United States District Court, District of Columbia
JOHN A. FORD, Plaintiff,
DEPARTMENT OF JUSTICE, et al., Defendants.
A. HOWELL United States District Judge.
plaintiff, John A. Ford, filed this action under the Freedom
of Information Act (“FOIA”), 5 U.S.C. §552,
demanding that the United States Department of Justice
(“DOJ”), the Federal Bureau of Investigation
(“FBI”) and the Executive Office for United
States Attorneys (“EOUSA”) “hand over
records concerning Plaintiff, ” in response to his
multiple FOIA requests, Compl. at 1, ECF No. 1, and that the
FBI amend records maintained in its Central Records System
(“CRS”), pursuant to the Privacy Act, 5 U.S.C.
§ 552a, id. at 13. Pending before the Court is
the defendants' Motion for Summary Judgment, ECF No. 18,
which, for the reasons discussed below, is granted.
plaintiff “is currently serving a 240 month sentence .
. . after pleading guilty to one count of bank robbery by
violence, force, and intimidation in connection with the
robbery of the U.S. Bank at 1586 North Rand Road, Palatine,
Illinois on November 20, 2007.” Mem. of P. & A. in
Support of U.S. Dep't of Justice's Mot. for Summ. J.
(“Defs.' Mem.”), Decl. of David M. Hardy
(“First Hardy Decl.”) ¶ 5. In 2014 and 2015,
the plaintiff submitted over ten FOIA requests to the FBI and
EOUSA. The searches conducted by the FBI and EOUSA and the
responses provided to the plaintiff's requests are
Defendants' Searches for Responsive Records
plaintiff's multiple FOIA requests to the FBI
“sought specific items from his investigative main file
(91A-CG-128167) or associated sub[-]files.” First Hardy
Decl. ¶ 46. Since the plaintiff “identified the
specific file number” in which responsive records would
be located, the FBI's declarant states that staff
“searched the CRS only to confirm the file at issue was
[the] plaintiff's investigative file.” Id.
¶ 45. The CRS “is an extensive system of records
consisting of applicant, investigative, intelligence,
personnel, administrative, and general files compiled and
maintained . . . in the course of fulfilling [the FBI's]
integrated missions and functions as a law enforcement,
counterterrorism and intelligence agency to include
performance of administrative and personnel functions.”
FBI's declarant described the agency's practice is
“to search the [CRS] to determine if the FBI has
records about a particular subject in response to most [FOIA]
requests.” Id. Due to the nature of the
plaintiff's requests for items, staff did not limit the
search to CRS but also “retrieved the physical file,
including sub-files[, ] and manually search[ed] for the
specific items” identified by the plaintiff in his
requests. Id. ¶ 46. The declarant explained
that “the FBI was able to locate almost all of the
specific items . . . requested, ” with the exception of
“the item related to a dust mask[.]” Id.
EOUSA's search was likewise guided by the plaintiff's
request. He indicated that his criminal trial took place in
the Northern District of Illinois and, consequently, the
EOUSA referred the matter to the United States Attorney's
Office for that district (“USAO/ILN”), where its
FOIA Contact conducted the search for records responsive to
Requests 2012-3780, 2014-0292 and 2015-0316. See
Jolly Decl. ¶¶ 28, 30. The search began with LIONS,
a “computer tracking system used by United States
Attorney's Offices to track cases and retrieve files
pertaining to cases and investigations.” Id.
¶ 28. Through LIONS, the declarant explained, “the
user can access databases . . . to retrieve information based
on a defendant's or individual's name, the USAO
number (United States Attorney's Office's internal
administrative number), and the district court case
October 22, 2012, the FOIA Contact searched LIONS, the U.S.
District Court, Northern District of Illinois, Case
Management and Electronic Case Files (CM-ECF) database, an
older database called PROMIS, and the USAO/ILN's
microfiche file system using variations of plaintiff's
name as search terms. Defs.' Mem., Decl. of Sharon Getty
(“Getty Decl.”) ¶ 6. She learned from these
sources the caption and case number of plaintiff's
criminal case and the lead Assistant United States Attorney
(“AUSA”) to whom the criminal case was assigned.
