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Canning v. U.S. Department of Justice

United States District Court, District of Columbia

June 5, 2017

GEORGE CANNING, Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, Defendant.

          MEMORANDUM OPINION

          Gladys Kess, United States District Judge

         Pro Se 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].

         Upon 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 part.

         I. BACKGROUND

         A. September 29, 2007 FOIA Requests

         On 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.[1] Am. Compl., Ex. D. Mr. Canning attached privacy waivers from Mr. Goldstein, Mr. LaRouche, and Mr. Steinberg to his request.

         The 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].

         B. July 18, 2009 FOIA Request

          On 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. ¶ 10.

         C. December 31, 2009 FOIA Request

         On 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.

         D. Procedural History

         Plaintiff 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

         FOIA 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).

         The 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) .

         If the 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)) .

         III. ANALYSIS

         In 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.

         A. Sufficiency of the Search Conducted by the FBI

         The 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.

         The 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).

         In this 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. 64-1].

         With 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.[2] Id. ¶ 47.

         The 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.

         The 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 utilized).

         Mr. 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] .

         The 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).

         Nonetheless, 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. ...


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