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Elgabrowny v. Central Intelligence Agency

United States District Court, District of Columbia

March 31, 2019

IBRAHIM ELGABROWNY, Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY, et al., Defendants.

          MEMORANDUM OPINION

          Tanya S. Chutkan United States District Judge.

         I. INTRODUCTION

         Plaintiff Ibrahim Elgabrowny, proceeding pro se, filed suit against the Central Intelligence Agency (“CIA”), Department of Justice (“DOJ”), and Executive Office of United States Attorneys (“EOUSA”) (collectively “Defendants”).[1] Plaintiff alleges violations of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and Privacy Act (“Privacy Act” & “PA”), 5 U.S.C. § 552a. Sec. Am. Compl., ECF No. 29 at 1.[2]

         The DOJ, FBI, and EOUSA have filed a Motion for Summary Judgment, ECF No. 45, (“DOJ Mot.”), and supporting pleadings. The CIA has also filed a Motion for Summary Judgment (“CIA MSJ”), ECF No. 47, and supporting pleadings. Plaintiff filed a combined Opposition and Cross-Motion for Summary Judgment, and several supplemental filings in opposition. Also included in Plaintiff's Opposition/Cross Motion are: a Motion to Strike Portions of the EOUSA (Stone) Declaration (“MTS Stone”), ECF No. 51 at 33-6, a Motion to Strike Portions of the FBI (Hardy) Declaration (“MTS Hardy”), id. at 37-40, a First Motion for In Camera Review & Discovery (“First Mot. In Cam.”), id. at 41-4, and a Second Motion for In Camera Review & Discovery (“Sec. Mot. In Cam.”), id. at 45-6. He has also filed a separate Third Motion for In Camera Review (“Third Mot. In Cam.”), ECF No. 56.

         Defendants argue that they conducted adequate searches for responsive documents, properly withheld responsive information under applicable exemptions, and satisfied their segregation obligations under FOIA.

         For the reasons stated herein, FBI's Motion for Summary Judgment is GRANTED, CIA's Motion for Summary Judgment is GRANTED in part and DENIED in part without prejudice, and EOUSA's Motion for Summary Judgment is DENIED without prejudice. Plaintiff's Cross Motion for Summary Judgment is DENIED, in part with prejudice and in part without prejudice. His remaining Motions and requests for relief are DENIED.

         II. FACTUAL BACKGROUND

         Plaintiff's FOIA/PA Requests primarily concern his and others' prosecution, convictions, and the underlying criminal investigation related to the 1993 World Trade Center bombing. Sec. Am. Compl. at 4, 9-10, 18; Pl.'s Opp. at 5-6; United States v. Elgabrowny, et al., No. 93-cr-00181 (MBM) (S.D.N.Y. Filed 1993).

          FBI FOIA/Privacy Act Request Nos. 1341446-000 & 1341446-001

         The FBI received Plaintiff's first FOIA Request, with a demand for expedited processing and fee waiver, by email dated November 12, 2015. Hardy Decl. ¶ 5. He requested [sic]:

Copy of the FBI Special Agent [Bradley J. Garret]'s notes of interview with (Abdul Basit Mahmoud Abdul Karim) [the mastermind of the 1993's World Trade Center Bombing Conspiracy (WTC)], he is also known on the court documents as (Ramzi Ahmed Yousef). As the Court record reflects, SUCH INTERVIEW WAS CONDUCTED IN PAKISTAN[ON FEB-7-1995) AND LASTED FOR APPROXIMATELY(TWO)HOURS. U.S. v. Ramzi Yousef, 925 F.Supp. 1063(S.D.N.Y. 1996), i.d. at 1066.
Copy of the FBI Special Agent [Charles B. Stern's] notes of interview with (Abdul Basit Mahmoud Abdul Karim[the mastermind of the 1993's World Trade Center Bombing Conspiracy (WTC)], he is also known on the court documents as(Ramzi Ahmed Yousef). As the court record reflects, SUCH INTERVIEW WAS CONDUCTED ON (FEB-8-1995) ABOARD AIRPLANE DURING HIS WAY BACK TO THE U.S. AFTER HIS ARREST IN PAKISTAN ON(FEB-7-1995). Such interview lasted for approximately(six hours)with the presence of Secret service Agent(Brian Parr), the interview notes were written by FBI Agent(C. Stem). U.S. v. Ramzi Yousef, 925 F.Supp. 1063(S.D.N.Y. 1996), i.d. at 1066-1067.

