United States District Court, D. Columbia
Susan v. Tipograph, Plaintiff: Jeffrey Louis Light, LAW
OFFICES OF JEFFREY LIGHT, Washington, DC USA.
United States Department of Justice, Defendant: Alexander
Daniel Shoaibi, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE,
Civil Division, Washington, DC USA.
R. COOPER, United States District Judge.
criminal-defense and civil-rights lawyer Susan Tipograph
filed a Freedom of Information Act (" FOIA" )
request with the FBI, seeking records concerning her client
Marie Mason, an environmental activist currently serving a
lengthy federal prison sentence for arson and other acts of
property destruction. After the FBI withheld all responsive
materials from Mason's investigative file, Tipograph sued
the Department of Justice (" DOJ" ). She alleged
that the FBI violated FOIA by improperly withholding
Mason's investigative records under FOIA Exemption 7(A)
(Count One) and by maintaining a policy of invoking that
exemption at the file level, rather than at the record level
as courts have required (Count Two). The Court previously
granted summary judgment for DOJ on Count One of
Tipograph's complaint. With the benefit of additional
briefing, it now proceeds to consider DOJ's motion for
summary judgment on Count Two. Finding that Tipograph has not
shown that she faces an ongoing or imminent future injury
from the challenged FBI policy, the Court concludes that she
lacks standing to pursue the relief she seeks. The Court will
therefore grant DOJ's motion.
December 2011, Susan Tipograph submitted a FOIA request to
the FBI for documents related to her client Marie Mason.
Compl. ¶ 9. Mason, a member of the environmental
activist group Earth Liberation Front, was sentenced to a
lengthy prison term after pleading guilty in September 2008
to arson against a research facility at Michigan State
University and other acts of property destruction. Def.'s
Mot. Summ. J. Ex. 1, ECF No. 22, Decl. David M. Hardy ("
First Hardy Decl." ) ¶ ¶ 7-9. Seeking
explanations for Mason's assignment to an
enhanced-security prison unit, Tipograph requested copies of
" any records that were prepared, received, transmitted,
collected and/or maintained by the FBI relating to Marie
Mason" for the period between January 26, 1962 and
November 7, 2011. Compl. ¶ 9; Pl.'s Mem. Opp'n
Def.'s Mot. Summ. J. Attach. 6, ECF No. 48, Decl. Susan
Tipograph (" Tipograph Decl." ) ¶ 7. After
conducting a search of its database, the FBI informed
Tipograph that information responsive to her request was
located " in an investigative file" and was
therefore exempt from disclosure under FOIA Exemption 7(A).
First Hardy Decl. ¶ 12 & Ex. C. Tipograph appealed this
determination, which the FBI affirmed. Id. ¶
¶ 13, 15 & Exs. D, F. The FBI later released 199 pages
of public-source information in whole or in part.
Id. ¶ ¶ 17-18, 21. After a hearing before
Judge Wilkins, who previously presided over this matter, the
FBI also released duplicate pages and pages that were no
longer subject to a court sealing order. Def.'s Reply,
ECF No. 34, Decl. David M. Hardy (" Second Hardy
Decl." ) ¶ ¶ 5, 14.
the remaining responsive documents, this Court held on March
18, 2015 " that the FBI properly invoked Exemption
7(A)," Tipograph v. U.S. Dep't of Justice, 83
F.Supp.3d 234, 239 (D.D.C. 2015), and granted summary
judgment for the government as to Tipograph's entire
complaint, id. at 241. Tipograph then moved for
reconsideration of the Court's grant of summary judgment
on Count Two, arguing that the Court's ruling was
precipitous because the government had not presented argument
on that count in the memorandum supporting its motion.
Although the government had addressed Count Two in its
opposition to Tipograph's cross-motion for summary
judgment, the Court accepted Tipograph's argument and,
upon reconsideration, vacated its grant of summary judgment
for DOJ on Count Two of the complaint. Order Pl.'s Mot.
Reconsideration, June 11, 2015, ECF No. 40. The parties have
now fully briefed the issue of whether summary judgment
should be granted as to Count Two.
Standard of Review
passed FOIA " to pierce the veil of administrative
secrecy and to open agency action to the light of public
scrutiny." Am. Civil Liberties Union v. U.S.
