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Braun v. Federal Bureau of Investigation

United States District Court, District of Columbia

July 25, 2019




         Countless attention seekers have falsely claimed to be CIA agents. David Steven Braun, on the other hand, insists he has never worked for the agency but suspects that a government database entry says otherwise. This record, Mr. Braun claims, has caused him to suffer various adverse employment actions and instances of harassment over the years. Seeking to unearth and correct this purported record, Braun has made a series of requests to the CIA and the FBI pursuant to the Freedom of Information Act and the Privacy Act. He also seeks records regarding his late father, Harvey Allen Braun, whose suicide he attributes to a similar database entry in the government's files.

         In response to Braun's requests, each agency searched its files and informed him that no relevant records had been located. Where the requested searches implicated material classified for law enforcement or national security purposes, each agency issued a so-called Glomar response-i.e., a response that neither confirms nor denies the existence of responsive records. Unsatisfied, Braun has sued the agencies pro se, insisting that responsive records exist and claiming damages for the wrongful death of his father. Each party has moved for summary judgment. Because the FBI and the CIA have adequately responded to Braun's requests, the Court will grant their motion and deny Braun's.

         I. Background

         Braun believes the CIA or FBI has a “database point represent[ing] that [he] currently or at one time did work for the Agency.” Compl., ECF No. 1, at 2. He attributes a string of adverse life events to this purported record, alleging it “has prevented [him] from gaining employment at countless jobs, ” and “caused companies not to promote [him] and to limit [his] salary and Year end bonuses.” Id. He also claims that it has led him to be victimized by vandalism, attempted break-ins, and druggings at restaurants near his Montana home. Pl.'s Resp. to Reply to MSJ (“Resp. to Reply”), ECF No. 21, at 2. Braun believes that the FBI has a similar database entry for his father, Harvey Braun, which limited his father's salary, prevented him from finding employment, and ultimately “forc[ed] him to take his own life.” Compl. at 8-9.

         Braun has filed and unsuccessfully litigated several FOIA and Privacy Act requests with a variety of agencies seeking to remove or correct this suspected database entry. See, e.g., Braun v. USPS, No. 16-2079, 2017 WL 4325645 (D.D.C. Sept. 27, 2017); Braun v. FBI, No. 16-00040, 2017 WL 496059 (D. Mont. February 7, 2017); Braun v. NSA, No. 15-01266 (D.D.C). He continues that pattern with this challenge to the adequacy of the FBI and CIA's responses to multiple recent FOIA and Privacy Act requests. Compl. at 9.

         Braun filed the first request at issue here with the FBI in August 2016, seeking “any references to [him] being a federal employee” or being “employed [by] any branch [of the] Military, such as the CIA.” Compl. Ex. 1, ECF No. 1, at 9.[1] He later lodged several additional FOIA and Privacy Act requests with the FBI seeking records related to his name that “might negatively affect the hiring process, ” Compl. Ex. 4, ECF No. 1, at 14, or cause him to fail a “civil background check, ” Compl. Ex. 8, ECF No. 1, at 19. Braun also sought records regarding his late father, including whether the elder Braun had a criminal record or other indications that might affect his ability to find employment. Compl. Exs. 10, 10A, 10B, ECF No. 1, at 24-26.

         In response to each of Braun's requests, the FBI searched its Central Records System (“CRS”) and manual indices. See Decl. of David M. Hardy (“Hardy Decl.”), Def.'s MSJ Ex. 1, ECF No. 16-4, ¶¶ 40-49. Save where the FBI located files already disclosed pursuant to a prior FOIA request, none of the agency's searches located responsive records. Hardy Decl. ¶ 4. To the extent Braun requested information related to “placement on any government watch list, ” the FBI issued a Glomar response, refusing to “confirm or deny the existence of any records responsive to [his] request” based on FOIA Exemption 7(E) and Privacy Act Exemption (j)(2). Id. ¶¶ 10, 20. Accordingly, the FBI determined that there were no records responsive to Braun's requests, and maintains that it has met its obligations under FOIA and the Privacy Act. Id. ¶ 50.

         Braun also submitted several FOIA and Privacy Act requests to the CIA beginning in October 2017. Compl. Ex. 14, ECF No. 1, at 31. These submissions sought medical records, employment records, and other records that might cause him to “fail [a] civil background check.” See, e.g., id.; id. Ex. 19, ECF No. 1, at 38. In response to each request, the CIA searched for different combinations of Braun's name in all records that would reveal an open, unclassified, or acknowledged relationship with the agency. See Decl. of Antoinette B. Shiner (“Shiner Decl.”), Defs.' MSJ Ex. 2, ECF No. 16-5, ¶¶ 20-21. Where Braun's requested search extended to classified material, the CIA, too, issued a Glomar response, refusing to “confirm the existence or nonexistence of [responsive] records” based on its invocation of FOIA Exemptions 1 and 3, and Privacy Act Exemptions (j)(1) and (k)(1). Id. ¶ 22.

         Braun takes issue with each agency's response to his requests. He is certain that database entries on him and his father exist and contends that each agency's search was inadequate, as demonstrated by its failure to identify those records. Accordingly, he asks the Court to conduct an additional review of FBI and CIA files to locate the records. Compl. at 9. Additionally, Braun claims the alleged government record on his father, Harvey Braun, was the cause of his father's suicide. He thus asks the Court to find the CIA and/or the FBI liable for his father's death and award damages of “[$]1, 000, 000 a month for the rest of [his] life.” Id. at 8-10. Both parties have moved for summary judgment, and the matter is ripe for resolution.

         II. Legal Standards

         FOIA cases are typically resolved on summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). Summary judgment should be granted if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).

         FOIA requires that an agency conduct an adequate search for responsive records upon request from a member of the public. See Rodriguez v. Dep't of Def., 236 F.Supp.3d 26, 34 (D.D.C. 2017). While “a requester must reasonably describe the records sought, an agency also has a duty to construe the FOIA request liberally.” Nation Magazine, Washington Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) (alteration, citation, and quotation omitted). The agency “must conduct a ‘good faith, reasonable search of those systems of records likely to possess requested records.'” Judicial Watch, Inc. v. U.S. Dep't of Justice, 373 F.Supp.3d 120, 123 (D.D.C. 2019) (quoting Freedom Watch, Inc. v. Nat'l Sec. Agency, 220 F.Supp.3d 40, 44 (D.D.C. 2016)).

         Should a party dispute the adequacy of an agency's search, the agency must show “beyond material doubt that its search was reasonably calculated to uncover all relevant documents.” Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999)). The reasonableness of a search is determined “not by the fruits of the search, but by the appropriateness of the methods used to carry out the search.” Francis v. U.S. Dep't of Justice, 267 F.Supp.3d 9, 12 (D.D.C. 2017). “An agency may prove the reasonableness of its search through a declaration by a responsible agency official[.]” Judicial Watch, 373 F.Supp.3d at 123 (quoting Cunningham v. U.S. Dep't of Justice, 40 F.Supp. 3d 71, 83-84 (D.D.C. 2014)). “Agency declarations, especially from individuals coordinating the search, are afforded a ‘presumption of good faith, which cannot be rebutted by purely speculative claims about ...

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