Id.; FBI Ex. A. On December 10, 2015, Plaintiff submitted a duplicate request to the FBI. Hardy Decl. ¶ 6; FBI Ex. B. On December 17, 2015, the FBI sent Plaintiff a letter acknowledging receipt and assigning Request No. 1341446-000. Hardy Decl. ¶ 7. In the letter, the FBI advised that, absent express authorization and consent from the third-party individual whose records are sought, proof of death of the third-party, or a clear demonstration that the public interest in disclosure outweighs the privacy interest of the third-party, the FBI could "neither confirm nor deny the existence of any records responsive to [Plaintiff's] request, which, if they were to exist, would be exempt from disclosure pursuant to FOIA Exemptions (b)(6) and (b)(7)(C)." Id.; FBI Ex. C. The FBI therefore provided a “Glomar Response.” Hardy Decl. ¶ 17; see Phillipi v. CIA, 655 F.2d 1325, 1327 (D.C. Cir. 1981) (affirming FBI internal policy to neither confirm nor deny identifying information of individuals which could compromise the national security or divulge intelligence sources and methods). A certification of identity form ("Privacy Waiver") was enclosed, with instructions to be completed by the subject of the Request. Hardy Decl. ¶ 17. Plaintiff was also advised that the Request would be closed if no response was received within 30 days, and of his right of appeal to Office of Information Policy ("OIP"). Hardy Decl. ¶ 7; FBI Ex. C.

         On December 17, 2015, the FBI had received none of the required information, and closed the Request and denied the demand for expedited processing. Hardy Decl. ¶ 8; FBI Ex. D. Plaintiff filed an appeal with OIP on January 3, 2016. Hardy Decl. ¶ 9; FBI Ex. E. OIP acknowledged the appeal on January 28, 2016, assigning it Appeal No. AP-2016-01325. Hardy Decl. ¶ 10. OIP (1) affirmed the FBI's determinations, (2) found the request for expedited processing was moot, and (3) found the fee waiver requested was moot because no fees had been assessed. Id.

         On September 1, 2016, Plaintiff submitted a “supplement” to his original FOIA Request, seeking copies of the FBI agents' handwritten notes of interviews with Abdul Basit Mahmoud Abdul Karim (AKA “Ramzi Ahmad Yousef”) (hereinafter “Yousef”) from 1995, following Yousef's arrival in the United States. Hardy Decl. ¶ 11. Plaintiff again requested expedited processing and a fee waiver. FBI Ex. G. The FBI acknowledged receipt of that request on September 12, 2016, assigning it Request No. 1341446-001. Hardy Decl. ¶ 12. In the same correspondence, the FBI denied the Request, again noting that Plaintiff must provide (1) an authorization and consent from Yousef, or (2) proof of Yousef's death, or (3) a justification that the public interest in disclosure outweighed Yousef's personal privacy. Id. The FBI also relied upon FOIA Exemptions (b)(6) and (b)(7)(C), 5 U.S.C. §§ 552(b)(6), (7)(C). FBI Ex. H. Once again, the FBI advised Plaintiff that the Request would be closed if no response was received within 30 days, notified him of his appeal rights, and denied the request for expedited processing. Id. On September 27, 2016, Plaintiff appealed the FBI's denial to OIP and requested expedited processing. Hardy Decl. ¶ 13. OIP acknowledged the appeal on October 6, 2016, assigning it Appeal No. AP-2017-000068, and advised that it would be handled in order of receipt. Hardy Decl. ¶ 14. On December 19, 2016, OIP affirmed the FBI's actions. Hardy Decl. ¶ 15; FBI Ex. K.

