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Dutton v. U.S. Department of Justice

United States District Court, District of Columbia

March 19, 2018

WILLIAM WESLEY DUTTON, et al., Plaintiffs,
v.
U.S. DEPARTMENT OF JUSTICE, Defendant.

          MEMORANDUM OPINION

          AMY BERMAN JACKSON, UNITED STATES DISTRICT JUDGE

         Plaintiffs William Wesley Dutton and Judicial Watch, Inc. have brought this action against the U.S. Department of Justice (“DOJ”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. Plaintiffs sought records from the Federal Bureau of Investigation (“FBI”) and Office of Inspector General (“OIG”) “concerning, regarding, or relating to William Wesley Dutton.” Ex. A to Decl. of David M. Hardy [Dkt. # 14-2] (“FBI Request”); Ex. 1 to Decl. of Deborah M. Waller [Dkt. # 14-1] (“OIG Request”). Defendant has moved to dismiss or, in the alternative, for summary judgment, and plaintiffs have moved for summary judgment. For the reasons that follow, the Court will grant defendant's motion and will deny plaintiffs' motion.

         BACKGROUND

         Plaintiffs allege that Dutton was an informant who provided the FBI and other law enforcement agencies with information about illegal narcotics trafficking, fugitives, public corruption, and terrorism in Texas and New Mexico. Christopher J. Farrell Declaration [Dkt. # 20-1] (“Farrell Decl.”) ¶ 4. Dutton alleges that he was the subject of an unlawful search and seizure by FBI and DOJ OIG special agents in February 2014, which was the basis of a Bivens lawsuit he filed in the U.S. District Court for the District of New Mexico.[1] Id. ¶¶ 2-4; Ex. 1 to Farrell Decl. In an effort to further investigate the alleged misconduct, Dutton, along with Judicial Watch, a not-for-profit organization, submitted FOIA and Privacy Act requests to the FBI and DOJ's OIG in October 2014. Compl. [Dkt. # 1] ¶¶ 6-7.

         Plaintiffs filed this FOIA and Privacy Act lawsuit on July 21, 2016. Compl. [Dkt. # 1]. At that time, the OIG had produced eight pages of responsive records, and the FBI had produced none. Id. ¶¶ 9, 10, 11. Once defendant completed processing the FOIA request, it filed a motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and (6), and in the alternative, a motion for summary judgment under Rule 56. Def.'s Mot. to Dismiss or in the Alternative for Summ. J. [Dkt. # 14]; Mem. of P. & A. in Supp. of Def.'s Mot. [Dkt. # 14] (collectively, “Def.'s Mot.”). Plaintiffs filed a cross-motion for summary judgment, contending that defendant's searches were inadequate and that it failed to properly segregate all non-exempt information. Pls.' Cross-Mot. for Summ. J. [Dkt. # 20]; Mem. in Opp. to Def.'s Mot. & in Supp. of Pls.' Mot. [Dkt. # 20] (collectively, “Pls.' Cross-Mot.”). Defendant filed a reply in support of its motion and in opposition to plaintiffs' cross-motion for summary judgment on August 16, 2017. Def.'s Reply in Supp. of Def's. Mot. & in Opp. to Pls.' Cross-Mot. [Dkt. # 24] (“Def.'s Cross-Opp.”). Then, on September 14, 2017, plaintiffs filed their reply in support of their cross-motion for summary judgment. Pls.' Reply in Supp. of Cross-Mot. [Dkt. # 28] (“Pls.' Cross-Reply”).

         I. The OIG Request

         On October 30, 2014, defendants submitted a FOIA and Privacy Act request to the U.S. Department of Justice's OIG office in Washington, D.C., seeking:

Any and all records concerning, regarding, or relating to William Wesley Dutton. Such records include, but are not limited to, records of background checks of William Wesley Dutton, records of communication, contacts, or correspondence between William Wesley Dutton and employees, officials, or agents of the Department of Justice Office of the Inspector General, and records of investigations concerning or regarding William Wesley Dutton.

         OIG Request. The same request was also sent to the “El Paso Area FOIA/PA Officer.” Id. Because all FOIA requests are handled centrally by the OIG office in Washington, D.C., Deborah M. Waller, a Government Information Specialist based in D.C., coordinated the request on behalf of the OIG. Deborah M. Waller Decl. [Dkt. # 14-1] (“First Waller Decl.”) ¶¶ 1, 5. The OIG acknowledged receipt of the request by letter dated November 4, 2014. Ex. 2 to First Waller Decl.

