*fn11,The opinion of the court was delivered by: Reggie B. Walton United States District Judge,HERB D. VEST, PLAINTIFF, v. DEPARTMENT OF THE AIR FORCE, ET. AL., DEFENDANTS." />

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Herb D. Vest v. Department of the Air Force

June 22, 2011 *fn11

HERB D. VEST, PLAINTIFF,
v.
DEPARTMENT OF THE AIR FORCE, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

Herb Vest, the plaintiff, brings this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2006), against various defendants "to obtain records regarding persons he believes may figure in some of the mysterious circumstances concerning his father's death in Texas in 1946." First Complaint for Injunctive Relief ("Compl.") ¶ 1. The plaintiff also brings a claim under the Privacy Act, 5 U.S.C. § 552a (2006), against one of the defendants for records pertaining to himself. Compl. ¶ 1. Currently before this Court are the Defendants' Motion to Dismiss and for Summary Judgment and the Plaintiff's Cross-Motion for Summary Judgment.*fn1 After careful consideration of the parties' submissions and the applicable legal principles, the Court will deny the plaintiff's motion for summary judgment, grant the motion to dismiss with respect to some of the defendants, and grant summary judgment to the remaining defendants, as they have demonstrated one of the following: the plaintiff has either failed to exhaust his administrative remedies, the searches they conducted were adequate, or they have properly asserted exemptions under the FOIA.

I. BACKGROUND

Herb Vest is a United States citizen who on various occasions filed FOIA requests with various government agencies concerning a number of individuals, including himself. Specifically, the plaintiff filed FOIA requests with the following agencies: (1) the United States Department of the Air Force ("Air Force"); (2) the United States Department of the Army ("Army"); (3) the United States Department of the Navy ("Navy"); (4) the United States Marine Corps ("Marine Corps"); (5) the United States Defense Intelligence Agency ("DIA"); (6) the United States Department of State; (7) the United States Department of Homeland Security, Citizenship and Immigration Services ("DHS/CIS"); (8) the United States Central Intelligence Agency ("CIA"); (9) the United States Department of Justice, Federal Bureau of Investigation ("DOJ/FBI"); (10) the United States Department of Defense, Defense Security Service ("DOD/DSS");*fn2 (11) the United States National Security Agency ("NSA");*fn3 and (12) the United States Department of Veteran Affairs ("VA").*fn4 Compl. ¶¶ 1-12. The Court will discuss each request in turn.

A. The Air Force Request

The plaintiff submitted a written request (the "Morrison request"), through his attorney,

to the Air Force dated December 29, 2008, seeking "all records on or pertaining to Mr. Robert Bryant Morrison ["Morrison"], also known as Egbert Clair Morrison, Wayne West and Wayne Forest Wayne, wherever they may be filed or located at . . . your agency or in its repositories, and in whatever form or format they may be maintained." Id. ¶ 14, Exhibit ("Ex.") 1 (Letter to the Air Force) at 1.*fn5 The request did not indicate whether Morrison was a member of the plaintiff's family, and if so, what the relationship was, or otherwise provide the basis underlying the request for information concerning Morrison. Id. The Air Force responded with a letter dated January 24, 2009, "advis[ing the plaintiff] that it did not have any central index for individuals by name," that his "request indicated a misunderstanding of the FOIA," and as a result "it was closing the request." Id. ¶ 16. Additionally, the Air Force informed the plaintiff that because his request pertained to an individual that he indicated was affiliated with the Army, the search for the requested records could be more fruitful if he submitted it to the Army. Defs.' Mem., Ex. A (Declaration of Carolyn Price ("Price Decl.")) ¶ 6.

