Jeremy PINSON, Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, et al., Defendants.
Civil Action No.: 12-1872 (RC)
United States District Court, District of Columbia.
Signed 03/29/2016
Damon William Taaffe, Carl Ezekiel Ross, Jesse Dyer Stewart, Eric Joseph Young, U.S. Attorney‘s Office for the District of Columbia, Washington, DC, for Defendants.
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
RUDOLPH CONTRERAS, United States District Judge
I. INTRODUCTION
Pro se Plaintiff Jeremy Pinson is currently an inmate at ADX Florence, a federal prison located in Colorado. While in prison, Mr. Pinson has filed multiple Freedom of Information Act (“FOIA“),
Now before the Court is the DOJ‘s motion for partial summary judgment as to Mr. Pinson‘s numerous FOIA requests submitted to the Federal Bureau of Investigation (“FBI“). Defs.’ Mot. Summ. J., ECF No. 137. As to his FOIA requests, Mr. Pinson alleges that the FBI responded improperly to twenty-three numbered requests that he submitted between 2010 and 2013, and that it unlawfully “refused to release” information on those requests. See Corr. 2d Am. Compl. at 6-7, ECF No. 32. He further claims that the FBI failed to respond altogether to twelve additional, unnumbered requests.1 Id. at 7-8. DOJ‘s motion for partial summary judgment addresses all twenty-three numbered claims and all twelve unnumbered requests, and argues: (1) as to seven of the unnumbered requests, that there is no record of Mr. Pinson having properly submitted them; (2) as to seventeen of the numbered requests and three of the unnumbered requests, that Mr. Pinson failed to exhaust his administrative remedies; and (3) as to thirteen of the numbered requests, that the FBI responded in accordance with FOIA by conducting an adequate search for responsive documents and releasing any non-exempt information to Mr. Pinson. See generally Defs.’ Mem. Supp. Mot. Partial Summ. J., ECF No. 137 (hereinafter “Defs.’ Mem. Supp.“).
For the reasons set forth below, the Court will grant in part and deny in part the DOJ‘s motion for partial summary judgment.
II. FACTUAL BACKGROUND
A. Requests Without Appeals
With respect to several requests that the FBI processed and to which it provided a response, the DOJ claims that Mr. Pinson failed to file an appeal and, therefore, failed to exhaust his administrative remedies.
1. Request No. 1153107
On August 17, 2010, Mr. Pinson submitted a request to the FBI seeking records from the Alabama field office concerning a referral of a criminal matter for investigation at the Federal Correctional Institution in Talladega, Alabama involving himself. See Corr. 2d Am. Compl. at 6; Hardy Decl. ¶ 6 & Ex. A, ECF No. 137-3. By letter dated September 1, 2010, the FBI acknowledged receipt of Mr. Pinson‘s request and assigned the request number 1153107. Hardy Decl. ¶ 7 & Ex. B. The FBI responded to Mr. Pinson‘s request on November 18, 2010, releasing two pages with redactions pursuant to Privacy Act
2. Request No. 1178465
On November 21, 2011, Mr. Pinson submitted a request to the FBI for records “produced as a result of the visit by 2 FBI Agents on Nov. 1, 2011 to the U.S. Penitentiary Max in Florence, Colorado who spoke to me and took notes of my answers to their questions.” Hardy Decl. ¶ 10 & Ex. D. The FBI acknowledged the request and assigned the request number 1178465 on December 6, 2011. Id. ¶ 11 & Ex. E. By letter dated April 20, 2012, the FBI released three pages with redactions pursuant to the Privacy Act Exemption (j)(2) and FOIA Exemptions 6 and 7(C). Id. ¶ 12 & Ex. F.
3. Request No. 1186051
On March 4, 2012, Mr. Pinson submitted a request to the FBI seeking access to records relating to “[a]ll criminal matters referred for investigation by the Bureau of Prisons during 2010-2011 arising from the U.S. Penitentiary Administrative Maximum at Florence, CO” and “[a]ll... records produced in connection with a 12-2-2011 interview of [Mr. Pinson] by Special Agent.” Hardy Decl. ¶ 14 & Ex. G. Mr. Pinson requested that “no more than 2 hours search time and up to 500 pages of information be produced.” Id. After acknowledging Mr. Pinson‘s request on April 5, 2012, and assigning the request number 1186051, the FBI on September 28, 2012, released three pages with redactions pursuant to the Privacy Act Exemption (j)(2) and FOIA Exemptions 6 and 7(C). See id. ¶¶ 15, 16 & Ex. H.
4. Request No. 1192365
On May 17, 2012, Mr. Pinson submitted a request to the FBI seeking access to records from 2008-2010 relating to the “investigations of inmate on inmate assaults at the U.S. Penitentiary in Atwater California involving inmate Edwin Ivan Guzman-Garcia and or inmate on staff assaults,” as well as “any other information maintained by [the FBI] about Mr. Guzman located in [the FBI‘s] California, Los Angeles, or Gadsden, Alabama field/RA offices.” Hardy Decl. ¶ 18 & Ex. I. Mr. Pinson requested “no more than 2 hours search time and 300 pages of information.” Id. The FBI acknowledged the request and assigned the request number 1192365. Id. ¶ 19 & Ex. J. In the acknowledgement, the FBI explained that express authorization and consent of the third party, Mr. Guzman, whom the request implicated, was needed to release the information, and the FBI accordingly attached a “Certification of Identity” form for Mr. Guzman to complete. Id. Around June 21, 2012, Mr. Pinson returned the completed Certification of Identity form to the FBI, and on July 9, 2012, the FBI acknowledged receipt. Id. ¶¶ 20-21 & Exs. K, L. On November 16, 2012, the FBI advised Mr. Pinson that it had reviewed 263 pages responsive to his request and that all pages were being withheld pursuant to FOIA Exemptions 6, 7(C), and 7(F). Id. ¶ 22 & Ex. M.
