealed the FBI's withholdings and fee wavier decision to OIP. Id. ¶ 17. Specific to the denial of his request for a fee waiver, Plaintiff argued that the FBI's determination that he had not demonstrated his ability to disseminate the information wrongly ignored that Plaintiff is a published author, as explained in his original FOIA/PA request. Id., Ex. M. In July of 2008, during the pendency of the instant litigation, OIP finally informed Plaintiff that it had determined Plaintiff was entitled to a partial fee waiver and reduced the duplicating fees charged by 15%, to $57.00. Id. ¶ 18 and Ex. N. Although OIP agreed that Plaintiff does not appear to have an overriding commercial interest in the records and that, contrary to the FBI's original statement, Plaintiff has shown that he could disseminate the information to the public at large, it admonished Plaintiff for not providing a more particular showing that disclosure of the records is likely to contribute significantly to public understanding of the operations and activities of the government. Id., Ex. N. Nonetheless, OIP reviewed the material at issue and determined that a portion of the released records (15%) "do[es] concern the operations or activities of the FBI," and thus found that Plaintiff is entitled to a partial fee waiver. Id. OIP determined, however, that the remaining portion of the materials (85%) consists of information that would not contribute to the public understanding of the FBI's operations and activities. Specifically, OIP concluded that approximately 60% of the released materials do not qualify for a fee waiver because: (1) the materials contain substantive content that has been determined exempt under one or more of the FOIA Exemptions; (2) the materials are duplicates of records already released to Plaintiff; (3) the materials are repetitive of information already released to Plaintiff; and (4) the materials contain only administrative information. Id. In addition, approximately 25% of the released materials originate from outside the government (e.g., transcript of a broadcast from Hanoi, North Vietnam, a report from the International War Crimes Tribunal, various published articles and newsletters, as well as copies of newspaper articles). Id. Accordingly, OIP granted only a 15% reduction of the duplication fees, thereby reducing the fees owed to $57.00. Id.

2. London Legat

By letter dated September 22, 2001, the London Legat confirmed receipt of Plaintiff's FOIA/PA request and advised Plaintiff that it was forwarding the request to FBIHQ. Id. ¶ 61. FBIHQ subsequently located 275 pages of responsive material and, on January 31, 2007 (i.e., after this litigation had commenced), released (through OIP) 260 pages with redactions made pursuant to FOIA Exemptions 1, 2, 6, 7(C), and 7(D). Id. ¶ 62.

3. Los Angeles Field Office

Initially, the Los Angeles Field Office ("LAFO") advised Plaintiff, by letter dated August 14, 2001, that a privacy waiver or proof of death was needed before it could conduct a search for records pertaining to Lord Bertrand Russell, but that as to Plaintiff's other requests, no responsive records had been located upon initial review. Id. ¶ 29. Plaintiff subsequently provided proof of death as to Lord Bertrand Russell and appealed the LAFO's "no records" determination to OIP. Id. ¶¶ 30-31. LAFO subsequently informed Plaintiff that it had located records regarding both Plaintiff himself and Lord Bertrand Russell and that those records were being forwarded to FBIHQ for processing. Id. ¶ 33. LAFO advised, however, that no responsive records as to the other subjects of his request had been located. Id.

On June 5, 2006, the Court dismissed without prejudice Plaintiff's claim against LAFO, to the extent it related to his request for records relating to Lord Bertrand Russell. Schoenman v. FBI, Civ. Act. No. 04-2202, 2006 WL 1582253, *13 (Jun. 5, 2006) (CKK). Accordingly, the only responsive records located by LAFO that remain at issue are those pertaining to Plaintiff himself, which the Court now turns to.

Plaintiff's request to LAFO for records pertaining to himself was assigned FOIA Request Number 954768. Id. ¶ 34. As stated above, LAFO located records regarding Plaintiff himself, and informed Plaintiff that those records were being forwarded to FBIHQ for processing. Id. ¶ 33. On April 26, 2005, FBIHQ informed Plaintiff that it had located 752 pages of responsive material and was releasing 552 of those pages, with redactions made pursuant to FOIA Exemptions 1, 2, 7(C) and 7(D) and PA Exemption j(2). Id. ¶ 37. FBIHQ also informed Plaintiff of consultations and referrals made to other agencies. Id. Finally, FBIHQ assessed Plaintiff $42.50 in duplication fees, which Plaintiff subsequently paid. Id.

FBIHQ subsequently released additional pages upon consultation with other government agencies. First, by letter dated November 29, 2005, FBIHQ informed Plaintiff that an additional three pages of responsive material was being released after consultation with the Department of the Army. Id. ¶ 38. Redactions were made by the FBI pursuant to FOIA Exemptions 1, 2, 6, 7(C) and 7(D) as well as PA Exemption j(2), while redactions were made by the Army pursuant to FOIA Exemption 6. Id. Second, by another letter dated that same day, November 29, 2005, FBIHQ advised Plaintiff that an additional 90 pages of responsive material was being released after consultation with the State Department. Id. ¶ 39. Redactions were made by the FBI pursuant to FOIA Exemptions 1, 2, 6, 7(C) and 7(D) as well as PA Exemption j(2), while redactions were made by the State Department pursuant to FOIA Exemptions 1 and 6. Id. Third and finally, by a letter sent on May 22, 2006, ...


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