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Fielding Mcgehee, Iii, Rebecca Moore v. United States Department of Justice

August 5, 2011

FIELDING MCGEHEE, III, REBECCA MOORE, PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF JUSTICE, DEFENDANT.



The opinion of the court was delivered by: Gladys Kessler United States District Judge

MEMORANDUM OPINION

Plaintiffs Fielding McGehee, III and Rebecca Moore bring this action against Defendant, the United States Department of Justice ("DOJ"), under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiffs seek documents in the possession of the Federal Bureau of Investigation concerning the victims and investigations of the Jonestown Massacre, which occurred in Jonestown, Guyana, on November 18, 1978. This matter is before the Court on Defendant's Second Motion for Summary Judgment [Dkt. No. 126] and Plaintiffs' Second Cross-Motion for Summary Judgment [Dkt. No. 132]. Upon consideration of the Motions, Oppositions, Replies, and the entire record herein, and for the reasons set forth below, Defendant's Motion for Summary Judgment is granted in part and denied in part and Plaintiffs' Motion for Summary Judgment is granted in part and denied in part.

I. BACKGROUND*fn1

Plaintiffs are a husband and wife "journalistic and academic team," who operate a website containing information on the Jonestown Massacre. This case concerns Plaintiffs' efforts to uncover the names of the victims of the massacre and to obtain other information about the FBI and CIA's investigation into the Peoples Temple Christian Church ("Peoples Temple") and its leader, Jim Jones. On the day of the Massacre, a member of the Peoples Temple assassinated California Congressman Leo J. Ryan at an airstrip in Port Kaituma, near Jonestown, Guyana. Later that day, nine hundred and thirteen members of the Peoples Temple died in a mass suicide at Jonestown.

On October 6, 1998, Plaintiff McGehee submitted a FOIA request for "a copy of all lists of the people who died in Jonestown, Guyana on November 18, 1978." By letter dated November 23, 1998, the FBI notified McGehee that the results of his FOIA request consisted of 48,738 pages. On December 11, 1998, McGehee responded that he wished to limit the scope of his request "to cover the 251 pages on Peoples Temple membership which [Mr. Phil Waltz] identified during a cursory review of the Peoples Temple records in the FBI's larger collection of materials." Def.'s Opp'n, Ex. D, at 1 [Dkt. No. 142-1]. McGehee stated that he did "not intend for this letter to serve as a limitation to access to other pages of the FBI's larger collection of materials on Peoples Temple." Id. Between July 1 and July 5, 1999, Plaintiff Moore submitted five further FOIA requests to the FBI regarding the Jonestown Massacre.

On May 24, 2000, the FBI sent Plaintiffs three CD-ROMs containing the 48,738 pre-processed pages referenced in its November 23 letter. These pages did not contain a list of victims. However, the FBI maintains that these pages encompass all disclosable pages it possesses relating to Jonestown.

By letters dated May 30, 2000, and July 2, 2000, McGehee filed an appeal with the Department of Justice's Office of Information Policy ("OIP"), challenging FBI redactions within the pages produced. By letter dated August 29, 2000, OIP informed McGehee that a supplemental release of two pages would be made, but otherwise affirmed the redactions.

On August 30, 2001, Plaintiffs filed their first Complaint [Dkt. No. 1], seeking an order requiring Defendant to provide the information sought. On June 6, 2003, Judge John G. Penn, then presiding over this case, granted Plaintiffs' Motion for Leave to File an Amended Complaint [Dkt. No. 29]. Plaintiffs' Amended Complaint covered additional FOIA requests made to the FBI regarding the Jonestown Massacre. Thereafter, the parties spent several years negotiating in an effort to resolve this matter, during which time Defendant made certain additional searches and productions. The case was transferred to this Court on October 25, 2007 [Dkt. No. 80].

On July 2, 2009, after further negotiations between the parties, Plaintiffs provided the FBI with a list of 105 documents, comprising 424 pages, to serve as a representative sample for which the FBI would provide justification of their redactions pursuant to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). On November 2, 2009, the FBI filed its first Vaughn Index, but agreed to conduct a new declassification review of the classified material within the original 48,738 pages. On June 29, 2010, the FBI filed an updated Vaughn Index (the "Vaughn Index") [Dkt. Nos. 124, 125]. This Index reflected that the FBI had, upon review of the sample, released 36 pages in full, 234 pages in part, and withheld 157 pages in full.*fn2

On August 2, 2010, Defendant filed the present Motion for Summary Judgment [Dkt. No. 126]. On September 22, 2010, Plaintiffs filed their Opposition and Cross-Motion for Summary Judgment [Dkt. No. 132]. On March 25, 2011, Defendant filed its Reply to Plaintiffs' Opposition and Opposition to Plaintiffs' Cross-Motion for Summary Judgment [Dkt. No. 140]. On May 6, 2011, Plaintiffs filed their Reply to Defendant's Opposition [Dkt. No. 147].