5. Request No. 1194851
On July 8, 2012, Mr. Pinson submitted a request to the FBI for records from the Houston field office “regarding, referencing or containing the name Ismael Eduardo Guzman, including investigative reports, transcripts, photographs, records, memorandums, electronic files or data, emails, video or audio recordings, and any other available information.” Hardy Decl. ¶ 38 & Ex. Z. Mr. Pinson included Mr. Guzman‘s signed Certification of Identity form authorizing the FBI to release the responsive records to Mr. Pinson. Id. The FBI acknowledged receipt and assigned the request number 1194851 on July 19, 2012. Id. ¶ 39 & Ex. AA. By letter dated
6. Request No. 1199194
In August 2012, Mr. Pinson submitted a request to the FBI for records “regarding investigations of the California Aryan Brotherhood.” See Corr. 2d Am. Compl. at 6; Hardy Decl. ¶ 28 & Ex. Q. The FBI acknowledged receipt of the request and assigned the request number 1199194 on September 27, 2012. Hardy Decl. ¶ 29 & Ex. R. By letter dated October 1, 2012, the FBI informed Mr. Pinson that the information requested on the California Aryan Brotherhood could be accessed free of charge online at the FBI‘s Vault. Id. ¶ 30 & Ex. S.
7. Request No. 1199202
In August 2012, Mr. Pinson submitted a request to the FBI for records “regarding investigations of the California Mexican Mafia,” to which the FBI assigned the request number 1199202. See Corr. 2d Am. Compl. at 6; Hardy Decl. ¶¶ 24, 25 & Exs. N, O. By two separate letters dated September 27, 2012, the FBI both acknowledged receipt of the request and advised Mr. Pinson that the information requested on the California Mexican Mafia could be accessed free of charge online at the FBI‘s Vault, the FBI‘s electronic reading room. Hardy Decl. ¶¶ 25, 26 & Exs. O, P.
8. Request No. 1202477
By letter dated October 14, 2012, Mr. Pinson submitted a request to the FBI seeking records pertaining to “the death of an individual known as Imam Luqman Abdullah on or about 10-28-10.” Hardy Decl. Ex. NN. The FBI acknowledged the request and assigned the request number 1202477. See id. ¶ 54 & Ex. OO. In the acknowledgement, the FBI explained that express authorization and consent of the third party, Mr. Abdullah, whom the request implicates, was needed to release the information, and the FBI accordingly attached a “Certification of Identity” form for Mr. Abdullah to complete. Id.
9. Request No. 1210449
On February 27, 2013, Mr. Pinson submitted a request to the FBI seeking “production of FBI File No. 90-DN-C50642.” See Corr. 2d Am. Compl. at 7; Hardy Decl. ¶ 69 & Ex. BBB. By letter dated March 18, 2013, the FBI acknowledged receipt and assigned the request number 1210449. Hardy Decl. ¶ 70 & Ex. CCC. A few weeks later, by letter dated April 4, 2013, the FBI advised Mr. Pinson that it had located pages responsive to his request and he would owe a duplication fee for processing. Id. ¶ 71 & Ex. DDD. On April 9, 2013, Mr. Pinson agreed to pay the fees and also requested the release to be sent to “Attorney Edwin Aro” in Denver. Id. ¶ 72 & Ex. EEE. The FBI on September 17, 2013, notified Mr. Pinson that the FBI had reviewed 748 pages and released 381 pages to him at the requested address. Id. ¶ 73 & Ex. FFF. The FBI asserted FOIA Exemptions 6, 7(C), 7(D), and 7(E) to withhold certain information from these records. Id.
10. Request No. 1217894
By letter dated June 19, 2013, the FBI opened request number 1217894 to address Mr. Pinson‘s June 1, 2013 request for records pertaining to James Martin. See Corr. 2d Am. Compl. at 7; Hardy Decl. ¶¶ 75, 113, 114 & Exs. PPPP, QQQQ. On August 22, 2013, the FBI advised Mr. Pinson that it had located pages responsive to his request and he would owe a duplication fee for processing. Hardy Decl. ¶ 115 & Ex. RRRR. Subsequently on August 30,
11. Request No. 1217895
By letter dated June 19, 2013, the FBI opened request number 1217895 to address Mr. Pinson‘s June 1, 2013 request for records pertaining to Bryan Cook. See Corr. 2d Am. Compl. at 7; Hardy Decl. ¶¶ 75, 118, 119 & Exs. UUUU, VVVV. On October 4, 2013, the FBI advised Mr. Pinson that it had located pages responsive to his request and he would owe a duplication fee for processing. Hardy Decl. ¶ 120 & Ex. WWWW. Mr. Pinson subsequently agreed to pay on October 11, 2013, and also requested the release to be sent to “Edwin Aro—Attorney” in Denver. Id. ¶ 121 & Ex. XXXX. By letter dated April 30, 2014, the FBI released 14 pages to the requested address and withheld certain information pursuant to FOIA Exemptions 6 and 7(C). Id. ¶ 122 & Ex. YYYY.
