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Rhodes v. Federal Bureau of Investigation

United States District Court, District of Columbia

June 14, 2018

ANTHONY RHODES, Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION, Defendant.

          MEMORANDUM OPINION

          TREVOR N. McFADDEN UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         I. BACKGROUND

         A. Factual History

         On 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.[1]

         Plaintiff 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.

         B. Procedural History

         In June 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.

         Upon 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.[2]

         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). The Court must "state on the record" why Defendant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).

         FOIA 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).

         To show 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. 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 ...

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