II. STANDARD OF REVIEW

FOIA "requires agencies to comply with requests to make their records available to the public, unless the requested records fall within one or more of nine categories of exempt material." Oglesby v. United States Dep't of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (citing 5 U.S.C. §§ 552(a), (b)). An agency that withholds information pursuant to a FOIA exemption bears the burden of justifying its decision, Petroleum Info. Corp. v. Dep't of the Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (citing 5 U.S.C. § 552(a)(4)(B)), and must submit an index of all materials withheld. Vaughn, 484 F.2d at 827-28. In determining whether an agency has properly withheld requested documents under a FOIA exemption, the district court conducts a de novo review of the agency's decision.

5 U.S.C. § 552(a)(4)(B).

FOIA cases are typically and appropriately decided on motions for summary judgment. Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123, 130 (D.D.C. 2011); Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). Summary judgment will be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits or declarations, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c).

In a FOIA case, the court may award summary judgment solely on the basis of information provided in affidavits or declarations when they (1) "describe the documents and the justifications for nondisclosure with reasonably specific detail;" (2) "demonstrate that the information withheld logically falls within the claimed exemption;" and (3) "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). Such affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. Cent. Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).

III. ANALYSIS

A. Adequacy of the Search

Plaintiffs first make several specific challenges to the adequacy of Defendant's search. Pls.' Opp'n 15-16. To demonstrate that a search was adequate, the agency must demonstrate that its search was "reasonably calculated to uncover all relevant documents." Weisberg v. United States Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). 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." Oglesby v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). There is no requirement that an agency search every record system in which responsive documents might conceivably be found. Nation Magazine v. United States Customs Serv., 71 F.3d 885, 892 (D.C. Cir. 1995). However, the agency cannot limit its search to only one record system if there are others that are likely to produce the information requested. Id. at 892.

The adequacy of any FOIA search is measured by a standard of "reasonableness" and is dependent on the circumstances of the case. Schrecker v. United States Dep't of Justice, 349 F.3d 657, 663 (D.C. Cir. 2003). The adequacy of a search is not determined by its results, but by the method used to conduct the search itself. Weisberg v. United States Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). To show reasonableness at the summary judgment phase and to allow the court to determine if the search was adequate, an agency must provide 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." Oglesby, 920 F.2d at 68.

In response to Plaintiffs' request for "all lists of the people who died in Jonestown," the FBI searched its Central Records System ("CRS") and Automated Case Support System ("ACS") for "Jonestown deaths, "Jonestown list," and "Jonestown Casualties." Def.'s Mot. 34. These searches produced no results. Id.

However, a search for "Jonestown" produced the "RYMUR" file-the criminal investigatory file for the investigation into the assassination of Congressman Ryan. Id.; Supp. Hardy Decl. ¶ 47 [Dkt. No. 124]. This file was determined to be the only file related to the FBI's investigation into Jonestown and contained the 48,738 pages produced to Plaintiffs. Supp. Hardy Decl. ¶¶ 48-50. In response to Plaintiffs' further FOIA requests, the FBI also searched its ACS Universal Index "using each subject's name to locate any main investigatory files maintained at FBIHQ." Id. at ¶ 51. The FBI used "each subject's name and included a six way phonetic breakdown of the subject's first, middle, and last name, in addition to a basic search using the exact spelling of the name provided by the plaintiff."*fn3 Id.

Plaintiffs argue that the FBI's search was deficient for several reasons. First, Plaintiffs argue that Defendant's description of the FBI's search "is inadequate, consisting simply of general statements that it conducted a search of 12 subjects of the several requests and found no 'main' files." Pls.' Opp'n 16. To the contrary, Defendant's affidavit explains precisely what searches it conducted and the databases searched. It constitutes 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." Oglesby, 920 F.2d at 68. Further, the FBI's search picked up not only "main" files but also "cross-references," which are documents "in an FBI file on another subject of ...


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