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Sellers v. U.S. Dep't of Justice

February 17, 2010


The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge


This action is brought under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). Before the Court is defendant's motion for summary judgment. Having considered the motion, plaintiff's opposition thereto, and the record of this case, the Court concludes that the motion should be granted.


The Federal Bureau of Investigation ("FBI") began an investigation into plaintiff's criminal activities in March 2001, focusing primarily on alleged drug and firearms violations.*fn1

Mem. of P. & A. in Supp. of Defs.' Mot. for Summ J. ("Defs.' Mem."), Decl. of David M. Hardy ("Hardy Decl.") ¶ 5. "Further investigation by the Pee Dee Violent Crime Task Force, Florence, South Carolina, developed information which established plaintiff as the subject in the investigation of the kidnaping and murder of Larry Lovie Bristow on December 30, 1998" and, thereafter, "the FBI determined that an interstate element existed in the kidnaping and murder of [Mr.] Bristow." Id. On September 21, 2001, plaintiff was found guilty in the United Sates District Court for the District of South Carolina of conspiracy to distribute controlled substances, firearms violations, and kidnaping. Id. ¶ 6. On May 23, 2002, he was sentenced to a term of life imprisonment. Id.

In May 2007, plaintiff submitted a FOIA request to the FBI's Washington, D.C. headquarters ("FBIHQ") seeking information about himself, particularly "data or information . . . related to and/or generated by the criminal investigation and prosecution of [plaintiff] by federal authorities in and around the U.S. Federal District[] of Florence, South Carolina . . . from January 1995 until the present time."*fn2 Compl., Ex. A (May 7, 2007 Freedom of Information/Privacy Acts Request) at 1.

The FBI informed plaintiff that it located 430 pages of records potentially responsive to his request, Compl. at 2, and that only the first 100 pages would be released free of charge. Id., Ex. C (July 5, 2007 letter from D.M. Hardy, Section Chief, Record/Information Dissemination Section, Records Management Division, FBIHQ, regarding Request No. 1079977-000). Accordingly, the FBI released 100 pages of records after having redacted information under FOIA Exemptions 2, 6, 7(C), and 7(E). Id., Ex. D (July 30, 2007 letter from D.M. Hardy) at 1.

The FBI informed plaintiff that there were approximately 295 additional pages available for processing and that it would process these records if plaintiff agreed to pay a fee of $.10 per page for duplication. Id. at 2. After plaintiff agreed in writing to pay these duplication fees, see Compl. at 2, FBI staff disclosed 112 pages of heavily redacted documents but refused to release 183 pages in their entirety. Id.; see id., Ex. J (January 8, 2008 letter from D.M. Hardy regarding Request No. 1079977-001) at 1. Both decisions were upheld on administrative appeal. Compl. at 2-3; see id., Ex. G, M (respectively, September 28, 2007, and March 31, 2008, letters from J.G. McLeod, Associate Director, Office of Information and Privacy).



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. 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, 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 may grant summary judgment based on the information provided in the government agency's affidavits or declarations when these submissions 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 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. Cent. Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).


"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). 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.

In its 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 Decl. ¶ 25. "The CRS is organized into a numerical sequence of files called FBI 'classifications,' which are broken down according to subject matter," and the subject matter may correspond to an individual, organization, activity, or foreign intelligence matter. Id. Certain records in the CRS are maintained at FBIHQ; others pertinent to a specific field office are maintained at that field office. Id. In order to search the CRS, the FBI uses the Automated Case Support System ("ACS"). Id.

The ACS is "described as an internal computerized subsystem of the CRS." Hardy Decl. ¶ 26. One cannot query the CRS for data, such as an individual's name or social security number, and to allow for such a query, "the required information is duplicated and moves to the ACS so that it can be searched." Id. Data is retrieved from the CRS through the ACS using alphabetically arranged General Indices. Id. ¶ 27. There are two categories of General Indices: "main" entries and "reference" entries. Id. The former category "carries the name corresponding with a subject of a file contained in the CRS," and the latter (also known as cross-references) "generally [is] only a mere mention or reference to an individual . . . or other subject matter contained in a document located in another 'main' file on a different subject matter." Id.

There are "three integrated, yet separately functional, automated applications that support case management functions for all FBI investigative and administrative cases[.]" Hardy Decl. ¶ 29. They are the Investigative Case Management ("ICM"), Electronic Case File ("ECF"), and Universal Index ("UNI") applications. Id. ICM allows for the opening, assignment, and closing of investigative and administrative cases, and for the assignment and tracking of leads. Id. ¶ 29(a). When a case is opened, it is assigned a Universal Case File Number which is used by FBIHQ and all field offices conducting or assisting in an investigation. Id. The first three digits correspond to the classification for the type of investigation; a two-letter abbreviation indicates the field office of origin; the last digits denote the individual case file number for a particular investigation. Id.

ECF is the "central electronic repository for the FBI's official text-based documents," Hardy Decl. ¶ 29(b), and UNI provides "a complete subject/case index to all investigative and administrative cases." Id. ¶ 29(c). The investigative Special Agent assigned to work on the investigation, the Supervisory Agent in the field office conducting the investigation, and the Supervisory Agent at FBIHQ determine whether to index names other than subjects, suspects, and victims. Id. ¶ 30. Only information deemed "pertinent, relevant, or essential for future retrieval" is indexed. Id. Otherwise, FBI files "would . . . be merely archival in nature." Id. Thus, the General Indices to the CRS files "are the means by which the FBI can determine what retrievable information, if any, the FBI may have in its CRS files on a particular subject matter or individual." Id.

Using plaintiff's name as a search term, the FBI located no responsive records at FBIHQ, and found one main investigative file, 7A-CO-26699, at its field office in Columbia, South Carolina ("COFO"). Hardy Decl. ¶¶ 31-32. Of the 430 pages of records determined to be responsive to plaintiff's FOIA request, id. ¶ 32, the FBI released 358 ...

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