United States District Court, D. Columbia
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
KHALID AWAN, Plaintiff, Pro se, MENDOTA, CA.
For KENNETH COURTER, FEDERAL BUREAU OF INVESTIGATION, ERIC H. HOLDER, JR., Honorable, U.S. Attorney General, Defendants: Hubert T. Lee, Mary Elizabeth Stratton, Michelle Lo, LEAD ATTORNEYS, U.S. ATTORNEY'S OFFICE, Washington, DC; Wenqiong Fu, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.
BERYL A. HOWELL, United States District Judge.
The plaintiff Khalid Awan, who is proceeding pro se, brought this action to challenge the responses of the Federal Bureau of Investigation (" FBI" ) to his requests for documents under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552. On May 22, 2013, the Court adopted the Magistrate Judge's Report and Recommendation (" R& R" ), ECF No. 48, granting in part and deferring in part the defendants' motion for summary judgment, ECF No. 19. See Mem. Op. & Order, ECF No. 64. Based on the declarations supporting the defendants' initial summary judgment motion and the parties' supplemental filings, for the reasons set forth below, the defendants' motion for summary judgment is granted in part and denied in part on the remaining issues previously deferred, and the defendants are directed to release, in part, the previously withheld affidavit supporting a material witness warrant application.
The factual and procedural history of this case is briefly summarized below to help clarify the limited issues subject to resolution in this Memorandum Opinion.
A. Factual History
On December 10, 2008, the plaintiff requested from the FBI copies of the following documents:
1. the arrest warrant and affidavits in support of his arrest as a material witness in 2001;
2. the search warrant and affidavit in support of the search warrant for storage lockers number 1238 and 2303 located in New York;
3. a copy of the permissions and approvals obtained by the FBI for wiretaps from 2003-2004; and
4. the receipt or details of any cash seized by the FBI on October 25, 2001, including copies of travelers checks and bank receipts.
Second Decl. of David M. Hardy (" Second Hardy Decl." ) ¶ 11, ECF No. 19-2. The plaintiff's subsequent requests forming the basis of this action are variations of the foregoing request and collectively seek the same types of records. See id. ¶ 23 (describing the basis of this lawsuit as the plaintiff's FOIA requests dated April 21, 2009, April 23, 2009, and May 11, 2009, seeking substantially the same records); Compl. ¶ ¶ 10-12, ECF No. 1 (noting that same request had also been made in letters, dated March 16, 2009, June 16, 2009 and August 3, 2009).
In response to the plaintiff's FOIA requests at issue in this suit, the FBI has released documents to the plaintiff both before and after this lawsuit was filed: on April 30, 2009, Second Hardy Decl. ¶ ¶ 10; 12; Exs. I; J; on January 14, 2011, id. ¶ 24; Ex. Y; and on May 9, 2012, Third Decl. of David M. Hardy (" Third Hardy Decl." ) ¶ 7, ECF No. 58-1. In total, the FBI located seventy responsive pages, of which thirty-six pages were released (four in full and thierty-four pages in part), eleven pages were withheld in full, and twenty-one pages were withheld as duplicates. Second Hardy Decl. ¶ 4. In addition, on May 9, 2012, the FBI released, in part, a five-page document, dated " 8/18/2004," related to consensually taped recordings of the plaintiff. Third Hardy Decl. ¶ 7; Ex. A. See Pl.'s Resp. Defs.' Supp. Decl. at 1, ECF No. 65 (acknowledging that " the FBI has released a lot of previously requested documents to the Plaintiff" ).
B. Procedural History
The plaintiff filed this lawsuit on June 29, 2010, challenging the adequacy of the FBI search since the agency declined to search its " I-drives," Compl. ¶ ¶ 16; 18; 21, and failing to disclose requested records related to items 1, 2, and 3 of his FOIA request, id. ¶ 29. In the course of
this litigation, the FBI has identified the bases for the withholding of information in the various releases made to the plaintiff as under FOIA Exemptions 3, 5, 6, 7(C), 7(D) and 7(E) and subsection (j)(2) of the Privacy Act, 5 U.S.C. § 552a. Second Hardy Decl. ¶ 5.
After the filing of the defendants' motion for summary judgment, the plaintiff filed two motions: (1) a motion to compel the defendants to answer discovery requests, Pl.'s Mot. Compel, ECF No. 26, in response to which the defendants filed a motion for a protective order, Defs.' Mot. Protective Order, ECF No. 29; and (2) a motion for " an ORDER directing the Defendants to create a list of documents, describing each document located by a general description and date of creation, and file location, in response to his FOIA request," Pl.'s Resp. Defs.' Reply Suppl. Mot. Summ. J. at 2, ECF No. 27. As to the first motion, the Court denied the plaintiff's motion to compel the defendants to respond to his discovery requests and granted the defendants' request for a protective order. Awan v. U.S. Dep't of Justice, at *5 (D.D.C. July 13, 2011). The Court also denied the plaintiff's second motion seeking to compel the production of a Vaughn index, but noted that the defendants had withheld " an 11-page span based on FOIA Exemptions 3, 6, 7(C) and (D)" without describing the pages in a declaration or otherwise. Awan v. U.S. Dep't of Justice, at *5-6 (D.D.C. July 13, 2011). Consequently, the Court ordered the defendants to submit for in camera inspection an additional declaration explaining the withholding of Bates-stamped pages Awan-49 through Awan-59, the pages themselves, or both. Id. In compliance with this order, the FBI submitted in camera to the Court a declaration of David M. Hardy and the requested pages Awan-49 through Awan-59. See
Nots. of In Camera Submission, ECF Nos. 38; 71. These pages are " the application dated October 23, 2001, for the material witness warrant," which is one of the documents sought in the plaintiff's FOIA request. Mag. J. Report & Recommendation regarding ...