United States District Court, District of Columbia
G. SULLIVAN United States District Judge
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.
“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. 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).
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
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 firstname.lastname@example.org, email@example.com,
firstname.lastname@example.org, and email@example.com.
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.
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. 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.
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.
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.
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.
filed this civil action on September 29, 2014. 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.
“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.
Summary Judgment in a FOIA Case
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)).
The FBI Conducted a Reasonable Search for ...