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Bangoura v. United States Dep't of the Army

April 8, 2009

ALSENY BEN BANGOURA, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF THE ARMY, DEFENDANT.



The opinion of the court was delivered by: Deborah A. Robinson United States Magistrate Judge

MEMORANDUM OPINION

In this action, Alseny Ben Bangoura*fn1 ("Plaintiff"), pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, challenges the responses of the United States Department of the Army ("Defendant") to his FOIA requests. Pending for determination by the undersigned United States Magistrate Judge are Defendant's Motion to Dismiss or in the Alternative for Summary Judgment (Document No. 23) and Plaintiff's Motion for Summary Judgment (Document No. 41).

By an order entered on March 31, 2009 upon consideration of the motions; the memoranda in support thereof and in opposition thereto, and the entire record herein, Defendant's motion to dismiss or in the alternative for summary judgment was granted and Plaintiff's motion for summary judgment was denied. The findings of fact and conclusions of law in support of said order follow.

I. BACKGROUND

Plaintiff filed the instant action seeking an order, pursuant to the FOIA, for the "production of any and all materials and information within the possession of the Military Police Unit of the Military District of Washington ("Military Police Unit"), regarding [Plaintiff's] arrest and detention . . . on October 28, 2004 at . . . the State Department Federal Credit Union in . . . Washington, D.C." Second Amended Complaint ¶¶ 1-2, 5. Plaintiff sought documents that included "witness interviews at the credit union and any base banning orders issued by the Police unit." Id. ¶ 2. In his Second Amended Complaint, Plaintiff alleged that on November 15, 2004, his attorney sent a FOIA request "to the Military Police Unit of the Military District of Washington seeking the release of any and all materials and information within the possession of the Military Police regarding [his] arrest[.]" Id. ¶ 41. Plaintiff further alleged that he did not receive any materials in response to his November 15 request, and that, he sent a second FOIA request on December 13, 2004. Id. ¶¶ 41- 42. On August 18, 2005, more than six months after Plaintiff initiated this litigation, the United States Army Crime Records Center ("USARC") produced a five-page "report" with redactions pertaining to Plaintiff's detention. See id. ¶ 51. Plaintiff alleged that on September 15, 2005, "a third information request was submitted to the USARC seeking records of the call to the Military Police made by the bank manager, copies of the allegedly fraudulent checks and information regarding the arrest of Mr. John[,] [Plaintiff's landlord][.]" Id. ¶ 54. On October 18, 2005, Plaintiff received copies of the alleged fraudulent checks, but did not receive any documents with respect to "Mr. John's arrest or Mr. John's presence as a witness to [Plaintiff's] alleged arrest and detention at the State Department Federal Credit Union." Id. ¶ 57. Plaintiff alleged that on February 15, 2006, during a status conference, he received a three-page document "consisting of the notes of [Plaintiff's] interrogation" from "[a] representative of the Department of Justice[.]" Id. ¶ 62. Plaintiff further alleged that on March 14, 2006, he sent "another letter requesting further documentation from the USARC[.]" Id. ¶ 64. Plaintiff alleged that USARC located and produced the "'Daily Staff Journal or Duty Officers Log' and a CID [("Criminal Investigation Command")] 'Agent's Activity Summary.'" Id. ¶¶ 65 - 66.

As relief, Plaintiff, in his second amended complaint requested the court to "[d]eclare that the Military Provost's refusal to respond to the records within the mandatory statutory period is an unlawful violation of FOIA[]" (id. ¶ 78); "[d]eclare that the Defendant failed to adequately articulate a basis for the FOIA exemptions asserted by not complying with Vaughn v[.] Rosen[]" (id. ¶ 79); "[d]eclare that the Defendant's assertions of exemptions claimed under b(2), b(6), b(7)(c) and the Privacy Act exemption 55(a)(j)(2) in the redacted documents provided to [Plaintiff] was unfounded[]" (id. ¶ 80); "[d]eclare that the Defendant violated FOIA failing to conduct an adequate search for documents requested by [Plaintiff][]" (id. ¶ 81), and "[d]irect Defendant to make all requested records available to [Plaintiff] unredacted without any further delay and to explain the absence of certain documents and records that should have been prepared under applicable regulations and procedures." Id. ¶ 82.

