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Ralph Schoenman v. Federal Bureau of Investigation

February 9, 2011

RALPH SCHOENMAN, PLAINTIFF,
v.
FEDERAL BUREAU OF INVESTIGATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff Ralph Schoenman ("Schoenman"), a self-described political activist and author, commenced this action against a variety of named and unnamed agencies, including the Federal Bureau of Investigation (the "FBI"), pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act of 1974 (the "Privacy Act"), 5 U.S.C. § 552a, seeking an array of records concerning himself, Lord Bertrand Russell, and various named organizations. This Court previously granted-in-part and denied-in-part the parties' respective cross-motions for summary judgment and the parties were instructed to, and in fact did, file renewed motions addressing various concerns identified by the Court. Presently before the Court is the FBI's [135] Partial Renewed Motion for Summary Judgment ("Renewed Motion for Summary Judgment") and Schoenman's [143] Renewed Cross-Motion for Summary Judgment and Other Relief ("Renewed Cross-Motion for Summary Judgment"). Based upon the parties' submissions, the relevant authorities, and the record as a whole, the Court shall GRANT the FBI's Renewed Motion for Summary Judgment and DENY Schoenman's Renewed Cross-Motion for Summary Judgment.*fn1 Furthermore, because there are no viable claims remaining against the FBI in this action, the Court shall DISMISS the FBI as a defendant.

I. BACKGROUND

The Court assumes familiarity with its prior opinions in this action, which set forth in detail the extensive history of this case, and shall therefore only address the factual and procedural background necessary to address the discrete issues currently before the Court.

By letters dated July 24, 2001 and July 27, 2001, Schoenman, through counsel, submitted various FOIA requests to the FBI seeking the disclosure of an array of records pertaining to a variety of subjects including himself, Lord Bertrand Russell, and six named organizations.*fn2

Second Decl. of David M. Hardy, Docket No. [73-1], ¶¶ 5, 28, 41, 49, 61 & Exs. A, X, KK, SS, BBB. The FBI acknowledged receipt of Schoenman's requests and searched its records, producing some materials and withholding others in full or in part. Id. ¶¶ 10, 14, 16, 37-40, 45, 54, 57, 60, 62-63 & Exs. F, I, K, GG, HH, II, JJ, OO, AAA, CCC, DDD. Unsatisfied with the FBI's response, Schoenman commenced this action on December 20, 2004, naming the FBI as a defendant along with a host of other identified and unidentified agencies subject to similar requests for information. Compl., Docket No. [1]. In the succeeding years, Schoenman's claims have been successively winnowed down by orders of this Court, two of which merit explicit mention here because they pertain to Schoenman's claims against the FBI in particular.

On June 5, 2006, the Court dismissed without prejudice certain claims against the FBI based upon Schoenman's failure to exhaust his administrative remedies. Schoenman v. Fed. Bureau of Investigation, No. 04 Civ. 2202 (CKK), 2006 WL 1582253 (D.D.C. June 5, 2006). Thereafter, the parties agreed to proceed with motions for summary judgment based upon a sample of the records withheld in full or in part by the FBI. See Joint Status Report, Docket No. [34], at 4; Joint Status Report, Docket No. [41], at 2. Schoenman selected the records to serve as the subject of the FBI's Vaughn index*fn3 and, using that sample as the focus point, Schoenman and the FBI each moved for summary judgment. See Mot. for Summ. J. on Behalf of Def. Federal Bureau of Investigation, Docket No. [73]; Pl.'s Cross-Mot. for Summ. J., Docket No. [92].

On March 31, 2009, the Court issued a decision addressing the parties' respective cross-motions for summary judgment. Schoenman v. Fed. Bureau of Investigation, 604 F. Supp. 2d 174 (D.D.C. 2009). In that decision, the Court found as follows: the FBI had improperly denied Schoenman's requests for a fee waiver; Schoenman had conceded that the FBI's search for responsive records was reasonable; and the FBI's proffered Vaughn index was defective. See generally id. On this final point, the Court characterized the FBI's Vaughn index as "utterly inadequate" and proceeded to identify a litany of infirmities in the FBI's submissions at that time. See id. at 194-204. While the Court shall describe those infirmities in greater detail in the course of evaluating the adequacy of the revised Vaughn index now relied upon by the FBI, see infra Part III.B, at this point it suffices to observe that the infirmities were sufficiently pronounced so as to prevent the Court from evaluating the propriety of the FBI's withholding decisions and assessing whether the FBI should be required to reprocess or release records responsive to Schoenman's requests. See Schoenman, 604 F. Supp. 2d at 195-96. The Court therefore denied the parties' respective cross-motions for summary judgment without prejudice as they pertained to these issues, with leave to renew after the FBI prepared a proper Vaughn index. Id.

