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Sennett v. Department of Justice

United States District Court, District Circuit

August 27, 2013



JAMES E. BOASBERG, District Judge.

Plaintiff Laura Sennett - a photojournalist who claims a special interest in covering protests, political demonstrations, and "grassroots activism" - submitted a request to the Federal Bureau of Investigation seeking "files, correspondence, or other records concerning [herself]." After a search and review of documents, the agency produced more than 1, 000 pages of responsive records but withheld and redacted a number of records pursuant to specific provisions of the Freedom of Information Act and the Privacy Act. Unsatisfied, Plaintiff brought this suit challenging the sufficiency of Defendant's search, as well as the propriety of many of its withholdings. Arguing that it has complied with its obligations, Defendant now moves for summary judgment. Because the Bureau's search was adequate and its withholdings largely proper, the Court will grant Defendant's Motion for the most part.

I. Background

There are a number of background facts that appear to be undisputed. In the early morning hours of April 12, 2008, protesters gathered at the Four Seasons Hotel in Georgetown for a demonstration during the International Monetary Fund's annual spring meeting. See Compl., ¶¶ 7-8. Sennett attended with the purpose of photographing the event. See id., ¶ 8. Following the demonstration and acts of vandalism surrounding it, a warrant to search Sennett's home was obtained, which was executed on September 23, 2008. See Sennett v. United States , 667 F.3d 531, 532-36 (4th Cir. 2012) (describing demonstration and subsequent search). The officers who conducted the search seized "more than 7, 000 pictures, two computers, several cameras and other camera equipment." Compl., ¶ 9.

Sennett thereafter submitted the following request to the FBI seeking records related to the search: "This is a request for records under the Privacy Act. I request copies of all files, correspondence, or other records concerning myself. Please search both your automated indices and the older general (manual) indices. To prove my identity, I am enclosing a completed form DOJ-361." Mot., Declaration of David M. Hardy, Exh. A (9/5/2010 Sennett Request). On March 18, 2011, the FBI notified Plaintiff that 280 pages of records had been reviewed and 213 pages were being released in full or in part pursuant to specific provisions of FOIA and the Privacy Act. See Hardy Decl., Exh. B (3/18/2011 FOIA Response). These records were located as a result of a search of the indices to the FBI's Central Records System. See Hardy Decl., ¶¶ 6, 21-22.

Sennett administratively appealed the FBI's determination on the release and withholding of documents, and the agency's decision was subsequently affirmed. See id., Exh. C (3/23/11 Appeal); Exh. E (Decision Affirming Appeal). Sennett then filed this suit on March 30, 2012, alleging violations of FOIA and the Privacy Act. See Complaint, ¶¶ 4, 12-19. Before a briefing schedule was set, Sennett received a letter from the FBI informing her that

[a]s a result of your litigation, we conducted a new search of the indices to the Central Records System at FBI Headquarters. The FBI identified one "197" file that appears to be responsive to you as it pertains to Civil Action Number 1:10-cv-01055, Laura Sennett v. United States, et al., U.S. District Court for the Eastern District of Virginia. A "197" file is categorized as a civil litigation file that contains material concerning the civil action that you lodged against the U.S. government. The FBI does not routinely process 197 files unless the requester specifically requests us to do so because the file contains material sent to and from the plaintiff and/or documents filed before the court.

See Hardy Decl., Exh. F (7/11/2012 FBI Letter). Sennett requested that these documents be produced, and they were released to her on February 28, 2013. See id., Exh. G (7/20/13 Letter Requesting 197 File); Exh. H (2/28/13 FOIA Response). For this second production, 1, 695 pages were reviewed, and 1, 076 pages were released in full or in part. As with its previous production, the FBI withheld a number of documents, this time pursuant to the Privacy Act, FOIA exemptions, and a sealing Order in a civil case Sennett had filed in the Eastern District of Virginia. See 2/28/13 FOIA Response.

Defendant then filed a Motion for Summary Judgment on June 3, 2013, accompanied by a declaration describing the agency's search efforts and withholdings. See Hardy Decl. The matter is now fully briefed and ripe for decision.

II. Legal Standard

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); Holcomb v. Powell , 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is "material" if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby , 477 U.S. at 248; Holcomb , 433 F.3d at 895. A dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris , 550 U.S. 372, 380 (2007); Liberty Lobby , 477 U.S. at 248; Holcomb , 433 F.3d at 895. "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" or "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986).

FOIA cases typically and appropriately are decided on motions for summary judgment. See Brayton v. Office of U.S. Trade Rep. , 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case, a court may grant summary judgment to a FOIA defendant based solely on information provided in an agency's affidavits or declarations when they "describe 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." Larson v. Dep't of State , 565 F.3d 857, 862 (D.C. Cir. 2009) (citation omitted). Such affidavits or declarations "are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." SafeCard Servs., Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks omitted). "Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden on the agency to sustain its action' and directs the district courts to determine the matter de novo.'" Dep't of Justice v. Reporters Com. for the Freedom of the Press , 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)).

