United States District Court, D. Columbia.
KENNETH J. DILLON, Plaintiff,
DEPARTMENT OF JUSTICE, Defendant
Decided May 1, 2015
For KENNETH J. DILLON, Plaintiff: Kelly Brian McClanahan, LEAD ATTORNEY, NATIONAL SECURITY COUNSELORS, Arlington, VA.
For FEDERAL BUREAU OF INVESTIGATION, DEPARTMENT OF JUSTICE, Defendants: Marina Utgoff Braswell, LEAD ATTORNEY, Jane M. Lyons, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.
REGGIE B. WALTON, United States District Judge.
Kenneth J. Dillon, the plaintiff in this civil matter, alleges that the defendant, 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 two FOIA document requests submitted by the plaintiff. First Amended Complaint (" Am. Compl." ) ¶ ¶ 14-15, 21-22. In his first FOIA request, the plaintiff requested from the defendant " certain records about the August 2001 detention and arrest of Zacarias Moussaoui and the detention of Abderraouf Jdey." Id. ¶ 7. The plaintiff represents that he subsequently limited this request to only " records documenting the items found in the possession of Zacarias Moussaoui on 16-17 August 2001" and " records pertaining to the August 2001 detention which reference cropdusting, cropdusters, or biological or chemical terrorism." Id. ¶ 13. The plaintiff also submitted a second FOIA request for the " FBI's entire file on al Qaeda operative Abderraouf Jdey." Id. ¶ 17. The defendant moves for summary judgment, Defendant's Motion for Summary Judgment (" Def.'s Mot." ) at 1, asserting that " [t]he FBI released certain information in response to both requests . . . but also withheld other information as exempt from disclosure by the statute," Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment (" Def.'s Mem." ) at 1. After carefully considering the First Amended Complaint, the Defendant's Motion for Summary Judgment, and the memoranda of law submitted in support of and opposition to the motion, the Court concludes for the reasons that follow that it must grant the defendant's motion.
A. FOIA Request No. 1170856
The plaintiff alleges that he submitted his first FOIA request to the FBI on July 17, 2011, requesting certain " records about the August 2001 detention and arrest of Zacarias Moussaoui and the detention of Abderraouf Jdey." Am. Compl. ¶ 7; see also Hardy Decl. 1 ¶ 5; Hardy Decl. 2 ¶ 6. The FBI asserts that on January 11, 2012, it
advised [the] plaintiff that the requested records concern a third party and such information cannot be searched for or released absent express authorization and consent by the third party through the execution of a privacy waiver, proof of [the] subject's death, or a clear demonstration that the public interest in disclosure outweighs the personal privacy interests of the third party, and significant public benefit would result from the disclosure of these records.
Hardy Decl. 2 ¶ 8; see also Def.'s Facts ¶ 2. In this letter, the FBI noted that even " [a]bsent the foregoing, . . . the records requested were exempt from disclosure pursuant to FOIA Exemptions 6 and 7(C), with the exception of public records which the FBI would search for upon request."  Def.'s Facts ¶ 2; see also Hardy Decl. 2 ¶ 8. On February 10, 2012, the plaintiff lodged a FOIA appeal with the United States Department of Justice's Office of Information and Privacy (" OIP" ). Am. Compl. ¶ 9; Def.'s Facts ¶ 3. Following its review, the " OIP remanded the request instructing the FBI to conduct a search for responsive records." Hardy Decl. 2 ¶ 11; see also Am. Compl. ¶ 10.
The FBI conducted a search for records regarding Moussaoui's August 16, 2001, detention and arrest, and " released to [the] plaintiff all non-exempt material totaling [ninety-one] pages," seven which " were released in full," fifty-seven which " were released in part," and twenty-seven which " were withheld in full because they [were] duplicates to other pages released to the plaintiff." Hardy Decl. 2 ¶ 12; see also Def.'s Facts ¶ 5. The FBI also conducted a search for records pertaining to Abderraouf Jdey's detention, and " informed [the] plaintiff that [the responsive] material . . . is exempt from disclosure pursuant to 5 U.S.C. § 552(b)(7)(A)," because " Jdey is the subject of a pending law enforcement file and the release of any records could reasonably be expected to interfere with enforcement proceedings." Hardy Decl. 2 ¶ 13; see also Def.'s Facts ¶ 6; Am. Compl. ¶ 11. The FBI asserts in its declaration that, with respect to the responsive records for both Moussaoui and Jdey, " [a]ll exempt information has been withheld pursuant to FOIA Exemptions 1, 3, 6, 7(C), 7(A), 7(D), and 7(E) [and] all reasonably segregable, non-exempt information has been released." Hardy Decl. 2 ¶ 200.
