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Emmanuel N. Lazaridis v. United States Department of Justice et al

February 24, 2011

EMMANUEL N. LAZARIDIS, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

In this pro se civil action, plaintiff Emmanuel N. Lazaridis, seeks records under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, from the United States Department of Justice ("DOJ"), the National Center for Missing and Exploited Children ("NCMEC") and the International Centre for Missing and Exploited Children ("ICMEC"). Both NCMEC and ICMEC have been dismissed from the case. See Order of May 26, 2010 [Dkt. # 39]. DOJ has moved separately for partial summary judgment as to the Executive Office for United States Attorneys ("EOUSA") [Dkt. # 46], the Federal Bureau of Investigation ("FBI") [Dkt. # 47], and INTERPOL-U.S. National Central Bureau ("USNCB" or "INTERPOL") [Dkt. # 48]. Mr. Lazaridis has opposed each motion and DOJ has filed replies. Upon consideration of the parties' submissions and the relevant parts of the record, the Court will grant in part and deny in part DOJ's motions as to EOUSA and the FBI and will deny the motion as to USNCB.

I. BACKGROUND

Mr. Lazaridis, who resides in Greece, alleges that on August 22, 2005, he submitted three FOIA requests to DOJ for records maintained by EOUSA, the FBI and USNCB. Compl. ¶ 9. He requested "written audio, video or electronic records" pertaining to himself and V.L. "dating from 2002 to 2005." Id. ¶ 10. DOJ denied Mr. Lazaridis' requests because of his alleged fugitive status. Id. ¶ 11. On November 13, 2008, Mr. Lazaridis submitted four requests to DOJ for the same type of records but "dating from 2002 to 2008." Id. ¶ 13. USNCB denied Mr. Lazaridis' request for V.L.'s records based on its determination that he was in violation of two state court judgments awarding custody of V.L. to his ex-wife and, thus, "lack[ed] the capacity to make a [FOIA] request for [his] daughter's records on her behalf[.]" Id. ¶ 14 (quoting "Denial of March 27, 2009").

Mr. Lazaridis filed this civil action on June 29, 2009. On May 26, 2010, the Court rejected DOJ's argument that the fugitive disentitlement doctrine applied to this case and denied its motion to dismiss under Fed. R. Civ. P. 12(b)(6). See Mem. Op. [Dkt. # 38] at 9. DOJ has now processed Mr. Lazaridis' FOIA request. The results are summarized as follows.

1. EOUSA Records

By letter of July 2, 2010, EOUSA released to Mr. Lazaridis 32 pages of responsive material, 19 of which were redacted, and withheld 244 pages in their entirety. Second Decl. of Dione Jackson Sterns ("Second Sterns Decl.") [Dkt. # 46-1], Ex. H. EOUSA also referred 13 pages to the FBI and informed Mr. Lazaridis that he could obtain public records in its possession from the court or by submitting a new request that would be subject to copying fees. EOUSA withheld information under FOIA exemptions 3, 5, 6 and 7(C), see U.S.C. § 552(b), and Privacy Act exemption (j)(2), 5 U.S.C. § 552a. Id. By letter of July 6, 2010, EOUSA, with regard to records referred from the FBI, released one redacted page and withheld six pages of information, one of which was determined non-responsive to the request. It withheld information under FOIA exemptions 5, 6 and 7(C) and Privacy Act exemption (j)(2). Supp. Decl. of Dione Jackson Sterns ("Sterns Supp. Decl.") [Dkt. # 63-1], Ex. BB [Dkt. # 63-2].

2. FBI Records

By letters of June 11, 2010, and June 22, 2010, the FBI released to Mr. Lazaridis a total of 505 pages of responsive material, 231 of which were redacted, and withheld 840 pages in their entirety. Second Decl. of David M. Hardy ("Second Hardy Decl") [Dkt. # 47-1] ¶ 33. This determination included 97 pages referred from INTERPOL and 13 pages referred from EOUSA. Id. The FBI withheld information under FOIA exemptions 2, 3, 6, 7(C) and 7(D) and Privacy Act exemption (j)(2). Id.

3. USNCB Records

Following the Court's ruling, USNCB conducted a search, located 139 pages of responsive records -- nine of which had been previously located by a search conducted in 2005 -- and referred 100 of those pages to the FBI for processing. Decl. of Allison M. Tanaka ("Tanaka Decl.") [Dkt. # 48-1] ¶¶ 10, 18. In June 2010, USNCB processed the remaining 39 pages and 22 pages referred from the FBI and determined that none of the pages could be released to Mr. Lazaridis. USNCB invoked FOIA exemptions 2, 6, 7(A), 7(C) and 7(D). Id. ¶ 21. USNCB has since withdrawn its invocation of exemption 7(A) "and will be releasing certain information/documents for which this exemption was initially claimed." Second Decl. of Allison

M. Tanaka ("Second Tanaka Decl.") [Dkt. # 66-1] ¶ 3.

II. LEGAL STANDARD

Summary judgment is appropriate "if the movant shows [through facts supported in the record] 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). This procedural device is not a "disfavored legal shortcut" but a reasoned and careful way to resolve cases fairly and expeditiously. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). In determining whether a genuine issue of material fact exists, the Court must view all facts and reasonable inferences in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).

Summary judgment is the frequent vehicle for resolution of a FOIA action because the pleadings and declarations in such cases often provide undisputed facts on which the moving parties are entitled to judgment as a matter of law. McLaughlin v. U.S. Dep't of Justice, 530 F. Supp.2d 210, 212 (D.D.C. 2008) (citations omitted). Agencies may rely on affidavits or declarations of government officials, as long as they are sufficiently clear and detailed and submitted in good faith. See Oglesby v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The Court may award summary judgment solely on the basis of information provided in such affidavits or declarations when they describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). However, the Court must "construe FOIA exemptions narrowly in favor of disclosure." U.S. Dep't of Justice v. Landano, 508 U.S. 165, 181 (1993).

An inadequate search for records also constitutes an improper withholding under the FOIA. See Maydak v. U.S. Dep't of Justice, 254 F. Supp. 2d 23, 44 (D.D.C. 2003) (citations omitted). Thus, when an agency's search is questioned, the Court must determine the adequacy of the agency's search, guided by principles of reasonableness. See Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998). The agency is required "to make a good faith effort to conduct a search for the requested records, using methods which can reasonably be expected to produce the information requested." Oglesby, 920 F.2d at 68. Such methods include following through "on obvious leads." Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (citation omitted). Although an agency need not search every record system, it "cannot limit its search to only one record system if there are others that are likely to turn up the information requested." Oglesby, 920 F.2d at 68. Because the agency is the possessor of the records and is responsible for conducting the search, the Court may rely on "[a] reasonably detailed affidavit, 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." Valencia-Lucena, 180 F.3d at 326 (quoting Oglesby, 920 F.2d at 68). Summary judgment is inappropriate "if a review of the record raises substantial doubt" about the adequacy of the search. Id. "[T]he [mere] fact that a particular document was not found does not demonstrate the inadequacy of a search," however. Boyd v. Criminal Div. of U.S. Dep't of Justice, 475 F.3d 381, 390-91 (D.C. Cir. 2007) (citations omitted); see Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) ("the adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search.") (citation omitted).

III. ANALYSIS

EOUSA's Response

Mr. Lazaridis challenges EOUSA's withholding of responsive material under FOIA exemptions 3, 5, 6 and 7(C) and questions the adequacy of its search. Pl.'s Mem. of Law in Opp'n to Def. United States Dep't of Justice's Mot. for Partial ...


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