         On January 11, 2017, Plaintiff filed this suit. In preparation, the FBI “again reviewed information from the Yousef prosecutions and determined that it had, in court records, acknowledged the fact that the interviews took place.” Hardy Decl. ¶ 17, id. n.3. Given the acknowledgement, the FBI vacated its Glomar position and conducted searches for the records, finding none responsive to Plaintiff's Requests. Id. ¶¶ 17, 26-8.

         CIA FOIA/Privacy Act Request Nos. F-2011-001562/F-2011-01562A & P-2014-00346

         On May 24, 2011, Plaintiff submitted a FOIA/PA Request for a "copy of Exhibit (C) that was attached to the Declaration of Hugh E. Price, Deputy Director of Operation, Central Intelligence Agency, sworn to July 21, 1994." Shiner Decl. ¶ 5; CIA Ex. A. Plaintiff noted that the "declaration and exhibit[3] were submitted to the United States Attorney's Office for the Southern District of New York (“USAO-SDNY”) in 1994 regarding the trial of U.S. v. Omar Ahmad Abdel Rahman, et al., S3-93-Cr-181 (MBM)." Id. The CIA acknowledged receipt of Plaintiff's Request on October 10, 2012, assigning it Request No. F-2011-001562. Shiner Decl. ¶ 5; CIA Ex. B.

         On June 27, 2013, the CIA responded to Plaintiff, indicating that it had not located any responsive records to the Request. Shiner Decl. ¶ 6; CIA Ex. C. Plaintiff appealed on July 11, 2013. Shiner Decl. ¶ 6; CIA Ex. D.

         Plaintiff corresponded with the CIA on January 12, 2014, attempting to expand his original Request. Shiner Decl. ¶ 7; CIA Ex. F. He requested

(A) A copy of Exhibit (C) that was attached to the Declaration of Hugh Price;
(B) All information pertaining to my name that might be in the declaration of Hugh E. Price, Deputy Director of Operation, CIA, sworn to July-21-1994, that was sent to the U.S. Department of Justice, or was sent directly to the U.S. Attorney office, Southern District of New York, or to any other U.S. agency regarding the trial of U.S. v. Omar Ali Abdel Rahman. et al, (S3-93-Cr-18l (MBM);
(C) All information pertaining to my name that might be in any file (Central or Field or Others) that was the source of the information pertaining to my name that was mentioned in the above-mentioned Price Declaration;
(D) All the information that is pertaining to my name or referring to it that might be found in any Central or Field file.

Id.; Sec. Am. Compl. Ex. 7. On February 18, 2014, the CIA informed Plaintiff that, based on his correspondence, it would open two new Requests. Shiner Decl. ¶ 8; CIA Ex. G. Request “A” was assigned Request No. F-2011-01562A, but the CIA also informed Plaintiff that this Request was duplicative and had already been addressed as part of Request No. F-2011-01562. Id. The CIA further informed Plaintiff that it construed Requests B-C as made under the Privacy Act, assigning them Request Nos. P-2014-00346, collectively. Sec. Am. Compl. at 5; Sec. Am. Compl. Ex. 8. The CIA also requested additional information regarding Plaintiff's alien permanent registration number, which he provided. Sec. Am. Compl. at 6; Sec. Am. Compl. Ex. 9.

         On May 26, 2015, Plaintiff requested an update on his appeal and asked for a response to Request No. P-2014-00346. Shiner Decl. ¶ 9; CIA Ex. H. On June 15, 2015, the CIA responded that it was preparing his case for appeal. Shiner Decl. ¶ 9; CIA Ex. I. Plaintiff states that he submitted (1) a second expedited processing request on August 4, 2015, Sec. Am. Compl. at 7; Sec. Am. Compl. Ex. 13, and (2) additional appeals regarding the CIA's lack of response on November 19, 2015 and January 26, 2016, Sec. Am. Compl. at 7-8; Sec. Am. Compl. Exs. 14, 15. The CIA avers that it did not receive the last three requests until this case was filed. Shiner Decl. ¶ 9. Sometime thereafter, based on information Plaintiff submitted in this case, the CIA was able to review new identifying details regarding Exhibit C, gleaned from the opinion in United States v. Rahman, et al., 870 F.Supp. 47 (S.D.N.Y. 1994). Shiner Decl. ¶¶ 11-12. It then located Exhibit C based on this new information. Id. The CIA now withholds this document under Exemptions 1 and 3. See Id. ¶¶ 13-19.

