United States District Court, District of Columbia
Kess, United States District Judge
Plaintiff George Canning ("Plaintiff"), brings this
action against Defendant, Federal Bureau of Investigation
("FBI" or "Defendant"), under the Freedom
of Information Act ("FOIA"), 5 U.S.C. § 552.
This matter is now before the Court on Defendant's Motion
for Summary Judgment ("Def.'s Mot, ") [Dkt. No.
30-1] and Plaintiff's Cross-Motion for Partial Summary
Judgment ("Pl.'s Mot.")[Dkt. No. 46].
consideration of the Motions, Oppositions, Replies, the
entire record herein, and for the reasons discussed below,
Defendant's Motion for Summary Judgment is granted in
part and denied in part and Plaintiff's Cross-Motion for
Partial Summary Judgment is granted in part and denied in
September 29, 2007 FOIA Requests
September 29, 2007, Plaintiff submitted a FOIA request to the
FBI Washington Field Office ("WFO"). He sought
twelve serial numbers and "any other serials containing
references to or information about Paul Goldstein, Lyndon H.
LaRouche Jr., and/or Jeffrey Steinberg" for items on a
copy of a redacted FBI airtel that Plaintiff enclosed with
his request. Am. Compl., Ex. D. Mr. Canning attached
privacy waivers from Mr. Goldstein, Mr. LaRouche, and Mr.
Steinberg to his request.
same day, Mr. Canning submitted a separate FOIA request to
FBI headquarters ("FBI HQ") seeking: (1) the same
material he requested from the WFO, (2) two documents
declassified by the FBI prior to an Interagency Security
Classification Appeals Panel ("ISCAP") review, and
(3) any information regarding Mr." Goldstein, Mr.
LaRouche, and Mr. Steinberg in airtel WMFO 196B-1918-364.
Id., Ex. A. Defendant claims it has no record of
receiving the FBI HQ request. Second Hardy Decl. ¶ 9
[Dkt. No. 30-3].
July 18, 2009 FOIA Request
July 18, 2009, Mr. Canning submitted a FOIA request to the
FBI HQ seeking documents declassified by ISCAP for three
specific ISCAP appeals involving Plaintiff and Mr. Steinberg.
Am. Compl., Ex. K. On December 22, 2009, Mr. Canning amended
his request to seek an additional document related to a
declassification review appeal filed by Mr. Steinberg.
Id., Ex. P. Although the Government claims it had no
prior record of Plaintiff's July 18, 2009 request, upon
receiving Plaintiff's amendment, it opened a FOIA case
and released responsive material. Third Hardy Decl. ¶
December 31, 2009 FOIA Request
December 31, 2009, Mr. Canning submitted a FOIA request to
FBI HQ seeking information about suspected government
surveillance of Mr. LaRouche's presidential campaign. Am.
Compl., Ex. R. Again, the Government claims it had no
official record of Plaintiff's request. See
Third Hardy Decl. ¶ 5. Nonetheless, it referenced the
FOIA request appended to Plaintiff's Amended Complaint to
search for and process responsive records related to the
request. Id. ¶ ' 6.
instituted this action on July 19, 2011. The Government filed
its pending Motion for Summary Judgment on December 21, 2012.
On May 9, 2013, Plaintiff filed his Cross-Motion for Partial
Summary Judgment. During the course of this action, the Court
denied multiple Motions by Plaintiff to obtain discovery. The
Parties' Cross-Motions for Summary Judgment are now fully
briefed and ripe for review.
II. STANDARD OF REVIEW
cases are typically and appropriately decided on motions for
summary judgment. Gold Anti-Trust Action Comm., Inc. v.
Bd. of Governors of Fed. Reserve Sys., 762 F.Supp.2d
123, 130 (D.D.C. 2011); Defenders of Wildlife v. U.S.
Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009) .
"The standard governing a grant of summary judgment in
favor of an agency's claim that it has fully discharged
its disclosure obligations under FOIA is well-established....
[T]he agency bears the burden of showing that there is no
genuine issue of material fact, even when the underlying
facts are viewed in the light most favorable to the
requester." Weisberg v. U.S. Dep't of
Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983); see
also Fed. R. Civ. P. 56(c).
court may award summary judgment solely on the basis of
"[a] reasonably detailed affidavit, setting forth the
search terms and the type of search performed, and averring
that all files, likely to contain responsive materials (if
such records exist) were searched." Oglesby v. U.S.
Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)
agency withholds any material on the basis of statutory
exemptions, the agency's affidavits must also (1)
"describe the documents and the justifications for
nondisclosure with reasonably specific detail;" and (2)
"demonstrate that the information withheld logically
falls within the claimed exemption;" and must not be (3)
"controverted by either contrary evidence in the record
nor by evidence of agency bad faith." Military Audit
Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).
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. S.E.C., 926 F.2d 1197, 1200 (D.C. Cir.
1991) (quoting Ground Saucer Watch, Inc. v. C.I.A.,
692 F.2d 770, 771 (D.C. Cir. 1981)) .
response to Plaintiff's four FOIA requests, Defendant
withheld material under FOIA Exemptions 1, 3, 7(C), 7(D), and
7 (E). Plaintiff objects to the sufficiency of
Defendant's search, contests a number of the asserted
FOIA Exemptions, and argues that certain information should
be disclosed because it exists in the public domain. The
Court will address each issue in turn.