         The agency informed plaintiffs that it completed processing their request on July 8, 2015. First Waller Decl. ¶ 11. The OIG produced eight pages of responsive documents which contained partial redactions and withheld six pages in their entirety under FOIA Exemption 6 and 7(C). Id. The letter also informed plaintiffs that they could appeal the agency's response and alerted them to the fact that the “OIG located documents that originated with the Federal Bureau of Investigation” and that it was “referring those documents to the FBI for a direct response.” Ex. 3 to First Waller Decl. Upon determining that some non-exempt information could be segregated, the OIG later released a partially redacted four-page document that was previously withheld in full. First Waller Decl. ¶ 13; Email Correspondence between Def.'s Counsel and Pls.' Counsel [Dkt. # 14-3]. In the end, the OIG produced 12 pages of responsive documents with partial redactions and withheld two pages in full.

         II. The FBI Request

         Plaintiffs submitted a FOIA and Privacy Act request to the FBI by letter dated October 30, 2014, seeking:

Any and all records concerning, regarding, or relating to William Wesley Dutton. Such records include, but are not limited to, records of background checks of William Wesley Dutton, records of communication, contacts, or correspondence between William Wesley Dutton and employees, officials, or agents of the Federal Bureau of Investigation, and records of investigations concerning or regarding William Wesley Dutton.

         FBI Request. The FBI claims that it acknowledged receipt of the request and informed plaintiffs in a letter dated November 18, 2014, that it was “unable to identify main file records responsive to the [request].” David. M. Hardy Decl. [Dkt. # 14-2] (“First Hardy Decl.”) ¶ 7; Ex. B. to First Hardy Decl. The letter also advised plaintiffs of their right to file an administrative appeal with the DOJ's Office of Information Policy (“OIP”). Id. Plaintiffs claim that this letter was not postmarked until January 2, 2015. Compl. ¶¶ 8, 10. But plaintiffs received it and filed an administrative appeal with OIP on January 13, 2015. First Hardy Decl. ¶ 9; Ex. D to First Hardy Decl.

         The FBI later “reopened” the request after it was notified by the OIG that it had identified responsive records located within the FBI. First Hardy Decl. ¶ 12, Ex. G of First Hardy Decl. By letter dated March 10, 2016, the FBI informed plaintiffs that the agency “determined that potentially responsive documents exist, ” and consequently it was in “the process of searching, gathering, and processing any newly discovered material . . . .” First Hardy Decl. ¶ 13; Ex. H to First Hardy Decl.

         Ultimately, the FBI identified 1, 100 pages of responsive records. First Hardy Decl. ¶ 4. Of these, 6 pages were released in full, 79 were released in part, and the bulk of the records - 1, 015 pages - were withheld in full. Id.; Ex. N to First Hardy Decl. The information was withheld under the Privacy Act Exemption (j)(2) and under FOIA Exemptions 1, 3, 5, 6, 7(A), 7(C), 7(D), and 7(E), as the FBI resisted disclosing information that could cause serious damage to national security or would interfere with pending law enforcement investigations, including the operations of the FBI's informant program. Id.

         STANDARD OF REVIEW

         In a FOIA case, the district court reviews the agency's decisions de novo and “the burden is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B); Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). “[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v. Office of U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).[2]

         Summary judgment is appropriate “if the movant shows 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). The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must “designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted).

         The mere existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the non-moving party; a fact is “material” only if it is capable of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987).

         In the FOIA context, “the sufficiency of the agency's identification or retrieval procedure” must be “genuinely in issue” in order for summary judgment to be inappropriate. Weisberg v. Dep't of Justice, 627 F.2d 365, 371 n.54 (D.C. Cir. 1980), quoting Founding Church of Scientology of Washington, D.C., Inc., v. Nat'l Sec. Agency, 610 F.2d 824, 836 (D.C. Cir. 1979) (internal quotation marks omitted). In assessing a party's motion, the court must “view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the summary judgment motion.'” Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam).

         “Summary judgment may be granted on the basis of agency affidavits” in FOIA cases, when those affidavits “contain reasonable specificity of detail rather than merely conclusory statements, ” and when “they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013), quoting Consumer Fed'n of Am. v. Dep't of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006). However, a plaintiff cannot rebut the good faith presumption afforded to an agency's supporting affidavits through “purely speculative claims about the existence and discoverability of other documents.” SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991), quoting Ground Saucer Watch, Inc. v. Cent. Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981).

         ANALYSIS

         FOIA requires the release of government records upon request. Its purpose is “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” Nat'l Labor Relations Bd. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). At the same time, Congress recognized “that legitimate governmental and private interests could be harmed by release of certain types of information and provided nine specific exemptions under which disclosure could be refused.” Fed. Bureau of Investigation v. Abramson, 456 U.S. 615, 621 (1982); see also Ctr. for Nat'l Sec. Studies v. Dep't of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003) (“FOIA represents a balance struck by Congress between the public's right to know and the government's legitimate interest in keeping ...


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