United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE
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).
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.
2011, the United States charged Matthews in two indictments
related to mortgage and investment fraud: 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).
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).
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.
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
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.
Matthews's FOIA Request
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).
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.
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. §
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.
Search and Withholdings
Adequacy of Search
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.
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, ...