Sufficiency of the Search Conducted by the FBI
purpose of FOIA is to "facilitate public access to
Government documents" and "to pierce the veil of
secrecy and to open agency action to the light of public
scrutiny." McCutchen v. U.S. Dep't of Health
& Human Servs., 30 F.3d 183, 184 (D.C. Cir. 1994)
(internal quotations omitted). In responding to a FOIA
request, an agency is under an obligation to conduct a
reasonable search for responsive records. Oglesby,
920 F.2d at 68. To win summary judgment on the adequacy of a
search, the agency must demonstrate beyond material doubt
that its search was "reasonably calculated to uncover
all relevant documents." Weisberg, 705 F.2d at
1351. An agency may demonstrate the reasonableness of its
search by submitting "[a] reasonably detailed
affidavit." Oglesby, 920 F.2d at 68.
Court "applies a 'reasonableness' test to
determine the 'adequacy' of a search methodology,
consistent with congressional intent tilting the scale in
favor of disclosure." Morley v. C.I.A., 508
F.3d 1108, 1114 (D.C. Cir. 2007) (internal quotation marks
and citation omitted) . To prevail in a summary judgment
motion, an agency is not required to search every system
possible, but must show that it made a good faith effort that
would be reasonably expected to produce all the requested
information. See Steinberg v. U.S. Dep't of
Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). Summary
judgment for an agency is inappropriate only if the
agency's responses "raise serious doubts as to the
completeness of the search or are for some other reason
unsatisfactory...." Perry v. Block, 684 F.2d
121, 127 (D.C. Cir. 1982).
case, the Court concludes that, as to each of Plaintiff's
FOIA requests, the FBI's search was reasonably-calculated
to uncover the relevant documents. Three declarations
submitted by David M. Hardy, the Section Chief of the
Record/Information Dissemination Section ("RIDS"),
Records Management Division of the FBI, describe, in
extensive detail, Defendant's search for documents
responsive to Plaintiff's requests. See Second
Hardy Decl.; Third Hardy Decl.; Fourth Hardy Decl. [Dkt. No.
regard to the September 29, 2007 request to the Washington
Field Office, the Government initially located and processed
the files visible on the partially redacted airtel that
Plaintiff attached to his request. Second Hardy Decl. ¶
43. The Government supplemented its processing efforts with
search terms targeted to retrieve responsive information.
Id. Concerning the redacted serial numbers that
Plaintiff requested, Defendant searched for and found an
unredacted version of the airtel, reprocessed the clean
version for release, and then located the specific files that
Plaintiff requested. Id. ¶ 44. The Government
also deployed targeted search terms to search its electronic
surveillance ("ELSUR") indices for responsive
material. Id. ¶ 47.
Government adopted a similar approach with regard to
Plaintiff's July 18, 2009 and December 31, 2009 requests.
Although Mr. Canning had originally requested a blacked-out
file in the FBI search slip that he attached to his December
31, 2009 request, the Government located an unredacted
version in its files and processed the corresponding serial
numbers for release. Third Hardy Decl. ¶ 28. Defendant
also conducted ELSUR searches using targeted search
parameters. By coordinating with its RIDS Department Review
Committee liaison, the Government was able to locate all of
the material requested by Plaintiff in his July 18, 2009
request. Id. ¶ 30.
Court finds that the Government's efforts as to these
FOIA requests were reasonably calculated to uncover all
relevant documents and- therefore adequate. See Chambers
v. U.S. Dep't of Interior, 568 F.3d 998, 1005-06
(D.C. Cir. 2009). The Hardy declarations identify, with
reasonable specificity, the "system of records searched
and the geographic location of those files."
Perry, 684 F.2d at 127. See Weisberg v. U.S.
Dep't of Justice, 627 F.2d 365, 370 (D.C. Cir. 1980)
(agency affidavit must denote which files were searched and
reflect a systematic approach to document location in order
to enable the appellant to challenge the procedures
Canning does not appear to dispute that the above measures
were adequate to locate records responsive to his September
29, 2007 request to the Washington Field Office and his two
2009 requests. Instead, Plaintiff principally challenges the
fact that Defendant did not conduct an independent search of
the FBI HQ's files in response to his September 29, 2007
request to the FBI HQ. Pl.'s Mot. at 6. According to
Plaintiff, Defendant blatantly-ignored this request,
disregarding Plaintiff's concern that documents located
in the FBI HQ might materially differ from the records stored
in the Field Office. Id. at 8. In response, the
Government asserts that since Field Office files are copied
to the FBI HQ, an independent search of the FBI HQ for the
same materials would have been needlessly redundant.
Def.'s Reply at 4 [Dkt. No. 64] .
Court agrees with the Government. It provided a reasonably
detailed affidavit clarifying why it only searched its Field
Office, and why a search of the FBI Headquarters for the same
documents would be redundant and not likely to result in the
location of additional responsive records. In the affidavit,
the Government clearly explained the process in which each
Field Office copied the contents of its files to the
corresponding HQ division. Second Hardy Decl. ¶ 46.
Unsatisfied, Mr. Canning claims that some of the HQ documents
may not be "in fact identical" because
they might "include handwritten notations and
ink-stamps" that could reveal additional information.
Pl.'s Reply at 2 (emphasis in - original).
Plaintiff's purely speculative claims about the existence
and discoverability of other documents do not overcome the
presumption of good faith afforded to the agency's
declarations. See Leopold v. Nat'1 Sec. Agency,
118 F.Supp.3d 302, 308 (D.D.C. 2015) (deferring to
agency's declaration that explained why a search of an
additional government office would be redundant).
Mr. Canning correctly points out that his FBI HQ request is
not identical to the Field Office request. The FBI HQ request
contains two elements absent from the Field Office request:
(1) specific documents declassified by the FBI prior to the
ISCAP review, and (2) any information regarding Mr.