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Adam Davis v. Federal Bureau of Investigation et al

March 16, 2011

ADAM DAVIS, PLAINTIFF,
v.
FEDERAL BUREAU OF INVESTIGATION ET AL., DEFENDANTS.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

Document No. 34

MEMORANDUM OPINION

In this action brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, plaintiff sues several federal agencies and agency components for allegedly failing to respond to his requests for records pertaining to himself. He names as defendants the Federal Bureau of Investigation ("FBI"), the Executive Office for United States Attorneys ("EOUSA"), the Departments of Treasury, Justice ("DOJ") and Homeland Security, the Internal Revenue Service ("IRS"), the Financial Crimes Enforcement Network ("FinCen"), the Secret Service, and the Securities and Exchange Commission ("SEC").

Pending before the Court is the motion of the FBI, EOUSA, DOJ and IRS to dismiss or for summary judgment [Dkt. # 34]. Upon consideration of the parties' submissions and the relevant parts of the record, the Court will grant in part and deny in part the moving defendants' motion for summary judgment.

I. BACKGROUND

Plaintiff alleges that he requested from each defendant all records pertaining to himself, "including, but not limited to, Criminal, Civil, Corporate, Individual, and Bond Information and/or Commercial Crimes Bonding Information and/or Case Bonding Information and/or Commercial Crimes Bonding Certification . . . ." Compl. Attach.*fn1 Except for the IRS, which first provided plaintiff a substantive response in 2009, the moving defendants responded substantively to the request during the course of this civil action filed on January 20, 2010. Their pertinent responses are as follows.

FBI's Response

The FBI processed 471 pages of responsive records and, on February 18, 2010, and July 12, 2010, released 454 pages. It withheld information under FOIA exemptions 2, 3, 6, 7(C), 7(D) and 7(E). See 5 U.S.C. § 552(b). Declaration of David M. Hardy ("Hardy Decl.") [Dkt. # 34-4] ¶ 4.

EOUSA's Response

EOUSA initially located 228 responsive pages and, by letter of March 23, 2010, released to plaintiff 61 pages, eight of which contained redactions. EOUSA withheld 108 pages in full and withheld plaintiff's presentence investigation report pursuant to Bureau of Prisons policy that permits a prisoner to review the document at his facility but not possess it. Declaration of Vinay J. Jolly ("Jolly Decl.") [Dkt. # 34-8], Ex. C. In addition, EOUSA referred 39 pages to the FBI, from where they originated, to provide a direct response to plaintiff. Jolly Decl. ¶ 7. By letter of May 7, 2010, EOUSA released to plaintiff an additional 116 pages, 74 of which contained redactions, and it withheld 744 pages in full. EOUSA referred approximately 604 pages to the FBI, 124 pages to DOJ's Criminal Division and seven pages to the IRS.*fn2 Id. ¶ 8 & Ex. E. EOUSA withheld information under FOIA exemptions 3, 5, 6 and 7(C). Id. ¶¶ 7, 8.

DOJ's Response

By letter of June 11, 2010, the Criminal Division withheld all of the 24 pages of responsive material it had located in the Office of International Affairs ("OIA") under FOIA exemptions 2, 5, 7(D) and 7(E). Declaration of Catherine Gonzalez Gallego ("Gallego Decl.") [Dkt. # 34-11] ¶ 14, Ex. 6 & Vaughn Index [Dkt. # 34-13]. Because plaintiff had not replied to the Division's request of November 30, 2009, to provide within 30 days additional information regarding his request to search the files of the Electronic Surveillance Unit, the Division closed that portion of plaintiff's request. Id., Ex. 6 at 2.

IRS's Response

Following a search for records, the IRS, by letter dated November 9, 2009, informed plaintiff that it had located no responsive records because he did not file tax returns for tax years 2000, 2001, 2002 and 2004 "through present" and the IRS was "currently unable to secure the administrative file for 2003."*fn3 Declaration of Anne M. Jensen ("Jensen Decl.") [Dkt. # 34-14], Ex. B [Dkt. # 35]. Plaintiff was invited to "resubmit" his request in 90 days. Id. at 1. The letter further informed plaintiff that "any existing records pertaining to [his criminal case] would be maintained by the Federal Court and [DOJ]," id., and advised him of his right to appeal administratively within 35 days of the determination. Jensen Decl. ¶ 8 & Ex. C. Ms. Jensen "was never contacted by an Appeals Officer or made aware of any appeal made by plaintiff regarding his FOIA request." Jensen Decl. ¶ 9.

Regarding the seven pages referred from EOUSA, the IRS, by letter of June 11, 2010, released four pages to plaintiff and withheld three pages under exemption 3. Declaration of Darlene A. ...


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