United States District Court, D. Columbia.
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ZEYAD ABDELJABBAR, Plaintiff, Pro se, GREENVILLE, IL.
For BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES, EXECUTIVE OFFICE FOR UNITED STATES ATTORNEY, FEDERAL BUREAU OF INVESTIGATION, Defendants: Shuchi Batra, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
REGGIE B. WALTON, United States District Judge.
Zeyad Abdeljabbar, the pro se plaintiff in this civil matter, alleges that the defendants, the Bureau of Alcohol, Tobacco, and Firearms (" ATF" ), the Executive Office for United States Attorneys (" EOUSA" ), and the Federal Bureau of Investigation (" FBI" ), violated the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552 (2012), by failing to respond adequately to FOIA document requests submitted by the plaintiff. Complaint (" Compl." ) at 2-3, 5. Specifically, the plaintiff requested from the defendants " any and all investigative documents in the files of [the defendants], from the criminal case United States v. Zeyad Abdeljabbar, 4:07CR2114, [prosecuted] in the Eastern District of Missouri," as well as certain " information [from] the file on the government testifying witness[es]." Id. The defendants have moved for summary judgment, asserting that they " have
already disclosed all non-exempt information to [the] [p]laintiff." Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment (" Defs.' Mem." ) at 2. After carefully considering the Complaint, the Defendants' Motion for Summary Judgment (" Defs.' Mot." ), and the memoranda of law submitted in support of the motion, the Court concludes for the reasons that follow that it must grant the defendants' motion.
In compliance with the obligations set forth in Fox v. Strickland, 837 F.2d 507, 267 U.S.App.D.C. 84 (D.C. Cir. 1988), and Neal v. Kelly, 963 F.2d 453, 295 U.S.App.D.C. 350 (D.C. Cir. 1992), the Court issued an order on January 23, 2014, advising the plaintiff of the potential consequences of failing to respond to the defendants' motion for summary judgment, and ordered the plaintiff to respond to the motion by March 3, 2014. ECF No. 23. As of the date of this Memorandum Opinion, the plaintiff has not responded to the defendants' motion for summary judgment. Accordingly, the Court accepts as true the factual assertions submitted in support of the defendants' motion. See Neal, 963 F.2d at 456.
A. ATF Request No. 12-951
The plaintiff alleges that he submitted a FOIA request to the ATF on April 3, 2012, demanding that he be provided " any and all investigative documents in the files of [the ATF], from the criminal case United States v. Zeyad Abdeljabbar, 4:07CR2114, [prosecuted] in the Eastern District of Missouri," as well as certain " information [from] the file on the government testifying witness[es]." Compl. at 2; Boucher Decl., Exhibit (" Ex." ) A at 1. On May 26, 2012, the plaintiff lodged a FOIA appeal with the United States Department of Justice's Office of Information and Privacy (" OIP" ), Defs.' Statement ¶ 1, claiming that he " ha[d] not heard from [the ATF]" and was " taking the non-response as a denial of [his] request," Boucher Decl., Ex. A at 1. Upon review, the ATF determined that it " had not received a FOIA request from [the plaintiff]." See Defs.' Statement ¶ 4. The ATF advised the plaintiff of this by letter dated June 18, 2012, and noted that the plaintiff " could resubmit a FOIA request to [the] ATF." Id.
When the plaintiff filed his Complaint with the Court on February 13, 2013, the ATF " treated that [C]omplaint as an initial FOIA request." Id. ¶ 5. " By letter dated September 24, 2013, [the] ATF's Disclosure Division granted [the] [p]laintiff's request, in part." Defs.' Statement ¶ 6. " Portions of responsive records were withheld under Exemptions (b)(3), (b)(7)(C)[,]
and (b)(7)(E) of the FOIA," id., the ATF having " reviewed each page of the material identified as responsive to ensure that no additional information could be released . . . [and that] [a]ll releasable information ha[d] been provided to [the plaintiff]," Boucher Decl. ¶ 42.
B. EOUSA Request Nos. 12-1412, 12-1414, and 12-3509
On April 3, 2012, the plaintiff submitted a FOIA request to the EOUSA, which was largely identical in substance to the request he submitted to the ATF. Compl. at 3. By letter dated May 2, 2012, the EOUSA " informed [the] plaintiff" that, with respect to his request for records of third parties, " it is the policy of the EOUSA to neither confirm nor deny that records concerning living third parties exist." Defs.' Statement ¶ 15. Following receipt of this letter, the plaintiff " submitted a modified request for third parties . . . requesting only public records relating to the third parties." Luczynski Decl. ¶ 14.
