Passmore v. U.S. Department of Justice
245 F. Supp. 3d 191
| D.D.C. | 2017Background
- Plaintiff John Passmore, a state prisoner, filed a FOIA suit against the DOJ/FBI seeking email messages between him and Melissa Chamberlain (March–July 2002) and other materials in FBI file 7A-PH-93427.
- Plaintiff submitted FOIA requests to FBI Headquarters in May 2013; the FBI assigned FOIPA Request No. 1215884-000, requested identification, and advised the initial request lacked sufficient detail.
- The FBI reviewed/processed 103 pages administratively (released 100 pages with redactions) and later released 10 pages during litigation, withholding portions under FOIA Exemptions 3, 6, 7(C), 7(D), and 7(E).
- The FBI informed plaintiff some potentially responsive emails had been destroyed in 2010 pursuant to evidence-destruction procedures.
- Plaintiff challenged the adequacy of the FBI’s search, its fee/fee-waiver handling, the narrowing of the request to emails, and the withholdings; he argued additional or different records should exist and be released.
- The Court focused on whether the FBI conducted a reasonable search and properly withheld information under Exemptions 7(C) and 7(E), and whether segregable, nonexempt information was disclosed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of FBI search | Passmore asserted FBI used limited search terms, should have searched other systems/offices, and did not review all potentially responsive pages | FBI used CRS/UNI searches with name variants and identifiers, CRS spans HQ and field offices, and searched the system reasonably likely to contain responsive records | Court held FBI conducted a reasonable, adequately described search and summary judgment appropriate for agency |
| Existence/destruction of records | Passmore argued destroyed/missing emails mean more responsive records must still be in FBI files or that destruction was improper | FBI explained some records were destroyed in 2010; FOIA obligates production of existing retained records only | Court held FOIA does not obligate agency to recreate or retrieve destroyed records; speculation about missing records does not defeat search adequacy |
| Fee waiver / scope reduction | Passmore contended FBI mishandled fee-waiver request and improperly narrowed scope to emails | FBI informed plaintiff of fees, offered scope-reduction options; plaintiff received 100 pages free and declined to pay fees for further processing; fee waiver was not warranted because requested records served private, not public, interest | Court held plaintiff not entitled to fee waiver and FBI was not required to process beyond the free 100 pages absent payment or waiver |
| Withholding under Exemptions 7(C) and 7(E) | Passmore argued the withheld information (third-party identities, CART data, agents) should be disclosed | FBI asserted law-enforcement nexus, privacy interests for third parties and agents (7(C)), and exemption of digital-forensics/CART techniques to avoid circumvention (7(E)); also stated it released all reasonably segregable nonexempt information | Court upheld withholdings under Exemptions 7(C) and 7(E) and found FBI complied with segregability obligations |
Key Cases Cited
- Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83 (D.D.C. 2009) (FOIA cases typically decided on summary judgment)
- Perry v. Block, 684 F.2d 121 (D.C. Cir. 1982) (agency declarations explaining search scope are accorded deference)
- Dept. of Justice v. Tax Analysts, 492 U.S. 136 (Supreme Court 1989) (plaintiff must show specific facts to rebut agency affidavits)
- Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504 (D.C. Cir. 2011) (agency must show search reasonably calculated to uncover responsive records)
- Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476 (D.C. Cir. 1984) (adequacy of search judged by reasonableness, not by existence of other possible documents)
- Safecard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) (agency affidavits entitled to presumption of good faith)
- Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57 (D.C. Cir. 1990) (agency need only search systems likely to contain responsive records)
- Wilbur v. CIA, 355 F.3d 675 (D.C. Cir. 2004) (FOIA requires production only of records an agency has created and retained)
- U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (Supreme Court 1989) (privacy interest protects against disclosure linking individuals to criminal activity)
- Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157 (Supreme Court 2004) (public interest to overcome privacy under Exemption 7(C) must be significant)