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Stein v. U.S. Department of Justice

United States District Court, D. Columbia

September 30, 2015

JEFFREY STEIN, Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, Defendant

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          For JEFFREY STEIN, Plaintiff: Kelly Brian McClanahan, NATIONAL SECURITY COUNSELORS, Rockville, MD.

         For DEPARTMENT OF JUSTICE, Defendant: Claire M. Whitaker, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA, Washington, DC.

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         MEMORANDUM OPINION

         TANYA S. CHUTKAN, United States District Judge.

         Plaintiff Jeffrey Stein brings six claims under the Freedom of Information Act, 5 U.S.C. § 552, et seq., as amended (" FOIA" ), concerning six unrelated FOIA requests he made to the Federal Bureau of Investigation (the " FBI" ), the Civil Division of the United States Department of Justice (the " Civil Division" ) and the Executive Office for United States Attorneys (the " Executive Office" ), all of which are components of Defendant the United States Department of Justice (" DOJ" ).

         Defendant moved for summary judgment as to all six claims, with the parties briefing Counts I, II and III (which pertain to records sought from the FBI and the Civil Division) separately from Counts IV, V and VI (which pertain to records sought from the FBI and the Executive Office), per the court's order.

         Upon consideration of Defendant's motions for summary judgment, the responses thereto and the replies in support thereof, and for the reasons set forth below, summary judgment is GRANTED on Counts I, II, III and VI; DENIED on Count IV; and GRANTED IN PART and DENIED IN PART on Count V.

         I. BACKGROUND AND PROCEDURAL HISTORY

         For the sake of clarity, and because each count of the Complaint relates to a different FOIA request, each count will be discussed separately. Counts I and II were previously part of the case Ryan Shapiro, et al. v. Dep't of Justice, Civ. A. No. 1:12-cv-01883 (BAH) (D.D.C.), but were severed from that case and refiled in this action.

         a. Count I (FBI Work Processing Unit Case Evaluation Forms)

         On September 13, 2011, Plaintiff submitted a FOIA request to the FBI for all Work Processing Unit (" WPU" ) Case Evaluation Forms that it had completed since October 2008. According to Plaintiff, these forms are completed during random quality control audits of FOIA requests. (Compl. ¶ 8).

         In December 2011, the FBI informed Plaintiff that it had failed to find any responsive records during a two-hour search of approximately 345 records, and estimated that searching approximately 18,322 additional potentially responsive records would consume over 106 hours of search time. (First Hardy Decl. ¶ 9). The FBI further stated that it would be unreasonably burdensome to search every FOIA request file to locate the requested Case Evaluation Forms, and that it would close Plaintiff's request unless he agreed to limit its scope. (First Hardy Decl. Ex. E; Compl. ¶ 11).

         The FBI eventually advised Plaintiff that it had learned that WPU Case Evaluation Forms are normally maintained in employees' personnel folders for a period of one year before they are destroyed. (First Hardy Decl. Ex. G). Based on this fact, the FBI took the position that retrieval and reproduction of the forms would be a " clearly unwarranted" invasion of personal privacy, and that the forms were therefore exempt entirely from FOIA pursuant to exemptions (b)(2) and (b)(6). (First Hardy Decl. Ex. G).

         In response, Plaintiff limited the scope of his request to all Case Evaluation Forms located in WPU employees' personnel folders, regardless of their creation date, and stated that the FBI could redact

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its employees' personally identifiable information from the forms. (First Hardly Decl. Ex. H; Compl. ¶ 13). The FBI responded by again asserting exemptions (b)(2) and (b)(6) as to all the forms. (First Hardly Decl. Ex. I; Compl. ¶ 14).

         Plaintiff appealed the FBI's assertion of exemptions (b)(2) and (b)(6) to DOJ's Office of Information Policy (" OIP" ), and OIP eventually closed the appeal after Plaintiff challenged the FBI's assertion of these exemptions in the Shapiro case, which Plaintiff filed in November 2012. (First Hardy Decl. Exs. J-L; Compl. ¶ ¶ 15-16).

         Here, Plaintiff does not challenge the adequacy of the FBI's search, but challenges both claimed exemptions.

         b. Count II (FBI Reference Materials for ACS and FDPS Programs)

         On September 13, 2011, Plaintiff submitted a FOIA request to the FBI for all manuals, training materials and similar reference materials regarding the Automated Case Support (" ACS" ) and FOIA Document Processing System (" FDPS" ) programs utilized by the FBI's Record/Information Dissemination Section. (First Hardy Decl. Ex. M; Compl. ¶ 20).

         The FBI released a number of records to Plaintiff in March 2012. (First Hardy Decl. ¶ 23; Compl. ¶ 22). It stated that it had reviewed 643 pages of records, 376 pages of which it released to Plaintiff in full or in part, with the balance withheld pursuant to FOIA exemptions (b)(6), (b)(7)(C), (b)(7)(D) and (b)(7)(E). (First Hardy Decl. Ex. R). These 643 pages comprised two documents: The 274-page ACS Basic Reference Guide and the 369-page FDPS Manual.