On April 29, 2013, the EOUSA granted the plaintiff's modified request, in part, and informed the plaintiff that " his request has been processed and that 58 pages had been released in full (" RIF" ), 141 pages had been released in part (" RIP" ), and 197 pages of records had been withheld in full (" WIF" )." Defs.' Statement ¶ 14. The EOUSA noted in its letter that it withheld certain information pursuant to FOIA Exemptions (b)(3), (b)(5), (b)(6), (b)(7)(C), (b)(7)(D). Id. The EOUSA asserts in its declaration that " [a]ll information withheld was exempt from disclosure pursuant to a FOIA exemption . . . [and] no reasonably segregable non-exempt information was withheld from [the] plaintiff." Luczynski Decl. ¶ 39.
C. FBI Request No. 1188333-000
On March 30, 2012, the plaintiff submitted a FOIA request to the FBI, which was also largely identical in substance to the requests he submitted to the ATF and the EOUSA. Compl. at 5. " By letter dated December 19, 2013, the FBI advised [the] [p]laintiff that it had reviewed 97 pages and it was releasing 59 pages to
him . . . [and that] it had withheld information pursuant to . . . FOIA Exemptions (b)(1), (b)(6), (b)(7)(C), (b)(7)(D), and (b)(7)(E)." Defs.' Statement ¶ 28. According to the FBI, " [n]o reasonably segregable, nonexempt portions were withheld from [the] plaintiff," Hardy Decl. ¶ 24, and that " all material which the FBI has withheld is exempt from disclosure pursuant to one or more FOIA exemptions,"
id. ¶ 28.
I. STANDARD OF REVIEW
Courts will grant a motion for summary judgment " 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 moving party bears the burden of demonstrating 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), and may do so by " citing to particular parts of materials in the record, including . . . affidavits or declarations," Fed.R.Civ.P. 56(c)(1)(A). " [A] dispute about a material fact is 'genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party" on an element of the nonmoving party's claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits affidavits or declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456, 295 U.S.App.D.C. 350 (D.C. Cir. 1992). In opposing a summary judgment motion, a party may not " replace conclusory allegations of the complaint . . . with conclusory allegations of an affidavit," Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), but rather must " set forth specific facts showing that there is a genuine issue for trial," Liberty Lobby, 477 U.S. at 248 (internal quotations omitted).
Courts review an agency's response to a FOIA request de novo, 5 U.S.C. § 552(a)(4)(B), and " FOIA cases typically and appropriately are decided on motions for summary judgment," ViroPharma Inc. v. HHS, 839 F.Supp.2d 184, 189 (D.D.C. 2012) (citations omitted). In a FOIA action to compel production of agency records, the agency " is entitled to summary judgment if no material facts are in dispute and if it demonstrates 'that each document that falls within the class requested either has been produced . . . or is wholly exempt from the [FOIA's] inspection requirements.'" Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 833, 347 U.S.App.D.C. 235 (D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352, 197 U.S.App.D.C. 25 (D.C. Cir. 1978)).
Summary judgment in a FOIA case may be based solely on information provided in an agency's supporting affidavits or declarations if they are " relatively detailed and nonconclusory," Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1200, 288 U.S.App.D.C. 324 (D.C. Cir. 1991) (internal quotations and citations omitted), and when they:
[d]escribe 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 [or] by evidence of agency bad faith.
Military Audit Project v. Casey, 656 F.2d 724, 738, 211 U.S.App.D.C. 135 (D.C. Cir. 1981). " To successfully challenge an agency's showing that it complied with the FOIA, the plaintiff must
come forward with 'specific facts' demonstrating that there is a genuine issue with respect to whether the agency has improperly withheld extant agency records." Span v. U.S. Dep't of Justice, 696 F.Supp.2d 113, 119 (D.D.C. 2010) (quoting U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989)).