In any event, after sending its January 24, 2009 letter, the Air Force conducted a second search for responsive records. On July 13, 2009, it referred the plaintiff's request to the Air Force Office of Special Investigations ("AFOSI"), the Air Force Personnel Center ("AFPC"), the Army,*fn6 and on August 4, 2009, to the National Personnel Records Center ("NPRC"). Defs.' Mem., Ex. A (Price Decl.) ¶¶ 7-12. As explained in greater detail infra in section III of this opinion, these agencies conducted searches and, for the most part, did not locate any responsive documents. Like the complaint lodged against these other agencies, the plaintiff contends that the Air Force "did not advise [him] of his right to appeal its determination." Compl. ¶ 17.

B. The Army Request

Also on December 29, 2008, through his attorney, the plaintiff submitted the Morrison request to the Army. Compl. ¶ 21. The Army responded with a letter dated January 14, 2009, informing the plaintiff that he "was required to provide a description of the desired record that [will] enable[] the Government to locate the record with a reasonable amount of effort." Id. ¶ 22 (internal quotation marks omitted). The Army's letter further stated that "a signed release, a court order, or proof of death" was needed before any third-party information could be released. Id., Ex. 5 (Letter from the Army) at 1. There is no indication in the Complaint that the plaintiff complied with this request or took any further action. Nevertheless, the plaintiff asserts that the Army "did not advise [him] of his right to appeal." Id. ¶ 23.

C. The Navy Request

The plaintiff submitted the Morrison request, through counsel, to the Navy also on December 29, 2008. Id. ¶ 25. The Navy responded with a letter dated January 13, 2009, informing the plaintiff that additional information, specifically Morrison's affiliation with the Navy, was needed before his request could be processed. Id. ¶ 26, Ex. 8 (Letter from the Navy) at 1. The letter further stated that military records could not be released "without the signed authorization of the service member whose records are at issue." Id., Ex. 8 (Letter from the Navy) at 1. Accordingly, the Navy advised the plaintiff "that it was closing [his] request." Id. ¶ 26. There is no indication in the Complaint that the plaintiff complied with the Navy's directions, but again the plaintiff asserts that the Navy "did not advise [him] of his right to appeal [the Navy's] determination." Id.

D. The Marine Corps Request

On December 29, 2008, the plaintiff submitted the Morrison request, through counsel, to the Marine Corps. Id. ¶ 25. The Marine Corps responded with a letter dated January 26, 2009, informing the plaintiff that it was referring his request to the United States Army Human Resources Command because he "ha[d] indicated that Morrison was enlisted in the Army [and] had not demonstrated any affiliation [Morrison had] with the Marine Corps." Id. ¶ 27, Ex. 9 (Letter from the Marine Corps) at 1. Again, there is no indication in the Complaint that the plaintiff took any further action as to this request. The plaintiff asserts that the Marine Corps "did not advise [him] of his right to appeal its determination." Id. ¶ 27.

E. The DIA Request

The plaintiff submitted the Morrison request, through counsel, to the DIA on December 29, 2008. Id. ¶ 29. The DIA "determined that the subject of [the plaintiff's] request did not fall under the purview of [the DIA]." Id. ¶ 30, Ex. 11 (Letter from the DIA) at 1. As a result of this determination, the DIA advised the plaintiff to submit his request to the NPRC, which "would have cognizance over the records that [he was] requesting." Id., Ex. 11 (Letter from the DIA) at 1. Finally, the plaintiff was informed that his request was being closed. Id. ¶ 30. Subsequent to the filing of this lawsuit, the DIA reviewed the Complaint and its attachments, and as a result of this review discovered that Morrison had served as a military attach© in England during World War II. Defs.' Mem., Ex. D (Declaration of Alesia Y. Williams ("Williams Decl.")) ¶ 7. As explained in more detail later in this opinion, the DIA searched its two primary databases, Web Intelligence Search Engine ("WISE") and InfoSphere Management ("ISM"), using "[b]oolean, key words, and wild cards . . . to conduct the searches." Id. ¶¶ 9-10. However, neither search produced any responsive records. Id. ¶¶ 10-11.

