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Tracy v. U.S. Department of Justice

United States District Court, District of Columbia

June 10, 2016

ROBERT B. TRACY, Plaintiff,


          Randolph D. Moss United States District Judge

         Robert Tracy believes that he and his wife have been the subject of threats and extortion. He approached the Federal Bureau of Investigation (“FBI”) on several occasions to obtain its assistance and to ask if the FBI was involved. Dissatisfied with the FBI’s response, Tracy then filed a request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a, to obtain his FBI file. When the FBI failed to provide him with any records, he filed this suit in order to compel it to do so. Although the FBI eventually provided Tracy with four pages of responsive records, he remains unsatisfied and asks the Court to compel the FBI to conduct an additional search and to provide him with unredacted versions of the documents it did produce. The case is now before the Court on the parties’ cross-motions for summary judgment. For the following reasons, the Court will grant the FBI’s motion for summary judgment and deny Tracy’s motion for summary judgment.

         I. BACKGROUND

         Robert Tracy is an author who lives in Las Vegas, Nevada. Compl. ¶ 3. Beginning in mid-2014, Tracy and his wife Kimberly became concerned that they were the victims of some kind of conspiracy arising out of Kimberly’s political activity. See Dkt. 26 at 9-16.[1] Although the details are not entirely clear from the record, it appears that Kimberly came to believe that some entity had altered or interfered with a bulk mailing she sent out to support her candidacy for a leadership position with a local union. Id. at 9. The Tracys asked the U.S. Postal Inspection Service to initiate an investigation into what they alleged was mail fraud, see Id. at 90 (Pl.’s Suppl. Mot. Summ. J. (“SMSJ”), Ex. J), and shortly thereafter, they claim, they began to receive “thinly veiled threats from ‘third parties, ’” id. at 9, regarding their efforts to seek recourse regarding the alleged fraudulent scheme.

         On June 13, 2014, Tracy went to the FBI’s Las Vegas field office to complain about the fraud and the threats. Id. at 9-10; see also Id. at 73 (Pl.’s SMSJ, Ex. G). Tracy also states that he told the FBI that he was “fairly sure that his phone, as well as another household phone utilized by his spouse[, ] were being monitored (tapped), ” and also that “there was some type of unlawful intrusion into [their] home computers.” Id. at 10. Over the summer, Tracy says, he and his wife continued to receive death threats. Id. at 11-12.[2] He made several phone calls to the FBI, but apparently did not receive a satisfactory response. Id. Sometime during this period, the Postal Inspection Service informed Tracy that it would not pursue his complaint. Id. at 90 (Pl.’s SMSJ, Ex. J); id. at 92 (Pl.’s SMSJ, Ex. K).

         Tracy and Kimberly returned to the FBI’s Las Vegas field office in the fall to renew their complaints. Dkt. 26 at 13-14. It appears from the record that Kimberly visited the field office on October 2, 2014, and Kimberly and Tracy visited together on October 8, 2014. See Id. at 73 (Pl.’s SMSJ, Ex. G). During the second of these visits, Tracy alleges, he told the FBI agent who met with him that “he was of the belief now that the surveillance, monitoring and computer intrusion was so severe and orchestrated that it was potentially occurring from the FBI itself.” Id. at 13. The agent, who “indicated that he had no previous knowledge” of Tracy or his wife, allegedly stated “that the surveillance, monitoring and computer intrusion may possibly be from another Federal Law Enforcement Agency or even a criminal gang of some type.” Id. The agent, according to Tracy, appeared to know details about Tracy and his wife that Tracy had not conveyed to him. Id. at 13-14. Tracy states that he visited the FBI field office once again in November, but he does not indicate what he said during that visit. Id. at 14.

         Convinced that the FBI knew more about the fraud, extortion, and surveillance than it was willing to reveal, Tracy and his wife each filed FOIA requests with the U.S. Department of Justice in January 2015. Dkt. 24 at 24 (Def.’s Mot. Summ. J. (“MSJ”), Ex. A); Tracy v. U.S. Dep’t of Justice, 117 F.Supp.3d 1, 2 (D.D.C. 2015). Tracy’s request sought his “full FBI file, ” and indicated that he had visited the FBI’s Las Vegas field office on at least two occasions and had called the FBI at least once. Dkt. 24 at 24 (Def.’s MSJ, Ex. A). The FBI responded to Tracy’s request on January 27, 2015. Id. at 29 (Def.’s MSJ, Ex. C). It indicated that it had searched its Central Records System (“CRS”) and was “unable to identify main file records responsive to” Tracy’s request. Id. It did not respond to Kimberly’s request at all, and, on March 19, 2015, she filed suit to compel a response. Tracy, 117 F.Supp.3d at 2.

         Around the same time, Tracy appealed the FBI’s conclusion that no responsive records existed. Dkt. 24 at 33 (Def.’s MSJ, Ex. D). In his appeal, he provided additional details about his contacts with the FBI. Specifically, his appeal stated:

Any and all records concerning, regarding or related to myself (Robert B Tracy). Including records of communications, contacts and correspondence between Robert B Tracy and employees, officials, agents, contractors, and Informants of the DOJ, FBI & OHS. Victim interview FBI office Las Vegas, Nevada 6/23/14, 10/08/14, & 11/20/2014. Interview pertained to being a victim of extortion threats/political corruption/lawyer tampering/unlawful surveillance & monitoring, call intercept, computer intrusion as well as home “bugging”. Indicated during multiple interviews that much of this activity was possibly emanating from the FBI or another government agency at the behest of high ranking government officials due to a political cover-up. Indicated that my parents as well as members of my immediate family seemed to be under duress and possible victims of extortion threats as well. I also expressed concerns of potential violations of my Constitutional and/or Civil rights as well as the same concerns relative to the Las Vegas Metropolitan Police Department.