12. Request No. 1217896
By letter dated June 19, 2013, the FBI opened request number 1217896 to address Mr. Pinson‘s June 1, 2013 request for records pertaining to Clay Palmer. Hardy Decl. ¶¶ 86, 87 & Exs. RRR, SSS. On December 16, 2013, the FBI advised Mr. Pinson that it had located pages responsive to his request and he would owe a duplication fee for processing. Id. ¶ 88 & Ex. TTT. Mr. Pinson subsequently agreed to pay on December 20, 2013 and also requested the release to be sent to “Edwin Aro” in Denver. Id. ¶ 89 & Ex. UUU. By letter dated February 4, 2014, the FBI released 115 pages to the requested address and withheld certain information pursuant to FOIA Exemptions 4, 6, 7(C), and 7(D). Id. ¶ 90 & Ex. VVV.
13. Request No. 1217898
By letter dated June 19, 2013, the FBI opened request number 1217898 to address Mr. Pinson‘s June 1, 2013 request for records pertaining to Gregory Joiner. Hardy Decl. ¶¶ 108, 109 & Exs. KKKK, LLLL. On August 22, 2013, the FBI advised Mr. Pinson that it had located pages responsive to his request and he would owe a duplication fee for processing. Id. ¶ 110 & Ex. MMMM. Subsequently on August 30, 2013, Mr. Pinson agreed to pay and also requested the release to be sent to “Edwin Aro—Attorney” in Denver. Hardy Decl. ¶ 111 & Ex. NNNN. The FBI on September 17, 2014, notified Mr. Pinson that the FBI had reviewed 85 pages responsive to his request and released 59 pages to him at the requested address. Id. ¶ 112 & Ex. OOOO. The FBI asserted FOIA Exemptions 6 and 7(C) to withhold certain information from these records. Id. There is no record of Mr. Pinson filing an appeal of this decision by November 16, 2014, 60 days from the date of the September 17 letter. Id.
14. Request No. 1217899
By letter dated June 19, 2013, the FBI opened request number 1217899 to address Mr. Pinson‘s June 1, 2013 request for records pertaining to Mark Baker. Hardy Decl. ¶¶ 75, 76 & Exs. GGG, HHH. On July 1, 2013, the FBI advised Mr. Pinson that the information was exempt from disclosure pursuant to FOIA Exemption 7(A). Id. ¶ 77 & Ex. III. Subsequently, Mr. Pinson filed appeals of the FBI‘s ac-
Upon learning of this litigation, the FBI by letter June 30, 2014, reviewed and released two pages to Mr. Pinson because the investigation referenced on the responsive records was no longer pending. Id. ¶ 81 & Ex. MMM. As a result, the documents were no longer exempt from disclosure in their entirety pursuant to Exemption 7(A). Instead, the FBI asserted FOIA Exemptions 6, 7(C), and 7(E) to withhold certain information from these two pages. Id. Because the Bureau of Prisons (“BOP“) returned the response to the FBI,2 on September 8, 2014, the FBI re-mailed the responsive records to James Ridgeway in Washington, D.C., a designee and address he provided in an August 18, 2014 letter. Hardy Decl. ¶¶ 83-85 & Exs. OOO, PPP, QQQ.
15. Request No. 1217900
By letter dated June 19, 2013, the FBI opened request number 1217900 to address Mr. Pinson‘s June 1, 2013 request for records pertaining to Pablo Zuniga-Garcia. Hardy Decl. ¶¶ 92, 93 & Exs. WWW, XXX. In a separate letter on June 19, 2013, the FBI advised Mr. Pinson that it had located pages responsive to his request and he would owe a duplication fee for processing. Id. ¶ 94 & Ex. YYY. Subsequently on August 30, 2013, Mr. Pinson agreed to pay and also requested the release to be sent to “Edwin Aro—Attorney” in Denver. Id. ¶ 95 & Ex. ZZZ. The FBI on May 14, 2014, reviewed and released 20 pages responsive to his request at his previous address in Florence. Id. ¶ 96 & Ex. AAAA. The FBI asserted FOIA Exemptions 6, 7(C), and 7(D) to withhold certain information from these records. Id.
16. Request No. 1217901
By letter dated June 19, 2013, the FBI opened request number 1217901 to address Mr. Pinson‘s June 1, 2013 request for records pertaining to Christopher Anderson. Hardy Decl. ¶¶ 98, 99 & Exs. BBBB, CCCC. On October 2, 2013, the FBI advised Mr. Pinson that the information requested was exempt from disclosure pursuant to FOIA Exemption 7(A). Id. ¶ 100 & Ex. DDDD.
