United States District Court, District of Columbia
SUPPLEMENTAL MEMORANDUM OPINION
S. CHUTKAN UNITED STATES DISTRICT JUDGE
Nancy Crisman and National Security Counselors sued the
Department of Justice, the Board of Governors of the Federal
Reserve System (“FRB”), the Department of
Homeland Security, and the Office of the Director of National
Intelligence, alleging violations of the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552,
et seq., as amended; the Privacy Act, 5 U.S.C.
§ 552a, et seq.; the Administrative Procedure
Act, 5 U.S.C. § 701, et seq.; and the Fifth
Amendment of the United States Constitution.
the court is Defendants' First Motion for Summary
Judgment with respect to three documents covered by Count
(ECF No. 26.) Upon consideration of the parties' filings,
and for the reasons stated herein, the court will
GRANT Defendants' First Motion for
Summary Judgment with respect to Count 2.
March 2004, the Financial Institution Security Association
(“FISA”) sent a document entitled “FISA
Alert Report Form” to the Federal Bureau of
Investigation (“FBI”), and the FBI erroneously
recorded the document as pertaining to the Foreign
Intelligence Surveillance Act. (See ECF No. 1
(“Compl.”) ¶¶ 11, 14.) Crisman alleges
this error resulted in the termination of her employment as a
nurse for Corporate Nurse, Inc., expulsion from the FRB
headquarters, and the addition of her name to various
national security watch lists. (See Id. ¶¶
2005, Crisman filed a FOIA request with the FBI, seeking all
records pertaining to her- including the FISA Alert.
(Id. ¶ 17.) The FBI refused her request because
the records were classified as “Confidential.”
(Id. ¶¶ 18-19.) Crisman then appealed, and
the FBI's decision was affirmed by the Office of
Information Policy (“OIP”). (Id.
¶¶ 20-21.) The FBI subsequently re-reviewed the
FISA alert, declassified it, and released a redacted version
to Crisman on February 13, 2009. (Id. ¶¶
filed suit on March 31, 2011-Crisman v. Dep't of
Justice, No. 11-658 (EGS) (D.D.C.)-challenging,
inter alia, the adequacy of the FBI's search for
documents. (See ECF No. 31-1, Ex. 2.) On November 8,
2011, by stipulation, the suit was dismissed with prejudice.
(Compl. ¶ 25; ECF No. 31-1, Ex. 1 (“Stipulation of
Dismissal”) at 1.)
then filed a December 27, 2011 FOIA request with the FBI,
seeking all records in the FBI file in which the FISA Alert
was placed and “all FBI Records about her, including
cross-references.” (Compl. ¶¶ 34, 57, 67.)
Almost a year later, on November 19, 2012, Plaintiffs filed
their Complaint in this case, alleging, in part, that the FBI
failed to comply with FOIA. (Id. ¶¶ 27-43,
December 3, 2013, Defendants filed their First Motion for
Summary Judgment as to Plaintiffs' records denial claims
and Privacy Act damages claims. (ECF No. 26.) In reviewing
one of the records denial claims, the court found that it did
not have enough information to determine whether three
documents were properly withheld. Accordingly, on September
18, 2018, with respect to Count 2 of the Complaint, this
court directed the FBI to submit a declaration providing more
detail regarding its decision to withhold information from
Plaintiffs under FOIA Exemption (b)(5). (ECF No. 63.) On
November 1, 2018, in response to the court's request,
Defendants filed the Third Hardy Declaration. (ECF No. 65.)
judgment is appropriate where there is no genuine issue of
material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Waterhouse v.
Dist. of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002).
In determining whether a genuine issue of material fact
exists, the court must view all facts in the light most
favorable to the non-moving party. See Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). A fact is material if “a dispute over it
might affect the outcome of a suit under governing law;
factual disputes that are ‘irrelevant or
unnecessary' do not affect the summary judgment
determination.” Holcomb v. Powell, 433 F.3d
889, 895 (D.C. Cir. 2006) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue is
genuine if “‘the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.'” Id. (quoting Anderson,
477 U.S. at 248). The party seeking summary judgment
“bears the heavy burden of establishing that the merits
of his case are so clear that expedited action is
justified.” Taxpayers Watchdog, Inc. v.
Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (citing
Walker v. Washington, 627 F.2d 541, 545 (D.C. Cir.
cases are “typically and appropriately . . . decided on
motions for summary judgment.” Gold Anti-Trust
Action Comm., Inc. v. Bd. of Governors of Fed. Reserve
Sys., 762 F.Supp.2d 123, 130 (D.D.C. 2011) (internal
quotation marks and citation omitted). Upon an agency's
request for summary judgment on the grounds that it has fully
discharged its FOIA obligations, all underlying facts and
inferences are analyzed in the light most favorable to the
FOIA requester; only after an agency proves that it has fully
discharged its FOIA obligations is summary judgment
appropriate. Moore v. Aspin, 916 F.Supp. 32, 35
(D.D.C. 1996) (citations omitted).