In his Complaint, the plaintiff sets forth only generalized allegations, noting that the defendants are in " violation of FOIA" by not releasing all responsive records. See Compl. at 3 (" [The ATF] is in gross violation of FOIA, by not respon[d]ing and releasing records and information requested. There is no legal justification for the nonresponse of [the ATF]." ); id. at 5 (" EOUSA is in violation of EOUSA [sic], by not adequately responding to [the] [p]laintiff's specific FOIA request for records on self, [t]hird [p]arties, as well as [t]hird [p]arties 'Public Records.'" ); id. at 6 (" FBI is in gross violation of FOIA, by no [sic] provided [sic] the requested records within its files, as mandated by Congress." ). To prevail on their summary judgment motion, the defendants " must show beyond material doubt that [they] ha[ve] conducted . . . search[es] reasonably calculated to uncover all relevant documents," Morley v. CIA, 508 F.3d 1108, 1114, 378 U.S.App.D.C. 411 (D.C. Cir. 2007), and that each document identified as responsive " has been produced . . . or is wholly exempt from" disclosure, Students Against Genocide, 257 F.3d at 833. For the reasons that follow, the Court finds that: (1) the defendants conducted reasonable and adequate searches; and (2) the defendants withheld from disclosure only information for which a FOIA exemption properly applies.
A. Adequacy of the Defendants' Searches
The adequacy of an agency's search is measured by a standard of reasonableness under the attendant circumstances. Truitt v. Dep't of State, 897 F.2d 540, 542, 283 U.S.App.D.C. 86 (D.C. Cir. 1990). To satisfy its burden to show that no genuine issue of material fact exists, the defendant must show that each agency component " has conducted a search reasonably calculated to uncover all relevant documents," Elliott v. U.S. Dep't of Agric., 596 F.3d 842, 851, 389 U.S.App.D.C. 272 (D.C. Cir. 2010) (quoting Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351, 227 U.S.App.D.C. 253 (D.C. Cir. 1983)), and it may base its showing on affidavits or declarations submitted in good faith,
see Truitt, 897 F.2d at 542, provided that these affidavits or declarations explain in reasonable detail the scope and method of the search, see Morley, 508 F.3d at 1116 (citing Goland, 607 F.2d at 352). " In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency's compliance with [the] FOIA."
North v. U.S. Dep't of Justice, 774 F.Supp.2d 217, 222 (D.D.C. 2011) (citing Perry v. Block, 684 F.2d 121, 127, 221 U.S.App.D.C. 347 (D.C. Cir. 1982)). There is no requirement that an agency search every record system in response to a FOIA request; rather, it may limit its search to only those locations where responsive documents likely are maintained. Porter v. CIA, 778 F.Supp.2d 60, 69-70 (D.D.C. 2011). However, if the record " leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper." Beltranena v. Clinton, 770 F.Supp.2d 175, 183 (D.D.C. 2011) (quoting Truitt, 897 F.2d at 542); see also Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326, 336 U.S.App.D.C. 386 (D.C. Cir. 1999) (stating that summary judgment is inappropriate " if a review of the record raises substantial doubt" about the adequacy of the search (citation omitted)).
1. The ATF's Search
Stephanie Boucher, the Chief for ATF's Disclosure Division, Boucher Decl. ¶ 2, asserts in her declaration that the " ATF undertook a complete and thorough search for all documents responsive to [the plaintiff's] FOIA request. All indices and file systems . . . that would contain information pertaining to [the plaintiff] were reasonably searched." Id. ¶ 19. Specifically, she represents that " [b]ased upon the information provided by [the plaintiff] in [his] FOIA request," the ATF " conducted a search of N-Force and located the investigation number relating to [the plaintiff's] [criminal] investigation." Boucher Decl. ¶ 11. As she explains:
'N-Force' is a case management system designed to support ATF law enforcement operations and acts as a single-point of data entry system, which enables users to store, utilize, and query investigative information, and to prepare investigative documents. N-Force is ATF's official case file of record for documenting investigative activity and information, creating reports, tracking investigative leads and linking data.
Id. ¶ 12. The ATF's " search indicated that [the plaintiff]'s case, Investigation Number 779050-03-0135, was closed and [related documents] had been archived." Id. ¶ 16. " Once the documents were received from archives, the documents responsive to [the plaintiff]'s FOIA request were forwarded via Federal Express to the Disclosure Division." Id. Additionally, the ATF conducted a search of the Treasury Enforcement Communications System (" TECS" ) for documents responsive to the plaintiff's request. Id. ¶ 17. The ATF notes in its declaration that:
TECS is a text-based database, owned and maintained by the Bureau of Customs and Border Protection, U.S. Department of Homeland Security, and contains information that may be of interest to law enforcement agencies. TECS is a computerized information system designed to identify individuals and businesses suspected of or involved in violation of Federal law. TECS is also a communications system permitting message transmittal ...