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Boehm v. Federal Bureau of Investigation

United States District Court, District of Columbia

June 10, 2013

JOSEF F. BOEHM, Plaintiff,

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For JOSEF F. BOEHM, Plaintiff: Ronald G. London, LEAD ATTORNEY, DAVIS WRIGHT TREMAINE, LLP, Washington, DC; Tyler Kevin Firkins, PRO HAC VICE, VAN SICLEN, STOCKS & FIRKINS, Auburn, WA.

For FEDERAL BUREAU OF INVESTIGATION, KAREN L. LOEFFLER, U.S. Attorney, District of Alaska, DEPARTMENT OF JUSTICE, Criminal Division, Defendants: Mary Elizabeth Stratton, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.


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AMY BERMAN JACKSON, United States District Judge.

Plaintiff Josef Franz Boehm brings this action under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552 (2006), and the Privacy Act, 5 U.S.C. § 552(a) (2006). Plaintiff's complaint challenges defendants' responses to written requests that he made to the Federal Bureau of Investigations (" FBI" ), the Executive Office for United States Attorneys (" EOUSA" ), and the Criminal Division (" CRM" ) of the United States Department of Justice (" DOJ" ). The requests sought copies of any records in agency files from the years 2000 to 2009 that mention or concern Joseph Franz Boehm. All three agencies have now responded to plaintiff's requests by conducting searches, disclosing some responsive records, and providing their reasons for withholding others. Defendants have filed a motion for summary judgment. Defs.' Mot. for Summ. J. (" Defs.' Mot." ) [Dkt. # 36]. Plaintiff opposes the motion, challenging the adequacy of the agencies' searches and their withholdings. Pl.'s Response to Defs.' Mot. for Summ. J. (" Pl.'s Opp." ) [Dkt. # 42]. Because the agencies conducted adequate searches, but they have not provided adequate explanations for some of their withholdings, the Court will grant in part and deny in part defendants' motion.


Plaintiff is currently incarcerated at the Seagoville Federal Correctional Institution

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in Seagoville, Texas. Compl. [Dkt. # 1] ¶ 1. In 2004, he pled guilty to one count of conspiracy to commit the crime of sex trafficking of children, in violation of 18 U.S.C. § § 371 and 1591(a)(1), and one count of conspiracy to distribute controlled substances to persons under age twenty-one, in violation of 21 U.S.C. § § 846, 841(a)(1), 841(b)(1)(A), and 859(a). Court Minutes, United States v. Boehm, Case No. 3:04-cr-00003-JWS (D. Alaska Nov. 22, 2004) [Dkt. # 692]; see also Hardy Decl. [Dkt. # 36-5] ¶ 5. In May 2005, he was sentenced in the United States District Court for the District of Alaska to approximately eleven years in prison. Judgment, United States v. Boehm, Case No. 3:04-cr-00003-JWS (D. Alaska May 16, 2005) [Dkt. # 779-1].

On June 22, 2009, plaintiff submitted written requests to the FBI, the EOUSA, and the CRM under the Privacy Act and FOIA. Ex. A to Luczynski Decl. [Dkt. # 36-4] (EOUSA); Ex. B to Hardy Decl. (Criminal Division of DOJ); Ex. A to Argall Decl. [Dkt. # 36-2] (FBI). All of the requests stated:

I am requesting access to all records in agency files, including but not limited to all documents and records concerning Josef Franz Boehm . . . for the years between 2000 and 2009 inclusive. . . . This is an all-inclusive request and includes any document, wherever located, in which the name of Josef Franz Boehm is made mention or listed including investigations of persons or business entities other than Josef Franz Boehm.

Id. The requests included plaintiff's date of birth, social security number, register number, place of birth, and the criminal case number of the offense for which he is currently incarcerated. Id.

I. Request to the EOUSA

The EOUSA acknowledged receipt of plaintiff's request by letter dated August 18, 2009. Ex. B to Luczynski Decl. On August 27, 2010, it responded to the request. Ex. C to Luczynski Decl. The response stated that the records plaintiff sought were located in a system of records that is exempt from the access provisions of the Privacy Act. Id. However, pursuant to FOIA, the EOUSA released 92 pages of responsive material in full and 128 pages in part. Id. In addition it withheld 1,545 pages of responsive material under FOIA Exemptions 3, 5, 7(C), 7(D), and 7(F), as well as grand jury material. Id. The letter also stated that the EOUSA had located records that originated with the FBI and that those the records were being referred to the FBI for review and for direct response to plaintiff. Id. The letter also notified plaintiff of the procedure for appealing the EOUSA's decision. Id.

