United States District Court, District of Columbia
N. McFADDEN UNITED STATES DISTRICT JUDGE
Anthony Rhodes, appearing pro se, challenges the
Federal Bureau of Investigation's response to his Freedom
of Information Act ("FOIA") request. Plaintiff
takes issue specifically with the FBI's decision to
neither confirm nor deny the existence of his name on any
watch lists. Defendant has moved for summary judgment,
contending that it has fulfilled its FOIA obligations.
Plaintiff has offered nothing to the contrary. Accordingly,
Defendant's motion will be granted for the reasons
explained more fully below, and Plaintiffs pending motions to
compel, to expedite the proceedings, and to issue an order of
protection will be denied as moot.
November 23, 2015, Plaintiff requested from the FBI
"copies of all records about me." Decl. of David M.
Hardy, Ex. A, ECF No. 10-3. He included his personal
information and a signed Certification of Identity Form. By
letter dated November 30, 2015, the FBI informed Plaintiff
that a search of its Central Records System located no
responsive records and invited him to provide
"additional [detailed] information .. . that you believe
was of investigative interest to the Bureau" that might
enable an additional search. Hardy Decl., Ex. B. The FBI
added: "In accordance with standard FBI practice and
pursuant to FOIA exemption (b)(7)(E)/Privacy Act exemption
(j)(2). . ., this response neither confirms nor denies the
existence of your subject's name on any watch
lists." Id. Such a response is commonly
referred to as a Glomar response.
appealed the FBI's determination to the Office of
Information Policy ("OIP") to the extent "that
some or all of my request cannot be provided because it is
exempt under the [FOIA]." Hardy Decl., Ex. C. Plaintiff
requested reconsideration "because: Suspicion of illegal
activities by law enforcement personnel." Id.
OIP affirmed the FBI's action in a letter dated January
6, 2016. Hardy Decl., Ex. E.
2016, Plaintiff lodged with the Clerk of Court two seemingly
separate actions, which were filed as one complaint, ECF No.
1. The first action, captioned "Complaint 42 U.S.C.
§ 1983, " lists ten purported causes based on the
FBI's "illegal acts against" Plaintiff
"during the years of 2004 (to my knowledge) to this
current date." Compl. at 2. But it seeks as relief
"to compel delivery of the records which have been
repeatedly denied me by the [FBI], and ultimately, to be
compensated in the amount of $250, 000, 000.00 in punitive
damages for their heinous and illegal acts."
Id. at 3. The second action, captioned
"Complaint for Injunctive Relief, " is clearly
brought under the FOIA. See Id. at 5-12. In
accordance with the screening requirements of the Prison
Litigation Reform Act codified at 28 U.S.C. § 1915A, the
complaint was construed as brought under the FOIA and then
assigned to a district judge for further proceedings.
See June 14, 2016 Order, ECF No. 4.
reviewing Defendant's brief in support of summary
judgment, this Court discovered that Defendant had not
addressed the actual claim set out in the complaint and
ordered supplementation of the record by May 14, 2018.
See Apr. 16, 2018 Minute Order. Now before the Court
are Defendant's initial motion for summary judgment, ECF
No. 10, which was held in abeyance, and its supplemental
motion for summary judgment, ECF No. 24. Plaintiff has
neither responded to Defendant's supplemental motion by
the court-imposed deadline of May 28, 2018, see
Order, ECF No. 25, nor requested additional time to respond.
Therefore, as Plaintiff was warned, the Court will proceed to
the merits without his input.
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). The Court must "state on the
record" why Defendant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a).
requires federal agencies to "disclose information to
the public upon reasonable request unless the records at
issue fall within specifically delineated exemptions."
Judicial Watch, Inc. v. FBI, 522 F.3d 364,
365-66 (D.C. Cir. 2008); see also 5 U.S.C.
§ 552(a)(3)(A) (records sought must be "reasonably
describe[d]"). Thus, a FOIA defendant is entitled to
summary judgment if it demonstrates that there is no genuine
dispute as to whether "each document that falls within
the class requested, either has been produced, is
unidentifiable or is wholly exempt from the Act's
inspection requirements." See Weisberg v. Dep't
of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980). The
"vast majority" of FOIA cases are decided on
motions for summary judgment. See Brayton v. Office of
U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011).
that unproduced documents are exempt from FOIA, an agency may
file "affidavits describing the material withheld and
the manner in which it falls within the exemption
claimed." King v. Dep't of Justice, 830
F.2d 210, 217 (D.C. Cir. 1987). Although courts review the
applicability of FOIA exemptions de novo, they give
"substantial weight to detailed agency
explanations" of national security concerns related to
the release of information. Id. "[I]f the
[very] fact of the existence or nonexistence of agency
records falls within a FOIA exemption, " a defendant may
issue a Glomar response, declining to confirm or
deny the existence of requested records. Wolf v.
CIA, 473 F.3d 370, 374 (D.C. Cir. 2007). An agency
issuing a Glomar response must explain in as much
detail as possible why it cannot confirm or deny the
existence of certain records or categories of records, which
it may attempt to do by affidavit. James Madison Project
v. Dep't of Justice, 208 F.Supp.3d 265, 283 (D.D.C.
2016) (citing Phillippi, 546 F.2d at 1013). The D.C.
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 ...