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Yunes v. United States Department of Justice

United States District Court, District of Columbia

June 26, 2017



          JOHN D.BATES United States District Judge.

         In this 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.


         In 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].

         Last 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.

         The 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].


         Under 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).

         FOIA "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 (2011).

         "In 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).


         The sole question at issue here is whether the FBI has properly invoked FOIA Exemption 3 to withhold the four-page document.[1] 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 [1] the statute claimed is one of exemption as contemplated by Exemption 3 and [2] that the withheld material falls within the statute." Larson, 565 F.3d at 868.

         Here, 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.").

         DOJ has 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.[2] 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 ...

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