According to the declaration of David Luczynski, Attorney Advisor for the EOUSA, the EOUSA referred 2,414 pages of material to the FBI. Luczynski Decl. ¶ 6. In addition, on October 27, 2010, the EOUSA referred to the FBI case audiotapes and DVDs that had been compiled prior to plaintiff's prosecution. Id. ¶ 7. The EOUSA also received a four-page referral letter sent by the CRM on March 14, 2011. Id. ¶ 8.

II. Request to the CRM

On July 21, 2009, the CRM sent plaintiff a letter acknowledging its receipt of his request and notifying him that additional information was required. Ex. 2 to Cunningham Decl. [Dkt. # 36-3]; Cunningham Decl. ¶ 7. Plaintiff provided the additional information to the agency, Ex. 3 to Cunningham Decl., and the agency acknowledged receipt on August 31, 2009, Ex. 4 to Cunningham Decl. The CRM's first substantive response to plaintiff's request stated that all of the responsive documents

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uncovered by its search were exempt from disclosure under FOIA Exemption (7)(A) because the records related to an open and ongoing law enforcement proceeding and release could reasonably be expected to interfere with the proceeding. Ex. 5 to Cunningham Decl. However, the agency later determined that the records should no longer be withheld under Exemption 7(A), but that the FBI - not the CRM - was the proper processing agency for the records because they had originated with the FBI. Cunningham Decl. ¶ 14. The CRM then forwarded the records to the FBI for processing and direct reply to plaintiff. Id.

The CRM also received 202 pages of material from the FBI, which the CRM later determined to have originated from the EOUSA and the U.S. Marshals Service. Id. ¶ ¶ 15, 16. The CRM forwarded the documents to the originating agencies. Id. The CRM did not identify any responsive materials that had originated with it. See id. ¶ 17.

III. Request to the FBI

The FBI acknowledged receipt of plaintiff's request by letter dated July 8, 2009. Ex. B to Argall Decl. On September 14, 2009, it responded to the request by a second letter. Ex. C to Argall Decl. That response stated that the material requested was located in an investigative file which is exempt from disclosure pursuant to FOIA Exemption 7(A). Id. It further stated that plaintiff could file an appeal by writing to the DOJ Office of Information Policy, and that any appeal must be received within sixty days from the date of the response letter. Id. The Office of Information Policy has no record of receiving a notice of appeal from plaintiff, Argall Decl. ¶ 10, and plaintiff does not claim that he filed one, see Pl.'s Opp. at 7-8 (arguing that failure to exhaust does not preclude the Court from hearing plaintiff's claims).

IV. Documents referred to the FBI from other agencies

By letter dated November 12, 2010, the FBI informed plaintiff that it had received approximately 4,791 pages of material from other agencies that had originated with the FBI, and that the material might be responsive to his request. Ex. C to Hardy Decl. [Dkt. # 36-6]. The FBI determined that all of this material was exempt from disclosure under the Privacy Act. Hardy Decl. ¶ 26. However, the FBI eventually released 1,359 pages of responsive material under FOIA, of which 431 pages were released in full and 928 pages were released in part. Id. ¶ 27; see also Exs. E, G, J, M, O to Hardy Decl. [Dkt. # 36-6]. The FBI also released sixteen responsive CDs containing audio and two responsive DVDs containing video to plaintiff under FOIA. Hardy Decl. ¶ 27. The FBI withheld 2,763 pages in full, of which 628 pages were withheld because they were duplicates of other released pages and 2,135 pages were withheld under FOIA exemptions and/or a court order sealing them. Id.

