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Lindsey v. Federal Bureau of Investigation

United States District Court, District of Columbia

September 20, 2017

DAVID AUSTIN LINDSEY, Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION, Defendant.

          MEMORANDUM OPINION AND ORDER

          COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.

         This Freedom of Information Act (“FOIA”) matter concerns Plaintiff's request to Defendant Federal Bureau of Investigation (“FBI”) for the disclosure of “all FBI records of contact between Imad Hage and U.S. Government officials.” Hardy Decl., Ex. A. According to Plaintiff, his FOIA request stems from “information that was reported in several national news articles . . . that a Lebanese national, identified as Mr. Imad Hage, had attempted to serve as a diplomatic intermediary . . . between the United States and Iraq.” Lindsey Decl. ¶ 4. Plaintiff further contends that these “news reports indicate that the FBI conducted an investigation of Mr. Hage, following [an] incident at Dulles Airport in [January 2003], and that this FBI investigation included FBI contacts with U.S. officials involved with Mr. Hage's diplomatic efforts.” Id.

         Plaintiff submitted his FOIA request on May 18, 2016. Hardy Decl. ¶ 6. Defendant denied that request on June 23, 2016, issuing a privacy Glomar response stating that “absent express authorization and consent from the third-party individual whose records are sought, the FBI can neither confirm nor deny the existence of any records responsive to plaintiff[']s request, and informed plaintiff that if such records were to exist, they would be exempt from disclosure pursuant to FOIA Exemptions (b)(6) and (b)(7)(C).” Id. ¶ 9. Plaintiff's administrative appeal of that decision was denied on September 5, 2016, leading to the present action.

         Pending before the Court are the parties' cross-motions for summary judgment. ECF Nos. 10, 11.[1] Because the Court finds that Defendant's affidavit is not sufficient to warrant summary judgment on the basis of its Glomar response, the Court shall deny both motions without prejudice. In subsequent proceedings, Defendant may submit an amended affidavit, or choose to pierce the Glomar veil, and conduct a search for relevant, non-exempt records that are responsive to Plaintiff's FOIA request.

         I. LEGAL STANDARD

         Congress enacted FOIA to “pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (citation omitted). Congress remained sensitive to the need to achieve balance between these objectives and the potential that “legitimate governmental and private interests could be harmed by release of certain types of information.” FBI v. Abramson, 456 U.S. 615, 621 (1982). To that end, FOIA “requires federal agencies to make Government records available to the public, subject to nine exemptions.” Milner v. Dep't of Navy, 562 U.S. 562, 562 (2011). Ultimately, “disclosure, not secrecy, is the dominant objective of the Act.” Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976). For this reason, the “exemptions are explicitly made exclusive, and must be narrowly construed.” Milner, 562 U.S. at 565 (citations omitted).

         When presented with a motion for summary judgment in this context, the district court must conduct a “de novo” review of the record, which requires the court to “ascertain whether the agency has sustained its burden of demonstrating the documents requested . . . are exempt from disclosure under the FOIA.” Multi Ag Media LLC v. U.S. Dep't of Agriculture, 515 F.3d 1224, 1227 (D.C. Cir. 2008) (citation omitted). The burden is on the agency to justify its response to the plaintiff's request. 5 U.S.C. § 552(a)(4)(B). “An agency may sustain its burden by means of affidavits, but only if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” Multi Ag Media, 515 F.3d at 1227 (citation omitted). “If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone.” Am. Civil Liberties Union v. U.S. Dep't of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011) (citations omitted). “Uncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the exemption are likely to prevail.” Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 509 (D.C. Cir. 2011) (citation omitted). Summary judgment is proper when the pleadings, the discovery materials on file, and any affidavits or declarations “show[ ] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).

         An agency also has the burden of detailing “what proportion of the information in a document is non-exempt and how that material is dispersed throughout the document.” Mead Data Cent., Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977). Any nonexempt information that is reasonably segregable from the requested records must be disclosed. Oglesby v. U.S. Dep't of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996).

         II. DISCUSSION

         A. The Relevant Law Under FOIA

         In this case, the FBI issued a Glomar response, indicating that it could neither confirm nor deny the existence of any documents responsive to Plaintiff's FOIA request. This type of response is appropriate in “certain cases, [where] merely acknowledging the existence of responsive records would itself cause harm cognizable under a FOIA exception.” People for the Ethical Treatment of Animals v. NIH, 745 F.3d 535, 540 (D.C. Cir. 2014) (“PETA”) (internal quotation marks and original alteration omitted). “[T]o the extent the circumstances justify a Glomar response, the agency need not conduct any search for responsive documents or perform any analysis to identify segregable portions of such documents.” Id.

         A Glomar response “is proper if the fact of the existence or nonexistence of agency records falls within a FOIA exemption.” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007). “When addressing an agency's Glomar response, courts must accord ‘substantial weight' to agency determinations.” Sea Shepherd Conservation Soc'y v. IRS, 208 F.Supp.3d 58, 89 (D.D.C. 2016) (citing Gardels v. CIA, 689 F.2d 1100, 1104 (D.C. Cir. 1982)). Consequently, in such cases, “courts may grant summary judgment on the basis of agency affidavits that contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” Elec. Privacy Info. Ctr. v. NSA, 678 F.3d 926, 931 (D.C. Cir. 2012) (internal quotation marks omitted). “The supporting affidavit must justify the Glomar response based on general exemption review standards established in non-Glomar cases.” Id. (internal quotation marks omitted). Ultimately, “an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical' or ‘plausible.'” Id. (citation omitted).

         The FBI's Glomar response is predicated on FOIA Exemptions 6 and 7(C), and stems from the FBI's “long standing policy . . . to neither confirm nor deny the existence of records . . . where a requester seeks access to information regarding a third party but fails to provide a privacy waiver from the third party or proof of death of that third party.” Def.'s Mem. at 9. Exemption 6 exempts from disclosure “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Exemption 7(C) exempts from disclosure “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C).

         Exemption 6 is not limited to “a narrow class of files containing only a discrete kind of personal information[, ]” but was “intended to cover detailed Government records on an individual which can be identified as applying to that individual.” U.S. Dep't of State v. Washington Post Co., 456 U.S. 595, 602 (1982). Fundamentally, “Exemption 6 is designed to protect personal information in public records.” Multi Ag Media, 515 F.3d at 1228 (internal quotation marks omitted). Assuming that the records at issue are of the type that fall within the ambit of Exemption 6, “the court must then determine whether their disclosure would constitute a clearly unwarranted invasion of personal privacy, which requires balancing the privacy interest that would be compromised by disclosure against any public interest in the requested information.” Wisdom v. U.S. Tr. Program, ___ F.Supp.3d ___, No. CV 15-1821 (JEB), 2017 WL 3842117, at *8 (D.D.C. Sept. 1, 2017) (internal quotation marks omitted). In order for the exemption to apply, the Court must determine that the “disclosure of the files would compromise a substantial, as opposed to de minimis, privacy interest, because if no significant privacy interest is implicated FOIA demands disclosure.” Multi Ag Media, 515 F.3d at 1229 (internal quotation marks and alterations omitted). On the other side of the equation, “the only relevant ...


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