United States District Court, District of Columbia
JAMES E. BOASBERG, District Judge.
Concerned that she was wrongfully targeted for federal investigation, Plaintiff Uzoma Kalu submitted Freedom of Information Act requests to the Internal Revenue Service, the Transportation Security Administration, and the Federal Bureau of Investigation. After receiving what she considered to be insufficient responses, she filed this suit to compel the agencies to search for and release certain records. The parties have now cross-moved for summary judgment on various aspects of her claims. Because the Court sides with the government on some issues, but Kalu on others, it will grant each motion in part and deny each in part.
Plaintiff, a physician from Columbus, Ohio, believes "that there is some type of error in... federal agencies' records pertaining to [her], which has for some reason mistakenly caused federal investigatory actions." Pl.'s Opp. & Cross-Mot., Att. 1 (Declaration of Uzoma Kalu), ¶¶ 2, 4. She has observed that, "for no apparent reason, " she has "regularly had [her] air travel flight boarding passes designated as Secondary Security Screening Selection (SSSS)[, ] which has required additional security measures when [she] travel[s]." Id., ¶ 5. She has "also experienced unusual IRS tax audits, " suggesting that there is "something within [her] federal records... causing th[e] additional... investigatory activity." Id . Hoping to get to the bottom of things, she retained attorney Daniel J. Stotter to submit FOIA requests on her behalf to the IRS, TSA, and FBI. See id., ¶ 3. The following generally summarizes her interactions with each agency; where helpful, additional facts will be set forth in the Analysis section, infra .
A. Internal Revenue Service
On June 26, 2013, Stotter submitted a FOIA request to the IRS, seeking "[a]ll IRS records, excluding any tax filings, listing my client's name (Uzoma Kalu), or otherwise describing or discussing my client (Ms. Kalu), from January 2007 to the date of this record request...." Def.'s Mot., Att. 3 (Declaration of Anna M. Robles, Senior Disclosure Specialist, IRS), Exh. A (IRS FOIA Request) at 1. When the Service received the request, it determined that in order to release this information to Stotter, he would need to submit a form demonstrating that Plaintiff had authorized such release. See Robles Decl., ¶ 4. Stotter thus submitted Form 2848, "Power of Attorney and Declaration of Representation." See id., ¶ 7. The IRS deemed the form insufficient, however, believing it incomplete. See id.
In subsequent communications, Stotter argued that based on his reading of the IRS FOIA manual and regulations, "a Form 2848, listing all of the particular tax items that are subject to the power of attorney is only required in matters involving tax records, and since the subject FOIA request expressly indicate[d] that it d[id] not pertain to any tax records, it appear[ed] that the general authorization... submitted from [his] client [wa]s sufficient...." Id., Exh. C (Letter from Stotter to Robles, July 31, 2013). He nevertheless sent a revised Form 2848 to the agency. See Def.'s Mot., Att. 4 (Declaration of Delphine V. Thomas, Senior Disclosure Specialist, IRS), ¶ 3. The IRS, however, believed that this form too was invalid. See id.
Eventually, after an extensive back and forth on the issue, the agency told Stotter it would no longer reply to future letters "concerning these issues." See id., Exh. G (Letter from Thomas to Stotter, Dec. 5, 2013). Kalu thus filed this suit on June 11, 2014. Several months later, at the request of agency counsel, the IRS nonetheless conducted a search that led to the identification of 45 pages of "responsive" documents for tax years 2010 and 2011. See Thomas Decl., ¶ 11. While these have been provided to agency counsel, they have not been released to Plaintiff. See id.
