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

August 30, 2010

MICHAEL L. BROWN, PLAINTIFF,
v.
U.S. DEPARTMENT OF JUSTICE, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

Plaintiff Michael Brown has sued the Federal Bureau of Investigation ("FBI"), the Office of Information and Privacy ("OIP"), and federal employees David Hardy and Priscilla Jones under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiff is an inmate at the United States Prison in Tucson, Arizona, and is proceeding pro se. He seeks a Vaughn index for documents withheld pursuant to his request for all records referencing himself and other third parties maintained by the FBI, as well as additional documents and records. Having produced documents and a Vaughn index, the FBI now moves to dismiss plaintiff's claims or, in the alternative, for summary judgment. Upon consideration of the parties' submissions and the entire record, the Court will grant the FBI's motion to dismiss plaintiff's claims against defendants OIP, Hardy, and Jones. The Court will also grant the FBI's motion for summary judgment.

BACKGROUND

In November 2004, plaintiff sent letters to the FBI's Milwaukee and Oklahoma Field Offices, requesting access to all records pertaining to himself and third-party individuals, including government witnesses in the criminal case against him. (Third Decl. of David M. Hardy ["Hardy Decl."] ¶ 7.) Plaintiff's request did not include privacy waivers and/or proof of death regarding the third parties about whom he sought records. (Id.) One month later, the FBI denied all of plaintiff's requests pursuant to 5 U.S.C. § 552(b)(7)(F), which decision plaintiff subsequently appealed in February 2005. (Hardy Decl., Exs. C, D.) Having not yet received a response from defendant over three years later, plaintiff filed his complaint on May 13, 2008.*fn1

Six days later, OIP responded to plaintiff's appeal, affirming the FBI's decision to withhold the requested documents, but based on different FOIA Exemptions: § 552(b)(2), (b)(7)(C), and (b)(7)(E). (Id., Ex. F.) However, because of his lawsuit, plaintiff's requests were reopened and new searches were conducted. (Id. ¶ 14.) As a result, the FBI identified approximately 1,668 additional pages of material responsive to plaintiff's request to the Milwaukee Field Office, but no additional pages responsive to plaintiff's request to the Oklahoma Field Office. (Id. ¶¶ 15-16.)

In two letters dated July 7, 2008, the FBI informed plaintiff that it located no additional responsive materials in the Oklahoma Field Office and that because plaintiff had failed to provide privacy waivers or proof of death, it was unable to process the third party portion of plaintiff's request. (Id., Exs. H, I.) On September 29, 2008, the FBI sent plaintiff an "interim" release of 301 pages, with redactions, from the Milwaukee Field Office files. (Id. ¶ 18.) In August, after a delay in receiving plaintiff's payment for copying fees associated with his request, the FBI released an additional 619 redacted pages. (Id. ¶¶ 24, 26.) In October 2009, the Court set a schedule for briefing of defendants' dispositive motion and ordered the government to include a Vaughn index. (Minute Order, Oct. 22, 2009.) Adopting defendants' proposed sampling methodology for the Vaughn index, the Court ordered them to include a sample set of ten percent of the 1,754 documents that were responsive to plaintiff's request in the index.*fn2

On February 4, 2010, defendants filed a motion to dismiss or alternatively, a motion for summary judgment. Defendants seek to dismiss Mr. Brown's claims against defendants OIP, Hardy, and Jones, and they seek summary judgment regarding the claims against the FBI. Attached to defendants' motion is a declaration from David M. Hardy, the Section Chief of the Record/Information Dissemination Section ("RIDS"), Records Management Division ("RMD"). The declaration contains an explanation of the document search and review, as well as the processing of the 175-page sample of responsive documents in accordance with Vaughn v. Rosen, 481 F.2d 820 (D.C. Cir. 1973). The 175 pages summarized in the Vaughn index are bates-stamped and attached thereto. (Hardy Decl. at 14, Ex. R.)

ANALYSIS

I. MOTION TO DISMISS

Defendants have moved to dismiss the complaint against the OIP, Hardy, and Jones for failure to state a claim for which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). (Defs.' Mem. at 2.) Specifically, defendants contend that OIP, Hardy, and Jones are improper parties to this FOIA action because the only proper party in a FOIA case is a federal agency, and these defendants (two individuals and an office within the United States Department of Justice) are not agencies. (Id. at 1, 5.) Mr. Brown concedes that "OIP is an improper party to this action," (Pl.'s Reply to Gov't's Opp./Reply ["Pl.'s Surreply"] at 10), and he does not respond to defendants' argument that Hardy and Jones are not appropriate parties to this action. Accordingly, because "[i]ndividual federal officials are not proper defendants in a FOIA action," Jefferson v. Reno, 123 F. Supp. 2d 1, 3 (D.D.C. 2000), the Court will grant defendants' motion to dismiss plaintiff's claims against OIP, Hardy, and Jones.

II. MOTION FOR SUMMARY JUDGMENT

The FBI contends that it conducted a reasonable search for records responsive to plaintiff's requests and that, having now turned over all reasonably segregable, non-exempt responsive materials to plaintiff, it is entitled to summary judgment. (Defs.' Mem. at 6.) Mr. Brown opposes the FBI's motion on a number of grounds: 1) the failure of the FBI to number or otherwise index the 920 pages it released to plaintiff; 2) an inadequate number of entries in the Vaughn index provided by the FBI; 3) the failure of the Vaughn index to comply with the content description requirements of Mead Data Central, Inc. v. U.S. Department of the Air Force, 566 F.2d 243 (D.C. Cir. 1977); 4) the failure of the FBI to provide requested "pointer indices printouts" (i.e.,indices of various records systems); 5) the generality of Mr. Hardy's declaration; 6) the prematurity of summary judgment in the absence of additional records to be released; 7) the insufficiency of the FBI's segregability analysis; and 8) a variety of other alleged search inadequacies, including the failure of the FBI to search or process cross-references; name all records systems and indices; or provide "FD-160 search slips," screen printouts of search slips, or office of origin files. (Pl.'s Opp'n to Defs.' Mot. for Summ. J. ["Opp'n"] at 4-11.). The Court addresses plaintiff's arguments in turn.

A. Standard of Review

"FOIA cases appropriately may be decided on motions for summary judgment." Bigwood v. U.S. Agency for Int'l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). Summary judgment should be granted to the movant if it has shown, when the facts are viewed in the light most favorable to the non-movant, that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c)(2); see generally Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

To prevail in a FOIA action, an agency "must demonstrate beyond material doubt that its search was 'reasonably calculated to uncover all relevant documents.'" Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) (quoting Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). There is "no requirement that an agency search every record system," but "the agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (citing Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984); Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). Moreover, the agency "cannot limit its search to only one record system if there are others that are likely to turn up the information requested." Id.

"To show reasonableness at the summary judgment phase, an agency must set forth sufficient information in its affidavits for a court to determine if the search was adequate." Nation Magazine, 71 F.3d at 890. "The affidavits must be 'reasonably detailed..., setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched.'" Id. (quoting Oglesby, 920 F.2d at 68. "Conclusory statements that the agency has reviewed relevant ...


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