         Plaintiff appealed the FBI's assertion of FOIA exemption (b)(7)(E) to OIP, specifically noting that he did not appeal the FBI's assertion of the other three FOIA exemptions. (First Hardy Decl. Ex. S; Compl. ¶ 23). Subsequently, OIP remanded the FOIA request to the FBI for reprocessing to determine whether any additional material could be released to Plaintiff. (First Hardy Decl. Ex. U; Compl. ¶ 24).

         In October 2012, after re-reviewing the same 643 pages of records, the FBI released to Plaintiff 396 pages in full or part -- 20 more pages than it had released in March 2012 -- with certain information again withheld pursuant to the same four FOIA exemptions. (First Hardy Decl. Ex. V; Compl. ¶ 26).

         Plaintiff again appealed the FBI's assertion of FOIA exemption (b)(7)(E) to OIP. (First Hardy Decl. Ex. W; Compl. ¶ 27). OIP eventually closed the appeal after Plaintiff challenged the FBI's assertion of exemption (b)(7)(E) in the Shapiro case. (First Hardy Decl. Ex. Y; Compl. ¶ 27).

         Plaintiff does not challenge the adequacy of the FBI's search, and does not challenge any of the withholdings from the 369-page FDPS Manual. Instead, Plaintiff challenges only the FBI's assertion of exemption (b)(7)(E) with regard to the 274-page ACS Basic Reference Guide, only 27 pages of which were released to him.

         c. Count III (Civil Division Monographs)

         On September 13, 2011, Plaintiff submitted a FOIA request to the Civil Division for copies of three monographs: Chevron Notes (2009), The Governmental Privileges (September 2006) and Defending Actions Brought Pursuant to the Privacy Act of 1974 (1982). (Kovakas Decl. Ex. A; Compl. ¶ 31).

         In January 2011, the Civil Division advised Plaintiff that it was withholding in full all records responsive to the request -- three monographs totaling 166 pages -- as " intra-agency monographs consisting of agency attorney opinions" under exemption

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(b)(5). (Kovakas Decl. Ex. B; id. ¶ 5; see also Compl. ¶ 33).

         Plaintiff appealed the withholdings to OIP, which affirmed, advising Plaintiff that it had reviewed his appeal and determined that the records were properly withheld under the exemption. (Kovakas Decl. ¶ 4 (citing Ex. C thereto); Compl. ¶ 34).

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          Plaintiff does not challenge the adequacy of the Civil Division's search, but challenges its assertion of exemption (b)(5).

         d. Count IV (Executive Office Records from USABook Desktop Library)

         On September 13, 2011, Plaintiff submitted a FOIA request to the Executive Office for all records in the USABook Desktop Library maintained by the DOJ Office of Legal Education indexed under the topic " Freedom of Information." (Luczynski Decl. Ex. A; Compl. ¶ 37).

         In November 2011, the Executive Office notified Plaintiff that it was withholding in full 38 print-out pages that captured what it described as " the Chapters relevant to the request in the FOIA portion of the USABook" pursuant to exemptions (b)(5) and (b)(7)(E). (Luczynski Decl. ¶ 8 (citing Ex. C thereto); Compl. ¶ 39).

         Plaintiff appealed the Executive Office's assertion of these exemptions and the adequacy of the Executive Office's search to OIP, which subsequently remanded the request to the Executive Office for further processing. (Compl. ¶ ¶ 40, 41).

         In September 2013, counsel for Defendant e-mailed Plaintiff a redacted copy of the list of links on what she referred to as the USABook FOIA Topic Page. (Luczynski Decl. Ex. D; Pl. Second Opp. Ex. C). Defendant states that this list was sent for the sole purpose " of reaching a settlement and without any intentional or inadvertent waiver of the non-responsive determination [the Executive Office] originally made." (Luczynski Decl. ¶ 11 (citing Ex. D thereto)).

         In May 2014, counsel for Defendant e-mailed Plaintiff three of the 38 pages being withheld -- two pages titled " Freedom of Information" discussing wiretap recordings and a one-page memo titled " FOIA and District Discover[y] Policies" -- after confirming that these pages had previously been publicly released. (Luczynski Decl. ¶ ¶ 12-13 (citing Ex. E thereto)).

         Plaintiff argues that the Executive Office construed his FOIA request too narrowly and challenges its assertion of exemptions (b)(5) and (b)(7)(E) over the material withheld.

         e. Count V (FBI Records regarding Christopher Hitchens)

         On January 9, 2012, Plaintiff submitted a FOIA request to the FBI for all records, including cross-references, regarding the late Christopher Hitchens, the noted British author and journalist. (Fourth Hardy Decl. Ex. A; Compl. ¶ 45).

         In March 2012, the FBI released to Plaintiff 19 pages of material previously processed for another requester, with certain information exempted pursuant to FOIA exemptions (b)(1), (b)(6), (b)(7)(C), (b)(7)(D) and (b)(7)(E). (Fourth Hardy Decl. ¶ 8 (citing Ex. C thereto); Compl. ¶ 47).

