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Smith v. Sessions

United States District Court, District of Columbia

March 28, 2017

BRIAN AVERY SMITH, Plaintiff,
v.
JEFF SESSIONS, et al., Defendants.[1]

          MEMORANDUM OPINION

          BERYL A. HOWELL Chief Judge

         This matter is before the Court on the FBI's Motion to Dismiss or, in the Alternative, for Summary Judgment, ECF No. 28. For the reasons discussed below, the motion will be granted.

         I. BACKGROUND

         At the time the plaintiff filed his complaint and amended complaint, he was “a federal pretrial detainee, ” Am. Compl., ECF No. 8, at 3 (page numbers designated by ECF), facing criminal charges in the United States District Court for the Western District of New York arising from “a scheme to defraud Pentagon Federal Credit Union (‘Penfed') and [to] knowingly obtain money, funds, credits, owned by and under the custody and control of Penfed by means of false and fraudulent pretenses in violation of 18 U.S.C. §§ 1344(1) and 1344(2), ” Mot. for Order Preserving Certain Exemptions, and Mem. of P. & A. in Support Thereof, ECF No. 20, Decl. of David M. Hardy (“First Hardy Decl.”) ¶ 26. “On September 22, 2015, the plaintiff [pled] guilty to Count 1 of the Second Superseding Indictment, charging a violation of 18 U.S.C. § 1344.” First Hardy Decl. ¶ 26. On June 28, 2016, the defendant was sentenced to a 63-month term of imprisonment followed by a five-year term of supervised release. See Judgment in a Criminal Case, United States v. Smith, No. 1:13-cr-0084 (W.D.N.Y. June 30, 2016). Plaintiff filed an appeal on July 7, 2016. Notice of Filing, ECF No. 26, Second Decl. of David M. Hardy (“Second Hardy Decl.”) ¶ 6. “[T]here are additional conspirators who have been charged and awaiting trial, ” and “the overall investigation remains pending.” Id. ¶ 7; see First Hardy Decl. ¶ 27.

         In October 2014, the plaintiff submitted a FOIA request to the FBI, Am. Compl. at 3, for “all files in [its] possession . . . regarding . . . Brian Avery Smith, ” First Hardy Decl., Ex. A at 1. A search of the FBI's Central Records System, see id. ¶¶ 22-23, yielded “one main file indexed to [the] plaintiff's name . . . along with multiple cross-references.” Id. ¶ 23.

         The FBI assigned the matter a tracking number, FOIPA Request Number 1303815-000. Id. ¶ 4.[2] It initially denied the plaintiff's request on the ground that the main file was exempt from disclosure under Exemption 7(A). Id. ¶¶ 4, 23.[3] After the plaintiff filed this lawsuit, FBI staff “re-ran [the] search[] to confirm its results, ” and “located a file related to prior civil litigation that [the] plaintiff brought against the FBI.” Second Hardy Decl. ¶ 16. By letter dated August 25, 2015, the FBI asked whether the plaintiff “would like to receive copies of records from this civil litigation file (identified . . . by the 197 file classification or as the ‘197 file').” Id.[4] In addition, the FBI notified the plaintiff that it had “located two responsive cross-references to [the] plaintiff in other investigative files.” Id.

         The plaintiff responded by asking the FBI to “process [his] FOIA request, based on the letter [he] received . . . dated August 25, 2015.” First Hardy Decl., Ex. K at 2. The FBI interpreted the plaintiff's response “as confirmation that [he] wanted copies from [the] 197 file.” Id. ¶ 17. FBI staff “processed all 15 pages of responsive records from the 197 (civil litigation) file and the two cross-references to [the] plaintiff in other investigative files.” Id. ¶ 18. “On October 28, 2015, the FBI released all 15 pages . . . in full or in part, with certain information redacted pursuant to FOIA Exemptions [5, 6, 7(A), 7(C), and 7(E)].” Id. Lastly, on June 5, 2016, the FBI released, in full, 153 pages of records “from the pending investigation files, representing all reasonably segregable, non-exempt information in the files.” Id. ¶ 21. It maintained that the remaining records were protected under Exemption 7(A) and other exemptions, and withheld these records in full. Id.