B. FOIA Request No. 1187039
On March 30, 2012, the plaintiff submitted a second FOIA request to the FBI seeking the " FBI's entire file on al Qaeda operative Abderraouf Jdey." Am. Compl. ¶ 17; Def.'s Facts ¶ 7. On April 3, 2012, the FBI informed the plaintiff that:
the requested records concern a third party and such information cannot be searched for or released absent express authorization and consent by the third party through the execution of a privacy waiver, proof of [the] subject's death, or a clear demonstration that the public interest in disclosure outweighs the personal privacy of the third party, and significant public benefit would result from the disclosure of these records.
Hardy Decl. 2 ¶ 16; see also Def.'s Facts ¶ 8. In its response, the FBI explained that, " [a]bsent the foregoing, . . . the records requested were exempt from disclosure pursuant to FOIA Exemptions 6 and 7(C), with the exception of public records which the FBI would search for upon request." Def.'s Facts ¶ 8; see also Hardy Decl. 2 ¶ 16. (footnote omitted).
The plaintiff appealed this response to the OIP on April 10, 2012. Def.'s Facts ¶ 9; Hardy Decl. 2 ¶ 17, Exhibit (" Ex." ) K at 1. On September 26, 2012, the " OIP affirmed the FBI's actions, on partly modified grounds stating that 'because any record responsive to your request would be categorically exempt from disclosure, the FBI properly asserted Exemption 7(C) and was not required to conduct a search for the requested records.'" Hardy Decl. 2 ¶ 19; Def.'s Facts ¶ 10.
Following the plaintiff's commencement of this civil action, the FBI conducted a search of its records, Hardy Decl. 2 ¶ 33, and " released to [the] plaintiff all public source material on Abderraouf Jdey." Id. ¶ 21; Def.'s Facts ¶ 11. " The releases consisted of [twelve] pages," eleven which " were released in full," and one which " was released in part." Hardy Decl. 2 ¶ 21; see also Def.'s Facts ¶ 11. The FBI asserts in its declaration that all other responsive information " is exempt from disclosure pursuant to Exemption 7(A) since disclosure of the information could reasonably be expected to interfere with ongoing investigations as well as pending and prospective prosecutions." Hardy Decl. 2 ¶ 201. Furthermore, the FBI asserts that the " records pertaining to Jdey are [also] exempt from disclosure under one or more FOIA exemptions, including Exemptions 1, 3, 5, 6, 7(C), 7(D), 7(E), and 7(F)." Id. According to the FBI, " [a]ll reasonably segregable non-exempt information has been released to [the] plaintiff." Def.'s Facts ¶ 25; see also Hardy Decl. 2 ¶ 201.
II. 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); Fowlkes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 67 F.Supp.3d 290, 297, *8, 2014 WL 4536909, at *3 (D.D.C. 2014). 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, 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) (2012), 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)).
To prevail on its motion for summary judgment, the defendant " must show beyond material doubt that it has conducted a search 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 information 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 defendant conducted reasonable and adequate searches, where necessary; (2) the defendant withheld from disclosure only information for which a FOIA exemption properly applies; and (3) the defendant released all reasonably segregable information not otherwise exempt from disclosure.
A. Adequacy of the Defendant's Searches
The adequacy of an agency's search is measured by a standard of reasonableness under the attendant circumstances. Truitt v. U.S. 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)).
In response to the plaintiff's first FOIA request, the FBI " conducted an automated search of [its Central Records System] on August 29, 2012[,] for records on Zacarias Moussaoui." Hardy Decl. 2 ¶ 31; see also Hardy Decl. 3 ¶ ¶ 7-8. As the FBI explains in its declaration,
[t]he Central Records System (" CRS" ) enables the FBI to maintain information which it has acquired in the course of fulfilling its mandated law enforcement responsibilities. The records maintained in the CRS consist of administrative, applicant, criminal, personnel, and other files compiled for law enforcement purposes. This system consists of a numerical sequence of files, called FBI " classifications," which are broken down according to subject matter. The subject matter of a file may relate to an individual, organization, company, publication, activity, or foreign intelligence matter (or program). Certain records ...