Shortly thereafter, the parties jointly submitted a proposed schedule for resolving the outstanding issues identified by the Court in its decision. See Joint Status Report & Proposed Briefing Schedule, Docket No. [113]. By mutual agreement, the FBI would first reprocess the full universe of responsive documents and re-release the disclosable portions thereof to Schoenman. Id. at 2. Thereafter, Schoenman would select a sample of approximately 10% of all responsive records to serve as the subject of a revised Vaughn index. Id. At the penultimate step, the parties would meet and confer to review each document selected by Schoenman and address any misunderstandings. Id. at 4. Only thereafter would the parties file renewed motions for summary judgment. Id.

The Court agreed with the proposed course of action and entered a schedule corresponding to the steps identified by the parties. Min. Order (Apr. 21, 2009). By July 1, 2009, the FBI had reprocessed all of the records responsive to Schoenman's requests-a total of 3,987 pages-and produced the disclosable parts thereof to Schoenman. See Status Report, Docket No. [118], at 1. Schoenman then selected 402 pages to serve as the representative sample-10.1% of all responsive records-and the parties certified that they were in agreement as to the composition of the sample. Joint Status Report, Docket No. [123], at 1. Unfortunately, the process unraveled when, in the course of preparing its Renewed Motion for Summary Judgment, the FBI discovered that additional material within the sample could be released. 6th Hardy Decl. ¶ 34. That discovery prompted the FBI to reprocess the full universe of responsive records a second time. Id. Based upon that second reprocessing, the FBI supplemented its production to Schoenman, ultimately producing 2,983 out of a total of 3,987 pages to Schoenman on January 19, 2010. Id. ¶ 34 & Ex. S. Regrettably, neither party took the reasonable step of advising the Court of these developments. See infra Part III.A.1. Instead, the parties proceeded to brief their renewed cross-motions for summary judgment. The FBI filed its [135] Renewed Motion for Summary Judgment on January 21, 2010. See Def.'s Mem. Schoenman filed his [143] Renewed Cross-Motion for Summary Judgment on March 3, 2010. See Pl.'s Mem. After a series of successive filings, some of which were filed out of time and without prior leave of the Court, both motions have now been fully briefed and are ripe for adjudication.

II. LEGAL STANDARD

Congress enacted FOIA to introduce transparency into government activities. Stern v. Fed. Bureau of Investigation, 737 F.2d 84, 88 (D.C. Cir. 1984). Congress remained sensitive, however, to the need to achieve balance between this objective and the vulnerability of "legitimate governmental and private interests [that] could be harmed by release of certain types of information." Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992), cert. denied, 507 U.S. 984 (1993). For this reason, FOIA provides nine exemptions pursuant to which an agency may withhold requested information. See 5 U.S.C. § 552(b)(1)-(9). "Consistent with the purpose of the Act, the burden is on the agency to justify withholding requested documents," Beck v. Dep't of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993), and only after an agency has proven that it has fully discharged its obligations is summary judgment appropriate, Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citing Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)).

In reviewing motions for summary judgment in this context, the district court must conduct a de novo review of the record, 5 U.S.C. § 552(a)(4)(B), which "requires the court to ascertain whether the agency has sustained its burden of demonstrating that the documents requested . . . are exempt from disclosure," Assassination Archives & Research Ctr. v. Cent. Intelligence Agency, 334 F.3d 55, 57 (D.C. Cir. 2003) (internal quotation marks omitted). Summary judgment is proper when the pleadings, the discovery materials on file, and any affidavits or declarations "show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The agency must show, viewing the facts in the light most favorable to the requester, that there is no genuine issue of material fact. Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). With these principles in mind, the Court turns to the merits of the parties' renewed cross-motions for summary judgment.

III. DISCUSSION

The Court's discussion proceeds in six parts: first, the Court shall explain why Schoenman is not entitled to a further reprocessing of the records responsive to his requests based upon the FBI's decision to reprocess the records a second time or as a result of the purported "error rate" in its reprocessing efforts, see infra Part III.A; second, the Court shall explain why, despite Schoenman's myriad arguments to the contrary, the FBI has discharged its burden of providing an adequate Vaughn index, see infra Part III.B; third, the Court shall explain why the FBI has met its burden of justifying the invocation of various exemptions to the disclosure of information responsive to Schoenman's requests, see infra Part III.C; fourth, the Court shall explain why it is satisfied that the FBI has disclosed all reasonably segregable items of information responsive to Schoenman's requests, see infra Part III.D; fifth, the Court shall explain why Schoenman may not relitigate the reasonableness of the FBI's search for records, see infra Part III.E; and sixth, and finally, the Court shall explain why Schoenman is not entitled to discovery in this action, see infra Part III.F.