17. Request No. 1229060
On September 11, 2013, Mr. Pinson submitted a request to the FBI for records “related to a 9/10/13 FBI interview of [himself] at ADX Florence.” Hardy Decl. ¶ 124 & Ex. ZZZZ. After acknowledging receipt of the request and assigning the request number 1229060, the FBI released two pages to Mr. Pinson and withheld information pursuant to Privacy Act Exemption (j)(2) and FOIA Exemptions 6, 7(A), 7(C), 7(D), and 7(F). Id. ¶¶ 125, 126 & Exs. AAAAA, BBBBB.
B. Purportedly Exhausted Requests
1. Request No. 11712293
On July 22, 2011, Mr. Pinson submitted a four-part request, which is referred to in the amended complaint as “All records3 relating to myself from FCI Talladega,” “August 2010 Death of Bobby Cowley,”4 “All records relating to myself from USP Florence, USP Beaumont,” and “All records relating to myself from USP Victorville.” Corr. 2d Am. Compl. at 7; see Hardy Decl. ¶ 137 & Ex. DDDDD. The FBI acknowledged receipt of the request and assigned it Request No. 1171229; however, the FBI notified Mr. Pinson that it was unable to identify any responsive records on August 18, 2011. Hardy Decl. ¶ 138 & Ex. EEEEE. On September 20, 2011, Mr. Pinson filed an appeal, to which the OIP assigned appeal number AP-2011-03134. Id. ¶¶ 139-40 & Ex. FFFFF, GGGGG. Finally, on December 21, 2011, the OIP affirmed, on partly modified grounds, the FBI‘s action on Mr. Pinson‘s request, citing FOIA Exemption 7(E) to the extent the records required confirming or denying an individual‘s placement on a government watch list. Id. ¶¶ 140-41 & Ex. GGGGG, HHHHH. The OIP further advised Mr. Pinson that the FBI did not process the first part of his request because Mr. Pinson had already received such records in response to Request No. 1153107, and that the FBI had conducted an adequate search. Id. ¶ 141 & Ex. HHHHH.
2. Request No. 1199078
On August 31, 2012, Mr. Pinson submitted a request to the FBI seeking records “relating to any investigation of the March 16, 2000 shooting death of Fulton County, GA deputy sheriff Ricky Kinchen.” Hardy Decl. ¶ 42 & Ex. CC. By letter dated September 26, 2012, the FBI acknowledged the request and assigned the request number 1199078. Id. ¶ 43 & Ex. DD. The FBI also advised Mr. Pinson that records responsive to his request were previously processed and that 350 pages were available for release in hard copy at a cost of $25.00. Id.
By letter dated November 9, 2012, the FBI acknowledged receipt of Mr. Pinson‘s October 2, 2012 $25.00 payment and simultaneously notified Mr. Pinson that the responsive material needed to be reprocessed to make it appropriate for release to a third party. Id. ¶¶ 44, 45 & Exs. EE, FF. By letter dated May 9, 2013, the FBI released 350 out of 555 pages the FBI reviewed responsive to his request and withheld certain information pursuant to FOIA Exemptions 1, 3, 6, 7(C), 7(D), and 7(E). Id. ¶ 46 & Ex. GG.
By letter dated June 14, 2013, the FBI instructed Mr. Pinson to provide an alternative address to send the documents because the BOP had previously returned the FBI‘s 350 page release on May 21, 2013.5 Id. ¶¶ 46-48 & Exs. GG, HH, II. The FBI re-mailed the documents on July 8, 2013, after Mr. Pinson provided an
3. Request No. 1199153
In August 2012, Mr. Pinson submitted a request to the FBI for records regarding “investigations of the Florencia 13 gang in Los Angeles, California.” See Corr. 2d Am. Compl. at 6; Hardy Decl. ¶ 32 & Ex. T. The FBI acknowledged receipt of the request and assigned the request number 1199153 by letter dated September 26, 2012. Hardy Decl. ¶ 33 & Ex. U. By letter dated February 19, 2013, the FBI notified Mr. Pinson that it was releasing 100 pages with some information redacted pursuant to FOIA Exemptions 6, 7(A), 7(C), 7(D), and 7(E). Id. ¶ 34 & Ex. V.
Mr. Pinson appealed this decision to the OIP on February 28, 2013. Id. ¶ 35 & Ex. W. On March 20, 2013, the OIP acknowledged receipt of the appeal and assigned it appeal number 2013-02370. Id. ¶ 36 & Ex. X. By letter dated March 28, 2013, the OIP notified Mr. Pinson that it was closing the appeal due to this pending litigation. Id. ¶ 37 & Ex. Y.
4. Request No. 1203873
On November 5, 2012, Mr. Pinson submitted a request to the FBI seeking records “produced on or after Jan. 1, 2000 that mentions or references Jamil Abdullah Al-Amin, Date of Birth 10-4-1943.” See Corr. 2d Am. Compl. at 6; Hardy Decl. ¶ 56 & Ex. PP. By letter dated December 3, 2012, the FBI acknowledged the request, assigned the request number 1203873, and also attached a “Certification of Identity” form for Mr. Al-Amin to complete. Hardy Decl. ¶ 57 & Ex. QQ. The FBI explained that express authorization and consent of the third party Mr. Al-Amin was needed to release the information because without Mr. Al-Amin‘s authorization and consent, release of the information would result in an unwarranted invasion of Mr. Al-Amin‘s personal privacy. Id.
