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Passmore v. Department of Justice

United States District Court, District of Columbia

March 28, 2017

DEPARTMENT OF JUSTICE, et al., Defendants.


          EMMET G. SULLIVAN United States District Judge

         This matter is before the Court on Defendant's Second Motion for Summary Judgment [ECF No. 43]. For the reasons discussed below, the motion will be granted.

         I. BACKGROUND

         Plaintiff “is a State Prisoner currently confined at SCI FOREST [in] Marienville, [Pennsylvania].” Compl. ¶ 3. He brings this action under the Freedom of Information Act (“FOIA”), see 5 U.S.C. § 552, against the United States Department of Justice (“DOJ”), id. ¶ 1, to challenge the response of the Federal Bureau of Investigation (“FBI”) to his request for information maintained in a particular file (7A-PH-93427), id. ¶ 9. Specifically, plaintiff requests email messages between himself and Melissa Chamberlain from March 2002 to July 2002. See id. ¶¶ 23-24, 26.[1] It appears that plaintiff once possessed a “vast amount of . . . legal work under file # [7A-PH-93427], ” but that work “was lost” when plaintiff “went to RHU in prison.” Mem. of P. & A. in Support of Defs.' Mot. for Summ. J. [ECF No. 14-1] (“Def.'s Mem.”), Decl. of David M. Hardy [ECF No. 14-3] (“Hardy Decl.”), Ex. A (Letter to FBI from plaintiff dated May 1, 2013).

         In his first FOIA request to the FBI's headquarters office, plaintiff requested “Emails for P.C. Gateway Computer Serial # 0014990444, model # TBR3450PIII; and Emails from Gateway P.C. Serial # 0020449123; Also, warrant[s] and witness statement[s].” Hardy Decl., Ex. A. He sent a second and substantially similar request to the FBI for “[a]ll material[s] under file # 7A-PH-93427, including emails from P.C. Gateway Computer Serial # 0014990444, model # TBR3450PIII; and emails from Gateway P.C. Serial # 00200449123, ” as well as copies of emails sent to and received by three particular email addresses. Id., Ex. B (Letter to David M. Hardy, Record/Information Dissemination Section, Records Management Division, FBI, dated May 15, 2013) at 1. Further, plaintiff explained that “the information requested is not to be used for commercial benefit, so [he did] not expect to be charged fees for . . . review of the material to see if it falls within one of FOIA's exemptions.” Id., Ex. B at 2.

         FBI staff assigned the matter a tracking number, FOIPA Request Number 1215884-000, acknowledged receipt of plaintiff's correspondence, and informed plaintiff that his requests “did not contain sufficient information to conduct an accurate search of the [FBI's] Central Records System (‘CRS').” Hardy Decl. ¶ 7. Plaintiff was provided a Certification of Identity form, id., which he completed and returned, and in a separate letter plaintiff clarified his request as one for “all information pertaining to . . . John Passmore and all materials under File # 7A-PH-93427, ” including emails sent from and received by four email accounts identified by plaintiff as,,, and Id., Ex. D (Letter to David M. Hardy from plaintiff dated May 30, 2013) at 1. Plaintiff repeated his expectation that no fees would be charged because “[t]he information requested is not to be used for commercial benefit[.]” Id., Ex. D at 2.

         The FBI advised plaintiff that there were duplication fees of $.10 per page for hard copies, and that records could be released on CD if plaintiff provided an alternative address for delivery. See id., Ex. G (Letter to plaintiff from David M. Hardy dated September 12, 2013). “The first 100 pages, or the cost equivalent ($10.00) for releases on CD, [would] be provided . . . at no charge.” Id., Ex. G. Based on the results of the FBI's first search, which yielded “approximately 16, 039 pages of records potentially responsive to [plaintiff's] request, ” id. ¶ 11, plaintiff would have incurred approximately $1, 593.90 in duplication fees for paper copies, or $485.00 if the responsive records were released on CD.[2] Id.; see id., Ex. G. “The FBI . . . offered plaintiff the option to reduce the scope of his request to accelerate the process and reduce potential search and duplication fees.” Id. ¶ 11.

         Plaintiff explained that he expected the initial 100 pages of responsive records in paper form, and that the requested email messages be included in these 100 pages. See id., Ex. J (Letter to David M. Hardy from plaintiff) ¶¶ 2-5. On the assumption that “[a]ll email info is in [the] first 100 pages, ” he next sought “any reference by governmental authorities regarding the . . . emails and any witness info on Nelson Roscoe.” Id., Ex. J ¶ 6. Lastly, plaintiff sought a fee waiver for up to 2, 000 pages of responsive records and an installment arrangement for any remaining fees. See id., Ex. J ¶¶ 7-8.