III. Analysis

Defendant maintains that summary judgment is proper because its search was reasonably calculated to return relevant records, it released all reasonably segregable material, and its withholdings were proper under a number of FOIA exemptions. See Mot. at 2. Plaintiff raises three central challenges in response. First, Sennett claims that Defendant failed to conduct an adequate search for responsive records because it did not search its electronic surveillance indices. See Opp. at 11. Second, she asserts that the FBI failed to release reasonably segregable records. See id. And finally, she contends that Defendant improperly withheld multiple records pursuant to three specific FOIA exemptions. See id. at 1-11. Finding that the FBI has discharged almost all of its responsibilities on those three fronts, the Court will substantially grant Defendant's Motion.

A. Adequacy of Search

FOIA requires government agencies to describe their searches in enough detail for a court to determine whether the search was sufficiently exhaustive to satisfy the Act. Nation Magazine, Washington Bureau v. U.S. Customs Service , 71 F.3d 885, 890 (D.C. Cir. 1995); Oglesby v. U.S. Dep't of Army , 920 F.2d 57, 68 (D.C. Cir. 1990). "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. Coast Guard , 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep't of State , 897 F.2d 540, 542 (D.C. Cir. 1990)); see also Steinberg v. Dep't of Justice , 23 F.3d 548, 551 (D.C. Cir. 1994). "[T]he issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate." Weisberg v. Dep't of Justice , 745 F.2d 1476, 1485 (D.C. Cir. 1984) (emphasis in original). The adequacy of an agency's search for documents requested under FOIA "is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case." Id . To meet its burden, the agency may submit affidavits or declarations that explain the scope and method of its search "in reasonable detail." Perry v. Block , 684 F.2d 121, 127 (D.C. Cir. 1982). Absent contrary evidence, such affidavits or declarations are sufficient to show that an agency complied with FOIA. See id. "If, however, the record leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper." Truitt , 897 F.2d at 542.

The sole issue Plaintiff raises with respect to the adequacy of the FBI's search is that the Bureau did not look in its electronic surveillance (ELSUR) files for responsive records. See Opp. at 11. Defendant maintains that it was not required to search this source because it was not reasonably likely that the ELSUR indices would contain responsive records. See Reply at 16-18. In so asserting, it provides additional information about the indices and the agency's search, including:

• "The FBI's Electronic Surveillance (ELSUR') Indices, a separate system of records from the CRS, are used to maintain information on subjects whose electronic and/or voice communications have been intercepted as a result of electronic surveillance conducted by the FBI, " Reply, Att. (Second Declaration of David M. Hardy), ¶ 6;
• "The ELSUR Indices are comprised of four types of records: Principal; Proprietary Interest; Intercept; and Reference records, " id., ¶ 7 (including sub-paragraphs providing further detail on each type of record); and
• "In responding to FOIA requests, the FBI searches those locations where it determines responsive records are likely to be found. Most FBI cases do not involve electronic surveillance, and so it is not reasonably likely that responsive records will be found in the ELSUR Indices in most instances. Accordingly, the FBI only searches those indices when specifically asked to do so by a requester or when there is some indication that there may be responsive records in the indices, such as when there are references in the investigative file to electronic surveillance."

Id., ¶ 8.

The declaration further explains that there was no reason to search the ELSUR indices here because "Plaintiff did not request that the FBI search the ELSUR Indices for responsive records, " id., ¶ 9; "[m]oreover, the FBI did not find any indication in the investigative files containing information responsive to plaintiff's FOIA request that the investigations involved electronic surveillance. The video that plaintiff references in her response is a security video from the Four Seasons Hotel, not a video resulting from electronic surveillance conducted by the FBI." Id., ¶ 10.

Based on the facts here and Defendant's explanation as to why it was unlikely that responsive records would be located in the electronic surveillance indices, the Court finds that the agency's decision not to search this source was reasonable. See Am. Immigration Council v. U.S. Dep't of Homeland Sec. , 905 F.Supp.2d 206, 214-215 (D.D.C. 2012) (agency's explanation sufficient where it had "justifiably conclude[d]" that challenged source probably did not hold responsive records); Salas v. Office of Inspector Gen. , 577 F.Supp.2d 105, 110 (D.D.C. 2008) (acknowledging agency was not required to search every records system and finding search adequate where "declarant adequately explains the agency's reasons for limiting the search to the [specific] database"). A plaintiff's conjecture regarding possible sources that have not been searched is not sufficient to undermine an agency's position that responsive documents would not be contained in a particular database. See Nicholls v. U.S. Office of Personnel Mgmt. , 863 F.Supp.2d 4, 10 (D.D.C. 2012).

Because no other objections remain on this issue, Defendant is entitled to summary judgment on ...

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