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Richard Edward Brillhart v. Federal Bureau of Investigation

June 19, 2012


The opinion of the court was delivered by: John D. Bates United States District Judge


In this action brought pro se under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, plaintiff challenges the Federal Bureau of Investigation's response to his request for records it obtained from the internet. Defendant, having released responsive records, moves for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, which plaintiff opposes. Having considered the parties' submissions and the entire record, the Court will grant defendant's motion and enter judgment accordingly.


The relevant facts are as follows. On December 7, 2009, defendant received an undated FOIA request from plaintiff for the following records that plaintiff identified by file numbers and as being saved to "Disk UTP1667":

(1) Copy of Cyber Tip Line report . . . . (2) Copy of Yahoo profile for Kidrockwrif@Yahoo . . . . (3) Copy of UPOC subscriber profile page using kidrockwrif@Yahoo . . . . (4) Copy of postings that email kidrockwrif@ Yahoo . . . posted on August 16, 2003 and August 18, 2003 . . . . (5) Copy of all postings by kidrockwrif@Yahoo . . . of fantasy stories to . . . . (6) Copy of email content from lovelittleones69@Yahoo . . . .*fn1 Compl. Ex. A; see Def.'s Statement of Material Facts As to Which There Is No Genuine Dispute [Dkt. # 17] ¶¶ 1-2. Apparently, during the litigation of this action filed on May 13, 2011, defendant conducted a search, located 192 pages of responsive records, and released 138 pages in full and 54 pages in part. Defendant asserted FOIA exemptions 3, 6, 7(C) and 7(E), see 5 U.S.C. § 552(b), and Privacy Act exemption (j)(2), see 5 U.S.C. § 552a, as the bases for withholding information from the 54 redacted pages. Decl. of David M. Hardy [Dkt. # 20-1] ¶¶ 3-4, 42.


Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by "citing to particular parts of materials in the record, including . . . documents, electronically stored information, affidavits or declarations . . . admissions . . . or other materials" that it believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c); see also Celotex, 477 U.S. at 323.

The FOIA requires federal agencies to release all records responsive to a proper request except those protected from disclosure by any of nine enumerated exemptions set forth at 5 U.S.C. § 552(b). The disclosure requirement generally covers only those records that are in the agency's custody and control at the time of the FOIA request. McGehee v. Central Intelligence Agency, 697 F.2d 1095, 1110 (D.C. Cir. 1983). A district court is authorized "to enjoin [a federal] agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B); Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 139 (1980).

The agency has the burden of proving that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements." Goland v. Cent. Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal citation and quotation marks omitted); accord Maydak v. U.S. Dep't of Justice, 218 F.3d 760, 764 (D.C. Cir. 2000). The district court may award summary judgment to an 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 Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973).


1. Claimed Exemptions

Plaintiff does not challenge, and thus concedes, defendant's properly documented reasons for redacting information from the 54 released pages under FOIA exemptions 3, 6, 7(C) and 7(E). See Hardy Decl. ¶¶ 43-55 & Ex. T [Dkt. # 17-21] ("Vaughn index"). Furthermore, Hardy confirms that "[t]he FBI [] carefully examined the responsive documents and [] determined that the [withheld] information, if disclosed, could reveal information protected by the statute. . . . Accordingly, all reasonably segregable, non-exempt information has been released to plaintiff . . . ." Hardy Decl. ¶ 56. Plaintiff does not challenge this contention. Hence, the Court will grant summary judgment to defendant on the claimed exemptions.

2. Adequacy of the Search

Plaintiff argues that summary judgment is unwarranted because defendant allegedly failed to provide all responsive records pertaining to the postings of fantasy stories underlying category 5 of his request. Pl.'s Reply to Def's Mot. for Summ. J. ("Pl.'s Opp'n") [Dkt. # 19] at 2. This argument constitutes a challenge to the adequacy of defendant's search for records. See Maydak v. U.S. Dep't. of Justice, 254 F. Supp. 2d 23, 44 (D.D.C. 2003) (noting ...

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