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Frederick Banks v. Department of Justice

September 26, 2011

FREDERICK BANKS, PLAINTIFF,
v.
DEPARTMENT OF JUSTICE, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

This matter is before the Court on Defendant United States Postal Inspection Service's Motion to Dismiss and for Summary Judgment. For the reasons discussed below, the motion will be granted in part and denied in part.*fn1

I. BACKGROUND

Between 2005 and 2009, plaintiff submitted seven FOIA requests to the United States Postal Inspection Service ("USPIS"), see Def. U.S. Postal Inspection Serv.'s Mem. of P. & A. in Supp. of Renewed Mot. to Dismiss and for Summ. J. ("Def.'s Mem."), Decl. of Mildred R. Baxter ("2009 Baxter Decl.") ¶ 4, three of which are relevant to this action.*fn2 The Court already has granted summary judgment in the USPIS' favor with respect to plaintiff's March 2006 request (FOIA No. 2006-FPIS-00167). Banks v. Dep't of Justice, 538 F. Supp. 2d 228, 234-35 (D.D.C. 2008). Remaining for this Court's consideration are the USPIS' responses to the requests dated December 28, 2004, and July 11, 2005 (respectively, FOIA Nos. 2005-FPIS-00020 and 2005-FPIS-00180). See id.; Banks v. Dep't of Justice, 605 F. Supp. 2d 131, 142 (D.D.C. 2009).

A. FOIA No. 2005-FPIS-00020

Plaintiff sought information pertaining to himself and entities called Vampire Nation, Hexagon, LLC, Hexagon Records, Search Syndicate, Inc., Merakesh Armano, HLLC, and HLC. Def.'s Mem., Decl. of Mildred R. Baxter ("2010 Baxter Decl."), Ex. A (Letter to FOIA/PA Officer, USPIS, from plaintiff dated December 28, 2004) at 1. In addition, plaintiff requested records pertaining to nine individuals: Dave Wessant, Mark Howard, Keith Pyle, Danny Madigan, Rick Lucke, Frederick Von Hamilton, Mike Hanna (or Mike Harris), Chris Morze (or Chris Marze). Id., 2010 Baxter Decl., Ex. A at 1-2. He specified that "[t]he searches should not be limited to criminal files." Id., 2010 Baxter Decl., Ex. A at 1. The USPIS acknowledged receipt of the request, and assigned the matter a tracking number, FOIA No. 2005-FPIS-00020. Id., 2010 Baxter Decl., Ex. B (Letter to plaintiff from L. Freeman, Information Disclosure Technician, Office of Counsel, USPIS, dated January 7, 2005).

A search of the Inspection Service Integrated Information System ("ISIIS"), where the USPIS maintains "records relating to all criminal investigations," id., 2010 Baxter Decl. ¶ 20, yielded two criminal case files: "an open case 0583-1407269-ECMT(1) in the U.S. Postal Inspection Service Pittsburgh Division[,] and a closed case 0472-1163144-FC(2)." Id., 2009 Baxter Decl. ¶ 5. The postal inspector to whom the open case was assigned confirmed on January 10, 2005 "that the investigation was ongoing and expected to go to trial." Id., 2009 Baxter Decl. ¶ 7. The USPIS determined that "the material [plaintiff] had requested was . . . exempt from mandatory disclosure [under FOIA Exemption 7(A)] since it consisted of investigatory records compiled for law enforcement purpose[s]" and its release "could reasonably be expected to interfere with enforcement proceedings." Id., 2010 Baxter Decl. ¶ 7. The USPIS so notified plaintiff in writing, and advised him "to contact [the USPIS] again in 30-60 days to determine whether the case [had] been closed." Id., 2010 Baxter Decl., Ex. C (Letter to plaintiff from L. Freeman, Information Disclosure Technician, USPIS, dated January 13, 2005) at 1. Its written notice also informed plaintiff of his "right to appeal this matter to the General Counsel of the U.S. Postal Service." Id., 2010 Baxter Decl., Ex. C at 2.

