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Ryan v. Federal Bureau of Investigation

United States District Court, District of Columbia

March 31, 2016

CINA A. RYAN Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.

MEMORANDUM OPINION

TANYA S. CHUTKAN, United States District Judge

Plaintiff Cina A. Ryan brings this FOIA action seeking all files and records bearing his name, or any variant of it. Defendants, after conducting multiple searches and finding no responsive records, filed a first motion for summary judgment (ECF No. 4), which the court granted in part and denied in part. (ECF No. 19). Defendants conducted a further search, and now renew their motion for summary judgment. (ECF No. 21). For the following reasons, the court GRANTS Defendants’ motion.

I. BACKGROUND

Plaintiff, who brings this action pro se, alleges that he has been under constant FBI surveillance since shortly after September 11, 2001. (Compl. ¶ 8). In October 2010, he submitted a FOIA/Privacy Act request for his “complete FBI file.” (Hardy First Decl. ¶ 6). After being told that he had not filed sufficient information for a search to be conducted, Plaintiff provided additional information, and in November 2010, the FBI notified him that it had not located any main file records responsive to his request, and any requests pertaining to government watch lists could not be confirmed or denied pursuant to FOIA Exemption (b)(7)(E), 5 U.S.C. § (b)(7)(E). (Id. ¶¶ 7-10). Plaintiff appealed the FBI’s response to the Department of Justice Office of Information Policy, which subsequently affirmed the FBI’s response. (Id. ¶ 11). On August 20, 2014, Plaintiff filed this suit.

In its first Motion for Summary Judgment, the FBI detailed how it conducted phonetic searches of both its Automated Case Support System (“ACS”) and Electronic Surveillance indices (“ELSUR”) for responsive records. (Id. ¶¶ 27-28). The ACS is used to conduct FOIA searches of the agency’s Central Records System (“CRS”). (Id. ¶ 15). The CRS contains “administrative, applicant, criminal, personnel, and other files compiled for law enforcement purposes.” (Id.). The system consists of a numerical sequence of files that are broken down according to subject matter, but because the CRS cannot be queried for data, the information in it is duplicated and moved to the ACS to be searched. (Id. at ¶¶ 15-16). ACS is then queried using alphabetized General Indices. (Id. ¶ 17). The General Indices include main entries, which carry “the name corresponding with a subject of a file contained in the CRS, ” and reference entries, also called cross-references, which are “generally only a mere mention or reference to an individual, organization, or other subject matter contained in a document located in another main file on a different subject matter.” (Id.). By searching the General Indices, the FBI can determine what information it may have in its CRS files on a particular subject matter or individual, such as in this dispute, “Cina A. Ryan.” (Id. ¶ 18). The FBI does not index every name in its files, only information it considers pertinent, relevant, or essential for future retrieval. (Id. ¶ 20). Certain records contained in the CRS are maintained at FBI headquarters, while others are maintained in field offices. (Id. ¶ 15).

The ELSUR indices maintain information on subjects whose electronic and/or voice communications have been intercepted by the FBI. (Id. ¶ 21). The ELSUR system is separate from the CRS. It contains information on “individuals who were the (a) targets of direct surveillance, (b) participants in monitored conversations, and (c) owners, lessors, or licensors of the premises where the FBI conducted electronic surveillance.” (Id. ¶ 22). Like CRS, ELSUR indices are maintained both in field offices and at FBI headquarters. (Id. ¶ 24).

The FBI’s phonetic searches in ACS and ELSUR used Plaintiff’s first name, middle initial, and last name, including the alternative versions of Plaintiff’s name “Cina A. Ryan, ” “Alireza Shishechi, ” and “Sina Ryan.” (Id. ¶¶ 27-28). No main or cross reference entries subject to FOIA were found in ACS, nor were responsive records found in ELSUR. (Id.). Since searches in both CRS and ELSUR failed to locate any information about plaintiff, Defendant moved for summary judgment for the first time on October 9, 2014. (Hardy Third Decl. ¶ 15(b)).

In reviewing the sufficiency of the searches, the court found that: (1) nothing in the record suggested that the FBI transferred any of Plaintiff’s records to any other agency or contractor for management since CRS would have recorded their transfer, and no such records were found; (2) a requester’s demand that certain records systems be searched did not obligate the agency to search those systems, since the FBI demonstrated these systems would not be expected to contain responsive records; (3) there was no reason to believe that documents created or physically located in field offices would not have been indexed in the searched records systems; and (4) the FBI’s search methodology in CRS using all reasonable permutations of Plaintiff’s name was adequate. (First Summ. J. Op. at 7-14). Therefore, the Court granted summary judgment on the issue of whether the FBI searched appropriate locations. (Id. at 15).

However, the court denied summary judgment as to one search. The court determined that “the record did not clearly demonstrate that the ELSUR database was searched in a way that would reveal documents indexed to all variations of Plaintiff’s name.” (Id.). While the third declaration from David Hardy, the Section Chief of the Record/Information Dissemination Section, Records Management Division of the FBI, noted that “the FBI’s ELSUR Indices were searched using both the names ‘Cina A. Ryan, ’ and ‘Cina Ryan, ’ as well as the other names [Plaintiff] provided, ” Hardy’s prior declarations only “establish[ed] that the FBI ran searches in ELSUR . . . for ‘Cina A. Ryan, ’ ‘Alireza Shishechi, ’ and ‘Sina Ryan.’ Other names (‘Cina Rayan, ’ ‘Sina Rayan, ’ ‘Cina A. Rayan, ’ ‘Sina A. Rayan, ’, and ‘Cina Ryan’) were used to search CRS but are not specifically identified as having been used to search ELSUR.” (Id. at 14) (internal citations omitted). While the FBI could reasonably have believed that, “based on the phonetic search function, running an additional search for ‘Cina Ryan’ in ELSUR would be unnecessarily duplicative, ” given the ambiguity in the declarations, the court did not have enough evidence to conclude that the ELSUR search was conducted in an adequate manner. (Id. at 14-15).

Following the court’s ruling, the FBI subsequently conducted further queries and now renews its motion for summary judgment, arguing that its searches of the ELSUR database are adequate to meet its obligations under FOIA. Plaintiff again opposes summary judgment, arguing that the searches are still not adequate.

II. LEGAL STANDARD

Summary judgment is appropriate where there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “A fact is ‘material’ if a dispute over it might affect the outcome of a suit under governing law[.]” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (internal citation omitted). In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party bears the “initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323 (internal quotation marks omitted). The nonmoving party, in response, must “go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (internal citations omitted). “[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249.

“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 (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 clearly delineated statutory language.” Id. (internal citation and quotation marks omitted); see also 5 U.S.C. § 552(a), (b).

“FOIA cases are typically and appropriately decided on motions for summary judgment.” Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of Fed. Reserve Sys., 762 F.Supp.2d 123, 130 (D.D.C. 2011) (internal citation omitted). When an agency moves for summary judgment on the grounds that it has discharged its FOIA obligations, all underlying facts and inferences are analyzed in the light most favorable to the FOIA requester, and only after the agency proves that it has fully discharged its FOIA obligations is summary judgment appropriate. Moore v. Aspin, 916 F.Supp. 32, 35 (D.D.C. 1996); Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983). An agency will be granted summary judgment on the adequacy of its search if it “show[s] beyond ...


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