Dep't of Justice, 655 F.3d 1, 5, 398 U.S.App.D.C. 1
(D.C. Cir. 2011) (quoting U.S. Dep't of Air Force v.
Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11
(1976)). " 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." N.L.R.B. v.
Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct.
2311, 57 L.Ed.2d 159 (1978). The act, however, contains a set
of exemptions to the general obligation to provide government
records to the public. 5 U.S.C. § 552(b). These
exemptions are intended " to balance the public's
interest in governmental transparency against the
'legitimate governmental and private interests [that]
could be harmed by release of certain types of
information.'" United Techs. Corp. v. U.S.
Dep't of Defense, 601 F.3d 557, 559, 390
U.S.App.D.C. 136 (D.C. Cir. 2010) (quoting Critical Mass.
Energy Project v. Nuclear Regulatory Comm'n, 975
F.2d 871, 872, 298 U.S.App.D.C. 8 (D.C. Cir. 1992) (en
banc)). Because FOIA " mandates a strong presumption in
favor of disclosure," its " statutory exemptions,
which are exclusive, are to be narrowly construed."
Nat'l Ass'n of Home Builders v. Norton, 309
F.3d 26, 32, 353 U.S.App.D.C. 374 (D.C. Cir. 2002)
addition to challenging an agency's decision to withhold
certain information under these exemptions, a plaintiff may
challenge an agency policy or practice as a violation of
FOIA. See Payne Enterprises, Inc. v. United States,
837 F.2d 486, 490-92, 267 U.S.App.D.C. 63 (D.C. Cir. 1988).
" The fact that the practice at issue is informal,
rather than articulated in regulations or an official
statement of policy, is irrelevant . . . ." Id.
at 491. Thus, " [s]o long as an agency's refusal to
supply information evidences a policy or practice of delayed
disclosure or some other failure to abide by the terms of the
FOIA, and not merely isolated mistakes by agency officials, a
party's challenge to the policy or practice"
--seeking prospective equitable relief--may proceed even if
that party has obtained " release of the specific
documents that prompted the suit." Id.
most FOIA cases, this suit comes to the Court on
cross-motions for summary judgment. Defenders of Wildlife
v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C.
2009). In deciding a motion for summary judgment, the Court
assumes the truth of the non-movant's evidence and draws
all reasonable inferences in the non-movant's favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The government bears
the burden to establish that its claimed exemptions apply to
each document for which they are invoked. Am. Civil Liberties
Union, 628 F.3d at 619. It may satisfy this burden through
declarations that describe the justifications for its
withholdings in " specific detail, demonstrat[ing] that
the information withheld logically falls within the claimed
exemption." Id. The government cannot satisfy
its burden with affidavits that are vague or conclusory, or
that merely parrot the statutory standard. Consumer
Fed'n of Am. v. U.S. Dep't of Agric., 455 F.3d
283, 287, 372 U.S.App.D.C. 198 (D.C. Cir. 2006). The Court
accords an agency affidavit substantial weight so long as it
" is not contradicted by contrary evidence in the record
or by evidence of the agency's bad faith."
Judicial Watch, Inc. v. U.S. Dep't of Defense,
715 F.3d 937, 940-41, 404 U.S.App.D.C. 462 (D.C. Cir. 2013)
alleges that the FBI maintains a policy of improperly
invoking FOIA Exemption 7(A) at the investigative-file level
rather than at the record level. Compl. ¶ ¶ 16, 18.
The FBI denies this allegation. Before the Court can proceed
to the merits of Tipograph's claim, it must first assure
itself that it has jurisdiction to hear the claim at all. To
this end, the Court must assess whether it is presented with
an actual case or controversy. See City of Los Angeles v.
Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 75 L.Ed.2d 675
(1983) (" [T]hose who seek to invoke the jurisdiction of
the federal courts must satisfy the threshold requirement
imposed by Article III of the Constitution by alleging an
actual case or controversy." ). The government contends
that (1) Tipograph's claim is moot because it has turned
over all records to which she is entitled, and (2) Tipograph
is without standing to bring her claim because she has not
shown that she is likely to be injured in the future by any
such policy. The Court concludes that while Tipograph's
claim has not been mooted by the release of records in this
case, she has nonetheless failed to establish that her
alleged future injury is sufficiently concrete or imminent to