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Rosenberg v. United States Department of Immigration & Customs Enforcement

United States District Court, District Circuit

August 11, 2013



COLLEEN KOLLAR-KOTELLY, United States District Judge

Plaintiff Lawrence Rosenberg submitted Freedom of Information Act requests to various federal agencies seeking, among other things, records related to the raid of Agriprocessors, Inc., meatpacking plant and the subsequent prosecution of Sholom Rubashkin. Dissatisfied with the agencies’ responses to his request, the Plaintiff filed suit against United States Immigration and Customs Enforcement, the United States Marshals Service, the Executive Office for United States Attorneys, and the Federal Bureau of Investigation. Presently before the Court is the FBI’s [47] Motion for Summary Judgment, and the Plaintiff’s [51] Cross-Motion for Summary Judgment. Upon consideration of the pleadings, [1] the documents submitted to the Court for in camera review, the relevant legal authorities, and the record as a whole, the Court finds FBI failed to demonstrate that it conducted an adequate search for potentially responsive documents, and also failed to justify why certain information was redacted pursuant to Exemptions 6, 7(C) and 7(E), but is not liable for failing to produce responsive documents to the Plaintiff “promptly, ” and properly invoked Exemption 3. Additionally, because the Plaintiff did not articulate his challenge to the FBI’s contention that certain interviewees were implicitly assured their identities would remain confidential until his reply brief, the Court shall provide the FBI an opportunity to supplement its showing as to the use of Exemption 7(D). The FBI sufficiently justified its use of the remaining Exemptions applied to the documents produced in part or withheld in response to the Plaintiff’s request. Accordingly, the FBI’s Motion for Summary Judgment is GRANTED IN PART and HELD IN ABEYANCE. The Plaintiff’s Cross-Motion for Summary Judgment is HELD IN ABEYANCE and otherwise DENIED. An appropriate Order accompanies this Memorandum Opinion.


Sholom Rubashkin managed a kosher meatpacking company in Postville, Iowa, named Agriprocessors, Inc., which at one point employed over one thousand individuals. United States v. Rubashkin, 655 F.3d 849, 853 (8th Cir. 2011). In May 2008, Immigration and Customs Enforcement raided the plant, and arrested nearly four hundred employees for immigration violations, bringing criminal charges against most of the arrestees. Id. at 854. “Around that time, ” the United States Attorney’s Office in the Northern District of Iowa informed Mr. Rubashkin that he was the target of a federal investigation for financial and immigration crimes. Id. Mr. Rubashkin was arrested in November 2008 and charged by indictment with 163 counts, including fourteen counts each of bank and wire fraud, and sixty nine counts of harboring undocumented aliens for profit. After the initial indictment of Mr. Rubashkin, but before the superseding indictment and trial, an Agriprocessors employee moved to recuse Chief Judge Linda Reade from presiding over a related immigration fraud matter. Id. Chief Judge Reade denied the motion to recuse, explaining that in her role as Chief Judge, she needed to help “prepare for processing hundreds of anticipated immigration arrestees, which included arranging for visiting judges to travel to Waterloo, Iowa to handle arraignments.” Id. at 855. Mr. Rubashkin’s trial counsel was aware of this order, but did not move to recuse Chief Judge Reade from the proceedings concerning Mr. Rubashkin. Id. Mr. Rubashkin was eventually convicted of seventy one counts of bank, mail, and wire fraud, money laundering, and false statements to bank, in addition to fifteen counts of willful violations of orders of the Secretary of Agriculture. Id. Relying on documents obtained through a Freedom of Information Act Request submitted prior to his trial, Mr. Rubashkin subsequently moved for a new trial, or for discovery, which the trial court denied. Id. at 856. The Eighth Circuit affirmed the denial of Mr. Rubashkin’s motion for a new trial, as well as his underlying conviction and sentence on September 16, 2011. Id. at 869.

By letter dated September 28, 2011, the Plaintiff submitted a Freedom of Information Act (“FOIA”) request to the FBI seeking, among other things: (1) “any and all information relating to the raid of Agriprocessors, Inc., a meatpacking plant in Postville, Iowa, on May 12, 2008 (“the raid”) and the subsequent prosecution of Sholom Rubashkin”; (2) “any and all information relating to actions proposed to take place in year 2000 against Agriprocessors, Inc., as documented in the Des Moines Register’s August 6, 2011 article, ‘Immigrant Raid Halted in 2000 on Election Fear, Ex-Agent Says’”; (3) “any and all information relating to any actions considered to take place against Iowa Turkey Products, Inc. of Postville, IA”; (4) “any and all information relating to the class action case Salazar v. Agriprocessors, 527 F.Supp.2d 873 (N. D. Iowa 2007)”; and (5) any and all documents reflecting communications between “any government agency or official” and over 101 individuals regarding Mr. Rubashkin or Agriprocessors. Hardy Decl., Ex. A (Pl.’s FOIA Request), at 2-8. The Plaintiff’s request included 39 numbered paragraphs outlining his specific requests. See id.

