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Welenc v. Department of Justice

United States District Court, District of Columbia

July 8, 2019

LARRY WELENC, Plaintiff,
DEPARTMENT OF JUSTICE, et al., Defendants.



         The plaintiff brings this action under the Freedom of Information Act (“FOIA”), see 5 U.S.C. § 552 (2018), against the United States Department of Justice (“DOJ”) to obtain records purportedly maintained by the Federal Bureau of Investigation (“FBI”). This matter is before the Court on the Defendants' Motion for Summary Judgment. For the reasons discussed below, the Court grants the motion.

         I. BACKGROUND

         On November 5, 2013, the plaintiff submitted a FOIA request to FBI's Las Vegas Field Office. Response to Motion for Summary Judgment (ECF No. 81, “Pl.'s Opp'n”), Exhibit (“Ex.”) A. He sought “all documents in [his] file concerning Nancy Shuster and Special Agent Brescia, ” as well as “the second page of [a] letter to Special Agent Brecia.” Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment (ECF No. 43-2, “Defs.' Mem.”), Declaration of David M. Hardy (ECF No. 43-3, “Hardy Decl.”), Ex. A at 1-2. The FBI assigned the matter FOIPA No. 1236172. Pl.'s Opp'n, Ex. A. On November 13, 2013, the FBI denied the “request for documents from Agent Brescia and Nancy Shuster in regards to missing pages of a letter” because its “Central Records System is not arranged in a manner that allows for the retrieval of . . . specific documents/letters.” Hardy Decl., Ex. A at 5.

         The plaintiff chose not to “contest” the FBI's response to FOIPA No. 1236172, and by a fax submitted to the FBI's Record/Information Dissemination Section on November 22, 2013, the plaintiff submitted a new request for:

all documents originating from the FBI Field Office Las Vegas on myself with specific reference to Special Agent Richard J[.] Brescia, Nancy L[.] Schuster, Legal Unit, and Special Agent Nina Lynn Bill (Roseberry)

Id., Ex. A at 1; see Pl.'s Opp'n, Ex. A. By letter dated November 26, 2013, the FBI notified the plaintiff that, “[i]n response to [his] November 22, 2013 letter, [the] FBI opened a new FOIPA request and assigned it FOIPA Request No. 1239835-000.” Hardy Decl. ¶ 6 n.1; see id., Ex. B.

         The plaintiff alleges in his complaint, however, that he submitted a FOIA request to the FBI's Headquarters on March 26, 2013 “requesting all files with the FBI Las Vegas on Nancy Shuster (Schuster), the head of the Legal Unit of the FBI Las Vegas[, ] Nevada from 1996 to 1998[.]” Petition for Judicial Review of Denial of FOIA Appeal 2015-00121 (ECF No. 1, “Compl.”) at 3. According to the plaintiff, this March 26, 2013 submission was the matter assigned FOIPA Request No. 1239835-000. Id.; see id., Ex. C. Nevertheless, the parties have not disputed that the single FOIA request at issue in this case is the one designated FOIPA Request No. 1239835-000. See Hardy Decl., Ex. B; Compl., Ex. C.

         FBI staff conducted a search of the Central Records System, see Hardy Decl. ¶¶ 24-25, using variations of the plaintiff's name as search terms, see id. ¶ 24. The search yielded 279 pages of responsive records, id. ¶ 11, found in a main file, 197-LV-29808, “stemming from a 1998 civil complaint filed by [the plaintiff] against the FBI in response to its handing of [an earlier FOIA] request, ” id. ¶ 27, in the United States District Court for the District of Nevada, see Welenc v. U.S. Dep't of Justice, No. 98-cv-0059 (D. Nev. filed Jan. 13, 1998).

         On September 16, 2014, the FBI released 186 pages of records in full, released 42 pages in part, and withheld 11 pages in full, after having redacted certain information under FOIA Exemptions 5 and 6. See Hardy Decl. ¶¶ 11, 28; Compl. at 3; see id., Ex. C. The remaining 40 pages of records were withheld in full because they were duplicates. Hardy Decl. ¶ 28. The FBI further informed the plaintiff that it had consulted with unidentified government agencies with respect to some of the responsive records. Id., Ex. F at 1.

         The plaintiff appealed the FBI's response to DOJ's Office of Information Policy (“OIP”), which assigned the matter a tracking number, AP-2015-00121. Id. ¶ 12; see id., Ex. G. On May 12, 2015, the OIP affirmed the FBI's initial determination. Id. ¶ 13; see Compl., Ex. A. In addition, the OIP advised the plaintiff that the FBI had referred records to other government agencies, specifically the DOJ's Civil Division and Executive Office for United States Attorneys (“EOUSA”), for processing and direct response to the plaintiff. Compl., Ex. A at 2. The OIP deemed the referrals proper, instructed the plaintiff to consult these agencies directly for further information, and advised the plaintiff of his right to appeal any future determination made by these agencies. Id., Ex. A at 2.

         After the plaintiff filed this civil action in April 2017, FBI staff reviewed the agency's initial response to the plaintiff's request and “issued an updated release” on September 26, 2018. Hardy Decl. ¶ 15. Of the 279 pages it initially located, the FBI “released 228 pages with minimal information withheld pursuant to FOIA Exemptions [5 and 6].” Id.; see generally id., Ex. I (“Vaughn Index”).


         A. Summary Judgment Standard

         The Court may grant summary judgment to a government agency as the moving party if the agency shows that there is no genuine dispute as to any material fact and if it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to sustain its action' and directs the district courts to ‘determine the matter de ...

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