F. The Department of State Request

The plaintiff submitted the Morrison request, through counsel, to the Department of State on December 29, 2008. Compl. ¶ 36. The Department of State responded with a letter dated March 6, 2009, informing the plaintiff that it needed additional information, including an agreement to pay fees associated with his request, third-party authorization for release of the requested information, a specific time frame the request encompassed, a narrowed scope of the request, and "a full description of incidents, meetings, events, persons involved, etc., pertaining to the documents requested" before it could continue processing his request; consequently, the plaintiff was advised "that [his] request [was now] closed in [its] system. Id., Ex. 16 (Letter from the Department of State) at 6-7. However, the Department of State advised the plaintiff that if he wished to pursue his request further, he should "send [it] a new request, which [should] include the additional information" that was outlined earlier in the Department of State's letter. Id. at 7. There is no indication in the Complaint that the plaintiff ever provided the additional information or took any further action. However, the plaintiff now asserts that the Department of State should have informed him "of his right to appeal its determination." Id. ¶ 38.

G. The DHS/CIS Request

On December 29, 2008, the plaintiff submitted the Morrison request, through counsel, to the DHS/CIS. Id. ¶ 40. The DHS/CIS responded with a letter dated January 15, 2009, informing the plaintiff that "[i]n order to continue processing [his] request [he needed to] provide the following information: a Certificate of Identity Form," which had to be signed by the "subject of the request," the "[n]ames of [his] parents[,] . . . [d]ate of [e]ntry, [and] [p]ort of [e]ntry." Id. ¶ 41, Ex. 18 (Letter from the DHS/CIS) at 1-2. Finally, the DHS/CIS advised the plaintiff that failure to comply with its request within 30 days would result in his request being "administratively closed." Id. ¶ 41. Once again, there is no indication in the Complaint that the plaintiff complied with the agency's request or took any further action. However, the plaintiff nonetheless contends that he was not informed "of his right to appeal [the] determination." Id. ¶42.

H. The CIA Request

1. Request for Morrison-Related Documents

The plaintiff submitted the Morrison request, through counsel, to the CIA on December 29, 2008. Id. ¶ 44. The CIA responded with a letter dated January 23, 2009, informing the plaintiff that it needed additional identifying information concerning Morrison, namely, a "complete date and place of birth, and citizenship status" before his request could be processed. Id. ¶ 45, Ex. 20 (Letter from the CIA) at 1. He was further advised that without receiving the requested information, the CIA "may be unable to distinguish between individuals with the same or similar names." Id., Ex. 20 (Letter from the CIA) at 1. The CIA's letter also requested proof of Morrison's death, if he was deceased, or a privacy waiver signed by Morrison if he was still alive before it could process the plaintiff's request. Id. There is no indication in the Complaint that the plaintiff complied with this directive or took any further action. However, the plaintiff asserts that "[t]he CIA did not advise [him] of his right to appeal its determination." Id. ¶ 46.

2. Request for James L. Casey Related Documents

By letter dated December 4, 2008, the plaintiff also submitted a written request, through counsel, to the CIA for records pertaining to James L. Casey ("Casey"). Defs.' Mem., Ex. C (Declaration of Delores M. Nelson ("Nelson Decl.")), Ex. A (Letter to the CIA regarding the Casey request). It appears that the plaintiff mistakenly used the name "Casey" in paragraph 45 of his Complaint, having actually intended to request information from the CIA regarding Morrison, not Casey. In any event, the CIA responded to the request with a letter dated December 22, 2008, advising the plaintiff "that if it did not receive certain biographic information on Casey within 45 da[ys] from the date of its letter, it would cancel the request."

Compl. ΒΆ 45; see also Defs.' Mem., Ex. C (Nelson Decl.), Ex. B (response from the CIA regarding the Casey request). Once again, there is no indication in the Complaint that the plaintiff provided the requested information or took any further action. However, the plaintiff contends that the CIA ...


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