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

July 13, 2010


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


Plaintiff, proceeding pro se, has brought this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, to compel disclosure by the Federal Bureau of Investigation ("FBI") of records regarding his criminal case.*fn1 Defendant produced some responsive documents from its search of FBI Headquarters ("FBIHQ"), and the Court granted summary judgment for defendant with respect to those records. Fischer v. Dep't of Justice, 596 F. Supp. 2d 34, 39-40 (D.D.C. 2009) ("Fischer II"). Since then, defendant has searched the FBI's Springfield, Illinois Field Office ("SIFO") for responsive documents and has produced additional records to plaintiff. Defendant now moves for summary judgment with respect to those disclosures. For the reasons set forth below, the Court will grant defendant's motion.


This case arises out of plaintiff's requests under FOIA and the Privacy Act for FBI records concerning his 1988 criminal conviction in the United States District Court for the Southern District of Illinois. He submitted successive requests to SIFO in 1995 and 1996, seeking to acquire information that "could help him to prove his actual innocence." (Compl. ¶¶ 6-7; Fischer II,596 F. Supp. 2d at 40.) The details of plaintiff's prior attempts to obtain information and defendant's responses are set out in this Court's prior opinions in Fischer v. FBI, No. 07-CV-2037, 2008 WL 2248711, at *1 n.1 (D.D.C. May 29, 2008) ("Fischer I"), and Fischer II, 592 F. Supp. 2d at 40-42, so only those facts essential to the Court's ruling on the instant motion will be recounted here.

After affirming the FBI's decision to withhold all records responsive to plaintiff's request in 1996, OIP reversed itself in 2006, prompting the FBI to renew its search for responsive records. Fischer II,596 F. Supp. 2d at 40. The FBI subsequently released some records to plaintiff and withheld others. (Compl. ¶¶ 13-14.) Disputing both the adequacy of the search and the decision to withhold certain records under FOIA and Privacy Act exemptions, plaintiff sued to compel disclosure. (Id. ¶ 18.)

Because the FBI discovered that it had mistakenly limited its renewed search to the records in FBIHQ, even though plaintiff had directed his original request to SIFO, defendant moved for a three-month stay of these proceedings with regard to responsive nonpublic SIFO records. (See Def.'s Mot. to Stay Proceedings and for Discl. Sched. [Dkt. 31].) On January 26, 2009, the Court granted the motion "to allow the [FBI] to complete its processing under [FOIA] of the recently-discovered records located at its Springfield, Illinois Field Office." (See Minute Order, Jan. 26, 2009.) That same day, the Court issued its ruling in Fischer II, which was limited to all responsive, nonexempt public records in SIFO's files, but it did not address responsive non-public files, which the FBI was still processing. 592 F. Supp. 2d at 42.

Since then, defendant has finished processing SIFO's responsive nonpublic records, yielding 1,904 pages of relevant documents of which it has released 1,615 pages to plaintiff. (Def.'s Mot., Sixth Decl. of David M. Hardy ["Sixth Hardy Decl."] ¶ 4.)*fn2 The non-disclosed portion comprises 248 pages withheld as duplicates and 41 pages withheld pursuant to statutory exemptions. (Id.) The disclosed records are made up of 1,108 partially redacted pages and 597 fully released pages. (Id.) The parties have agreed, for the purpose of this litigation, to a 464-page representative sample*fn3 that includes, inter alia, memoranda, fax cover sheets, copies of checks, handwritten interview notes, photo lineup notes, maps, telephone records, and investigative reports. (Sixth Hardy Decl. ¶ 5.) Defendant argues that because "the FBI has conducted a reasonable search of agency records, has disclosed all non-exempt responsive records, and has not improperly withheld any responsive records from plaintiff," no genuine issue remains as to any material fact, and it is therefore entitled to summary judgment. (Def.'s Mot. for Summary J. in Part ["Def.'s Mot."] at 2; see Fed. R. Civ. P. 56(c)(2).)*fn4



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. U.S. Border Patrol 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citations omitted). "In a FOIA case, summary judgment may be granted to the government if 'the agency proves that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester.'" Fischer II, 596F. Supp. 2d at 42 (quoting Greenberg v. Dep't of Treasury, 10 F. Supp. 2d 3, 11 (D.D.C. 1998)). The requester may challenge such a showing by "set[ting] out specific facts showing a genuine issue for trial," Fed. R. Civ. P. 56(e), that would permit a reasonable jury to find in his favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). However, agency affidavits "are afforded a presumption of good faith," and an adequate affidavit "can be rebutted only 'with evidence that the agency's search was not made in good faith.'" Defenders of Wildlife v. Dep't of Interior, 314 F. Supp. 2d 1, 8 (D.D.C. 2004) (quoting Trans Union LLC v. Fed. Trade Comm'n, 141 F. Supp. 2d 62, 69 (D.D.C. 2001)). In other words, a requester cannot rebut the good faith presumption through "'purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). But "if the sufficiency of the agency's identification or retrieval procedure is genuinely in issue, summary judgment is not in order." Weisberg v. Dep't of Justice, 627 F.2d 365, 370 (D.C. Cir. 1980) (internal quotation marks omitted).


Plaintiff argues that defendant's past lapses in producing requested information demonstrate a track record of bad faith that rebuts the presumption of good faith that would ordinarily attach to the government's affidavits. Plaintiff points to delays in document production as evidence of bad faith, especially defendant's failure to abide by the statutory deadlines for timely action and the ten years that passed between his original FOIA request and defendant's change of its disclosure policies that enabled the FBI to release responsive records. (Pl.'s Response to Def.'s Mot. ["Pl.'s Opp'n"] at 3-4.)

The Court rejects plaintiff's arguments that defendant's failure to produce documents until after it changed its disclosure policies, or until after litigation commenced, evinces bad faith or an inadequate search. "[I]n view of the well-publicized problems created by the . . . time limits for processing FOIA requests and appeals, the [agency's] delay alone cannot be said to indicate an absence of good faith." Goland v. CIA, 607 F.2d 339, 355 (D.C. Cir. 1978) (footnote omitted).

Plaintiff also urges a finding of bad faith because of inconsistent reports by the FBI of how many responsive files had been found. (See Pl.'s Opp'n at 4.) Notwithstanding plaintiff's point that "Hardy admitted that there was a mistake made . . . as to the number of [responsive] files" (id.), mistakes do not imply bad faith. In fact, the agency's cooperative behavior of notifying the Court and plaintiff that it had discovered a mistake, if anything, shows good faith.

To be sure, defendant has not performed its duties under FOIA perfectly, but error-free performance is not required. The particular lapses in defendant's search for and production of plaintiff's requested records do not rise to the level of rebutting the presumption of good faith that ...

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