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Canning v. U.S. Department of Justice

United States District Court, District of Columbia

July 13, 2017

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

          MEMORANDUM OPINION

          Gladys Kessier, 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 on Behalf of the Federal Bureau of Investigation Documents ("Def.'s Mot.") [Dkt. No. 52] and Plaintiff's Cross-Motion for Partial Summary Judgment and Supplemental Vaughn Indices ("Pl's Mot.")[Dkt. No. 69].

         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 is granted in part and ~ denied in part.

         I. BACKGROUND[1]

         A. FOIA Requests

         On October 12, 1995, Mr. Canning submitted separate FOIA requests to the FBI Headquarters ("FBI HQ"), the FBI's Boston Field Office, Philadelphia Field Office, and Washington Metropolitan Field Office. Mr. Canning's requests related to the FBI's investigation and prosecution of the conspiracy to kidnap Lewis duPont Smith and the investigation of Eastern States Distributors Inc. of Upper Darby, ("ESDI") Pennsylvania, during the time frame 1991 through 1992.

         In his requests, Mr. Canning seeks: (i) all records concerning the FBI's investigation of ESDI from 1991 to 1992; (ii) all records concerning court-ordered Title III wiretaps of telephones used during the ESDI investigation; (iii) all records concerning the involvement of individuals, agencies, or organizations other than the FBI and the U.S. Attorney's Office for the Eastern District of Virginia; and (iv) a complete search of all filing systems and locations, including Electronic Surveillance ("ELSUR") indices. Mr. Canning attached a privacy waiver from Lewis duPont Smith to each of his requests.

         Upon receipt of Mr. Canning's FOIA requests, the FBI processed and released responsive documents to Mr. Canning. The FBI asserted FOIA Exemptions 2, 3, 6, 7(C) and 7(D) to justify withholding certain documents from production. The FBI also referred three documents to the Executive Office for United States Attorneys ("EOUSA") and two documents to the Criminal Division for review and direct response to Mr. Canning. The Criminal Division and EOUSA informed Mr. Canning that they were withholding, pursuant to recognized FOIA exemptions, certain material from the referred documents, including the names and addresses of third parties of investigative interest, the names of FBI Special Agents, and a 1992 intra-agency memorandum (with subsequent revisions) concerning Title III wiretap intercepts. Per the parties' agreement, the FBI prepared, with Mr. Canning's input, a sample Vaughn Index in lieu of an exhaustive account of the withheld material.

         B. Procedural History

         On October 26, 2001, Mr. Canning brought suit in this Court. See Compl. [Dkt. No. 1]. On January 28, 2005, the FBI filed its pending Motion for Summary Judgment. On May 27, 2005, Mr. Canning filed his Cross-Motion for Partial Summary Judgment and for Supplemental Vaughn Indices. Both motions have been fully briefed and are ripe for review. See Dkt. Nos. 52, 68, 69, 79, 81.

         On March 20, 2009, Mr. Canning filed a Motion for an Order Directing the FBI to Re-Review its FOIA Releases in light of updates to the U.S. Attorney General's guidelines for FOIA disclosures. See Pl's Mot. for Order [Dkt No. 88]. The Court granted Mr. Canning's corollary request to stay the case pending the completion of the FBI's re-review. Id. On December 14, 2009, the FBI notified the Court that it had completed its re-review of over 5, 000 responsive pages and released additional material to Mr. Canning. See Def.'s Status Report [Dkt No. 94].

         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, €23 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;" (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

         Mr. Canning does not challenge the sufficiency of the FBI's search for responsive records. Instead, Mr. Canning contends: (1) that the FBI has improperly withheld and redacted documents under various FOIA exemptions; (2) the FBI has failed to segregate and release all non-exempt information responsive to his FOIA requests; and (3) the Court should order the FBI to prepare supplemental Vaughn Indices. The Court will consider each of Mr. Canning's arguments in turn.

         A. Contested Exemptions[2]

         1. Exemption 3

         FOIA Exemption 3 precludes release of ...


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