Id. From the AUSA, the FOIA Contact
“gather[ed] the requested records” and forwarded
them to the EOUSA. Id. ¶ 7.
receipt of Request 2014-0292, the FOIA Contact searched the
LIONS database system, the federal district court's
CM-ECF database, PROMIS and microfiche at the USAO/ILN.
Id. ¶ 9. She determined that this request
“was the same request that [the plaintiff] submitted in
. . . Request No. 2012-3870, ” and that she had
provided these records previously to the EOUSA. Id.
¶ 10. She searched the plaintiff's criminal case
file and was unable to locate “the requested videos and
video stills.” Id. In addition, the FOIA
Contact obtained from the lead FBI agent assigned to the
matter “[five] potentially responsive pages that the
FBI had in its possession relating to this request.”
Id. ¶ 14. Neither of the EOUSA's declarants
was aware of any other location where responsive records
likely would be located. Id. ¶ 15; Jolly Decl.
and Privacy Act Requests to the FBI
FOIPA Request Number 1260039-000
plaintiff's many FOIA requests to the FBI all sought
information related to the bank robbery for which he was
convicted. For example, the plaintiff requested videotapes
and photos taken in and around the bank at or near the time
of the robbery, see generally First Hardy Decl.
¶¶ 6, 12, and other evidence, such as latent
prints, retrieved from the crime scene, see id.
¶¶ 9, 11. These requests were combined and assigned
a single tracking number, FOIPA Request Number 1260039-000.
See id. ¶¶ 7, 10. The FBI responded by
releasing nine pages out of 105 pages reviewed, after having
withheld certain information under Exemptions 6, 7(C), and
7(E). Id. ¶ 14; see id., Ex. I (Letter
to plaintiff from David M. Hardy, Section Chief,
Record/Information Dissemination Section, Records Management
Division, FBI, dated September 29, 2014). In addition, the
FBI withheld in full “a CD containing . . . bank
surveillance video material [under Exemption 7(E)].”
Id. ¶ 14.
plaintiff administratively appealed the FBI's
determination to the DOJ's Office of Information Policy
(“OIP”), see id. ¶ 15, and the OIP
affirmed, id. ¶ 17, explaining that
“[t]he FBI properly withheld certain information
because it is protected from disclosure under the FOIA
pursuant to [Exemptions 6, 7(C) and 7(E)], ”
id., Ex. L (Letter to plaintiff from Sean R.
O'Neill, Chief, Administrative Appeals Staff, OIP, dated
February 23, 2015) at 1.
FOIPA Request Number 1260039-001
plaintiff's next request to the FBI pertained to a mask
worn by the bank robber. Id. ¶ 18; see
id., Ex. M (Freedom of Information/Privacy Act Request
dated October 26, 2014). He was advised that the FBI
“was unable to identify main file records responsive to
[this] request.” Id. ¶ 19; see
id., Ex. N (Letter to plaintiff from David M. Hardy
dated November 6, 2014). The plaintiff appealed, see
id. ¶ 20, and the OIP affirmed the FBI's
determination, id. ¶ 22; see id., Ex.
Q (Letter to plaintiff from Christina D. Trolani,
Attorney-Advisor, Administrative Appeals Staff, OIP, dated
February 19, 2015) at 1.
FOIPA Request Number 1310417-000
plaintiff sought records pertaining to latent fingerprints.
Id. ¶ 23; see id., Ex. R (Freedom of
Information/Privacy Act Request dated October 29, 2014). The
FBI responded by releasing 31 pages of records, having
withheld certain information under Exemptions 6, 7(C), and
7(E). Id. ¶ 25; see id., Ex. T (Letter
to plaintiff from David M. Hardy dated December 19, 2014).
Once again, the plaintiff submitted an administrative appeal
to the OIP, id. ¶ 26, which affirmed the
FBI's determination, id. ¶ 28; see
id., Ex. W (Letter to plaintiff from Sean R.
O'Neill, Attorney-Advisor, Administrative Appeals Staff,
OIP, dated April 14, 2015).