The FBI acknowledged the Plaintiff’s request by letter dated October 5, 2011, assigning the request number 1174698. Def.’s Stmt. ¶ 3.[2] The FBI advised the Plaintiff that it would search the “indices to [the FBI’s] Central Records System for the information responsive to this request.” Id.; Hardy Decl., Ex. B (10/5/11 Acknowledgment Ltr.). Two weeks later, the FBI notified the Plaintiff that it located 1, 223 potentially responsive pages. Hardy Decl., Ex. C (10/19/11 Ltr. FBI to Pl.). The letter advised the Plaintiff that if all of the potentially responsive pages were to be released, the Plaintiff would owe the FBI $112.30 in duplication fees to receive a paper copy or $20.00 to receive the release on a CD. Id. The letter indicated that

No payment is required at this time. However, you must notify us in writing within thirty (30) days from the date of this letter of your format decision (paper or CD) and your commitment to pay the estimated fee. If we do not receive your commitment to pay within thirty (30) days of the date of this notification, your request will be closed.

Id. The FBI did not receive a response to its October 19, 2011, letter from the Plaintiff, and did not produce any documents in response to the request.

The Plaintiff filed suit on March 23, 2012. On September 7, 2012, the FBI processed the pages identified as potentially responsive to the Plaintiff’s request. Hardy Decl. ¶ 11. Of the 1, 233 pages initially identified, 257 were found to be duplicates. Second Hardy Decl. ¶ 8; Hardy Decl. ¶ 4. The FBI released 39 pages in full and 322 pages in part. Hardy Decl. ¶ 4. One hundred and fifty five pages were withheld in their entirety pursuant to various FOIA exemptions. Id. The remaining 450 pages were withheld because they are court materials sealed by the United States District Court for the Northern District of Iowa. Id.


Congress enacted FOIA to “pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (citation omitted). Congress remained sensitive to the need to achieve balance between these objectives and the potential that “legitimate governmental and private interests could be harmed by release of certain types of information.” Critical Mass. Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc) (citation omitted), cert. denied, 507 U.S. 984 (1993). To that end, FOIA “requires federal agencies to make Government records available to the public, subject to nine exemptions for categories of material.” Milner v. Dep’t of Navy, 131 S.Ct. 1259, 1261–62 (2011). Ultimately, “disclosure, not secrecy, is the dominant objective of the act.” Rose, 425 U.S. at 361. For this reason, the “exemptions are explicitly made exclusive, and must be narrowly construed.” Milner, 131 S.Ct. at 1262 (citations omitted).

When presented with a motion for summary judgment in this context, the district court must conduct a “de novo” review of the record, which requires the court to “ascertain whether the agency has sustained its burden of demonstrating that the documents requested . . . are exempt from disclosure under the FOIA.” Multi Ag. Media LLC v. Dep’t of Agriculture, 515 F.3d 1224, 1227 (D.C. Cir. 2008) (citation omitted). The burden is on the agency to justify its response to the plaintiff’s request. 5 U.S.C. § 552(a)(4)(B). “An agency may sustain its burden by means of affidavits, but only if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” Multi Ag Media, 515 F.3d at 1227 (citation omitted). “If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone.” Am. Civil Liberties Union v. U.S. Dept of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011) (citations omitted). “Uncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the exemption are likely to prevail.” Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 509 (D.C. Cir. 2011) (citation omitted). Summary judgment is proper when the pleadings, the discovery materials on file, and any affidavits or declarations “show[] 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). With these principles in mind, the Court turns to the merits of the parties' cross-motions for summary judgment.


The FBI seeks summary judgment on the grounds it conducted an adequate search for responsive documents and properly withheld information pursuant to several Freedom of Information Act exemptions, individually and in combination. The Plaintiff cross-moves for summary judgment as to each of these issues, and further argues he is entitled to summary judgment on his claim that the FBI did not “promptly” produce responsive documents. Because the applicability of Exemption 7(C) in this context depends in part on the content of the documents, the Court ordered the FBI to provide it with unredacted copies of the responsive documents the FBI withheld or produced in redacted form to the Plaintiff. The Court begins with the Plaintiff’s claim regarding the timeliness of the FBI’s production, before turning to the adequacy of the FBI’s search for documents and the specific exemptions invoked by the FBI.