Shortly thereafter, on December 11, 2012, Mr. Pinson filed an appeal, which by letter dated January 9, 2013, the OIP acknowledged and assigned the appeal number 2013-01272. Id. ¶¶ 58, 59 & Exs. RR, SS. In this appeal Mr. Pinson argued that he submitted a Certification of Identity form from Mr. Al-Amin with the original request and that it was improper to request a second one. Id. ¶ 58 & Ex. RR. By letter dated February 11, 2013, the OIP informed Mr. Pinson that his appeal was being closed due to this pending litigation. Id. ¶ 60 & Ex. TT.
5. Request No. 1210450
On February 26, 2013, Mr. Pinson submitted a request to the FBI seeking “Los Angeles Field Office File No. 166E-LA-219961-302,” and on March 18, 2013, the FBI acknowledged receipt of the request and assigned the request number 1210450. Hardy Decl. ¶¶ 61, 62 & Exs. UU, VV. By letter dated April 24, 2013, the FBI notified Mr. Pinson that it located approximately 844 pages that were potentially responsive to his request and that Mr. Pinson would owe the FBI $74.40 for a paper release, which Mr. Pinson agreed to pay on April 30, 2013. Id. ¶¶ 63, 64 & Exs. WW, XX. After reviewing 760 pages, the FBI released 135 pages and withheld certain information pursuant to FOIA Exemptions 6, 7(C), 7(D), and 7(E). The FBI
6. Request No. 1217897
By letter dated June 19, 2013, the FBI opened request number 1217897 to address Mr. Pinson‘s June 1, 2013 request for records pertaining to Manuel Torrez. Hardy Decl. ¶¶ 102, 103 & Exs. EEEE, FFFF. On July 1, 2013, the FBI advised Mr. Pinson that the information requested was exempt from disclosure pursuant to FOIA Exemption 7(A). Id. ¶ 104 & Ex. GGGG. By letters dated July 9 and August 10, 2013, Mr. Pinson appealed the FBI response, which the OIP acknowledged and assigned the appeal number 2013-04612. Id. ¶¶ 105, 106 & Exs. HHHH, IIII. The OIP affirmed the FBI‘s actions on October 29, 2013. Id. ¶ 107 & Ex. JJJJ.
C. Unnumbered Requests
In his complaint, Mr. Pinson lists twelve unnumbered requests submitted between April 28, 2011 and August 6, 2012, to which, he claims, the FBI failed to respond. See Corr. 2d Am. Compl. at 7-8. The DOJ states that as to seven of these twelve unnumbered requests, it has conducted a search of its records for documentation of these requests, but has no record of ever receiving them.6 See Hardy Decl. ¶¶ 132-36, 149, 152. In regards to the FOIA request labeled “Investigations in 2007-08 of Assaults at USP Florence, Victorville,” the FBI claims it referred the request to the Bureau of Prisons (“BOP“) because the BOP is most likely in possession of such records. The other four FOIA requests are discussed below.
1. Letters to Wardens of USP‘s Victorville, Florence, Coleman
One June 6, 2011, Mr. Pinson submitted a request seeking “production of all letters written by [the FBI] in California, Colorado to the Wardens of the Federal Correctional Complex or institutions in Florence, CO or/and Victorville, CA for any reason from 2008 to the present.” Hardy Decl. ¶ 147 & Ex. IIIII. The FBI responded on July 5, 2011 that Mr. Pinson‘s letter did not contain enough information to permit a search of the FBI‘s records. Id. ¶ 148 & Ex. JJJJJ.
2. Investigations of CA AB & Mexican Mafia Since 2005 and All FD-302‘s of USP Victorville Homicide Investigations
On June 5, 2011, Mr. Pinson submitted a request for all documents “concerning the activities of the California Mexican Mafia and Aryan brotherhood gangs within federal prisons generated since 2007.” Hardy Decl. ¶ 150 & Ex. KKKKK. In addition, on August 6, 2012, Mr. Pinson submitted a request for “all information, specifically Form-302‘s, produced during investigations of inmate homicides at the U.S. Penitentiary in Victorville, California between 2004 and 2012.” Id. ¶ 129 & Ex. CCCCC; see Corr. 2d Am. Compl. at 7. The FBI
3. Addresses of All FBI Offices
On May 6, 2011, Mr. Pinson submitted a request seeking an “[a]ddress directory to all agency departments or field offices.” Hardy Decl. ¶ 153 & Ex. MMMMM. The FBI responded stating that his request did not contain enough information to conduct a search. Id. ¶ 154 & Ex. NNNNN. Mr. Pinson subsequently filed an appeal, on June 8, 2011, to which the OIP assigned number 2011-02269. Id. ¶¶ 155-56 & Exs. OOOOO, PPPPP. In its response on September 26, 2011, the OIP affirmed in part the FBI‘s actions, and also provided Mr. Pinson with a nine page document, printed from the FBI‘s website containing the contact information for all FBI field offices by state. Id. ¶ 157 & Ex. QQQQQ.