FOIPA Request Number 1260039-002
plaintiff's next submission to the FBI
“reiterat[ed] his previous request for records related
to a copy of a dust mask.” Id. ¶ 29;
see id., Ex. X (Letter to David M. Hardy from
plaintiff dated November 2, 2014). Although the FBI could not
search its indices for a specific piece of evidence, it
suggested that “the information [the plaintiff] sought
may have been under the purview of the [EOUSA].”
Id. ¶ 30; see id. ¶ 48.
Accordingly, the FBI forwarded this request to the EOUSA and
notified the plaintiff of its action. Id. ¶ 30;
see id., Ex. Y (Letter to plaintiff from David M.
Hardy dated December 1, 2014) at 1. The plaintiff
administratively appealed this action, id. ¶
31, and the OIP closed the appeal as duplicative of his prior
appeal of the FBI's response to FOIPA Request Number
1260039-001, id. ¶ 33; see id., Ex. BB
(Letter to plaintiff from Matthew Hurd, Senior Attorney, OIP,
dated March 9, 2015).
FOIPA Request Number 1320153-000
referring to videotapes, the plaintiff sought information
about the chain of custody and authentication of specific
recordings. Id. ¶ 34; see id., Ex. CC
(Freedom of Information/Privacy Act Request dated January 5,
2015). The FBI explained that “records responsive to
his request were reviewed and released to him”
previously with its response to FOIPA Request Number
1260039-000. Id. ¶ 25; see id., Ex. DD
(Letter to plaintiff from David M. Hardy dated January 21,
FOIPA Request Number 1217343 - Referral from the EOUSA
response to the plaintiff's FOIA request to the EOUSA,
the EOUSA located records that had originated with the FBI,
and referred these records to the FBI for its “review,
disclosure determinations, and direct response to [the
plaintiff].” Id. ¶ 37; see id.,
Ex. EE (Letter to the plaintiff from Susan B. Gerson,
Assistant Director, Freedom of Information & Privacy
Staff, EOUSA). The FBI reviewed 78 pages of records and
released 37 of these pages, having withheld certain
information under Exemptions 6 and 7(C). Id. ¶
38; see id., Ex. FF (Letter to plaintiff from David
M. Hardy dated November 12, 2013) at 1. The OIP affirmed the
plaintiff's administrative appeal “contesting the
41 withheld pages.” Id. ¶ 39.
FOIPA Request Number 1336588 - Referral from the EOUSA
second referral from the EOUSA consisted of nine pages of
records. Id. ¶ 42. All nine pages were
released, though the FBI redacted certain information under
Exemptions 6, 7(C) and 7(E). Id. ¶ 43; see
id., Ex. JJ (Letter to plaintiff from David M. Hardy
dated September 23, 2015). These pages were numbered Ford-1
through Ford-9. Id. ¶ 54.
December 9, 2015, the FBI made a supplemental release of
records “[i]n response to the instant action[.]”
Id. ¶ 44. It “added Vaughn codes
and Bates Stamps to [the] previous releases mentioned in
[the] complaint” with respect to FOIPA Request Numbers
1217343-000, 1260039-000 and 1310417-000, and designated the
pages Ford-10 through Ford-225. Id.; see
id. n.14. In sum, the FBI reviewed 216 pages of records,
released 129 of them in full or in part, and withheld certain
information under Exemptions 6, 7(C), 7(D), and 7(E).
Privacy Act Request to the FBI
the request designated FOIPA Number 1260039-000 was the
following request for amendment of FBI records:
U.S. v. John A. Ford
(09-c-r-846) ND. IL. (Title 5 U.S.C. section 552a(e)(5) -
correction of inaccurate record:) F.B.I. case# 91-ACG-128167
Correct length of time robbery of u.s. bank lasted
(11-20-2007)(Including edited rear door camera footage
(egress); from original V.H.S.Tape to U.S. Attorney trial
exhibit #2-51, the total) (* new finding).
Id., Ex. C (Freedom of Information/Privacy Act
Request dated April 7, 2014). The FBI denied the request on
the ground that the CRS, the system of records where the
relevant case file was maintained, is exempt from the