A. Timeliness of the FBI’s Production of Responsive Documents

The Plaintiff moves for summary judgment on the grounds the FBI failed to timely produce documents responsive to his request.[3] Pl.’s Cross-Mot. at 6-7. The FBI notified the Plaintiff on October 19, 2011, that the agency had located 1, 223 pages of potentially responsive materials, and indicated that if the agency did not receive the Plaintiff’s commitment to pay any duplication fees within thirty days of October 19, the Plaintiff’s request would be closed. Hardy Decl., Ex. C. The Plaintiff does not dispute the fact that he never responded to the FBI’s letter. Consistent with the Department of Justice’s FOIA regulations, the FBI discontinued processing the Plaintiff’s request. 28 U.S.C. § 16.11(e) (“In cases in which a requester has been notified that actual or estimated fees amount to more than $25.00, the request shall not be considered received and further work shall not be done on it until the requester agrees to pay the anticipated total fee.”). Because the Plaintiff failed to comply with the applicable regulations, the FBI was not required to “make the records promptly available.” 5 U.S.C. § 552(a)(3)(A)(ii).

The Plaintiff suggests that he was not required to respond to the FBI’s October 19 letter because regulations “deemed Plaintiff to have agreed to pay that fee, remov[ing] any requirement that Plaintiff ‘confirm’” his agreement to pay any duplication fees. Pl.’s Reply at 12 (emphasis in original). The regulation the Plaintiff refers to, 28 C.F.R. § 16.3(c), provides that

If you make a FOIA request, it shall be considered an agreement by you to pay all applicable fees charged under § 16.11, up to $25.00, unless you seek a waiver of fees. The component responsible for responding to your request ordinarily will confirm this agreement in an acknowledgement letter. When making a request, you may specify a willingness to pay a greater or lesser amount.

28 C.F.R. § 16.3(c). The Plaintiff is correct that if he elected to receive documents on a CD, the estimated cost was only $25. Hardy Decl., Ex. C. However, because the Plaintiff failed to respond to the FBI’s letter, the FBI had no way of knowing whether the Plaintiff would elect to receive responsive documents on a disk, thus incurring no more than $25 in duplication fees, or whether the Plaintiff would elect to receive the documents hard copy, thus incurring up to $112.30 in duplication fees. Section 16.3(c) did not come into play unless and until the Plaintiff indicated in which format responsive documents should be produced. This regulation did not relieve the Plaintiff of his obligation to respond to the FBI’s October 19 letter

The Plaintiff also takes issue with the FBI’s attempt to, according to the Plaintiff, “roll[] out a meritless exhaustion argument that it has not previously raised.” Pl.’s Reply at 10. This is not an issue of exhaustion. At the point the Plaintiff failed to respond to the FBI’s October 19 letter, pursuant to the applicable regulations and the Freedom of Information Act itself, the FBI was under no obligation to continue processing the Plaintiff’s request. For the same reason, the Plaintiff’s attempt to recast his timeliness argument in his Reply is unpersuasive. The Plaintiff argues that the FBI acknowledged the fee issue was moot in August 2012, but did not produce responsive documents until January 2013. Pl.’s Reply at 13. As a threshold matter, the Court shall deny the Plaintiff’s motion for summary judgment on this basis because the Plaintiff did not raise this argument until his reply brief, at which point the FBI has no opportunity to respond. Am. Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008). Moreover, this argument ignores the fact that the FBI’s statutory obligation to respond “promptly” terminated in November 2011 when the Plaintiff failed to respond to the agency’s October 19, 2011, letter. The Plaintiff offers no authority for the proposition that the FBI’s decision to produce documents in response to this litigation triggered any statutory duty to produce documents within a particular time frame. Therefore, the Plaintiff is not entitled to summary judgment on its claim that the FBI failed to make the responsive records “promptly available.”

B. Adequacy of the FBI’s Search

“An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 390 (D.C. Cir. 1999) (citation omitted). “At summary judgment, a court may rely on [a] reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched.” Ancient Coin Collectors Guild, 641 F.3d at 514 (citation omitted). “The agency cannot limit its search to only one or more places if there are additional sources that are likely to turn up the information requested.” Valencia-Lucena, 180 F.3d at 391 (citation omitted). Ultimately, the ...

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