Id. Tracy provided the dates and times of six phone calls he had made to the FBI, as well as the dates and times of what he described as “potential call intercepts”; provided the numbers of four police reports he had made to the Las Vegas Metropolitan Police; and provided several “search indices, ” including the name of his wife, the surnames of various relatives, and several “related parties, ” including the U.S. Postal Service, American Express, and Caesars Entertainment. Id.

         The Department failed to respond within the 20-day period specified by FOIA, 5 U.S.C. § 552(a)(6)(A)(ii), and Tracy filed this action, proceeding pro se. See Dkt. 1. On May 1, 2015, the Department’s Office of Information Policy (“OIP”) (which adjudicates FOIA appeals within the Department) affirmed the FBI’s conclusion that no responsive records existed. See Dkt. 24 at 37 (Def.’s MSJ, Ex. F). Shortly thereafter, however, in connection with the FBI’s handling of Kimberly’s FOIA action, Tracy, 117 F.Supp.3d at 2, [3] the FBI identified two documents (totaling four pages in length) that appeared to memorialize Kimberly’s visit to the Las Vegas field office on October 2, 2014, and Tracy and Kimberly’s visit to the field office on October 8, 2014. See Dkt. 26 at 71-74 (Pl.’s SMSJ, Ex. G). “[A]s a courtesy, ” the FBI released those records to Tracy in July 2015. See Dkt. 24 at 47 (Def.’s Statement of Material Facts (“SMF”) ¶ 14); id. at 40 (Def.’s MSJ, Ex. G). The FBI withheld portions of the records under Exemptions 6, 7(C), and 7(E). Id.

         The FBI has moved for summary judgment, arguing that it conducted a reasonable and adequate search and that its withholdings are appropriate under FOIA and the Privacy Act. Dkt. 9. Tracy has cross-moved for summary judgment, arguing that the FBI’s search was inadequate and that its withholdings are unlawful. Dkts. 10, 17. Tracy has also moved for leave to file the phone carrier record of one of his calls to the FBI under seal. Dkt. 19.[4]


         The Freedom of Information Act is premised on the notion that an informed citizenry is “vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). The Act embodies a “general philosophy of full agency disclosure.” U.S. Dep’t of Def. v. FLRA, 510 U.S. 487, 494 (1994) (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 360 (1976)). It thus mandates that an agency disclose records on request, unless they fall within one of nine exemptions. “These exemptions are ‘explicitly made exclusive’ and must be ‘narrowly construed.’” Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011) (quoting EPA v. Mink, 410 U.S. 73, 79 (1973), and FBI v. Abramson, 456 U.S. 615, 630 (1982)). As explained further below, the present dispute turns on the meaning and application of Exemptions 6 and 7. Exemption 6 protects “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Exemption 7 protects “records or information compiled for law enforcement purposes, ” id. § 552(b)(7), but only if those records fall within one of the exemption’s five sub-parts, two of which are relevant here.

         The Privacy Act “safeguards the public from unwarranted collection, maintenance, use and dissemination of personal information contained in agency records . . . by allowing an individual to participate in ensuring that his records are accurate and properly used, and by imposing responsibilities on federal agencies to maintain their records accurately.” Mobley v. CIA, 806 F.3d 568, 585 (D.C. Cir. 2015) (quoting Bartel v. FAA, 725 F.2d 1403, 1407 (D.C. Cir. 1984)). Under the Privacy Act, any agency that maintains a “system of records” must provide information about a person to that person upon request. 5 U.S.C. § 552a(d)(1). But an agency may promulgate regulations “to exempt any system of records within the agency” from such a request, provided that the system meets certain criteria. Id. § 552a(j)(2). This is because “[t]he Privacy Act-unlike [FOIA]-does not have disclosure as its primary goal.” See Henke v. U.S. Dep’t of Commerce, 83 F.3d 1453, 1456 (D.C. Cir. 1996).

         FOIA cases are typically resolved on motions for summary judgment under Federal Rule of Civil Procedure 56. See, e.g., Beltranena v. U.S. Dep’t of State, 821 F.Supp.2d 167, 175 (D.D.C. 2011). To prevail on a summary judgment motion, the moving party must demonstrate that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In a FOIA action, the agency may meet its burden by submitting “relatively detailed and non-conclusory” affidavits or declarations, SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), and an index of the information withheld, Vaughn, 484 F.2d at 827-28; Summers v. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). An agency “is entitled to summary judgment if no material facts are in dispute and if it demonstrates ‘that each document that falls within the class requested either has been produced . . . or is wholly exempt from the [FOIA’s] section requirements.” Students Against Genocide v. U.S. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)). The Court reviews the agency’s decision de novo, and the agency bears the burden of sustaining its action. 5 U.S.C. § 552(a)(4)(B).


         Tracy challenges (1) the adequacy of the FBI’s search for records responsive to his FOIA request and (2) the FBI’s decision to withhold portions of those records it did release pursuant to FOIA and the Privacy Act. The Court discusses each issue in turn.

         A. Search

         Tracy first argues that the FBI conducted an inadequate search in response to his FOIA request. An agency has an obligation under FOIA to conduct an adequate search for responsive records. “An agency fulfills its obligations . . . if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). “In order to obtain summary judgment the agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby v. U.S. Department ofArmy, 920 F.2d 57, 68 (D.C. Cir. 1990). Although the agency “cannot limit its search to only one record system if there are others that are likely to turn up the information requested, ” it need not “search every record system.” Id. The agency can show that it conducted an adequate search by ...

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