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Crisman v. Department of Justice

United States District Court, District of Columbia

March 25, 2019

NANCY CRISMAN, et al., Plaintiffs,
v.
DEPARTMENT OF JUSTICE, et al., Defendants.

          SUPPLEMENTAL MEMORANDUM OPINION

          TANYA S. CHUTKAN UNITED STATES DISTRICT JUDGE

         Plaintiffs 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.

         Before the court is Defendants' First Motion for Summary Judgment with respect to three documents covered by Count 2.[1] (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.

         I. BACKGROUND

         In 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. ¶¶ 14-15.)

         In June 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. ¶¶ 23-25.)

         Crisman 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.)

         Crisman 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, 56- 76.)

         On 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.)

         II. LEGAL STANDARD

         Summary 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. 1980)).

         FOIA 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).

         III. ...


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