III. LEGAL STANDARD
“FOIA cases typically and appropriately are decided on motions for summary judgment.” Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citing Bigwood v. U.S. Agency for Int‘l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007)). Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
The principal purpose of summary judgment is to streamline litigation by disposing of factually unsupported claims or defenses and determining whether there is a genuine need for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The movant bears the initial burden of identifying portions of the record that demonstrate the absence of any genuine issue of material fact. See
When assessing a summary judgment motion in a FOIA case, a court makes a de novo assessment of whether the agency has properly withheld the requested documents. See
IV. ANALYSIS
A. Requests Without Responses
Mr. Pinson‘s complaint lists twelve unnumbered FOIA requests that he submitted to the FBI, for all of which he claims to have never received a response. See Corr. 2d Am. Compl. at 7-8. In the DOJ‘s summary of facts and statement of material facts as to which there is no genuine issue, the FBI contends that it has no record of having received seven of these twelve requests,7 see Defs.’ Mem. Supp. at 16-20; Hardy Decl. ¶¶ 132-36, 149, 152, and also contends that it referred one unnumbered request, “Investigations in 2007-08 of Assaults at USP Florence, Victorville,” to the BOP, see Defs.’ Mem. Supp. at 21; Hardy Decl. ¶¶ 158-59.
As “[f]ederal jurisdiction over a FOIA claim is dependent upon a showing that an agency improperly withheld agency records,” if there is no “showing that the agency received the request, the agency has no obligation to respond to it.” See Banks v. Lappin, 539 F. Supp. 2d 228, 235 (D.D.C. 2008) (quoting Hutchins v. Dep‘t of Justice, No. 00-2349, 2005 WL 1334941, at *2 (D.D.C. June 6, 2005)); see also Trupei v. Bureau of Customs & Border Prot., No. 07-0475, 2008 WL 249878, at *1 (D.D.C. Jan. 29, 2008) (“[A]n agency‘s FOIA obligations are not triggered until a request has been received.“). In order to create an issue of material fact, a plaintiff must offer evidence that the requests were received by the agency, rather than merely stating that the requests were placed in the mail. See Banks, 539 F. Supp. 2d at 235 (“The mailing of a FOIA request to a federal government agency does not constitute its receipt by the agency.“).
Here, not only has Mr. Pinson failed to provide any evidence, that these requests were received by the FBI, but Mr. Pinson‘s opposition fails to mention these requests at all. “In this district, when a party responds to some but not all
The FBI also contends that it referred one unnumbered request, “Investigations in 2007-08 of Assaults at USP Florence, Victorville,” to the BOP because the FBI determined that the BOP is the agency most likely in possession of the requested records. Hardy Decl. ¶ 159. The referral of records does not automatically relieve the FBI of its disclosure responsibility. “[A]gencies are ‘obligated to account for the responsive materials located in their records, even if the decision to release or withhold information is left to the component where those records originated.‘” Lea v. Exec. Office for U.S. Attorneys, 85 F. Supp. 3d 85, 88 (D.D.C. 2015) (quoting Fowlkes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 67 F. Supp. 3d 290, 296 n. 2 (D.D.C. 2014)). Mr. Hardy has not attested to what happened to the referral, and the “referral of records could constitute an improper withholding if the net effect of the referral procedure is significantly to impair the requester‘s ability to obtain the records or significantly to increase the amount of time he must wait to obtain them.” Id. at 88-89 (alterations and internal quotations omitted). Because the Court has insufficient information to assess whether the referral was proper and whether the referral was sufficiently accounted for, the Court denies summary judgement as to the unnumbered request “Investigations in 2007-08 of Assaults at USP Florence, Victorville.”
B. Failure to Exhaust Administrative Remedies
The DOJ seeks summary judgment as to twenty of the FOIA requests at issue8 claiming that Mr. Pinson failed to exhaust administrative appeal remedies before seeking judicial redress in this Court. See Defs.’ Mem. Supp. at 31-33. Specifically, the DOJ contends that Mr. Pinson failed to exhaust his administrative remedies because, for each of these requests, he did not file an appeal of the agency‘s decision. Id. Mr. Pinson disputes the DOJ‘s exhaustion argument as it pertains to these requests stating that he did not receive responses and never had a chance to appeal. See Pl.‘s Resp. at 1-3, ECF No. 241; Pinson Decl. ¶¶ 1-2, ECF No. 241.
In general, a FOIA requester must exhaust his administrative remedies before filing suit in federal court. See Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004). This means that the requester must appeal an adverse determination of his FOIA request to the head of the agency before suing that agency in federal court. See Smith v. Fed. Bureau of Prisons, 517 F. Supp. 2d 451, 453 (D.D.C. 2007). If the requester fails to exhaust administrative remedies before filing suit, a court can
But FOIA‘s exhaustion requirement is a prudential consideration, rather than a jurisdictional prerequisite. See id. at 677. A court therefore may waive the exhaustion requirement under certain circumstances, such as if an agency failed to respond to the FOIA request within a certain number of days. See Citizens for Responsibility & Ethics in Wash. v. Fed. Election Comm‘n, 711 F.3d 180, 184 (D.C. Cir. 2013) (citing
1. Request Nos. 1210449, 1217894, 1217895, 1217896, 1217898, 1217899, and 1217900
The DOJ first contends that it is entitled to summary judgment as to Request Nos. 1210449, 1217896, 1217894, 1217895, 1217898, 1217899, and 12179009 because Mr. Pinson failed to exhaust his administrative remedies. See Defs.’ Mem. Supp. at 31. More specifically, the DOJ argues that Mr. Pinson “was notified that his mail from the FBI was not delivered and the FBI delivered the records to alternate addresses designated by [Mr. Pinson].” Id. Mr. Pinson argues that he never received these responses because the BOP rejected his mail, and thus he was unable “to see and evaluate the FOIA responses... and perfect an appeal to the Office of Information Policy.” Pinson Decl. ¶¶ 1-2; see Pl.‘s Resp. at 2-3.
