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Wolfson v. United States

November 30, 2009


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


Plaintiff brings this action under the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552, against the United States Department of Justice ("DOJ").*fn1 This matter is before the Court on the DOJ's motion for summary judgment and plaintiff's motion to dismiss. For the reasons discussed herein, the Court will grant summary judgment for the DOJ.


On or about August 25, 2005, plaintiff submitted a Privacy Act Identification and Request Form to the DOJ's FOIA/PA Unit, Criminal Division, in Washington, D.C. Complaint ("Compl.") at 3; Defendants' Memorandum in Support of its Motion for Summary Judgment ("Def.'s Mem."), Declaration of Pamela A. Roberts ("Roberts Decl."), Exhibit ("Ex.") 1 (Privacy Act Identification and Request Form). He requested that the agency search the following systems of records for information about himself:

JUSTICE/CRM-001 Central Criminal Division Index File and Associated Records

JUSTICE/CRM-003 File of Names Checked to Determine if Those Individuals have been the Subject of an Electronic Surveillance

JUSTICE/CRM-004 General Litigation and Legal Advice Section, Criminal Division, Central Index File and Associated Records

JUSTICE/CRM-008 Name Card File on Department of Justice Personnel Authorized to have Access to Classified Files of the Department of Justice

JUSTICE/CRM-012 Organized Crime and Racketeering Section, General Index File and Associated Records

JUSTICE/CRM-017 Registration and Propaganda Files Under the Foreign Agents Registration Act of 1938, as amended

JUSTICE/CRM-019 Requests to the Attorney General for Approval of Applications to Federal Judges for Electronic Interceptions

JUSTICE/CRM-021 The Stocks and Bonds Intelligence Control Card File System

JUSTICE/CRM-022 Witness Immunity Records

JUSTICE/CRM-024 Freedom of Information/Privacy Act Records

JUSTICE/CRM-025 Tax Disclosure Index File and Associated Records

See id., Ex. 1. Through this FOIA request, plaintiff sought " all of the wire taps that were done illegally against him," operating under the assumption that an Assistant United States Attorney illegally obtained wiretaps "solely to keep tabbs [sic] of plaintiff[.]" Compl. at 3. Through such surveillance, plaintiff felt "that the government invaded his privacy and should be forced to turn over what ever they have acquired." Id.

Criminal Division staff located 16 documents responsive to plaintiff's request and processed them under the FOIA. Roberts Decl., Ex. 3 (June 16, 2008 letter from R.Y. Kim, Chief, Freedom of Information/Privacy Act Unit, Criminal Division, regarding Request No. CRM-200500908P). Of these 16 documents, the DOJ withheld two documents in full (Items 15- 16), released eight documents in full (Items 1-5, 12-14), and released six documents in part (Items 6-11), after redacting information under Exemptions 3, 5, 6, 7(C), and 7(D) of the FOIA.*fn2

Roberts Decl. ¶ 13. This determination was upheld on administrative appeal. Id., Ex. 5 (September 23, 2008 letter from J.G. McLeod, Associate Director, Office of Information and Privacy, DOJ).

In this action, plaintiff demands the disclosure in full of all the information he has requested in order to "prove that he did not commit any crimes from [1]990 until 2002" and to "prove that the government has been illegally spying on [him]." Compl. at 3. In addition, he "wants to be financially compensated for the illegal activity of the government in listening to plaintiff's telephone conversation[s]" in the amount of "1000 dollars a day for every day his phones were tapped." Id. at 4.


A. Summary Judgment Standard

The Court may grant a motion for summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant 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 in dispute. 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).

"FOIA cases typically and appropriately are decided on motions for summary judgment." Defenders of Wildlife v. United States Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citations omitted). In a FOIA case, the Court may grant summary judgment based on the information provided in an agency's supporting 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 [or] 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 ...

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