United States District Court, District of Columbia
Kessier, 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 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].
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.
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.
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.
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
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.
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
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, €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) .
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;" (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)).
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
Exemption 3 precludes release of ...