At the outset, the Court notes that the FBI only provides evidence to demonstrate that the FBI requested an alternate address to send the material when it was returned by the BOP as to Request No. 1217899. See Hardy Decl. ¶¶ 82-84. As to Request Nos. 1210449, 1217894, 1217895, 1217896, 1217898, and 1217900, the DOJ fails to provide evidence to demonstrate that the mail was returned by the BOP or the FBI requested an alternate address. However, the evidence provided does show that Mr. Pinson voluntarily provided an alternative address in his correspondence with the FBI and the FBI delivered responsive records to these alternate addresses for all requests except Request No. 1217900.
For Request Nos. 1210449, 1217894, 1217895, 1217896, and 1217898, Mr. Pinson, after receiving notification from the
For Request No. 1217899, Mr. Pinson provided an alternate address when the FBI notified Mr. Pinson that his mail was not deliverable due to the BOP‘s regulations. Per Mr. Pinson‘s request, the FBI sent the materials to James Ridgeway, Director and Editor of Solitary Watch, a non-profit organization.11 See Hardy Decl. ¶¶ 82-85 & Ex. PPP; see also About, Solitary Watch, http://solitarywatch.com/about/ (last visited Mar. 28, 2016). For the following reasons, Mr. Pinson fails to create a material issue of fact regarding Request Nos. 1210449, 1217894, 1217895, 1217896, 1217898, and 1217899.
Mr. Pinson does not provide any evidence that Mr. Aro or Mr. Ridgeway, the persons to whom he requested the responses be sent, never received the responses. Mr. Pinson only claims that he himself never received the material, which would only be natural because the material, upon his request, was sent to Mr. Aro and Mr. Ridgeway, not Mr. Pinson.
The Supreme Court has emphasized that in FOIA cases, courts generally accord government records and official conduct a presumption of legitimacy. See U.S. Dep‘t of State v. Ray, 502 U.S. 164, 179 (1991); see also Schoenman v. FBI, No. CIV.A.04-2202(CKK), 2006 WL 1582253, at *10 (D.D.C. June 5, 2006). Here, the DOJ has provided a detailed declaration from Mr. Hardy and provided documents, which include Mr. Pinson‘s requests and correspondence, as well as the FBI‘s dated responses to Mr. Pinson‘s letters. Mr. Pinson, in contrast, has not only failed to address the government‘s argument, but also failed to provide counter evidence that either Mr. Aro or Mr. Ridgeway did not receive these responses. Thus, Mr. Pinson has not rebutted the good faith presumption accorded government action.
Because Mr. Pinson does not address the fact that these responses were requested and actually sent to an alternative address and not to his prison, the Court finds that Mr. Pinson has failed to raise a material issue of fact and the DOJ is entitled to summary judgment as to request numbers 1210449, 1217894, 1217895, 1217896, 1217898, and 1217899.
As to Request No. 1217900, however, Mr. Pinson requested the materials to be sent to an alternate address, specifically to Edwin Aro at Arnold & Porter. See Hardy Decl. Ex. ZZZ. Despite this request, the FBI sent the responsive materials to the ADX Florence facility. Compare Hardy Decl. Ex. AAAA with Hardy Decl. Ex. ZZZ. This erroneous mailing of the document cannot be attributed to Mr. Pinson‘s action or inaction. Accordingly, summary judgment will be denied as to request No. 1217900, and the FBI will be ordered to re-mail the responsive documents to the address Mr. Pinson provided.
In its summary of facts and statement of material facts as to which there is no genuine issue, the FBI contends that the OIP closed Mr. Pinson‘s appeal of Request No. 1203873 due to the pending litigation.12 Defs.’ Mem. Supp. at 9; Hardy Decl. ¶ 60 & Ex. TT. The Court notes that the DOJ does not explicitly raise an argument or move for summary judgment as to Request No. 1203873. The OIP acknowledged Mr. Pinson‘s December 11, 2012 appeal on January 9, 2013, but failed to make a determination before closing the appeal on February 11, 2013. Hardy Decl. ¶¶ 58-60 & Exs. RR, SS, TT. If Mr. Pinson filed his complaint after his appeal went unanswered for more than twenty days, he would be deemed to have constructively exhausted his administrative remedies. See
In his administrative appeal, Mr. Pinson claimed that he had “submitted a properly executed Certificate of Identity from Mr. Al-Amin with [his] original request,” Hardy Decl. Ex. RR; the FBI, on the other hand, states that it has no record of receiving a Certificate of Identity. Because Mr. Pinson fails to provide any evidence to the contrary and his opposition to the DOJ‘s motion makes no mention of this request at all, the Court deems Mr. Pinson to have conceded this claim. As a result, with a declaration from the FBI stating it has properly withheld the records and because Mr. Pinson concedes these facts, the Court has no statutory duty to perform, see Cole v. Dep‘t of Justice, 905 F. Supp. 2d 293, 296 (D.D.C. 2012), and finds that there is no genuine issue of material fact. The Court will accordingly grant summary judgment to the DOJ for Request No. 1203873.
