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Hitham Abuhouran v. United States State Department

February 14, 2012

HITHAM ABUHOURAN, PLAINTIFF,
v.
UNITED STATES STATE DEPARTMENT, DEFENDANT.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

In this action brought pro se, defendant State Department ("DOS") moves to dismiss the amended complaint or for summary judgment on the remaining claim brought under the Freedom of Information Act ("FOIA ), 5 USC § 552. See Order (Feb. 11, 2011) [Doc. # 6] (severing Counts 1-9 of the Complaint and transferring the action comprised of those counts to the Middle District of Pennsylvania). Upon consideration of the parties' submissions and the relevant parts of the record, the Court will grant defendant's dispositive motion and enter judgment accordingly.

BACKGROUND

The FOIA claim arises from plaintiff's request of April 9, 2006, for "[a]ll documents related to the extradetion [sic] request that was initiated by the U.S. attorney [sic] office in Philadelphia to extradite Adma Abuhouran from the Republic of Lebanon to the United States." (Declaration of Margaret Grafeld ("Grafeld Decl.") [Doc. # 26-3], Ex. 1.) On June 6, 2006, defendant's Office of Information Programs and Services ("IPS") informed plaintiff, inter alia, that his request was being processed and that the Department of Justice ("DOJ") may also have responsive records that he could request directly from DOJ. (Id., Ex.3.) On July 2, 2007, IPS informed plaintiff that it had located five documents in its Central Foreign Policy Records that would require interagency coordination prior to a final determination, and that it was also searching the files of the Office of Legal Adviser ("OLA"). (Id., Ex 5.) On May 30, 2008, in response to plaintiff's inquiry of April 22, 2008, defendant informed plaintiff that the processing of the five retrieved documents was "still ongoing" and that a search of the OLA's files was "pending." (Id., Ex. 7.)

Plaintiff filed this action on January 31, 2011. On July 19, 2011, defendant informed plaintiff that it had located a total of 21 responsive documents, of which two were released completely, 13 were released with redactions, and three were withheld completely. (Grafeld Decl. ¶ 11.) In addition, defendant referred three documents to DOJ for a direct response to plaintiff. (Id. & Ex 8.) DOS withheld information under FOIA exemptions 1, 5, 6 and 7 (Grafeld Decl. ¶¶ 17-30 & "Narrative Vaughn Index" ¶¶ 31-66.) See 5 U.S.C. § 552(b). On September 29, 2011, DOJ's Criminal Division informed plaintiff that it was withholding in their entirety "elevan [sic] pages of documents" referred by DOS under FOIA exemptions 6 and 7(C) because they "concern[ed] law enforcement records about a third party" and plaintiff had not "furnished a written release from Ms. Abuhouran authorizing us to release records about her [or] proof of her death." (Declaration of Kristin L. Ellis ("Ellis Decl.") [Doc. # 26-4], Ex. 2.) On October 26, 2011, plaintiff filed an amended complaint, joined by his sister Adma J. Abuhouran [Doc. # 23].

LEGAL STANDARD

The Court is authorized under the FOIA "to devise remedies and enjoin agencies . . . if the agency has [improperly withheld agency records]." McGehee v. CIA, 697 F.2d 1095, 1105 (D.C. Cir. 1983) (quoting Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980)). Summary judgment should be granted to the movant if it has shown, when the facts are viewed in the light most favorable to the non-movant, that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see generally Celotex Corp. v. Catrett, 477 U.S. 317 (1986). In a FOIA action, the Court may award summary judgment to the agency solely on the basis of information provided in affidavits or declarations that 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); accord Campbell v. Dep't of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998) (quoting King v. Dep't of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987)); Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).

DISCUSSION

I. STANDING TO SUE

As an initial matter, DOS correctly argues in reply to the addition of Adma Abuhouran to the amended complaint as a plaintiff that she has no legal standing to prosecute this FOIA action because she was not a party to the underlying FOIA request. See Feinman v. FBI, 680 F. Supp. 2d 169, 172-76 (D.D.C. 2010) (concluding "that standing under FOIA is limited to the person who made the initial request."). Therefore, the Court will grant defendant's motion to dismiss the amended complaint brought by Adma Abuhouran under Rule 12(b)(1) for lack of standing.*fn1

See Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987) ("The defect of standing is a defect in subject matter jurisdiction.").

II. DOS' WITHHOLDING OF RESPONSIVE MATERIAL

Plaintiff challenges DOS' delay in providing records and its withholding of records. (See generally Pl.'s Reply and Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Opp'n") [Doc. # 32].) Once an agency discloses requested records, the statutory response deadlines are no longer relevant.*fn2

See Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982) ("[H]owever fitful or delayed the release of information under the FOIA may be, once all requested records are surrendered, federal courts have no further statutory function to perform."); accord Boyd v. Criminal Div. of U.S. Dept. of Justice, 475 F.3d 381, 388 (D.C. Cir. 2007) ("[B]ecause the report was located in the work file and subsequently disclosed, the issue is moot for purposes of this FOIA ...


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