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Span v. United States Dep't of Justice

March 22, 2010

ALBERT SPAN, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

Albert Span, proceeding pro se, brings this case pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. Before the Court is the motion for summary judgment filed by the defendants, the Federal Bureau of Investigation ("FBI") and the Department of Justice ("DOJ"). Upon consideration of the motion, the opposition thereto, and the record of the case, the Court concludes that the motion should be granted.

I. BACKGROUND

Span, allegedly a member of the "Black Disciples" gang operating in the Chicago area, was convicted of federal narcotics and firearms violations and is now serving a life sentence without possibility of parole. Compl. ¶ 19; Pl.'s Opp'n at 1-2. In October 2006, Span submitted a FOIA request to the FBI's Chicago Field Office seeking information in the "FBI I-Drive files about my case, No. 03-cr-71 and the affidavit and complaint of the charging agents. Authorization for the wiretap in this case and court orders of the taps." Defs.' Mot. for Summ. J.

("Defs..' Mot."), Decl. of David M. Hardy (Feb. 27, 2009) ("Hardy Decl.") ¶ 6 & Ex. A (punctuation altered). In response to Span's request, the Chicago Field Office conducted a search of the general indices, which are automated, to its files in the central records system ("CRS") in order to identify all potentially responsive files indexed to "Albert Lee Span." Hardy Decl. ¶¶ 25-32 (describing what is included in the CRS and how it is indexed and searched). That search located just one such file, identified as No. 245D-CG-107276. Id. ¶ 32.

In FBI FOIA nomenclature, this was a "main" file, which is a file that is identified by the "name corresponding with a subject of a file." Id. ¶ 27. In other words, a "main" file for Albert Span is one that is identified by the name Albert Span and has Albert Span as its subject matter. In this case, the one main file was a "multi-subject file" and the FBI's search addressed "only that portion which specifically pertains to the plaintiff rather than information pertaining to other subjects." Id. ¶ 39. While an individual may also be mentioned in a file that is not about that individual, a so-called "reference" or "cross-reference" file, the current FBI policy is to search only "main" files - that is, files about the individual - when initially responding to a FOIA request. Id. ¶¶ 27, 35. The FBI's letters to Span did not inform him of this policy or that the initial search in response to his FOIA request was limited to "main" files.

The FBI determined that the one main file it had identified as responsive, No. 245D-CG-107276, "was located in a pending investigative file" and therefore was exempt from disclosure under FOIA Exemption 7(A), 5 U.S.C. § 552(b)(7)(A). Id. ¶ 32. Span appealed the FBI's determination that all records were exempt from disclosure. On appeal, DOJ's Office of Information and Privacy ("OIP") determined that "Exemption 7(A) no longer applied to [a] portion of the records responsive to plaintiff's request," and remanded the request to the FBI for further processing. Id. ¶ 11.

When Span filed his appeal with the OIP, the FBI searched further in the Chicago Field Office and located a responsive "reference" file for Span. Id. ¶ 33. As a result of its review of the reference file and its further review of the main file on remand, the FBI identified 50 pages that were responsive to Span's request and not subject to Exemption 7(A), and in May 2008 released 32 of the 50 pages in full or in part. Id. ¶ 16. The FBI's production to Span included the following statement:

For your information, additional material which might possibly be responsive to your request is presently unavailable. This material includes FBI Chicago field office file number 245D-CG-107276 serials 319, 368, 471, 695, and 696.

Id. Ex. K. No further explanation was offered to Span at that time regarding the records that were "presently unavailable." It turns out that for some time the FBI could not locate the identified portions (serials 319, 368, 471, 695, and 696) of the main file indexed to Albert Span. After Span filed this lawsuit, the FBI searched again and located the missing portions. Id. ¶ 36. The previously missing portions contained 21 responsive pages, of which 14 were released in full or in part. Id. Ex. O.

In July 2008, Span made a second FOIA request, this time to FBI headquarters seeking any and all documents, records, memoranda, statements, reports, and other information (in whatever form) maintained by your agency that relates to or makes reference to me directly or indirectly. More specifically, I request any information in the possession or control of your agency related to the investigation and prosecution of me by federal authorities for illegal gang activity and narcotics trafficking in and around the Chicago, Illinois area from on or about January 2001 to the present. Any information would include, but not be limited to, agency reports, statements (302's), files, notes, case file summaries, or any other forms of data maintained and/or generated by your agency related to the above referenced criminal investigation.

I specifically request that your agency search the Central Records System, Automated Case Support System, Electronic case Files, Universal Index Files, Legal Attaches (LEGATS), investigative Case Management System, Confidential Source System, and the "I-Drive" system files. Any "main" or "references" to me would be responsive to my request. I would expect advisement if any field office maintained any records responsive to this request.

Hardy Decl. Ex. P. In response to Span's second request, the FBI conducted a search of the FBI headquarters' general indices of its main files in the CRS and found no files where Span was the subject of the file. Id. ¶¶ 34, 35. After Span initiated this lawsuit, the FBI also searched its reference files and identified one that contained a reference to Span. That file was referred to the BOP for review and direct release to Span. Id. ¶ 35. Span does not raise any issues with respect to the FBI's determination to refer that file to the BOP or to the BOP's review and release decisions.

In sum, the FBI conducted multiple searches of both main and reference files by use of the Automated Case Support System ("ACS") general indices that make a search of its CRS possible. See id. ΒΆ 27. These searches produced a total of 71 responsive records, of which 64 were released to Span in full or in part. Span challenges the searches on the ground that they did not produce what he believes is a "vast respository of information in the possession/control of the Defendants that the FBI is concealing," Opp'n at 11, and that the FBI did not search the exact files, and specifically the I-drive, that Span requested be searched, id. at 10. He also challenges the FBI's assertion of Exemptions 2 and 7(D), to protect the identity of and information provided by confidential sources, of Exemptions 6 and 7(C), to protect third parties' privacy, and Exemptions 2 and 7(E), to protect information relating to law enforcement investigative techniques and procedures. Id. at 11-12. In addition, Span generally attacks the agency affidavits by conclusorily alleging bad faith. Id. at 5-6. In fact, except that the name of the declarant has been tailored to the case, the allegations are so general ...


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