V. Procedural Background

Plaintiff, acting pro se, filed the complaint in this action on November 16, 2009. The complaint alleges that " defendants have failed, refused, and neglected to comply with Plaintiff's reasonable requests for records, documents, and discovery." Compl. ¶ 10. It seeks an order requiring defendants to produce all documents responsive to his request, including without limitation, all Brady and Jenks Act material relevant to his criminal case, all communications about him by the United States Attorney's Office, all FBI 302 reports concerning him, all in-house agency reports,

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documents, and records naming him, and all material exculpatory or impeaching documents concerning the criminal investigation of him. Compl. at 3. After defendants notified the Court and plaintiff of their withholdings, the Court ordered plaintiff to notify the Court whether he intended to challenge some or all of the FOIA exemptions and, if so, to indicate to the Court whether he wanted to designate a representative sample or have defendants propose the sample and allow him to supplement it. Minute Order (June 29, 2011).

In response, plaintiff filed a motion for Vaughn index, [Dkt. # 19], and a notice of intent to challenge the asserted FOIA exemptions, [Dkt. # 20] (" Notice of Intent" ). Plaintiff requested that he designate the representative sample. Notice of Intent. Defendants opposed plaintiff's motion and requested that the Court order defendants to designate a representative sample within thirty days, and order plaintiff to designate supplemental material within thirty days after defendants' designation. [Dkt. # 21]. By Minute Order of September 30, 2011, the Court ordered defendants to prepare a representative sample of documents that they were withholding under FOIA exemptions, transmit the sample to plaintiff accompanied by a letter explaining the representative nature of the sample, and file a notice of designation with the Court by October 31, 2011. The Court further ordered plaintiff to designate any supplemental material and file a notice of designation with the Court by December 1, 2011.

Defendants filed their notice of designation on October 31, 2011. [Dkt. # 22]. The EOUSA has filed a declaration by David Luczynski, an Attorney Advisor with the EOUSA who is responsible for matters related to FOIA, Luczynski Decl. ¶ 1, that states that the EOUSA reviewed all of the responsive documents and prepared a 200-page sample out of unredacted and partially redacted pages. Luczynski Decl. ¶ 9 & n.1. According to the declaration, the sample was chosen to be " both a fair representative of all the FOIA Exemptions taken, and to also reflect the wide variety of documents contained within the release." Id. ¶ 9. The sample was sent to plaintiff on October 28, 2011. [1] Id. ¶ 9. In addition, the EOUSA provided a Vaughn index of all of the documents in the representative sample as well as a supplemental Vaughn index of a 154-page representative sample of the 1,545 pages of documents that were withheld in full. Id. ¶ ¶ 9, 10. According to Luczynski, " [t]hese records are selected as a fair and accurate representation" of the withheld documents. Id. ¶ 10.

The FBI has submitted a declaration by David M. Hardy, the Section Chief of the Record/Information Dissemination Section, Records Management Division of the FBI, Hardy Decl. ¶ 1, which states that the FBI has designated a representative sample consisting of 422 pages, one CD, one DVD, and one audiotape. Id. ¶ 24; Ex. P to Hardy Decl. [Dkt. # 36-7]. According to the declaration, this sample is representative of documents that were both withheld in part and withheld in full. Hardy Decl. ¶ 24. In addition, the FBI provided a Vaughn index of all of the documents in the representative sample along with a key to the codes used in the Vaughn index. Hardy Decl. at 8-13 (" FBI Vaughn Index" ); Summary of Justification Categories, Hardy Decl. at 17-18. The Hardy declaration states that the indexed documents are representative of all the FOIA exemptions cited and reflective of the variety

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of documents contained within the responsive records. Hardy Decl. ¶ 24.

Plaintiff did not designate any supplemental material in response to defendants' designations. On January 18, 2012, the Court entered a scheduling order for dispositive motions. Sched. Order [Dkt. # 26]. Defendants filed a motion for summary judgment on November 23, 2012. Defs.' Mot. Counsel subsequently entered an appearance on behalf of plaintiff, Notice of Appearance [Dkt. # 39]; see Minute Order (Jan. 25, 2013), and plaintiff filed an opposition to defendants' motion through counsel, Pl.'s Opp. Defendants filed their reply on April 11, 2013. Defs.' Reply to Pl.'s Response to Mot. for Summ. J. (" Defs.' Reply" ) [Dkt. # 44].


