United States District Court, District of Columbia
ROBERT B. TRACY, Plaintiff,
U.S. DEPARTMENT OF JUSTICE, Defendant.
Randolph D. Moss United States District Judge
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
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. 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.
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. 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).
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.
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.
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
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.
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,  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.
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.
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
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).
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).
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.
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 ...