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Negley v. U.S. Department of Justice

United States District Court, District of Columbia

April 3, 2018



          JAMES E. BOASBERG United States District Judge

         In 1995, The Washington Post printed a manifesto written by a domestic terrorist who came to be known as the Unabomber. The day after publication, Plaintiff James Lutcher Negley walked into a library at California State University (Chico) and - in a fateful request - offered the librarian twenty dollars to leave a copy of the article at his hotel. Apparently unnerved by the interaction, the librarian called the UNABOM Hot Line and reported Negley's request. The FBI then interviewed Plaintiff and conducted a brief investigation before quickly clearing him of any involvement with the Unabomber. As far as the Bureau was concerned, all inquiries related to Negley ended there. Wishful thinking indeed.

         For Plaintiff, those interviews have prompted more than two decades of litigation under the Freedom of Information Act, as he has tried to ascertain the scope of the FBI's interest in him. Over the years, the Bureau has released 163 documents related to its investigation of Negley, as well as thousands of pages related to his FOIA requests (and the subsequent litigation). This latest suit, however, concerns a single handwritten notation on one released document, a cover sheet for a fax sent in 2002. That notation referred, opaquely, to a file with “500, 000 pp” and “42, 000” of “misc. evidence, ” which Plaintiff assumes indicates that there are at least 500, 000 more responsive pages related to his case. On April 7, 2014, he submitted a FOIA request seeking a copy of the file with said 500, 000 documents. The FBI, in turn, reported that the relevant file did not concern him, but related more broadly to the UNABOM investigation as a whole.

         Still skeptical, Plaintiff brought suit in this Court, arguing principally that Defendant Department of Justice had failed to conduct an adequate search for the specified file. The agency now moves for summary judgment, affirming that it has, in fact, located the “500, 000 pp” file and that it contains no new information related to Negley. Agreeing, the Court will grant the Government's Motion, thereby putting a coda on this decades-long saga.

         I. Background

         To understand the agency's search efforts (and the mysterious 2002 fax notation at issue), the Court must begin with a deep dive into Negley's previous three FOIA requests and the rather serpentine litigation that followed. In so summarizing, the Court draws from seven previous judicial decisions related to Negley, before turning to Plaintiff's latest FOIA request.

         A. October 7, 1999, Request

         On October 7, 1999, Negley submitted his first FOIA request, seeking all records concerning him maintained at the FBI's field office in Sacramento, California (whose jurisdiction includes the Chico State library). See Negley v. DOJ (Negley I), No. 01-57 (W.D. Tex. 2002), ECF No. 26 (Report & Recommendation). After some prodding, the agency located 51 pages of responsive material, ultimately releasing 50 in whole or in part. Id. at 1-3. Those documents included investigative reports from the CSU police along with notes from Plaintiff's interviews with detectives.

         In 2001, Negley filed suit in the Western District of Texas, challenging (1) whether the FBI was withholding additional records; and (2) whether withholding one page (along with various redactions to the released pages) fell within applicable FOIA exemptions. Id at 3. In a 2002 declaration, Special Agent and Chief Division Counsel Brian Callihan outlined that the FBI had retrieved three relevant files:

. File 149A-SF-106204 (the San Francisco File) - The file was maintained by the San Francisco field division. Agent Callihan reported that “this file contains approximately 500, 000 pages of material and approximately 42, 000 pages of additional material including evidence.” “While there is some information referencing Mr. Negley in this file, the complete file does not pertain to him.”
. File 149A-SC-C27507 - The file was “opened within the Sacramento Field Office in order to contain information pertaining to possible ‘Unabomb' suspects” in the office's territory. It “contains information on a large number of other individuals, ” only a “small portion” of which pertained to Negley.
. 190-SC-33911 - An internal administrative file regarding FOIA requests, which included correspondence between the FBI and Negley

See ECF No. 55-15 (Declaration of Denise Swain), Exh. A (Callihan Declaration), ¶¶ 7-9 (emphasis added). A magistrate judge found that search sufficient and determined that of the pages released, the FBI had appropriately deleted “only names, addresses, phone numbers, and other such identifying information” pursuant to Exemption 7(C). See R&R at 10-11. The judge also reviewed in camera the one page withheld in full, which related to the FBI's “private” conversation with the library employee, and found the withholding proper under Exemption 7(D). Id at 10. The district court adopted that Report & Recommendation in full, granting summary judgment for the Bureau. See No. 01-57, ECF No. 29 (Judgment).

         B. January 16, 2002, Request

         On January 16, 2002, Negley filed another FOIA request, this time seeking any records maintained at the San Francisco Field Office and, more specifically, found within the aforementioned File 149A-SF-106204. See Negley v. FBI, 169 Fed App'x 591, 593 (D.C. Cir. 2006). By letter dated September 30, 2002, the Department informed Negley (once again) that, although he is not the subject of any “main file” in San Francisco, he is “mentioned briefly” in that office's file, “the subjects of which are other individuals or organizations.” Id. The letter went on to explain that the relevant records in the San Francisco File were merely duplicates of records Negley had previously obtained from the Sacramento office. Id. Even so, the Bureau eventually made available 46 pages, all of which had previously been released, while withholding the same one page at issue in Negley I. Id.

         Negley brought suit once more, this time filing in the federal court here before now-retired Judge Gladys Kessler. Although it took the FBI more than a few tries, see, e.g., id. at 593-94 (reversing grant of summary judgment); Negley v. FBI, 658 F.Supp.2d 50, 60 (D.D.C. 2009) (denying summary judgment), the agency ultimately released an entire sub-file of the San Francisco File, which included nine more responsive pages. Judge Kessler granted the agency's third motion for summary judgment, though not before chastising it for “stonewall[ing], . . . delay[ing], [and] repeatedly [finding] responsive documents long after it should have.” Negl ...

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