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Casey v. Federal Bureau of Investigation

United States District Court, District of Columbia

March 23, 2018

BRIAN M. CASEY
v.
FEDERAL BUREAU OF INVESTIGATION, Defendant.

          MEMORANDUM OPINION

          TANYA S. CHUTKAN United States District Judge.

         Plaintiff, appearing pro se, challenges the Federal Bureau of Investigation's refusal to confirm or deny records responsive to his request under the Freedom of Information Act (“FOIA”). The FBI has moved for summary judgment under Federal Rule of Civil Procedure 56 (ECF No. 23). For the reasons explained below, the motion will be GRANTED.

         I. BACKGROUND

         On June 29, 2016, Plaintiff requested “Form 302 of interviews” of six named individuals “concerning the investigation of the murder of Ryan Vanderson and Larrick Sikes, ” and an “index of available documents.” (Decl. of David M. Hardy, ECF No. 23-1, Ex. A). On July 15, 2016, Defendant informed Plaintiff that in order to process his request for third-party records, it would need “an authorization and consent” from each person, proof of the person's death, or “a justification that the public interest in disclosure outweighs personal privacy[.]” (Id., Ex. B). Otherwise, Defendant informed, it could neither confirm nor deny the existence of the requested records, which is commonly referred to as a Glomar response.[1] Defendant further informed Plaintiff that if such records exist, they would be exempt from disclosure under FOIA exemptions 6 and 7(C), codified in 5 U.S.C. § 552(b). (Id.).

         In a letter dated July 25, 2016, Plaintiff replied that he was seeking disclosure in the public interest. He explained that he was convicted of a homicide in “an unfair trial in which state actors representing my rights refused to seek dismissal of the case.” (Hardy Decl., Ex. C). Plaintiff proceeded to explain “the real facts, ” exonerating him of the murder. He concluded: “Not only is it a public interest that criminals be apprehended in this case, the undersigned has a right to the information because his due process rights have been violated.” (Id. at 3). Plaintiff faulted the investigation of the Lee County and Collier County Sheriff's Offices, and wrote that the “FBI's investigation . . . has been thwarted by the false statements given to investigators by the names listed.” (Id.).

         Defendant rejected Plaintiff's public interest assertion in a letter dated August 9, 2016, explaining that he had not provided “sufficient documentation demonstrating [that] the public interest in the operations and activities of the government outweighs the substantial privacy interest of the subject.” (Hardy Decl., Ex. D). Defendant repeated its Glomar response and invocation of exemptions 6 and 7(C), closed the FOIA request, and informed Plaintiff that he could reopen the request only by providing a third-party privacy waiver or proof of the third-party's death. (Id., Ex. D). Plaintiff appealed Defendant's decision to the Office of Information Policy, which affirmed the decision on October 16, 2016. (Hardy Decl., Exs. E, G). Plaintiff filed this action, construed as brought under the FOIA, in January 2017. (See Jan. 4, 2017 Order, ECF No. 3).

         II. LEGAL STANDARD

         Summary judgment is appropriate where the record shows there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). “FOIA cases typically and appropriately are decided on motions for summary judgment.” Georgacarakos v. FBI, 908 F.Supp.2d 176, 180 (D.D.C. 2012) (citation omitted). The district court conducts a de novo review of the government's decision to withhold requested documents under any of FOIA's specific statutory exemptions. See 5 U.S.C. § 552(a)(4)(B). The burden is on the government agency to show that nondisclosed, requested material falls within a stated exemption. See Petroleum Info. Corp. v. U.S. Dep't of Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (citing 5 U.S.C. § 552(a)(4)(B)).

         In FOIA cases, summary judgment may be based solely on information provided in the agency's supporting declarations. See ACLU v. U.S. Dep't of Def., 628 F.3d 612, 619 (D.C. Cir. 2011); Students Against Genocide v. Dep't of State, 257 F.3d 828, 838 (D.C. Cir. 2001). The D.C. Circuit instructs:

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.

ACLU, 628 F.3d at 619. “Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical' or ‘plausible.'” Id. (quoting Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (internal quotation marks omitted)). “To successfully challenge an agency's showing that it complied with the FOIA, the plaintiff must come forward with ‘specific facts' demonstrating that there is a genuine issue with respect to whether the agency has improperly withheld extant agency records.” Span v. U.S. Dep't of Justice, 696 F.Supp.2d 113, 119 (D.D.C. 2010) (quoting Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989)).

         III. ANALYSIS

         A Glomar response permits an agency to “refuse to confirm the existence of records where to answer the FOIA inquiry would cause harm cognizable under a[ ] FOIA exemption.” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) (quoting Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982)). Nevertheless, a “plaintiff can overcome a Glomar response by showing that the agency has already publicly disclosed the fact of the existence (or nonexistence) of responsive records.” ACLU v. CIA, 710 F.3d 422, 427 (D.C. Cir. 2013). If an agency has “officially acknowledged the existence of the record, the agency can no longer use a Glomar response.” Moore v. CIA, 666 F.3d 1330, 1333 (D.C. Cir. 2011). This Circuit has clarified that in the Glomar context, it is the “existence vel non of any records responsive to a FOIA request, ” rather than the content of the records, that is the focus of the inquiry. ACLU, 710 F.3d at 427.

         To rebut a Glomar response, a plaintiff need only point to an official prior disclosure that “establishes the existence (or not) of records responsive to the FOIA request, ” Wolf, 473 F.3d at 379, since that fact “is the purportedly exempt information that a Glomar response is designed to protect, ” ACLU, 710 F.3d at 427. It is the FBI's “long-standing policy” to provide a Glomar response-consistent with FOIA's privacy exemptions 6 and 7(C)-when third-party records are requested without either a privacy waiver or proof of death, or the demonstration of an overriding public interest in disclosure. (Hardy Decl. ¶ 13). See Smith v. FBI, 663 F.Supp.2d 1, 4 (D.D.C. 2009) (noting that a Glomar response ...


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