USPIS staff obtained from the Procurement and Administrative Service Center in Bala Cynwyd, Pennsylvania, a photocopy of the original case file for the closed case, No. 0472-1163144-FC(2). Def.'s Mem., 2009 Baxter Decl. ¶ 9. From this case file, the USPIS released 99 pages of records after having deleted certain information under FOIA Exemptions 5, 6, 7(C), 7(D), and 7(E), and withheld in full 187 pages of records under FOIA Exemptions 2, 3, 5, 6, 7(C), 7(D), and 7(E). Id., 2010 Baxter Decl., Ex. F (Letter to plaintiff from L. Freeman dated April 14, 2005) at 1. This notice also advised plaintiff of his right to appeal this determination administratively. Id., 2010 Baxter Decl., Ex. F at 2.

The USPIS also referred to the Executive Office for United States Attorneys ("EOUSA"), United States Department of Justice ("DOJ"), two pages of records that had originated from that agency. Id., 2010 Baxter Decl. ¶ 11. The EOUSA was to respond directly to plaintiff, Def.'s Mem., 2010 Baxter Decl., Ex. G (Letter from L. Freeman to Marie A. O'Rourke, Assistant Director, FOIA/PA Unit, EOUSA, DOJ, dated April 14, 2005), but nothing is known of the outcome of this referral.*fn3

B. FOIA No. 2005-FPIS-00180

Plaintiff sought "every record that [the USPIS has] in every database" pertaining to the following corporate entities and individuals: VCD STREET, Intelli-Soft, Matt Anderson, Claudio Lopez, Global Business System, GHS Systems, Microsharp, ebay@meetyourprice.com, meetyourprice.com, ADW International, Inc., Dan Wash, and Rob Morgan. Def.'s Mem., 2010 Baxter Decl., Ex. M (Letter to FOIA/PA Officer, USPIS, from plaintiff dated July 11, 2005) at 1. The USPIS acknowledged receipt of the request, and assigned the matter a tracking number, FOIA No. 2005-FPIS-00180. Id., 2010 Baxter Decl., Ex. N (Letter to plaintiff from T.A. Warner, Information Disclosure Technician, Office of Counsel, USPIS, dated August 5, 2005) at 1. Staff searched ISIIS for "records maintained by the USPS regarding VCD STREET, Intelli-Soft, Global Business System, GHS Systems, Microsharp, ADW International, Inc., and four individuals,"*fn4 id., 2009 Baxter Decl. ¶ 11, and the search yielded one open case, No. 0583-1407269-ECMT(1), id., 2009 Baxter Decl. ¶ 12, the same open case file located in the search for records responsive to plaintiff's earlier request, FOIA No. 2005-FPIS-00020. These records were "related to an investigation which was still open," and the USPIS "denied his request pursuant to [FOIA Exemption 7(A)]" on the ground that release of the records "could reasonably be expected to interfere with enforcement proceedings." Id, 2010 Baxter Decl. ¶ 15. Further, because plaintiff had not "obtain[ed] the written consent" of the four individuals about whom he requested information, the USPIS determined that "disclosure of records relating to them would be a violation of . . . FOIA [Exemption 7(C)]." Id., 2010 Baxter Decl. ¶ 15. Plaintiff was advised that, if he treated this response as a denial of his request, he "ha[d] a right to appeal this matter to the General Counsel of the U.S. Postal Service." Id., 2010 Baxter Decl., Ex. N (Letter to plaintiff from T.A. Warner dated August 5, 2005) at 2. The USPIS had "no record that [plaintiff] either provided the required written consent" of these individuals "or appealed this requirement" administratively. Id., 2010 Baxter Decl. ¶ 15.

II. DISCUSSION

A. Summary Judgment in a FOIA Case

Summary judgment may be granted if "the movant shows 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing . . . to particular parts of materials in the record." FED. R. CIV. P. 56(c)(1)(A). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[A] material fact is 'genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party" on an element of the claim. Liberty Lobby, Inc., 477 U.S. at 248. Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits, declarations, or documentary evidence to the contrary. See Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

A FOIA case typically is decided on a motion for summary judgment. See, e.g., Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v. U.S. Agency for Int'l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). On summary judgment, the defendant agency must demonstrate that no material facts are in dispute, that it has conducted an adequate search for responsive records, and that each responsive record it finds has been released to the plaintiff or is exempt from disclosure. Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001). The Court may grant summary judgment based solely on information provided in an agency's supporting affidavits or declarations if 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). Such affidavits or declarations are accorded "a presumption of good faith, which ...


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