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Kenney v. United States Dep't of Justice

April 1, 2010


The opinion of the court was delivered by: Paul L. Friedman United States District Judge


Plaintiff William Kenney brought this Freedom of Information Act ("FOIA") lawsuit against defendant, the United States Department of Justice, based on his FOIA requests to two of the DOJ's component agencies, the Executive Office for United States Attorneys ("EOUSA") and the Federal Bureau of Investigation ("FBI"). In an earlier decision, the Court granted defendant's motion for partial summary judgment and denied plaintiff's cross-motion for partial summary judgment with respect to the EOUSA's response to plaintiff's request. See Kenney v. U.S. Dep't of Justice, 603 F. Supp. 2d 184 (D.D.C. 2009). Defendant now seeks partial summary judgment with respect to the FBI's response to plaintiff's request. Plaintiff has responded with a cross-motion for summary judgment.

After careful consideration of the parties' papers, the attached exhibits, the relevant statutes and case law, and the entire record in this case, the Court granted defendant's motion and denied plaintiff's motion by Order of March 29, 2010. This Opinion explains the reasoning underlying that Order.*fn1


Plaintiff currently is incarcerated in a federal prison after his conviction for participation in a series of robberies. See United States v. Neal, 36 F.3d 1190 (1st Cir. 1994) (affirming plaintiff's conviction). On June 20, 1996, plaintiff submitted identical FOIA/Privacy Act ("PA") requests (collectively, "the 1996 request") to FBI headquarters and the FBI field office in Boston for records relating to the 1992 criminal case for which he was sentenced and imprisoned. See Mot., Defendant's Statement of Material Facts Not in Genuine Dispute ("Def. Facts") ¶¶ 1-2. In response to the requests, the FBI conducted a search of the automated indices to its Central Records System for responsive records. See Def. Facts ¶¶ 3-5. The FBI processed over 4,000 pages of potentially responsive records and released approximately 1,500 partially redacted pages to plaintiff. See id. ¶ 6.

Plaintiff supplemented his request in 2000 by submitting death certificates and privacy waivers for certain individuals about whom he requested documents in order to receive records originally withheld or redacted. See Def. Facts ¶¶ 7-8. The FBI reprocessed the records and re-released them to plaintiff in two installments, on January 29, 2001 and March 20, 2001. See id. ¶¶ 9-10. Plaintiff remained unsatisfied with the number of redactions and withheld pages and administratively appealed the response to the Office of Information and Privacy ("OIP") in letters received by OIP on March 2, 2001 and May 22, 2001. See id. ¶ 11. OIP denied the appeal and affirmed the FBI's actions in a letter dated November 7, 2001. See id. In addition to stating the reasons for denying plaintiff's appeal, the November 7 letter stated: "If you are dissatisfied with my action on your appeal, you may seek judicial review in accordance with 5 U.S.C. § 552(a)(4)(B)." Mot., Second Declaration of David M. Hardy ("Second Hardy Decl."), Ex. J.

On April 22, 2004, plaintiff submitted a new FOIA/PA request to the FBI. See Opp., Plaintiff's Statement of Material Facts Not in Genuine Dispute ("Pl. Facts") ¶ 4. This request asked for all records relating to the FBI's attempts to contact six individuals for whom plaintiff had submitted privacy waivers in 2000 when he supplemented his 1996 request. See id. The FBI responded to the request with a letter dated May 5, 2004, informing plaintiff that it would not process the request until he submitted privacy waivers or death certificates for the six individuals whose records he was seeking. See Rep., Defendant's Response to Plaintiff's Statement of Material Facts as to Which There is No Genuine Dispute ("Def. Response") ¶ 4; Second Hardy Decl., Ex. A. Plaintiff took no action in response to this letter. See Def. Response ¶ 4.

On November 5, 2007, plaintiff filed this lawsuit challenging the FBI's conduct in relation to both the 1996 and the 2004 requests. Specifically, plaintiff challenges the adequacy of the FBI's search for documents responsive to the 1996 request, the FBI's decision to withhold certain records and redact others that were found as a result of the 1996 request, and the FBI's refusal to conduct a search for documents in response to plaintiff's 2004 request.


The Court will grant a motion for summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits [or declarations] 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 the 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 or declarations may be accepted as true unless the opposing party submits its 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. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v. United States Agency for Int'l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). In a FOIA case, the Court may award summary judgment solely on the basis of information provided in affidavits or declarations when the affidavits or declarations are "relatively detailed and nonconclusory," SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991), and 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 nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, (1974); 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 at 1200 (quoting Ground Saucer Watch, Inc. v. Central Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).


The government moves for summary judgment with regard to the 1996 request on the ground that plaintiff's lawsuit was not filed within the applicable statute of limitations. In addition, the government argues that the FBI's response to the 1996 request was adequate to fulfill its legal obligations under the FOIA. With regard to the 2004 request, the government moves for summary judgment on the ground that ...

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