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Westmoreland v. Federal Bureau of Investigation

United States District Court, District of Columbia

August 25, 2015

Guy J. Westmoreland, Plaintiff,
v.
Federal Bureau of Investigation, Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY JUDGE

This matter is before the Court on Defendant’s Motion for Summary Judgment [ECF No. 22]. For the reasons discussed below, the motion will be granted.

I. BACKGROUND

Plaintiff brought this action under the Freedom of Information Act (“FOIA”), see 5 U.S.C. § 552, in an effort to obtain investigative records maintained by the Federal Bureau of Investigation (“FBI”) in its Springfield, Illinois Field Office and its headquarters in Washington, DC (“FBIHQ”), see generally Compl. ¶¶ 1-8, “pertaining to U.S. v. WESTMORELAND, District Court No. 3:98-CR-30022-002-WDS.” Id. ¶ 1. In a FOIA request directed to the Springfield Field Office, plaintiff sought the following information:

1) Any and all FD-302 forms dated January 5, 1998, January 6, 1998 and or which were appended to the transcripts of the recorded telephone conversations between [plaintiff] and Richard Abeln made by agent Kale Jackson of the F.B.I. on January 5, 1998;
2) Any and all case reports of conversations, interviews or statements between agent Jackson, F.B.I. and [plaintiff] on January 6, 1998;
3) Any and all case[] reports written by special agent Kale Jackson, F.B.I., on or concerning January 5, 1998, or January 6, 1998; and,
4) Any and all reports, notes, transcripts, tapes (audio or video) and/or other records of any events which occurred on January 5th. or 6th., 1998 in Illinois State Police Headquarters between [plaintiff] and special agent Kale Jackson, F.B.I.[, ] or between special agent Kale Jackson, F.B.I., and unknown others concerning [plaintiff].

Mem. of P. & A. in Support of Def.’s Mot. for Summ. J. (“Def.’s Mem.”), Decl. of David M. Hardy (“Hardy Decl.”), Ex. A (Freedom of Information Act Request dated June 13, 2000); see Compl. ¶ 12.[1] FBI advised plaintiff “that the large number of [FOIA] requests received by the FBI . . . caused a delay in processing his request, ” which it had assigned FOIPA Number 0925665-000, and that his request was to be processed in turn. Hardy Decl. ¶ 9.

In April 2004, plaintiff submitted another request to the FBI for the same information he sought in the June 13, 2000 request. Id. ¶ 10; see id., Ex. D (Freedom of Information Act Request dated April 18, 2004). The FBI responded to the request, FOIPA No. 0925665-001, with the release of 34 pages of records after having withheld certain information under Exemptions 2, 7(C), and 7(D). Id. ¶ 12; see id., Ex. E (Letter to plaintiff from David M. Hardy, Section Chief, Record/Information Dissemination Section, Records Management Division, FBI, dated June 28, 2004). Dissatisfied with the response, plaintiff filed an administrative appeal of the FBI’s initial determination to Office of Information & Privacy (“OIP”). Id. ¶ 13; see id., Ex. F (Letter to Office of Information & Privacy from plaintiff dated August 16, 2004). On review of the appeal, “and as a result of discussions between FBI personnel and a member of OIP’s staff, the FBI conducted a further search and located records potentially responsive to his request.” Id. ¶ 15; see id., Ex. H (Letter to plaintiff from Janice Galli McLeod, Associate Director, OIP, dated February 19, 2008). Accordingly, the OIP remanded the request for review and further processing of these newly-discovered records. Id. ¶ 15.

On remand from the OIP, the FBI “reopened [plaintiff’s] request and assigned it FOIPA number 0925665-002.” Id. ¶ 16. FBI staff subsequently searched for and located potentially responsive records maintained by FBIHQ. See id. ¶¶ 16-18, 20. On December 15, 2009, the FBI notified plaintiff that its staff had reviewed 348 pages of records and it released 298 of these pages to plaintiff. Id. ¶ 21. Further, the FBI informed plaintiff that certain information had been withheld under Exemptions 2, 3, 6, 7(C), 7(D) and 7(E). Id.; see id., Ex. N (Letter to plaintiff from David M. Hardy dated December 15, 2009). Plaintiff did not appeal this determination to OIP. Id. ¶ 22.

Plaintiff’s next request was limited to “all 302’s, case notes, and any other documents relating to the arrest of Guy J. Westmoreland on or about January 6, 1998 by FBI Agent, Kale Jackson, including the attempted interrogation of Mr. Westmoreland on that date by Agent Jackson.” Id., Ex. O (Freedom of Information Act Request dated June 6, 2013) at 2. He “sent a duplicate request to the Fairview Heights, IL Resident Agency[.]” Id. ¶ 23. Both requests were forwarded to FBIHQ and were assigned a tracking number, FOIPA Number 1220491-000. Id. ¶ 24; see id., Ex. P (Letter to plaintiff from David M. Hardy dated July 24, 2013). FBI notified plaintiff that records responsive to this request “were reviewed and released” to him on December 16, 2009. Id., Ex. Q (Letter to plaintiff from David M. Hardy dated August 16, 2013).

Based on the FBI’s subsequent review of its response to FOIPA Number 1220491-000, it was determined “that the 289 pages of records that [plaintiff] received in response to FOIPA [Number 0925665-002] qualified for reprocessing.” Id. ¶ 27; see id., Ex. R (Letter to plaintiff from David M. Hardy dated March 19, 2014). It “reviewed 260 pages of records and [released] 235 pages to plaintiff.” Id. ¶ 30; see id., Ex. U (Letter to plaintiff from David M. Hardy dated October 20, 2014).[2]

In addition, the FBI “located approximately 899 pages potentially responsive to [plaintiff’s] request.” Id. ¶ 28. Its staff “reviewed 558 pages and [released] 475 pages to plaintiff, ” and explained that certain information had been withheld under Exemptions 3, 6, 7(C), 7(D) and 7(E). Id. ¶ 31; see id., Ex. V (Letter to plaintiff from David M. Hardy dated November 17, 2014). In addition, the FBI referred an unspecified number of pages to unspecified “other government agencies, ” id. ΒΆ 31, and upon return of these materials, the FBI withheld information from some ...


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