United States District Court, District of Columbia
S. Chutkan United States District Judge.
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”). 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.
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.
argue that they conducted adequate searches for responsive
documents, properly withheld responsive information under
applicable exemptions, and satisfied their segregation
obligations under FOIA.
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.
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 &
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.
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.
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
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.
FOIA/Privacy Act Request Nos. F-2011-001562/F-2011-01562A
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 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.
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.
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
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.
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.
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.
Act Request No. FOIA-2014-02098
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
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.
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.
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.
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.
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.
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.
April 26, 2016, Plaintiff filed an administrative appeal with
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.
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 ...