         On January 13, 2013, the FBI informed plaintiff that its staff had reviewed 103 pages of records and it released 100 pages, after having withheld certain information under FOIA Exemptions 3, 6, 7(C), 7(D), and 7(F). Id. ¶ 16; see id., Ex. L (Letter to plaintiff from David M. Hardy dated January 13, 2013) at 1. Plaintiff complained that the FBI sent him a CD when he requested records in paper form. Id. ¶ 17; see id., Ex. M (Letter to David M. Hardy from plaintiff dated January 16, 2014). The format of the FBI's response was the subject of plaintiff's administrative appeal to the DOJ's Office of Information Policy (“OIP”). Id. ¶ 18; see id., Ex. N (Letter to OIP from plaintiff dated February 6, 2014) at 3. The FBI obliged plaintiff by sending him 103 pages of records in paper form on January 30, 2014. Id. ¶ 17 n.3.

         Plaintiff also raised in his administrative appeal the FBI's apparent refusal to release “the actual inter-active email conversations between” the email accounts he identified between March 2002 and July 2002. Id., Ex. N at 2. He “requested the emails only and not the first 100 pages of [records maintained in] Case No. 7A-PH[-]93427.” Id., Ex. N at 3-4. Insofar as plaintiff reiterated his interest in the emails alone, the FBI treated plaintiff's FOIA request as having been “limited [in] scope . . . to the email traffic between specific email addresses.” Id., Ex. P (Letter to plaintiff from Anne D. Work, Senior Counsel, Administrative Appeals Staff, OIP, dated May 15, 2014) at 1. OIP addressed the “releaseability” of the email communications as follows:

After carefully considering your appeal, I am denying in full your narrowed request for third-party email messages. The [FOIA] provides for disclosure of many agency records. At the same time, Congress included in the FOIA nine exemptions from disclosure that provide protection for important interests such as personal privacy, privileged communications, and certain law enforcement activities. Please be advised that we can neither confirm nor deny the existence of records responsive to your narrowed request. Without consent, proof of death, official acknowledgment of an investigation, or an overriding public interest, confirming or denying the existence of such records, including law enforcement records, concerning an individual would constitute a clearly unwarranted invasion of personal privacy, and could reasonably be expected to constitute an unwarranted invasion of personal privacy.

Id., Ex. P at 1.

         Plaintiff filed this civil action on September 29, 2014.[3] To the complaint plaintiff attached exhibits “tending to show that the emails he requested were transmitted between himself and a deceased individual.” Id. ¶ 21. “After further evaluation of plaintiff's request, the FBI attempted to locate the specific emails requested by plaintiff.” Id. ¶ 22. It located and released 10 pages of records to plaintiff on June 25, 2015, after having withheld certain information under FOIA Exemptions 6, 7(C), and 7(E). Id.; see generally id., Ex. Q (Letter to plaintiff from David M. Hardy dated June 25, 2015). Further, the FBI informed plaintiff that “additional records (emails)[] which may have been responsive to his FOIPA request[] were destroyed on or about February 17, 2010 pursuant to evidence destruction procedures.” Id. ¶ 22.

         In sum, “the FBI processed 103 pages at the administrative stage and 10 pages at the litigation stage.” Id. ¶ 4. Based on plaintiff's representation that the 103 pages released at the administrative stage “were not what he is seeking, ” id.; see id., Ex. N at 3, 7; see also Compl. ¶¶ 36, 38, defendant's motion and this Memorandum Opinion focus on the 10 pages of records released to plaintiff on June 25, 2015.[4]


         A. Summary Judgment in a FOIA Case

         “FOIA cases typically and appropriately are decided on motions for summary judgment.” Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). Courts will grant summary judgment to an agency as the moving party if it shows that there is no genuine dispute as to any material fact and if the agency is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “When, as here, an agency's search is questioned, the agency is entitled to summary judgment upon a showing, through declarations that explain in reasonable detail and in a nonconclusory fashion the scope and method of the search, that it conducted a search likely to locate all responsive records.” Brestle v. Lappin, 950 F.Supp.2d 174, 179 (D.D.C. 2013) (citing Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982)). “To successfully challenge an agency's showing that it complied with the FOIA, the plaintiff must come forward with ‘specific facts' demonstrating that there is a genuine issue with respect to whether the agency has improperly withheld extant agency records.” Span v. U.S. Dep't of Justice, 696 F.Supp.2d 113, 119 (D.D.C. 2010) (quoting Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989)).

         B. The FBI Conducted a Reasonable Search for ...

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