United States District Court, District of Columbia
D.BATES United States District Judge.
Freedom of Information Act ("FOIA") case, Edmon
Elias Yunes filed requests with the Department of State and
the Federal Bureau of Investigation ("FBI") seeking
records to uncover why the United States identified him as a
known or suspected terrorist and revoked his visa. In a prior
decision, this Court granted summary judgment in favor of the
United States on nearly all of Yunes's challenges to the
government's FOIA responses. All that remains now is
whether Yunes is entitled to a single four-page report
withheld by the FBI. The Department of Justice ("DO
J"), on behalf of the FBI, has filed a renewed motion
for summary judgment, arguing that this report is properly
withheld pursuant to FOIA Exemption 3, 5 U.S.C. §
552(b)(3), which protects records "specifically exempted
from disclosure by statute." The Court agrees and hence
will grant DOJ's renewed motion for summary judgment.
November 2010, Yunes, a citizen of the Dominican Republic,
had his United States visa revoked when DOJ's Terrorist
Screening Center identified him as a known or suspected
terrorist. Compl. [ECF No. 1] ¶ 4. Believing that his
visa was improperly revoked, Yunes filed FOIA requests with
the Department of State and the FBI seeking records regarding
his terrorist or criminal activities, in order to uncover why
the government deemed him ineligible to enter the United
States. LI ¶¶ 13, 18. Four months after filing
these requests, Yunes filed this lawsuit alleging that the
agencies had failed to conduct an adequate search of their
records and to produce responsive records. See
generally Id. Thereafter, the agencies
completed their searches, produced a small number of
responsive documents, and withheld most of the responsive
documents under various FOIA exemptions. See
Dep't of State's Statement of Material Facts [ECF No.
40] ¶¶ 3-5; DOJ's Statement of Material Facts
[ECF No. 48] ¶ 22. The parties then filed cross-motions
for summary judgment. See Dep't of State's
Mot. for Summ. J. [ECF No. 40]; DOJ'sMot. for Summ. J.
[ECF No. 48]; Pl.'s Cross Mot. for Summ. J. [ECF No. 53].
year, this Court granted the Department of State's motion
for summary judgment, granted in part DOJ's motion for
summary judgment, and denied Yunes's cross-motion for
summary judgment. See Aug. 26, 2016 Mem. Op. [ECF No. 62] at
18-19. The Court concluded that DO J had justified all of its
withholdings except for a four-page document obtained by the
FBI from the Department of Treasury, Financial Crimes
Enforcement Network ("FinCEN"), which has primary
responsibility for implementing the Bank Secrecy Act
("BSA"). See Id. at 13, 18-19; 2d
Am. Hardy Decl. [ECF No. 46-2] ¶ 45. The purpose of the
BSA is "to require certain reports or records where they
have a high degree of usefulness in criminal, tax, or
regulatory investigations or proceedings, or in the conduct
of intelligence or counterintelligence activities." 31
U.S.C. § 5311. The BSA expressly exempts "report[s]
and records of reports" collected under the BSA from
disclosure under FOIA. See 31 U.S.C. § 5319.
Court previously found that the FBI's statement that the
withheld document contained "information obtained
through the BSA" was insufficient to invoke Exemption 3
because it "[did] not specify that the withheld
information is derived from BSA reports or records of
reports." Aug. 26, 2016 Mem. Op. at 13. Thus, this
statement left open the possibility that the withheld
document contained "information gathered pursuant to BSA
provisions other than the reporting requirements, "
which is not expressly exempted from disclosure under FOIA.
Id. Rather than grant summary judgment to either
party, the Court "g[a]ve the FBI another chance to
explain why these pages can be withheld." Id.
at 14. DOJ has now filed a renewed motion for summary
judgment and provided further explanation as to why this
document can be withheld under Exemption 3. See DOJ's
Renewed Mot. Summ. J. [ECF No. 64].
Federal Rule of Civil Procedure 56, summary judgment is
appropriate if the movant shows that there is no genuine
dispute as to any material fact and that it is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). In a FOIA
action, the agency "is entitled to summary judgment if
no material facts are in dispute and if it demonstrates
'that each document that falls within the class requested
either has been produced ... or is wholly exempt from
[FOIA's] inspection requirements.'" Students
Against Genocide v. Dep't of State, 257 F.3d 828,
833 (D.C. Cir. 2001) (quoting Goland v. CIA, 607
F.2d 339, 352 (D.C. Cir. 1978)). "FOIA cases typically
and appropriately are decided on motions for summary
judgment." Defs. of Wildlife v. U.S. Border
Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009); see also
Bravton v. Office of the U.S. Trade Representative, 641
F.3d 521, 527 (D.C. Cir. 2011).