A. Schoenman Is Not Entitled to a Further Reprocessing of the Records Responsive to His Requests

At the outset, the Court must address two preliminary issues that, depending on their outcomes, could have reverberations across the parties' respective cross-motions for summary judgment. Briefly stated, Schoenman claims that various defects in the FBI's procedures for processing the records responsive to his requests require a further reprocessing of all the records at issue in this action. Pl.'s Mem. at 2-5; Pl.'s 2d Mem. at 1-7. Distilled to their essence, his arguments divide into two categories. Schoenman first asserts that the FBI's decision to unilaterally undertake a second reprocessing of all the records at issue, after the parties had already agreed upon the composition of the sample to be used for purposes of briefing their respective motions for summary judgment, undermines the representativeness of the sample selected. Pl.'s 2d Mem. at 1-7. Next, Schoenman argues that the "error rate" in the FBI's reprocessing efforts is unacceptably high, such that further reprocessing is required. Pl.'s Mem. at 2-5; Pl.'s 2d Mem. at 7. The Court addresses each argument in turn.

1. Further Reprocessing Is Not Warranted Based Upon the FBI's Second Reprocessing Efforts and Supplemental Production

After the FBI had already once reprocessed the records at issue in this action and the parties had agreed upon the composition of the representative sample to be used for purposes of briefing the parties' motions for summary judgment, unbeknownst to the Court or Schoenman, the FBI unilaterally decided to reprocess the full universe of records responsive to Schoenman's requests a second time. Two days before it filed its Renewed Motion for Summary Judgment, the FBI supplemented its production to release additional information previously withheld. Now, Schoenman contends that the FBI's course of conduct vitiates the representativeness of the sample, arguing that (a) the FBI has in effect "cherry picked" the sample by removing its weakest exemption claims, and (b) the FBI has failed to adequately explain why it is now releasing information that it previously withheld. Pl.'s 2d Mem. at 1-7. While the Court is displeased with the course of conduct chosen by the FBI in this case, it nevertheless concludes that the sample remains valid and that no further reprocessing is required.

i. Both parties are at fault for the present posture of this case.

The Court begins with a more fulsome description of the relevant procedural history. Shortly after the Court's decision addressing the parties' first round of motions for summary judgment, the parties jointly submitted a proposed schedule for resolving the various outstanding issues identified by the Court. See Joint Status Report & Proposed Briefing Schedule, Docket No. [113]. Having had the opportunity to review the Court's decision, the FBI determined that "the best course of action" was to first reprocess the full universe of responsive documents in their entirety and to re-release the disclosable portions thereof to Schoenman. Id. at 2. Schoenman consented to this course of action and, by mutual agreement, the parties proposed that the FBI would complete its reprocessing efforts on or before June 30, 2009. Id. Thereafter, Schoenman would select a sample of approximately 10% of all responsive records to serve as the subject of a revised Vaughn index. Id. The parties would then meet and confer to review each document selected by Schoenman and address any misunderstandings. Id. at 4. Only thereafter would the parties file their renewed motions for summary judgment. Id.

The Court agreed with the proposed course of action and entered a schedule corresponding to the steps identified by the parties. Min. Order (Apr. 21, 2009). At first, the process proceeded as planned. On July 1, 2009, the FBI advised the Court that it had reprocessed all responsive records-a total of 3,987 pages-and had produced the disclosable parts thereof to Schoenman. Status Report, Docket No. [118], at 1. Schoenman subsequently selected slightly over 400 pages to serve as the representative sample and, on September 17, 2009, the parties advised the Court that they had met and conferred concerning the composition of the sample. See Joint Status Report, Docket No. [123], at 1. Both parties certified that they were "in agreement with the list of pages selected by [Schoenman]." Id.

Unfortunately, things were not to be so simple. On November 13, 2009, the FBI advised the Court that it had "encountered administrative difficulties, largely unforseen, with respect to the preparation and the coding of the FBI's sample Vaughn declaration." Def.'s Unopposed Mot. for Enlargement of Time, Docket No. [130], at 1-2. The FBI did not identify those "difficulties" with particularity, nor suggest that it was anticipating supplementing its production to Schoenman. Id. Schoenman consented to, and the Court allowed, an extension of the briefing schedule to accommodate these issues. Id. at 4; Min. Order (Nov. 16, 2009). On January 13, 2010, on the eve of the relevant deadline, the FBI requested a further extension. Def.'s Unopposed Mot. for an Enlargement of Time, Docket No. [134]. The only basis for the requested extension was the illness of counsel; the FBI never suggested that it was anticipating supplementing its production to Schoenman. Id. Schoenman again consented to, and the Court allowed, the extension. Id. at 2; Min. Order (Jan. 14, 2010).

