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Kalu v. Internal Revenue Service

United States District Court, District of Columbia

February 1, 2016

UZOMA KALU, Plaintiff,



Plaintiff Uzoma Kalu thinks her name might appear on some form of watch list maintained by the Federal Bureau of Investigation. She wants to confirm whether this is so, but the FBI has refused to provide an answer. Kalu then sued the Bureau – and two other agencies not relevant here – under the Freedom of Information Act to compel a response. In previously addressing the parties’ initial cross-motions for summary judgment, the Court required further briefing on the FBI’s argument for nondisclosure. That having been accomplished, the Court now concludes that the Bureau is entitled to keep mum on the issue of whether Kalu’s name does or does not appear on any of its watch lists. It will thus deny Plaintiff’s Renewed Motion for Summary Judgment and enter judgment in favor of Defendant.

I. Background

Kalu, an Ohio physician, believes that she has erroneously been the target of a number of federal investigations. See Kalu v. IRS (Kalu I), No. 14-998, 2015 WL 4077756, at *1 (D.D.C. July 1, 2015) (this Court’s prior Memorandum Opinion granting in part and denying in part parties’ cross-motions for summary judgment). Having experienced a number of unpleasant interactions with federal agents – for instance, additional security screenings by the Transportation Safety Administration when traveling by plane and “unusual” tax audits conducted by the Internal Revenue Service – she wanted to see whether “there [wa]s some type of error in . . . federal agencies’ records pertaining to [her], which has for some reason mistakenly caused [these] federal investigatory actions.” See ECF No. 17, Attach. 2 (Declaration of Uzoma Kalu), ¶ 4.

She submitted FOIA requests to TSA, the IRS, and the FBI, see Kalu I, 2015 WL 4077756, at *1, although only the latter’s response is at issue here. She initially asked the Bureau for all records listing her name or otherwise describing her. See id. at *2-3. The FBI responded by letter, saying that it had conducted a search of its central database but had identified no records responsive to her request. See id. at *2. The letter also added what is known in FOIA parlance as a Glomar response (explained more fully below), meaning that the agency “neither confirm[ed] nor denie[d] the existence of [Kalu’s] name on any watch list” it maintained, because it believes that disclosing whether or not it has records with her name on it could compromise law-enforcement operations. See ECF No. 11, Attach. 2 (Declaration of David M. Hardy, Section Chief of the Record/Information Dissemination Section, FBI), ¶ 7. According to the FBI, its Glomar response to such requests was “standard practice” that was supported by, among other things, “FOIA exemption (b)(7)(E)” – often referred to as Exemption 7(E) – which permits non-disclosure of certain law-enforcement information. See id.; see also 5 U.S.C. § 552(b)(7)(E).

Finding the “neither confirm nor deny” response more concerning than the Bureau’s assertion that it had not located any other, non-watch-list documents featuring her name, and having lost her administrative appeal within the agency, see Hardy Decl., ¶¶ 8-10, Kalu filed this suit against the FBI (and the other two agencies) in order to receive a definitive response as to whether she was “on the list” or not.

In Kalu I, after dispensing with the issues pertaining to TSA and the IRS, see 2015 WL 4077756, at *4-10, the Court concluded that lingering questions remained about the FBI’s response to Kalu’s request. See id. at *11. It thus denied both Kalu’s and the FBI’s cross-motions for summary judgment. See ECF No. 26 (July 1, 2015, Order). Shortly thereafter, the Court ordered the Bureau to “file a supplemental declaration” substantiating its “response to Plaintiff’s FOIA request.” Minute Order of July 30, 2015. After the FBI submitted the supplemental declaration of David M. Hardy, the parties stipulated in a joint status report that “the only remaining issue . . . is whether [the FBI] may rely upon FOIA exemption (b)(7)(E) to support that agency’s response to Plaintiff’s . . . FOIA request on the basis presented by the Supplemental Declaration of David M. Hardy.” ECF No. 33 (Joint Status Rep.). In other words, the FBI’s search for non-watch-list documents is no longer disputed. The Court may thus focus exclusively on the propriety of the Bureau’s Glomar assertion.

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, a 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). Such affidavits or declarations “are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks omitted). “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 de novo.’” Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)).

III. Analysis

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), unless the records fall within one of nine narrowly construed exemptions. See 5 U.S.C. § 552(b); Rose, 425 U.S. at 361. Consistent with this statutory mandate, federal courts possess jurisdiction to order the production of records that an agency improperly withholds. See 5 U.S.C. § 552(a)(4)(B); Reporters Comm. for Freedom of the Press, 489 U.S. at 755.

In certain circumstances, however, an agency may refuse to confirm or deny that it has relevant records. This is called a “Glomar response, ” in reference to the CIA’s refusal to confirm or deny whether it had records about the Hughes Glomar Explorer, a ship later revealed to have been involved in a Cold War mission. See Phillippi v. CIA, 546 F.2d 1009, 1011 (D.C. Cir. 1976); Am. Civil Liberties Union v. CIA, 710 F.3d 422, 426 n.1 (D.C. Cir. 2013) (ACLU). Glomar responses are appropriate when disclosing the existence (or nonexistence) of responsive records would itself “‘cause harm cognizable under [a] FOIA exception.’” Wolf v. CIA, 473 F.3d 370, 374 (quoting Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982)).

In such instances, the Government must show that the mere fact of whether it has (or does not have) relevant records is protected from disclosure under an exemption. See Wolf, 473 F.3d at 374. It must do so on the public record, “explaining in as much detail as is possible” why it cannot provide a definitive response. Phillippi, 546 F.2d at 1013; see Elec. Privacy Info. Ctr. v. NSA (EPIC), 678 F.3d 926, 931 (D.C. Cir. 2012). Courts considering Glomar responses apply the exemption standards developed in non-Gl ...

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