"sets forth a policy of broad disclosure of Government
documents in order to ensure an informed citizenry, vital to
the functioning of a democratic society." FBI v.
Abramson, 456 U.S. 615, 621 (1982) (citation and
internal quotation marks omitted). Congress recognized,
however, that '"legitimate governmental and private
interests could be harmed by release of certain types of
information.'" Critical Mass. Energy Project v.
Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C.
Cir. 1992) (en banc) (quoting Abramson, 456 U.S. at
621). Thus, FOIA "requires federal agencies to make
Government records available to the public, subject to nine
exemptions for specific categories of material."
Milner v. U.S. Dep't of Navy, 562 U.S. 562, 564
litigation seeking the release of information under the FOIA,
the agency has the burden of showing that requested
information comes within a FOIA exemption." Pub.
Citizen Health Research Grp. v. FDA, 185 F.3d 898, 904
(D.C. Cir. 1999) (internal quotations omitted). An agency can
carry its burden by submitting sufficiently detailed
affidavits or declarations. See De Sousa v. CIA, No.
CV 14-1951 (BAH), 2017 WL 943898, at *4 (D.D.C. Mar. 9,
2017). Summary judgment may be based solely on information
provided in supporting declarations or affidavits if they
describe "the documents and 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); Larson v. U.S.
Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009).
"Ultimately, an agency's justification for invoking
a FOIA exemption is sufficient if it appears logical or
plausible." Larson, 565 F.3d at 862 (internal
quotations omitted). In cases involving national security
concerns, courts must "accord substantial weight to
agency affidavits." Goland, 607 F.2d at 352
(internal quotations omitted); Wolf v. CIA, 473 F.3d
370, 374 (D.C. Cir. 2007).
sole question at issue here is whether the FBI has properly
invoked FOIA Exemption 3 to withhold the four-page
document. Exemption 3 protects from disclosure
records "specifically exempted from disclosure by
statute" if that statute either "requires that the
matters be withheld from the public in such a manner as to
leave no discretion on the issue" or "establishes
particular criteria for withholding or refers to particular
types of matters to be withheld." 5 U.S.C. §
552(b)(3). To withhold records under Exemption 3, DOJ
"need only show that  the statute claimed is one of
exemption as contemplated by Exemption 3 and  that the
withheld material falls within the statute."
Larson, 565 F.3d at 868.
DOJ claims that the records may be withheld under the BSA,
which exempts "report[s] and records of reports"
collected under the Act from disclosure under FOIA. 31 U.S.C.
§ 5319; DOJ's Renewed Mot. for Summ. J. at 3.
Because "it is firmly established in this Circuit that
the BSA is a proper basis for invoking an Exemption 3
withholding, " Rosenberg v. U.S. Dep't of
Immigration & Customs Enft, 13 F.Supp.3d 92, 116 n.9
(D.D.C. 2014), DOJ has shown that "the statute claimed
is one of exemption as contemplated by Exemption 3, "
Larson 565 F.3d at 868. See also Linn v. U.S.
Dep't of Justice, No. 36-1, 1995 WL 631847, at*30
(D.D.C. Aug. 22, 1995) ("The absolute language of
section 5319 eliminates any possibility of agency discretion
. . . . Thus, the provision satisfies the requirement of
Exemption 3 that a statutorily mandated privilege must either
leave no discretion to the agency or establish particular
criteria for withholding.").
also carried its burden of showing that the withheld document
falls within the materials exempted by the BSA. In its
renewed motion for summary judgment and the accompanying
Fifth Declaration of David Hardy, the government asserts that
the withheld pages "consist entirely of a BSA report,
the disclosure of which is prohibited by the BSA." 5th
Hardy Decl. ¶ 7. The government further states that the
"BSA report [was] filed with FinCEN" and it
"was obtained through the [BSA] during the course of.. .
criminal investigative activities." Id. ¶
6. Moreover, the government has provided the Court with
additional details about the form and circumstances of the
BSA report in the Sixth Declaration of David Hardy, which was
filed in camera and ex parte. 6th Hardy Decl. [ECF No. 68].
Based on these declarations, the Court finds that the
government has amply shown that the withheld document is a
"[BSA] report. . . [that is] exempt from disclosure
under [FOIA]." 31 U.S.C. § 5319; see also
Rosenberg, 13 F.Supp.3d at 115 (finding that
"records of reports created pursuant to the BSA"
were properly withheld under Exemption 3); Davis v. U.S.
Dep't of Justice, No. CIV.A. 00-2457 (CKK), 2003 WL
25568468, at *5 (D.D.C. Mar. 21, 2003) (finding FinCEN
properly withheld a BSA ...