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Dillon v. U.S. Department of Justice

United States District Court, District of Columbia

January 17, 2019





         Over the course of three weeks in the fall of 2001, five people were killed and seventeen others were infected when several letters containing anthrax spores were mailed to the Washington, D.C. offices of U.S. Senators Patrick Leahy and Tom Daschle and to news media organizations in New York City and Florida. After a years-long criminal investigation, the Federal Bureau of Investigation (“FBI”) determined that these attacks had been committed by Dr. Bruce Ivins, a scientist at the United States Army Medical Research Institute of Infectious Diseases (“USAMRIID”). But in July 2008, before federal prosecutors were able to obtain a grand injury indictment, Ivins committed suicide. Less than two years later, having concluded that Ivins had acted alone, the FBI formally closed its investigation without charging anyone and issued a ninety-six-page Investigative Summary outlining its findings.

         The Plaintiff in this case, Kenneth J. Dillon, is among many who have expressed doubts about the FBI's ultimate conclusion over the years. A historian and author, Dillon questions whether Ivins was involved in the attacks at all. In pursuit of evidence that might support this belief, Dillon submitted to the FBI two different requests for records under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. The first of these requests asked for various pieces of evidence that Dillon believes the FBI possesses-particular emails that Ivins sent or received and certain lab notebooks that belonged to Ivins. The second request asked for thirty-eight pages of the FBI's Interim Major Case Summary (“IMCS”), a 2, 000-page report produced in 2006, four years before the FBI concluded its investigation. Dillon asked for the report's twenty-two-page table of contents and its sixteen pages that discuss Ivins.

         When he became dissatisfied with the FBI's initial responses to his requests, Dillon filed this lawsuit against the Department of Justice (“DOJ”), and presently before the Court are the parties' cross-motions for summary judgment as to both of Dillon's requests. For reasons explained in greater detail below, the Court denies each of these motions. With respect to Dillon's first request-the request for Ivins's emails and lab notebooks-the FBI ultimately responded by releasing seven pages of emails and ninety-eight pages of notebook material. But Dillon has pointed to other seemingly responsive emails known to have existed that remain unproduced. Because DOJ never meaningfully addressed the specific outstanding emails that Dillon identified, the Court concludes that there remains a genuine dispute as to the adequacy of the FBI's search. The Court therefore orders that DOJ file a notice within thirty days providing possible explanations for why the identified emails were not produced. If DOJ's notice meaningfully engages with Dillon's evidence in a way that assures the Court that it has conducted a good faith, reasonable search, the Court will enter judgment in DOJ's favor.

         As for the second request, the one for the IMCS excerpts, in response to this request, the FBI informed Dillon that the IMCS is, in its entirety, protected by the deliberative process privilege and exempt from FOIA. See 5 U.S.C. § 552(b)(5). The Bureau therefore withheld all thirty-eight of Dillon's requested pages in full. Dillon, unsurprisingly, disputes the FBI's assertion of privilege, and he argues that, at a minimum, the Court should review the thirty-eight pages in camera to ensure that the privilege does in fact apply and that the requested pages do not contain any “reasonably segregable, ” non-exempt information. Id. § 552(b)(5). On this point, the Court agrees with Dillon and concludes that in camera review is appropriate before judgment is entered in favor of either party. The Court thus orders that DOJ produce the thirty-eight pages within thirty days. If the Court agrees with DOJ that the excerpts are privileged in their entirety, it will enter judgment in DOJ's favor. If not, the parties will be permitted to renew their motions for summary judgment with respect to Dillon's second request based on other FOIA exemptions that DOJ has preserved in the alternative.


         A. FOIA Request 1327397 - The Request for Evidence

         Dillon submitted the first of his FOIA requests, which was assigned number 1327397, on April 18, 2015. The scope of the request was initially quite broad: It asked for, “in regard to the 2001 anthrax mailings, all email messages, laboratory notebooks, paper and computer files, and information about meetings and telephone conversations in September and October, 2001 of Dr. Bruce Ivins, USAMRIID.” Decl. of David Hardy (“Hardy Decl.”), Ex. S, ECF No. 14-4 at 18. After a back-and-forth between the parties, the FBI eventually released six pages of previously processed documents while stating that “[a]dditional records potentially responsive . . . may exist.” Id., Ex. X, ECF No. 14-4 at 28. If Dillon wanted a search for those records to be conducted, the Bureau advised that he should submit a new FOIA request. Id.

         Instead of submitting a new request-which would have returned him to the back of the FBI's FOIA queue-Dillon filed an administrative appeal, in which he provided “an updated specification of the records [the] FBI need[ed] to release in order to be responsive” to his request. Id., Ex. Y, ECF No. 14-4 at 31. This updated list of records was more specific than his original request, but it also appeared to encompass additional categories of information that he had not previously asked for. The list included:

(1) “Ivins's emails to or from Patricia Fellows, Mara Linscott, Nancy Haigwood, [and] other individuals, ” which Dillon noted the FBI had “selectively” cited in the final Investigative Summary released to the public;
(2) “pages of [Ivins's] Notebook 4010 . . . and above all . . . the critically important Notebook 4282, ” which apparently documents the work Ivins was doing in his lab from August to September 2001;
(3) “all paper and computer files” on Ivins's work and personal computers;
(4) “[a]ll relevant records related to meetings Ivins attended” in September and October 2001;
(5) Ivins's telephone and credit card records;
(6) Ivins's “entry and exit records” for the building at USAMRIID “where genetically matching anthrax was stored”; and
(7) “records relating to Ivins's animal experiments” performed in ...

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