         The CIA contends that Request No. P-2014-00346 is not at issue in this litigation because the “allegations in the complaint against [CIA] pertain only to [Plaintiff's] request for ‘Exhibit (C)' in the FOIA request.” Id. ¶ 10. It argues that because Plaintiff only specifically discusses the withholding of Exhibit C in his ad damnum clause, he has failed to raise Request No. P-2014-00346 as an issue in this case, and therefore the CIA declines to address it. See Id. In response, Plaintiff argues that he does, in fact, discuss Request No. P-2014-00346 in other areas of his Second Amended Complaint, and that the CIA should have been on notice. Pl.'s First Supp. Opp. at 5. While his allegations are not a model in clarity, the Second Amended Complaint discusses, in certain detail, the history and nature of Request No. P-2014-00346. See Sec. Am. Compl. at 5-7. Plaintiff also attaches relevant exhibits in support. See Sec. Am. Compl. Exs. 7-10. Complaints filed by pro se litigants are held to less stringent standards than those applied to formal pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). Therefore, even if Plaintiff did not include Request No. P-2014-00346 as part of his ad damnum, it may be inferred that he intended to raise it in this matter. Therefore, the CIA has not yet completely addressed all of Plaintiff's claims and summary judgment as to all claims is not yet appropriate.

         EOUSA

         FOIA/Privacy Act Request No. FOIA-2014-02098

         On April 24, 2014, EOUSA received two FOIA/PA Requests from Plaintiff, dated April 10, 2014. Stone Decl. ¶ 5; EOUSA Ex. B. EOUSA elected to treat the two letters as a single FOIA request, assigning them Request No. 2014-02098. In his first letter, Plaintiff provided the following details regarding his Request: “The government sent a letter to the defense counsel (dated July 22, 1994) declaring it filed a petition for non-disclosure of classified information, I am asking for a copy of that above mentioned (July 22, 1994) letter.” Id. In other words, Plaintiff requested Exhibit C. See Id. In his second letter, Plaintiff stated: “To be clear and reiterate, the record sought her[e]in is a single page, Exhibit C, that was attached to the Price Declaration that accompanied the government's July 1994 motion in the referenced criminal case, therefore, ther[e] is no need to search the entire case file.” Id.

         On April 30, 2014, EOUSA requested that the USAO-SDNY conduct a search for the requested records. Stone Decl. ¶ 6. After conducting its initial search, USAO-SDNY indicated that it had located 281 boxes of potentially responsive records and that it would take approximately 92 hours to conduct a search. Stone Decl. ¶ 8.

         On February 11, 2015, EOUSA notified Plaintiff that the estimated search fee was $2, 576.00. Id. ¶ 9; EOUSA Ex. C. Since the fee exceeded $25.00, EOUSA advised Plaintiff that work would not be completed until he agreed to pay the anticipated fees pursuant to 28 CFR 16.11(e). Id. However, after reviewing the “Rahman” docket (Elgabrowny, et al., No. 93-cr-00181), the USAO-SDNY FOIA coordinator was able to limit his search to a few boxes, thus reducing the projected hours and fees. Stone Decl. ¶ 10.

         On June 17, 2015, June 30, 2015, and September 22, 2015, EOUSA sent Plaintiff letters notifying him that USAO-SDNY would now only require approximately two hours of search time, and EOUSA now estimated the search fee at $80.00. Stone Decl. ¶ 11; EOUSA Exs. D-F. Again, EOUSA advised Plaintiff the Request would not be considered received and work would not be completed until Plaintiff agreed to pay the fee in accordance with 28 CFR 16.11(e). Plaintiff was allotted 30 days to respond or suffer administrative closure. Id.