II. CONTENTIONS OF THE PARTIES

Defendant moved pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the instant action for failure to state a claim upon which relief can be granted or, alternatively, pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment, asserting that "good faith search efforts were employed to locate any records about [P]laintiff and the investigation conducted on October 28, 2004 . . . and that 15 pages of responsive documents were released[]" with redactions which are "justified under FOIA exemptions [5 U.S.C. § 552] (b)(2), (b)(6), and (b)(7)(C)." Defendant's Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss or for Summary Judgment ("Defendant's Memorandum") (Document No. 23-2) at 25; see also id. at 13-24. In support of its motion, Defendant also asserted that there is no cause of action created by an agency's failure to timely respond to a FOIA request (see id. at 10-11), and that the obligation for an agency to provide a Vaughn Index arises only upon the filing of a summary judgment motion.*fn2 Id. at 11-12.

Plaintiff opposed Defendant's motion and cross-moved for summary judgment.*fn3 Plaintiff contended Defendant's failed to: (1) respond to [Plaintiff's] "initial FOIA request during the mandatory 20 day statutory time period for FOIA requests[]" (Plaintiff's Memorandum of Points and Authorities in Support of Plaintiff's Cross Motion for Summary Judgment ("Plaintiff's Memorandum") (Document No. 41-3) at 4); (2) provide a Vaughn index or equivalent to "identify the abundant and ambiguous redactions in a systematic manner[]" (id. at 6); (3) provide a "sufficient basis to assert any exemptions" for the responsive information withheld pursuant to

5 U.S.C. § 552(b)(2), (b)(6), and (b)(7)(C) (see id. at 7-13); (4) conduct an adequate search "'reasonably calculated' to produce relevant documents[]" (see id. at 16-23); and (5) to act in good faith with respect to its searches and the production of documents. See id. at 24-27.

In the opposition to Plaintiff's motion for summary judgment, and the reply to Plaintiff's opposition, Defendant maintained that (1) Plaintiff's Second Amended Complaint should be dismissed for Plaintiff's failure to send his FOIA request to the proper address in accordance with Army regulations (see Defendant's Opposition to Plaintiff's Cross-Motion for Summary Judgment and Reply in Support of Defendant's Motion to Dismiss and for Summary Judgment ("Defendant's Response") (Document Nos. 42, 43) at 8-9); (2) there is no basis for declaratory relief for an agency's failure to timely respond to a FOIA request, and that in any event, "Plaintiff has received the relief to which he is entitled--["proceed[ing] to court to seek an order compelling the agency to produce the requested records[]" (id. at 10)]--for such a violation[]" (id. at 11); (3) it used a "coded index to satisfy the requirements of the Vaughn Index[,]" in the McGuire declaration and that the declaration explained the FOIA exemptions invoked in a manner that was "clear, specific and unambiguous[]" (id. at 12)*fn4 ; (4) it properly invoked the applicable FOIA exemptions to withhold special agent sequence numbers, names of individuals and other personally identifying information (see id. at 13-18); and (5) it "conducted a reasonable and adequate search for responsive records by employing methods reasonably expected to produce such information as evidenced by . . . declarations . . . and the deposition testimony [in the record][.]" Id. at 21.

Plaintiff, in his reply, asserted that he was entitled to declaratory relief based on Defendant's "well-established pattern of delayed and ineffectual responses to Plaintiff's FOIA requests." Defendant's Reply Brief in Support of Plaintiff's Cross Motion for Summary Judgment ("Plaintiff's Reply") (Document No. 44) at 4-5. Plaintiff also asserted that Defendant's reliance on the McGuire Declaration as a Vaughn index or its equivalent was misplaced. See Plaintiff's Memorandum of Points and Authorities in Support of Plaintiff's Cross Motion for Partial Summary Judgment and Motion for Leave to Seek Discovery*fn5 ("Plaintiff's Partial Summary Judgment Memorandum") (Document No. 30) at 12 ("The statement, 'all other redactions . . . were of individual names and/or identifying information justified by Exemptions b(6) and b(7)[(C)]' leaves [Plaintiff] guessing as to the applicable exemption."). Moreover, Plaintiff submitted that Defendant's invocation of FOIA exemptions 2, 6, and 7(C) "unjustly restrict[ed]" his access to information relevant to his request, did not sufficiently "demonstrate . . . a clear[] unwarranted risk to privacy[,]" and inadequately balanced the "public's interest in disclosure . . . [and] applicable privacy interests to . . . relevant information[.]" Plaintiff's Reply at 6. Plaintiff further submitted that Defendant "is not entitled to assert exemptions under FOIA because Defendant continues to act in bad faith in responding to Plaintiff's request." Id. Plaintiff contended that Defendant's search efforts were "inadequate, unreasonable, and misleading[]" (id. at 9), given Defendant's failure to "follow leads to uncover responsive documents" that were identified in the materials produced to Plaintiff. Id. at 9-13.

III. STANDARD OF ...


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