B. Transportation Security Administration
On June 27, 2013, Stotter submitted a virtually identical FOIA request to the TSA. See Def.'s Mot., Att. 1 (Declaration of Teri Miller, Acting FOIA Officer, TSA), Exh. A (TSA FOIA Request) (seeking "[a]ll records listing my client's name (Uzoma Kalu), or otherwise describing or discussing my client (Ms. Kalu), from January, 2007 to the date of this records request"). The Administration subsequently indicated that it "need[ed] clarification on [Kalu's] request." Miller Decl., Exh. D (E-mail from Geraldine Lewis to Stotter (Aug. 14, 2013, 8:28 AM)). Specifically, it "need[ed] to know the topic/reason for the request (i.e.: credential problems; flight issues; TSA employee issues)." See id. In response, Stotter explained:
[M]y client seeks ALL responsive records to her 6/27/13 FOIA request, which would most certainly include (but is not limited to) any and all responsive records for each of the categories that you describe below [(credential problems, flight issues, TSA employee issues)], as well as any other responsive agency records as to any other subject matter within the scope of her June 27, 2013 FOIA request.
As you know, a FOIA requester is not required to provide an agency with information as to their "purpose" for seeking records pursuant ot [ sic ] a FOIA request.
Miller Decl., Exh. D (E-mail from Stotter to Lewis (Aug. 27, 2013, 6:06 PM)).
TSA ultimately responded on January 9, 2014. See Miller Decl., ¶ 9. It said nothing about whether it had conducted any searches or located any documents. See id., Exh. F (Letter from Yvonne L. Coates to Stotter, Jan. 9, 2014) at 1. It stated only that it could "neither confirm nor deny the existence of records contained in the Secure Flight Program concerning [his] client, because the existence of such records would be indicative of placement on a Federal Watch List." Id . Stotter filed an appeal shortly thereafter, see Miller Decl., Exh. G (TSA Appeal); as TSA did not act on it for months, see Miller Decl., ¶¶ 10-11, Kalu's filing of this suit before a final ruling does not present any exhaustion issues.
C. Federal Bureau of Investigation
On June 25, 2013, Stotter submitted a FOIA request to the FBI, again seeking "[a]ll records listing [his] client's name (Uzoma Mgbore Kalu), or otherwise describing or discussing [his] client (Ms. Kalu), from January 2007 to the date of th[e] FOIA request...." Def.'s Mot., Att. 2 (Declaration of David M. Hardy, Section Chief of the Record/Information Dissemination Section, FBI), Exh. A (FBI FOIA Request). The Bureau responded on July 1, advising Stotter that it was searching "the indices to its Central Records System." Hardy Decl., ¶ 6; see also id., Exh. B (Letter from Hardy to Stotter, July 1, 2013). It followed up a week later to inform him that, "based on the information provided, " it "was unable to identify main file records responsive" to the request. Hardy Decl., ¶ 7. It further explained that "[b]y standard practice, and pursuant to FOIA exemption (b)(7)(E) and Privacy Act exemption (j)(2), th[e] response neither confirm[ed] nor denie[d] the existence of the subject's name on any watch list." Id . Stotter promptly appealed, and the Bureau affirmed its response. See id., Exh. F (Letter from Sean O'Neill to Stotter, Sept. 10, 2013) at 1.
Not long after, on November 12, Stotter submitted a second FOIA request to the FBI, seeking "[a]ll records listing my client's name (Uzoma Kalu), or otherwise describing or discussing my client (Ms. Kalu), from January, 1995 to the date of this record request, located within any FBI system of records or documents...." Hardy Decl., Exh. G (E-mail from Stotter to FBI (Nov. 12, 2013, 12:18 PM)). The request specifically stated, "If there are any separate systems of records that are not directly connected with the FBI's main files, please also search in any such other or independent or free standing systems of records...." Id . In its response to this request, the agency reiterated that it could neither confirm nor deny the existence of Kalu's name on any watch lists. See Hardy Decl., Exh. H (Letter from Hardy to Stotter, Dec. 2, 2013). It then indicated that after an additional search, it had found nothing. See id. Stotter thereafter filed another appeal, which the FBI denied. See Hardy Decl., ¶¶ 13, 15. Unhappy with this outcome, Kalu filed this suit against the IRS, TSA, and FBI.
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, the Court may grant summary judgment 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).
Congress enacted FOIA in order to "pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976) (citation omitted). "The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (citation omitted). The statute provides that "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules... shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order the production of records that an agency improperly withholds. See 5 U.S.C. § 552(a)(4)(B); Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989). "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 ...