         On September 17, 2015, EOUSA received a letter from Plaintiff modifying his Request. Stone Decl. ¶ 12; EOUSA Ex. G. Plaintiff stated that he was seeking “a copy of Exhibit C that was attached to the 1994 CIA Price Declaration that was submitted by the government to the District Court on 1994 for in [] camera review of classified information[.]” Plaintiff also requested expedited processing and a fee waiver. Id. On October 6, 2015, EOUSA received a letter from Plaintiff inquiring regarding the status of his demands for a fee waiver and expedited processing. Stone Decl. ¶ 13; EOUSA Ex. H. On October 14, 2015, Plaintiff agreed “to pay the $80 for the two hours search fee.” Stone Decl. ¶ 14; EOUSA Ex. I.

         On December 3, 2015, EOUSA notified Plaintiff that his request for a fee waiver was denied because it did not meet the requirements of 28 CFR § 16.11(k). Stone Decl. ¶ 15; EOUSA Ex. J. On December 28, 2015, Plaintiff sent a letter inquiring as to the status of his Request and again requesting expedited processing. Stone Decl. ¶ 16; EOUSA Ex. K. On February 10, 2016, EOUSA denied expedited processing. Stone Decl. ¶ 17; EOUSA Ex. I.

         On February 23, 2016, EOUSA notified Plaintiff that USAO-SDNY had completed its search and was unable to locate Exhibit C. See Stone Decl. ¶ 20; see also EOUSA Ex. N. USAO-SDNY later learned, and informed EOUSA, that Exhibit C existed and had been filed under seal. Stone Decl. ¶ 21. On May 3, 2016, EOUSA sent a supplemental response to Plaintiff, providing him with that information and stating that it was prohibited from publicly disclosing sealed information. Id. ¶ 22; EOUSA Ex. O.

         On April 26, 2016, Plaintiff filed an administrative appeal with OIP.[4] Stone Decl. ¶ 23; EOUSA Ex. P. On June 6, 2016, OIP affirmed EOUSA's determinations. Stone Decl. ¶ 24; EOUSA Ex. Q. In early November 2016, OIP contacted EOUSA and recommended that it send a discretionary release to Plaintiff. Stone Decl. ¶ 25. More specifically, EOUSA stated, “Plaintiff sought a July 22, 1994, letter that the government [gave] to the defense counsel; however, because there was no such letter to be found, OIP recommended that EOUSA make a discretionary release of a May 26, 1994[] letter that appeared to be responsive to Plaintiff's FOIA request.Id. On November 9, 2016, EOUSA sent Plaintiff a second supplemental FOIA response by releasing, in part, one page and releasing, in full, one page, of the May 26, 1994 letter. Stone Decl. ¶ 26; EOUSA Ex. R. EOUSA withheld the name and signature of a government attorney associated with Plaintiff's prosecution, invoking FOIA Exemptions 5 U.S.C. §§ 552(b)(6) and (7)(C). Id.

         Plaintiff points out, and the court agrees, that EOUSA's statement is confusing. See Pl.'s Opp. at 9; Pl.'s Sec. Am. Compl. Ex. 36. EOUSA indicates that “Exhibit C had been filed under seal, ” and therefore it could not release the document. Stone Decl. ¶¶ 21-2; EOUSA Ex. O. However, shortly thereafter, EOUSA indicated that it could not find any such document, and instead proposed the release of the May 26, 1994 letter. Stone Decl. ¶ 25; id. ¶ 25 n.3. In reviewing the docket entries in Elgabrowny, No. 93-cr-00181, it appears that Plaintiff was requesting documents relating to ECF No. 675, and EOUSA instead released portions of a document relating to ECF No. 250. See Stone Decl. ¶ 27; EOUSA Ex. S; Pl.'s Opp. at 9. This is doubly confusing because both entries relate to letters and declarations of Robert S. Khuzami, rather than Hugh Price. See Elgabrowny, No. 93-cr-00181at ECF ...


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