United States District Court, District of Columbia
B. WALTON, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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).
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.
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.
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
Summary Judgment Standard
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