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Ford v. Department of Justice

United States District Court, District of Columbia

September 21, 2016

JOHN A. FORD, Plaintiff,
v.
DEPARTMENT OF JUSTICE, et al., Defendants.

          MEMORANDUM OPINION

          BERYL A. HOWELL United States District Judge.

         The 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.

         I. BACKGROUND

         The 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 described below.

         A. The Defendants' Searches for Responsive Records[1]

         The 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.” Id.

         The 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.

         The 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 number.” Id.

         On 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.

         Upon 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. ¶ 28.

         B. FOIA and Privacy Act Requests to the FBI

         1. FOIPA Request Number 1260039-000

         The 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.

         The 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.

         2. FOIPA Request Number 1260039-001

         The 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.

         3. FOIPA Request Number 1310417-000

         The 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).

         4. FOIPA Request Number 1260039-002

         The 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).

         5. FOIPA Request Number 1320153-000

         Again 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, 2015).

         6. FOIPA Request Number 1217343 - Referral from the EOUSA

         In 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.

         7. FOIPA Request Number 1336588 - Referral from the EOUSA

         A 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.

         8. Supplemental Release

         On 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). Id.

         9. Privacy Act Request to the FBI

         Within 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 amendment ...


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