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Jesse Skinner v. United States Department of Justice

August 24, 2011


The opinion of the court was delivered by: Paul L. Friedman United States District Judge


Plaintiff brought this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, against the United States Department of Justice ("DOJ") and four of its components. The Court has resolved the claims regarding plaintiff's FOIA requests to the Executive Office for United States Attorneys ("EOUSA") and the Federal Bureau of Investigation ("FBI"). See Skinner v. U.S. Dep't of Justice, 744 F. Supp. 2d 185 (D.D.C. 2010).*fn1

This matter now is before the Court on defendants' renewed motion for summary judgment which addresses three outstanding issues regarding the response of the Bureau of Alcohol, Tobacco, Firearms and Explosives ("BATFE") to plaintiff's July 3, 2007 FOIA request, assigned No. 08-171.*fn2


In relevant part, plaintiff's FOIA request to the BATFE read: This letter serves as a FOIA request . . . for copies of any and all records created and received by the Biloxi, Mississippi Field Office for the [BATFE] in regards to myself -- JESSE SKINNER. In addition, this is a request for an index of any and all files maintained by the [BATFE] in reference to me.

Defs.' Mem. of Points & Authorities. in Supp. of the Mot. to Dismiss In Part, and Alternatively, for Summ. J. ("Defs.' First Mem.") [Dkt. #18], Decl. of Averill P. Graham ("Graham Decl."), Ex. Q (Letter from plaintiff to BATFE, Biloxi, Mississippi Field Office, dated July 3, 2007) at 1. The BATFE released responsive records to plaintiff on three occasions. Initially, it released 100 pages of records on November 21, 2007 at no cost to plaintiff. Id., Graham Decl. ¶ 25. Plaintiff was notified at that time "that some of the pages responsive to his FOIA request had been referred to other agencies where they originated." Id., Graham Decl. ¶ 25. Twelve pages of records were referred to the Department of the Army ("Army"), id., Graham Decl. ¶ 26, and one page was referred to the U.S. Customs and Immigration Services ("USCIS"), id., Graham Decl. ¶ 29. On December 13, 2007, upon receipt of a payment of fees assessed for the search for a copying of the records, the BATFE released more documents. Id., Graham Decl. ¶ 32. Lastly, on "review of all the documents for litigation," the BATFE released 34 more pages of records on October 26, 2009. Id., Graham Decl. ¶ 41.

A. Disclosure of a Compact Disc

Among the records responsive to plaintiff's FOIA request to the BATFE was "a CD of photographs . . . referenced on the cover sheet related to request number 08-171 on December 13, 2007, but was inadvertently not released to [plaintiff]." Defs.' Mem. in Supp. of their Renewed Mot. for Summ. J. ("Defs.' Renewed Mot."), Ex. 2 ("Labrie Decl.") ¶ 4.*fn3 This "CD contained 8 photographs of two individuals, one of whom was female, and both of whom were not further identified." Defs.' Renewed Mot., Labrie Decl. ¶ 4. It was believed that the BATFE "intended to withhold the CD in full because [no one] could identify the individuals, but accidentally omitted it from the exemption portion of the cover sheet." Id., Labrie Decl. ¶ 4. Staff discussed the CD with the assigned case agent, and it was determined "that one of these individuals is [plaintiff]." Id., Labrie Decl. ¶ 4. Accordingly, the BATFE has released the photograph of plaintiff and the photographs of the female "with her facial features redacted under Exemption 7(C)." Id., Labrie Decl. ¶ 4.

B. Referral to the Department of the Army

On November 21, 2007, the BATFE referred 12 pages of records to the Department of the Army. Defs.' First Mem., Graham Decl. ¶ 26. Relevant to this discussion are the documents described as "[a] copy of a Certificate of Release or Discharge from Active Duty" and two memoranda, one "from the Commander, 86th Ordnance Battalion to the Commander, US Army Armor Center and Fort Knox, dated March 8, 1991," and one "from the Commander, Company B, to the Commander, 86th Ordnance Battalion, dated March 6, 1991," both referencing plaintiff's discharge from the Army. Defs.' Renewed Mot., Decl. of Thom M. Jones ("Jones Decl.") ¶ 3.*fn4 The Army released these records to plaintiff in part after redacting the names of third parties under Exemption 6. Id., Jones Decl. ¶ 4. Although plaintiff was advised of his right to appeal this determination to the Commander, U.S. Army Human Resources Command ("HRC"), id., Jones Decl., Ex. (Letter to plaintiff from Kelly R. Fraser, Colonel, U.S. Army, Chief of Staff, U.S. Army Human Resources Command, dated March 13, 2008), "HRC records do not indicate that [plaintiff] appealed the partial denial" of his FOIA request. Id., Jones Decl.¶ 7.

C. Referral to the U.S. Citizenship and Immigration Services On December 13, 2007, the BATFE referred a one-page document to the U.S. Citizenship and Immigration Service ("USCIS"). Defs.' First Mem., Graham Decl. ¶ 29; see id., Graham Decl., Ex. AA (Letter to B.J. Welsh, FOIA Officer, USCIS, from Suzanne Placanica,

Disclosure Specialist, BATFE, dated December 13, 2007). The document was "a printout of information extracted from a Privacy Act system of records commonly referred to as [t]he Enforcement Communications System (formerly, Treasury Enforcement Communications System (TECS))." Defs.' Renewed Mot., Decl. of Jill E. Eggleston ("Eggleston Decl.") ¶ 5 (emphasis removed). From this document, the USCIS redacted "internal computer codes, an unpublicized investigation technique, and the names and employee identification numbers of federal law enforcement officers" under FOIA Exemptions 2, 7(C), and 7(E). Id., Eggleston Decl. ¶ 7. The USCIS released this document to plaintiff on December 27, 2007. Id., Eggleston Decl., Ex. C (Letter from T. Diane Cejka, Director, USCIS, dated December 27, 2007).


A. Summary Judgment in a FOIA Case "FOIA cases typically and appropriately are decided on motions for summary judgment." Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). The Court grants summary judgment if the movant shows that there is no genuine dispute as to any material fact and is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). In a FOIA action to compel production of agency records, the agency "is entitled to summary judgment if no material facts are in dispute and if it demonstrates 'that each document that falls within the class requested either has been produced . . . or is wholly exempt from the [FOIA's] inspection requirements.'" Students Against Genocide v. Dep't of State, 257 F. 3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. Cent. Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978)). Summary judgment may be based solely on information provided in an agency's supporting affidavits or declarations if they are relatively detailed and when they describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information ...

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