According to the FBI, in the course of preparing its Renewed Motion for Summary Judgment, its review of the sample records selected by Schoenman revealed that "additional material from those pages selected could be released." 6th Hardy Decl. ¶ 34. However, the FBI did not stop there, concluding that, in light of these discoveries, "a full re-review of the approximate total of 3,987 pages was necessary." Id. Therefore, without prior notification to the Court or Schoenman, the FBI proceeded upon a second reprocessing of the full universe of records responsive to Schoenman's requests. Id. On January 19, 2010, less than a week after it had last requested an extension of time from the Court, the FBI supplemented its production, re-releasing 2,983 of a total of 3,987 pages to Schoenman. Id. ¶ 34 & Ex. S. The FBI filed its Renewed Motion for Summary Judgment a mere two days later.

With this procedural landscape set out, some observations are in order. On the one hand, the FBI should be commended for voluntarily conducting a complete, second review of all the records at issue once it discovered for itself that there were issues with a limited subset of its withholding decisions. Lest they endorse the ossification of unreasonable and indefensible litigation positions, courts should create an atmosphere encouraging of such proactive, voluntary efforts on the part of agencies. On the other hand, it is simply inexplicable that the FBI never alerted the Court of its intention to engage in a second reprocessing before it filed its Renewed Motion for Summary Judgment, especially since the FBI's was, in the same time period, actively seeking extensions of time to prepare that motion. The Court had set a schedule designed to secure the parties' agreement as to the precise composition of the representative sample to be used, and the FBI, on its own accord, decided to undermine that process. The FBI could have, and should have, secured Schoenman's consent and notified the Court so that it might adjust the schedule as it deemed necessary to preserve this design. The Court shall not belabor the point: the FBI is cautioned that it should refrain from such behavior in the future or suffer the consequences.

Nearly equally disturbing, however, is that Schoenman waited an extraordinary three months to raise the issue. After receiving the FBI's supplemental production and its Renewed Motion for Summary Judgment, Schoenman filed four separate requests for an extension of time to respond. See Pl.'s Unopposed Mot. for Extrension [sic] of Time to Respond to the Federal Bureau of Investigation's Renewed Mot. for Partial Summ. J., Docket No. [136]; Pl.'s Unopposed Mot. for Extension of Time to Respond to the Federal Bureau of Investigation's Renewed Mot. for Partial Summ. J., Docket No. [137]; Pl.'s Unopposed Mot. for One-Day Extension of Time to Respond to the Federal Bureau of Investigation's Renewed Mot. for Partial Summ. J., Docket No. [138]; Pl.'s Mot. for Leave to Bile [sic] Renewed Cross-Mot. for Summ.

J. Out-of-time, Docket No. [139]. Not once in the course of making these four requests did Schoenman advise the Court that the FBI had unilaterally conducted a second reprocessing of the documents at issue, let alone suggest that this might be grounds for questioning the validity of the sample that he had selected and the parties certified. Nor did Schoenman otherwise raise the issue at any time in the nearly two months that elapsed between the FBI's supplemental production and the time he filed his opening papers responding to the FBI's Renewed Motion for Summary Judgment. Even then, Schoenman did not directly raise the argument he makes now-i.e., that the FBI's decision to reprocess the records at issue a second time somehow vitiated the representativeness of the agreed-upon sample. See generally Pl.'s Mem. Instead, Schoenman only argued that the FBI's release of additional information suggested that there was an unacceptably high "error rate" in the FBI's processing procedures, see Pl.'s Mem. at 3-5; Lesar Decl. ¶¶ 1-3, an argument addressed elsewhere in this opinion, see infra Part III.A.2. It was not until Schoenman filed his reply papers, over three months after the FBI's supplemental production, that he first suggested that the FBI's second reprocessing efforts undermined the representativeness of the sample.*fn4 See Pl.'s 2d Mem. at 3-7. Like the FBI, Schoenman could have, and should have, brought the matter to the Court's attention months earlier.

ii. Schoenman's arguments do not cast doubt on the representativeness of the sample selected by the parties.

As evidenced by the foregoing account, both parties must bear some of the fault for where this action stands today, albeit perhaps to differing degrees. The question that remains, however, is what to make of the situation. On the one hand, both parties have at one time certified that they are in agreement with the sample selected by Schoenman. See Joint Status Report, Docket No. [123], at 1. On the other hand, Schoenman proffers two separate arguments as to why the FBI's second reprocessing efforts, occurring after the parties had already agreed to the composition of the sample, undermine the representativeness of the sample. Pl.'s 2d Mem. at 1-7. Schoenman first argues that the FBI has in effect "cherry picked" the sample by removing its weakest exemption claims from dispute. Id. at 6. He then argues that the FBI has failed to adequately explain why it released additional information that it had previously withheld. Id. at 7. Because the Court finds that neither argument undercuts the conclusion ...


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