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Matthews v. Federal Bureau of Investigation

United States District Court, District of Columbia

March 31, 2019

ALEXANDER OTIS MATTHEWS, Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION, Defendant.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE

         Plaintiff Alexander Otis Matthews, proceeding pro se, is currently serving a sentence for bank fraud and wire fraud. In March 2013, Matthews submitted a Freedom of Information Act (“FOIA”) request to the Federal Bureau of Investigation (“FBI”), seeking all records about himself. Dkt. 53-5 at 2-3 (Hardy Decl. ¶ 5). To date, the FBI has processed 671 pages of responsive documents but has declined to process any “investigative files resulting in [Matthews's] wire fraud and bank fraud prosecutions . . . and the related motion to vacate [his] sentence” because Matthews “waived his rights to request [those] investigative documents under the FOIA and Privacy Acts” in his plea agreement. Dkt. 53-6 at 3, 10-11 (Argall Decl. ¶¶ 4, 20).

         The matter is now before the Court on the FBI's motion for summary judgment. Dkt. 53. Matthews opposes the motion on one ground: He argues that he is entitled to records related to his prosecution because the FOIA waiver in his plea agreement is unenforceable as a matter of public policy. Dkt. 59 at 3. Matthews does not otherwise challenge any of the FBI's other withholdings. Because the Court concludes that Matthews's FOIA waiver is unenforceable under the D.C. Circuit's decision in Price v. U.S. Dep't of Justice Attorney Office, 865 F.3d 676 (D.C. Cir. 2017), the Court will DENY the FBI's motion for summary judgment with respect to the FBI's waiver defense. Moreover, because the Court requires additional information to assess portions of the FBI's withholdings pursuant to FOIA Exemptions 6 and 7(D), the Court will also DENY the FBI's motion with respect to those withholdings. In all other respects, however, the Court will GRANT the motion.

         I. BACKGROUND

         A. Factual Background

         1. Matthews's Prosecution

         In 2011, the United States charged Matthews in two indictments related to mortgage and investment fraud[1]: a one-count indictment filed in the Eastern District of Virginia for wire fraud and a one-count indictment filed in the District of Maryland for bank fraud. Dkt. 53-2 at 1 (Def. Statement of Undisputed Material Facts (“SUMF”) ¶ 4); Dkt. 53-4 at 2 (Faulconer Decl. ¶¶ 2b- 2c). Matthews agreed to transfer the Maryland indictment to the Eastern District of Virginia, where the two cases were litigated in tandem. Dkt. 53-4 at 2 (Faulconer Decl. ¶¶ 2e-2f). On July 15, 2011, Matthews pled guilty to both indictments. See Dkt. 24-1 at 57-58 (Plea Agreement ¶¶ 1a-1b). He admitted to three instances of mortgage fraud and one instance of investment fraud. Dkt. 53-2 at 1 (Def. SUMF ¶ 5); Dkt. 53-4 at 2 (Faulconer Decl. ¶ 2f).

         Before Matthews pled guilty, the United States and Matthews's defense counsel in the Eastern District of Virginia cases entered into an “agreed” discovery order, which required the government to disclose information pursuant to Federal Rule of Criminal Procedure 16, exculpatory material required by Brady v. Maryland, 373 U.S. 83 (1963), United States v. Agurs, 427 U.S. 97 (1976), and witness material required by the Jencks Act and Giglio v. United States, 405 U.S. 150 (1972). Dkt. 53-2 at 2 (Def. SUMF ¶ 7); Dkt. 53-4 at 3 (Faulconer Decl. ¶ 3). Pursuant to that order, the United States produced “over 9, 000 pages of documents on at least eight compact discs to [Matthews] and his counsel over approximately a three-month period of time.” Dkt. 53-2 at 2 (Def. SUMF ¶ 8); see also Dkt. 53-4 at 3 (Faulconer Decl. ¶ 3). Those documents included “mortgage loans files, bank records, bankruptcy-related documents, reports and other documents related to interviews conducted by the [FBI], and materials related to [Matthews's] prior conviction in the District of Columbia.” Dkt. 53-4 at 4 (Faulconer Decl. ¶ 3). After viewing the discovery, Matthews entered into a guilty plea and attested, as part of the plea agreement, that his attorney had rendered “effective service” in representing him. See Dkt. 24-1 at 58 (Plea Agreement ¶ 3).

