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Feinman v. Federal Bureau of Investigation

May 26, 2010

BARBARA FEINMAN AND GARRETT M. GRAFF, PLAINTIFFS,
v.
FEDERAL BUREAU OF INVESTIGATION, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

Plaintiff Garrett M. Graff has filed a class action complaint against the Federal Bureau of Investigation ("FBI"), the Executive Office for United States Attorneys ("EOUSA"), and the U.S. Department of Justice ("DOJ"), alleging that defendants have violated the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706.*fn1 This matter is before the Court on plaintiff's motion for partial summary judgment on Count Six and defendants' motion to dismiss for lack of jurisdiction or, in the alternative, for summary judgment on Count Six. For the reasons discussed herein, the Court will grant defendants' motion to dismiss for lack of jurisdiction and deny plaintiff's motion.

BACKGROUND

As alleged in the complaint, Graff currently serves as the editor for The Washingtonian Magazine and is a "representative of the news media," as that term is defined by 5 U.S.C. § 552(a)(4)(A)(ii) for purposes of determining administrative fees. (Compl. ¶ 4.) His claims arise from two requests for information that he submitted under FOIA. One request, which he made to the EOUSA, sought information regarding "the investigation, capture, and prosecution" of former Panamanian general Manual Noriega. (Pl.'s Mot. for Partial Summ. J. ("Pl.'s Mot."), Ex. 1 ("Noriega Request") at 1.) The other request, which he made to the FBI, sought information "regarding the FBI's investigation into and role in the 1987 rendition of Royal Jordanian Flight 402 hijacker and Amal Organization militiaman Fawaz Younis." (Id., Ex. 6 ("Younis Request") at 1.)

I. THE FOIA REQUESTS

A. The Noriega Request

By letter dated January 23, 2009, Graff made the following request to the EOUSA: I am requesting copies of any documents or communications, including but not limited to logs, reports, messages, wires, cables, teletypes, and external or internal memorandums about the investigation and/or capture of General Noriega, as well as his later prosecution, trial, and appeals. Specifically, I'm requesting any and all materials relating to the involvement of Robert S. "Bob" Mueller III, then an official with the U.S. Department of Justice in Washington, DC, in the Noriega investigation, capture, prosecution, trial, and appeals. This request should include the period from June 1989 to June 1993, inclusive.

As a member of the news media, and considering that this request is made in the public interest, I am hereby requesting a waiver of all associated fees. Disclosure of the requested information to me is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in my commercial interest.

If you deny any part of this request, please cite each specific reason that you think justifies your refusal to release the information and notify me of appeal procedures available to me under the law. (Noriega Request at 1.)

On January 30, 2009, the EOUSA responded to Graff: You have requested records concerning a third party . . . . Records pertaining to a third party generally cannot be released absent express authorization and consent of the third party, proof that the subject of your request is deceased, or a clear demonstration that the public interest in disclosure outweighs the personal privacy interest and that significant public benefit would result from the disclosure of the requested records. Since you have not furnished a release, death certificate, or public justification for release, the release of records concerning a third party would result in an unwarranted invasion of privacy of personal privacy and would be in violation of the Privacy Act, 5 U.S.C. § 552a. These records are also generally exempt from disclosure pursuant to subsections (b)(6) and (b)(7)(C) of the Freedom of Information Act, 5 U.S.C. § 552. . . .

Should you obtain the written authorization and consent of the third party for release of the records to you, please submit a new request for the documents accompanied by the written authorization. A form is enclosed to assist you in providing us the authorization and consent of the subject of your request. . . . (See Pl.'s Mot., Ex. 2 at 1; see also id. at 3 (enclosed Certification of Identity form.) The letter also explained that Graff could appeal the denial to the DOJ's Office of Information and Privacy ("OIP"). (Id. at 2.)

On February 24, 2009, Graff wrote a letter to OIP appealing the denial. (See Pl.'s Mot., Ex. 3.) In addition to restating the above-quoted paragraphs from his original request, Graff asserted that because Noriega is "a prisoner of war currently in the custody of the United States, [his] permission to access files regarding his case should not be a hindrance to the disclosure of information to such a compelling public interest." (Id. at 1.) Graff further stated that he intends "to use this information to contribute significantly to public understanding of the operations or activities of the government with regard to Mr. Noriega's case," and that Noriega "is not privy to the personal privacy rights afforded through the Freedom of Information Act because he is not a U.S. citizen." (Id.)

By letter dated September 8, 2009,*fn2 OIP affirmed the EOUSA's decision, stating that EOUSA properly withheld the information in its entirety because it is protected from disclosure under the Freedom of Information Act pursuant to:

5 U.S.C. ยง 552(b)(6), which concerns material the release of which would constitute a clearly unwarranted invasion of the ...


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