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

October 7, 2010


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


Plaintiff Michael Brown has sued the U.S. Department of Justice ("DOJ") and the Federal Bureau of Investigation ("FBI") 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. Plaintiff seeks access to all records concerning a third party, Victor A. Caldwell. The FBI contends that records responsive to plaintiff's request are exempt from production under FOIA Exemptions (b)(6) and (b)(7)(C). As such, the FBI now moves for summary judgment. Upon consideration of the parties' submissions and the entire record, the Court will grant the FBI's motion for summary judgment.


On July 2, 2009, plaintiff submitted a "third-party request" seeking access to all records at FBI Headquarters ("FBIHQ") pertaining to Victor Caldwell.*fn1 (Decl. of David M. Hardy ["Hardy Decl."] ¶ 5.) Plaintiff's request included a signed privacy waiver from Caldwell. (Id.; see also id., Ex. A.) The FBI advised plaintiff that it had received his request by letter on August 6, 2009. (Id. ¶ 6.) Plaintiff then submitted additional correspondence asking for access to all information on Victor Caldwell, including records at the Milwaukee Field Office. (Id. ¶¶ 7-8.)

On September 23, 2009, the Record/Information Dissemination Section ("RIDS") in the Records Management Division ("RMD") of the FBI initiated its standard protocol for verifying the privacy waiver from Caldwell submitted by plaintiff. (Id. ¶ 16.) According to David M. Hardy, the Section Chief of RIDS, the Section was concerned about the validity of Caldwell's signature on the privacy waiver based on its "institutional knowledge and prior experience dealing with similar requests." (Id.) As a result, RIDS personnel sent an electronic communication to the BI Chicago Field Office to ask that a Special Agent contact Caldwell to verify the validity of his signature. (Id. ¶ 17; see also Decl. of Special Agent Jeffrey B. Moore ["Moore Decl."] ¶ 3.) Special Agent ("SA") Jerry Moore was selected to contact Caldwell by telephone. (Hardy Decl. ¶ 17.) SA Moore was selected to communicate with Caldwell because SA Moore had established a prior relationship with Caldwell and was able to recognize his voice during telephone conversations. (Moore Decl. ¶ 3.)

In October 2009, SA Moore called Caldwell using a telephone number in SA Moore's records. (Id. ¶ 4.) Once he had recognized Caldwell's voice and confirmed his identity, SA Moore discussed the privacy waiver submitted by plaintiff. (Id.) SA Moore explained to Caldwell that the waiver meant that, upon request, plaintiff would be provided access to any of Caldwell's files that the FBI had in its possession. (Id.) According to SA Moore, although Caldwell indicated that he had signed the waiver, he had not been aware of what it meant to "waive his right to privacy of his FBI files." (Id. ¶ 5.) Hence, Caldwell "indicated that he did not want any FBI files released to anyone at th[at] time" and that "he wished to withdraw his consent to the privacy waiver." (Id. ¶ 6.) Another special agent from the Chicago Field Office, SA Frank Bochte, informed RIDS personnel of the content of the conversation between SA Moore and Caldwell on November 13, 2009. (Id. ¶ 7.)

On December 2, 2009, and again on March 31, 2010, the FBI informed plaintiff by letter that it would be unable to process his request for information on a third party because Caldwell had withdrawn his privacy waiver. (Id. ¶ 9.) The FBI stated that it had

determined that disclosure of the records [plaintiff] requested would constitute a clearly unwarranted invasion of personal privacy pursuant to FOIA Exemption (b)(6), 5 U.S.C. § 552(b)(6); and could reasonably be expected to constitute an unwarranted invasion of personal privacy pursuant to FOIA Exemption (b)(7)(C), 5 U.S.C. § 552(b)(7)(C).

(Hardy Decl., Ex. J.) Plaintiff filed his complaint on February 18, 2010. The FBI filed a motion for summary judgment on June 4, 2010. Attached to defendants' motion are declarations from David M. Hardy and SA Jeffrey Moore.


The FBI contends that it has properly invoked appropriate FOIA exemptions in declining to process plaintiff's request for documents concerning Caldwell and that it acted in good faith in ensuring that Caldwell's privacy waiver was valid before proceeding. (Mem. of P. & A. in Supp. of Def.'s Mot. for Summ. J. ["Def.'s Mem."] at 5-7, 9.) As such, it argues that it is entitled to summary judgment. Plaintiff opposes the FBI's motion on two grounds: 1) the FBI's bad faith in "attempting to influence Caldwell after confirming [his] signature on the release authorization"; and 2) the FBI's premature claims that records it has not searched for are exempted from production. (Opp'n to Def.'s Mot. for Summ. J. ["Opp'n] at 1, 4.) The Court will review these challenges in turn.


"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); see also Fischer v. Dep't of Justice, 596 F. Supp. 2d 34, 39-40 (D.D.C. 2009) ("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.'") (quoting Greenberg v. Dep't of Treasury, 10 F. Supp. 2d 3, 11 (D.D.C. 1998)). To prevail in a FOIA action, 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.'" Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) (quoting Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)).

A requester may challenge the government's 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)). ...

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