         The plea agreement also required Matthews to waive his right to file a FOIA request for documents relating to his prosecution. See Id. at 62 (Plea Agreement ¶ 6). Specifically, the FOIA wavier states, in full:

The defendant also hereby waives all rights, whether asserted directly or by a representative, to request or receive from any department or agency of the United States any records pertaining to the investigation or prosecution of this case, including without limitation any records that may be sought under the Freedom of Information Act, Title 5, United States Code, Section 552; or the Privacy Act, Title 5, United States Code, Section 552a.

Id. In exchange for his various concessions and waivers, the United States agreed not to further prosecute Matthews for the conduct in either the Maryland or Eastern of District of Virginia indictments or for conduct set forth in the statement of facts. Dkt. 53-4 at 3 (Faulconer Decl. ¶ 2f). In October 2011, Matthews was sentenced to a 120-month term of incarceration and ordered to pay five million dollars in restitution. Id. (Faulconer Decl. ¶ 2g).

         Matthews later filed a petition for collateral relief pursuant to 28 U.S.C. § 2255, alleging that his counsel had failed to “disclose the early plea offer” made by the Assistant U.S. Attorney (“AUSA”) in the Maryland prosecution. Dkt. 59 at 1. In its brief in opposition, the U.S.

         Attorney's Office wrote:

Here, the petitioner's claim is fatally flawed with respect to prejudice, and it is thus unnecessary to address whether [his counsel] rendered effective assistance. More specifically, the petitioner has not even argued-let alone established-that the United States extended a particular formal plea offer to him. As a result, the petitioner has failed to satisfy his burden of demonstrating that he, the United States, and this Court would have accepted such a hypothetical plea offer, and he is thus unable to satisfy the second prong of the Strickland test for his claims.

Dkt. 59-2 at 1. The petition was denied, and Matthews is currently serving the remainder of his sentence at a halfway house in D.C. See Dkt. 57.

         2. Matthews's FOIA Request

         On March 1, 2013, Matthews filed a FOIA request with the FBI, seeking records about himself. Dkt. 53-5 at 2-3 (Hardy Decl. ¶¶ 5-6) (docketing Matthews's request as No. 1210788-000). He alleges that his request was motivated by the fact that AUSA Ryan Faulconer, from the Eastern District of Virginia, had falsely represented during his § 2255 proceedings that no early plea offer was ever presented to his counsel. Dkt. 59 at 1. In response to Plaintiff's request, the FBI processed a total of 671 pages, releasing 35 pages in full, 272 pages in part, and withholding 364 pages in full, pursuant to Privacy Act Exemption (j)(2) and FOIA Exemptions 3, 5, 6, 7(C), 7(D), 7(E). Dkt. 53-6 at 3-4 (Argall Decl. ¶ 4).[2]

         B. Procedural Background

         In April 2015, Matthews filed this lawsuit, alleging that the FBI refused to process some responsive documents and improperly withheld others. Dkt. 1 at 1 (Compl.). The FBI initially moved to dismiss the case on the ground that Matthews had neglected to pay his FOIA processing fees or to seek a fee waiver. Dkt. 12 at 1. The Court denied the motion as moot, see Minute Order (Oct. 8, 2015), after Matthews paid the processing fee in September 2015, see Dkt. 17. The Court then set a schedule for the production of non-exempt records and for dispositive motions briefing. Dkt. 21. In January 2016, the FBI moved for summary judgment. Dkt. 24. In its reply brief, the FBI argued for the first time that Matthews was prohibited from proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(g). Dkt. 28 at 2. The Court, accordingly, dismissed Matthews's action without prejudice. Dkt. 31. In light of Matthews's motion for reconsideration, Dkt. 32, however, the Court concluded that Matthews was not barred from bringing his claim altogether, but that he was required to pay the filing fee in order to proceed. Dkt. 35 at 1. The Court received Matthews's filing fee in February 2018, see Receipt of Filing Fee (Feb. 21, 2018), and, subsequently, the FBI renewed its motion for summary judgment, Dkt. 53. That motion is now fully briefed.

