United States District Court, District of Columbia
A. HOWELL Chief Judge
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.
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.
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.
assigned the matter a tracking number, FOIPA Request Number
1303815-000. Id. ¶ 4. 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. 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. In addition, the FBI notified the
plaintiff that it had “located two responsive
cross-references to [the] plaintiff in other investigative
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.
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
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,
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).
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
The FBI's Search for Responsive Records
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)).
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.
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