         The FBI filed its motion to dismiss or, alternatively, for summary judgment on September 13, 2016. On September 26, 2016, the Court issued an Order advising the plaintiff of his obligations under the Federal Rules of Civil Procedure and the local civil rules of this Court. See Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992); Fox v. Strickland, 837 F.2d 507, 509 (D.C. Cir. 1988). Specifically, the Court notified the plaintiff that, if he failed to file an opposition or other response to the defendants' motion by October 27, 2016, the Court would treat the defendants' motion as conceded. See Local Civil Rule 7(b) (permitting court to “treat . . . as conceded” a motion not met with a timely opposing memorandum of points and authorities). On the plaintiff's motion, the Court twice extended his deadline, most recently to February 21, 2017. To date, the plaintiff has not filed an opposition to the motion or requested more time to file an opposition.

         Under these circumstances, the Court ordinarily would have granted the FBI's motion as conceded. The United States Court of Appeals for the District of Columbia Circuit recently has raised concerns, however, about the use of Local Civil Rule 7(b) to grant an unopposed motion for summary judgment. See generally Winston & Strawn, LLP v. McLean, 843 F.3d 503 (D.C. Cir. 2016). Despite acknowledging the value of Local Civil Rule 7(b) as an important “docket-management tool that facilitates efficient and effective resolution of motions, ” Cohen v. Bd. of Trustees of the Univ. of the District of Columbia, 819 F.3d 476, 48 (D.C. Cir. 2016) (quoting Fox v. Am. Airlines, Inc., 389 F.3d 1291, 1294 (D.C. Cir. 2004) (additional citation omitted)), the rule “cannot be squared with Federal Rule of Civil Procedure 56, ” Winston & Strawn, 843 F.3d at 506. If the Court were to grant the FBI's motion for summary judgment as conceded, it erroneously would shift the burden to the plaintiff when “[t]he burden is always on [the defendant] to demonstrate why summary judgment is warranted.” Id. at 505. The Court “must always determine for itself whether the record and any undisputed material facts justify granting summary judgment.” Grimes v. District of Columbia, 794 F.3d 83, 97 (D.C. Cir. 2015) (citation omitted) (Griffith, J., concurring).

         II. LEGAL STANDARD

         To obtain summary judgment in a FOIA action, an agency must show, viewing the facts in the light most favorable to the requester, that there is no genuine issue of material fact with regard to the agency's compliance with the FOIA. See Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (citing Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). The Court may award summary judgment based solely upon the information provided in an agency's supporting affidavits or declarations when they describe “the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record [or] by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).

         III. DISCUSSION

         In evaluating the FBI's motion, the Court considers the adequacy of the search for responsive records, the proffered justifications for the FBI's withholding of responsive records, and the sufficiency of the agency's segregability review. Each of these issues is addressed below.

         A. The FBI's Search for Responsive Records

         An agency “fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents.” Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (citations and internal quotation marks omitted). “[T]he issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.” Weisberg, 745 F.2d at 1485 (citing Weisburg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.D.C. 1983)).

         The FBI's declarant explains at length the FBI's recordkeeping systems, see Second Hardy Decl. ¶¶ 22-28, and the means by which its staff conducted searches for records responsive to the plaintiff's FOIA request, see id. ¶¶ 29-31. Specifically, the declarant states that FBI staff initially conducted an index search of records maintained in the FBI's Central Records System using variations of the plaintiff's name, his aliases, the names of corporate entities associated with his activities, and other information provided in the FOIA request itself, see id. ¶¶ 29-30, and “identified one main file indexed to [the] plaintiff's name, ” id. ¶ 30. A search conducted after the plaintiff filed this lawsuit “revealed the same main file it initially identified . . ., along with two cross-references to [the] plaintiff in other files and a 197 file related to previous civil litigation brought by [the] plaintiff against the FBI.” Id.

         An agency may submit affidavits or declarations to explain the method and scope of its search, see Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982), and such affidavits or declarations are “accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents, ” Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks and citation omitted). Here, the FBI's declaration adequately ...


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