         II. LEGAL STANDARD

         The Freedom of Information Act mandates that an agency disclose records on request, unless they fall within one of nine exemptions. “These exemptions are explicitly made exclusive and must be narrowly construed.” Milner v. Dep't of Navy, 562 U.S. 562, 565 (2011) (citation and quotation marks omitted). “FOIA cases are typically resolved on motions for summary judgment under Federal Rule of Civil Procedure 56.” Shapiro v. U.S. Dep't of Justice, 153 F.Supp.3d 253, 268 (D.D.C. 2016). To prevail on a summary judgment motion, the moving party must demonstrate that there are no genuine issues of material fact and that he or she 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). “In a FOIA action, the Court may award summary judgment to an agency solely on the basis of information provided in affidavits or declarations that describe ‘. . . the justifications for nondisclosure [of records] with reasonably specific detail . . . and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.'” Thomas v. FCC, 534 F.Supp.2d 144, 145 (D.D.C. 2008) (alteration in original) (quoting Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)). The Court reviews the agency's determinations de novo, and the agency bears the burden of sustaining its actions. 5 U.S.C. § 552(a)(4)(B).

         III. ANALYSIS

         Aside from contesting the enforceability of the FOIA wavier in his plea agreement, Matthews does not otherwise challenge the adequacy of the FBI's search or its invocation of FOIA exemptions. The relevant portion of his four-page brief in opposition states, in full:

The plaintiff very respectfully argues that the legal issues before the [C]ourt in this [FOIA] proceeding are compelling enough and are of serious enough a nature for the public that the [C]ourt has a duty to deny the defendant's motion for summary judgment and allow this case to go forward so that the records of the early draft plea agreement can be obtained as well as any other records that the plaintiff has requested in this proceeding.

Dkt. 59 at 3. Despite Matthews's non-opposition to the FBI's claimed exemptions, the Court will “verify the validity of each.” Summers v. U.S. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998); see also Fed. Open Market Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 351-52 (1979) (the agency invoking a FOIA exemption bears the burden of “establish[ing] that the requested information is exempt”). The Court will, accordingly, briefly address the adequacy of the FBI's search, each of the FBI's claimed exemptions, and whether the agency has released all segregable, non-exempt records, before turning to the validity of Matthews's FOIA waiver.

         A. Search and Withholdings

         1. Adequacy of Search

         The FBI argues that it “conducted an adequate search for records in response to [Matthews's] FOIA request.” Dkt. 53-1 at 9. An agency “fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.'” Valencia-Lucena v. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). The adequacy of the FBI's search is “judged by a standard of reasonableness and depends . . . upon the facts of each case.” Weisberg v. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). Importantly, “the issue to be resolved is not whether there might exist any other documents possibly responsive” to Matthews's request, but “whether the search for those documents was adequate.” Id. (emphasis in original). Absent contrary evidence, the FBI's affidavits or declarations will “suffice to demonstrate compliance with . . . FOIA, ” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982), unless the record “leaves substantial doubt as to the sufficiency of the search, ” Truitt, 897 F.2d at 542.

         To demonstrate the adequacy of its search, the FBI offers the declaration of Dennis Argall, Assistant Section Chief of the Record/Information Dissemination Section (“RIDS”) of the FBI. Dkt. 53-6 at 2 (Argall Decl. ¶ 1). Argall explains that, “[i]n response to [Matthews's] request, RIDS conducted a [Central Records System (“CRS”)] index search for responsive records.” Id. at 9 (Argall Decl. ¶ 18). CRS is “an extensive system of records consisting of applicant, investigative, intelligence, personnel, administrative, and general files compiled and maintained by the FBI . . . .” Id. at 5 (Argall Decl. ¶ 10). According to Argall, “a [Universal Index (“UNI”)] search in [the FBI's Automated Case Support (“ACS”) system]”-as was conducted here -“is capable of locating” all CRS records “in both paper and electronic format.” Id. at 8 (Argall Decl. ¶ 15). Argall described the FBI's search as follows:

The ACS search was a three-way phonetic search of Matthews'[s] name. This means that first, the computer automatically broke his name down and searched the index for three different breakdowns of the name entered: “Matthews, Alexander Otis;” “Matthews, Alexander O.;” and “Matthews, Alexander.” Then, the computer breaks names down based on their phonetic characteristics. The computer will return results based on whether they phonetically match a certain percentage of the first and last name searched. The default phonetic match setting for first and last names is 80%. Thus, ...

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