Summary judgment is appropriate " 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). The party seeking summary judgment bears the " initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must " designate specific facts showing there is a genuine issue for trial." Id. at 324 (internal quotation marks omitted). The existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is " genuine" only if a reasonable fact-finder could find for the non-moving party; a fact is only " material" if it is capable of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241, 259 U.S.App. D.C. 115 (D.C. Cir. 1987). In assessing a party's motion, the court must " view the facts and draw reasonable inferences 'in the light most favorable to the party opposing the summary judgment motion.'" Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam).


I. The Privacy Act

The Privacy Act provides:

Each agency that maintains a system of records shall . . . upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him . . . to review the record and have a copy made of all or any portion thereof in a form comprehensible to him . . . .

5 U.S.C. § 552a(d)(1). Thus, any material that is subject to the disclosure provision of the Privacy Act must be a " record" that is, in turn, contained in a " system of records." Fisher v. Nat'l Inst. of Health, 934 F.Supp. 464, 468 (D.D.C. 1996).

When a plaintiff challenges an agency's withholding of documents under the Privacy Act, the court determines de novo whether the withholding was proper, and the burden is on the agency to sustain its action. 5 U.S.C. § 552a(g)(2)(A); Doe v. United States, 821 F.2d 694, 697- 98, 261 U.S.App. D.C. 206 (D.C. Cir. 1987) (finding that in this context, de novo means " a fresh, independent determination of 'the matter' at stake," and the court need not give " deference . . . to the agency's conclusion" ) (en banc);

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see also Skinner v. DOJ, 584 F.3d 1093, 1096, 388 U.S.App. D.C. 261 (D.C. Cir. 2009). " [T]he [Privacy] Act 'safeguards the public from unwarranted collection, maintenance, use, and dissemination of personal information contained in agency records . . . by allowing an individual to participate in ensuring that his records are accurate and properly used." McCready v. Nicholson, 465 F.3d 1, 7-8, 373 U.S.App. D.C. 236 (D.C. Cir. 2006), quoting Bartel v. Fed. Aviation Admin., 725 F.2d 1403, 1407, 223 U.S.App. D.C. 297, 233 U.S.App. D.C. 297 (D.C. Cir. 1984).

Defendants assert that all of the records at issue here fall under an exemption to disclosure, codified at 5 U.S.C. § 552a(j)(2) (" Exemption j(2)" ). Exemption j(2) applies if: (1) the records are stored in a system of records that has been designated by the agency to be exempt from the Privacy Act's disclosure requirements, and (2) the system of records is " maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal law[s]" and consists of " information compiled for the purpose of a criminal investigation." 5 U.S.C. § 552a(j)(2); see also Defs.' Mem. in Support of Mot. for Summ. J. (" Defs.' Mem." ) [Dkt. # 36-1] at 9-10.

Plaintiff has not opposed defendants' assertion of Exemption (j)(2) over any of the material at issue in this case, so the Court may properly treat defendants' assertion as conceded. See McMillan v. Wash. Metro. Area Transit Auth., 898 F.Supp.2d 64, 69 (D.D.C. 2012), citing Howard v. Locke, 729 F.Supp.2d 85, 87 (D.D.C. 2010) (" It is well understood in this Circuit that when a plaintiff files an opposition to a motion . . . addressing only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded." ). [2]


" [A]ccess to records under [FOIA and the Privacy Act] is available without regard to exemptions under the other." Martin v. Office of Special Counsel, 819 F.2d 1181, 1184, 260 U.S.App. D.C. 382 (D.C. Cir. 1987). Accordingly, the Court will next turn to plaintiff's FOIA claims.

The purpose of FOIA is to require the release of government records upon request and to " ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." Nat'l Labor Relations Bd. v. Robbins Tire & Rubber Co., 437 U.S. 214, 220, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). At the same time, Congress recognized " that legitimate governmental and private interests could be harmed by release of certain types of information

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and provided nine specific exemptions under which disclosure could be refused." FBI v. Abramson, 456 U.S. 615, 621, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982); see also Ctr. for Nat'l Sec. Studies v. DOJ, 331 F.3d 918, 925, 356 U.S.App. D.C. 333 (D.C. Cir. 2003) (" FOIA represents a balance struck by Congress between the public's right to know and the government's legitimate interest in keeping certain information confidential." ). The ...

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