         Plaintiff appealed the adequacy of the search and the FBI's assertion of exemptions to OIP. (Fourth Hardy Decl. Ex. D; Compl. ¶ 48). OIP remanded Plaintiff's request for additional searches, and otherwise affirmed the FBI's determination, including the assertion of all exemptions. (Fourth Hardy Decl. Ex. F; Compl. ¶ 50).

         After conducting additional searches, the FBI reviewed 65 pages of records and released 42 of those pages to Plaintiff in full or in part, with certain information exempted pursuant to the same five FOIA exemptions, as well as exemption (b)(3). (Fourth Hardy Decl. ¶ 13).

         Plaintiff does not challenge the adequacy of the FBI's search for the Hitchens records, and challenges only its assertion of exemption (b)(7)(D).

         f. Count VI (FBI Records regarding Gwyneth Todd)

         In May 2012, Plaintiff and Gwyneth Todd jointly submitted a FOIA request to the FBI for all FBI records regarding Todd. (Fourth Hardy Decl. Ex. G). The request specified that Plaintiff sought " all records about the events last year" involving an FBI agent that Todd claimed had visited her Canberra, Australia home under false pretenses. ( Id. ). Plaintiff and Todd requested a fee waiver and provided a privacy waiver form signed by Todd, which authorized the FBI to release the requested information to both Plaintiff and his counsel. ( Id. ; Compl. ¶ 54).

         On April 26, 2013, Plaintiff commenced this action, citing constructive exhaustion based on the fact that twenty working days had elapsed from the time of his request without a substantive determination by the FBI. (Compl. ¶ 57).

         In November 2013, the FBI denied Plaintiff's fee waiver request and informed him that it had located approximately 10,000 pages of potentially responsive material. (Fourth Hardy Decl. Ex. I). Pursuant to 28 C.F.R. § 16.11, Plaintiff was advised that the estimated fee associated with his FOIA request was $290.00, which exceeded $250.00; therefore, the FBI requested partial advance payment of $72.50 within thirty days. (Fourth Hardy Decl. ¶ 17 (citing Ex. I thereto)). Plaintiff was also advised that he could consider reducing the scope of his request to accelerate the processing and potentially reduce the fees associated with his request. ( Id. ).

         In the meantime, consistent with 28 C.F.R. § 16.11(d)(3)(i), the FBI reviewed one file consisting of 174 pages and released 147 pages to Plaintiff in full or in part, with certain information exempted pursuant to FOIA exemptions (b)(6), (b)(7)(C) and (b)(7)(E). ( Id. ¶ 18 & n.2). In February 2014, the FBI advised Plaintiff that it had administratively closed his FOIA request without processing any records beyond the 174 pages that it had processed pursuant to 28 C.F.R. § 16.11(d)(3)(i), due to his unwillingness to pay the fees associated with processing his request. ( Id. ¶ 18).

         Plaintiff challenges the denial of his fee waiver request.[1]

         II. LEGAL STANDARD

         a. Motion for Summary Judgment

         Summary judgment may be granted if a 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (" the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." ); Holcomb v. Powell, 433 F.3d 889, 895, 369 U.S.App.D.C. 122 (D.C. Cir. 2006). Summary judgment may be rendered on a " claim or defense . . . or [a] part of each claim or defense." Fed.R.Civ.P. 56(a). " 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." Fed.R.Civ.P. 56(c)(1)(A). " A fact is 'material' if a

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dispute over it might affect the outcome of a suit under the governing law; factual disputes that are 'irrelevant or unnecessary' do not affect the summary judgment determination. An issue is " genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Holcomb, 433 F.3d at 895 (quoting Liberty Lobby, 477 U.S. at 248) (citation omitted). The party seeking summary judgment " bears the heavy burden of establishing that the merits of his case are so clear that expedited action is justified." Taxpayers Watchdog, Inc., v. Stanley, 819 F.2d 294, 297, 260 U.S.App.D.C. 334 (D.C. Cir. 1987).

         In considering a motion for summary judgment, " the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [their] favor." Liberty Lobby, 477 U.S. at 255; see also Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 850, 371 U.S.App.D.C. 68 (D.C. Cir. 2006) (" We view the evidence in the light most favorable to the nonmoving party and draw all inferences in its favor." ). The nonmoving party's opposition, however, must consist of more than mere unsupported allegations or denials, and must be supported by affidavits, declarations or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmovant is required to provide evidence that would permit a reasonable jury to find in his favor. See Laningham v. U.S. Navy, 813 F.2d 1236, 1242, 259 U.S.App.D.C. 115 (D.C. Cir. 1987).

         b. FOIA

         " FOIA provides a 'statutory right of public access to documents and records' held by federal government agencies." Citizens for Responsibility & Ethics in Washington v. DOJ, 602 F.Supp.2d 121, 123 (D.D.C. 2009) (quoting Pratt v. Webster, 673 F.2d 408, 413, 218 U.S.App.D.C. 17 (D.C. Cir. 1982)). FOIA requires that federal agencies comply with requests to make their records available to the public, unless such " information is exempted under [one of nine] clearly delineated ...


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