3. Request Nos. 1153107, 1186051, 1192365, 1194851, and 1202477
The DOJ seeks summary judgment as to Request Nos. 1153107, 1186051, 1192365, 1194851, and 1202477, arguing that Mr. Pinson failed to exhaust his administrative remedies. See Defs.’ Mem. Supp. at 32-33. Mr. Pinson argues that summary judgment should not be granted because he never received these documents and thus was unable to “see and evaluate the FOIA responses... and perfect an appeal” to the OIP. Pl.‘s Resp. at 2-3; Pinson Decl. ¶¶ 1-2.
Because Mr. Pinson‘s verified Second Amended Complaint directly contradicts the assertions he makes in his more recent declaration, the Court finds that Mr. Pinson has failed to raise a material issue of fact and the DOJ is entitled to summary judgment as to these requests. Mr. Pinson‘s complaint was signed under
penalty of perjury on October 10, 2013. See Corr. 2d Am. Compl. at 17.14 “Courts have long held that a party may not create a material issue of fact simply by contradicting its prior sworn testimony.” Pyramid Sec. Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1123 (D.C. Cir. 1991). “Virtually every circuit has adopted a form of the so-called ‘sham affidavit rule,’ which precludes a party from creating an issue of material fact by contradicting prior sworn testimony unless the ‘shifting party can offer persuasive reasons for believing the supposed correction’ is more accurate than the prior testimony.” Galvin v. Eli Lilly & Co., 488 F.3d 1026, 1030 (D.C. Cir. 2007) (quoting Pyramid Sec. Ltd., 924 F.2d at 1123).
Unlike in previous filings where Mr. Pinson clarified the import of the dates listed in his complaints as the dates when he received acknowledgement letters from certain agencies, see, e.g., Pl.‘s Part. Resp. to Bureau of Prisons Mot. Summ. J., Exhibit 1 at 2-4, ECF No. 180, Mr. Pinson in his most recent declaration outright denies receiving responses from the FBI, see Pinson Decl. ¶ 1. For example, Mr. Pinson‘s declaration claims that he “never received from the FBI [a] response[] to FOIA Req. No[] . . . . 1153107.” Pinson Decl. ¶ 1. In his complaint, however, Mr. Pinson lists receiving a response to that request on November 22, 2010, see Corr. 2d Am. Compl. at 6, only a few days after the FBI sent him a response on November 18, 2010, see Hardy Decl. ¶ 8 & Ex. C.15
Because Mr. Pinson has not clarified the import of the dates listed in his complaint, he has failed to provide the Court with any reason whatsoever, “for believing the supposed correction is more accurate than the prior testimony.” United States v. Project on Gov‘t Oversight, 839 F. Supp. 2d 330, 347 (D.D.C. 2012) (internal quotation mark omitted) (quoting Galvin, 488 F.3d at 1030). In light of the direct contradiction between Mr. Pinson‘s sworn statements, and in the absence of any reason to believe that the outright denial of receipt in Mr. Pinson‘s declaration for Request Nos. 1153107, 1186051, 1192365, 1194851 and 1202477 is more accurate than his prior statement that he received a response to the request, the Court finds that Mr. Pinson‘s prior sworn statement is controlling.
4. Request Nos. 1178465, 1199194, 1199202, 1217901, and 1229060
The DOJ seeks summary judgment as to Request Nos. 1178465, 1199194, 1199202, 1217901, and 1229060 arguing that Mr. Pinson failed to appeal the FBI‘s redacted release and, therefore, did not exhaust his administrative remedies. Defs.’ Mem. Supp. at 31-33. For these requests, the DOJ has provided the Court with copies of the FBI‘s final response letters and with the declaration of David M. Hardy who asserts that the FBI sent Mr. Pinson the letters in question. See Hardy Decl. ¶¶ 10-13, 24-26, 28-30, 98-100, 124-26 & Exs. E, F, O, P, R, S, BBBB, CCCC, DDDD, AAAAA, BBBBB. The mere existence of these final response letters, however, does not conclusively “establish that the letter[s] [were] actually . . . received by” Mr. Pinson, which may leave open a genuine issue of material fact. See Jones, 576 F. Supp. 2d at 67.
As discussed above in Part IV.B.3, it appears that Mr. Pinson‘s declaration and verified amended complaint directly contradict each other because Mr. Pinson outright denies receiving responses in his declaration, but generally lists the date he received a response for each request in his complaint. See Pinson Decl. ¶ 1; Corr. 2d Am. Compl. at 6-7. Although the inclusion of those dates in Mr. Pinson‘s complaint appears to acknowledge that he did receive a response from the FBI with respect to each request, in the past this Court has “credited statements in Mr. Pinson‘s declarations asserting that he had not received response letters from various DOJ components—despite the existence of contrary assertions in his verified complaint—where Mr. Pinson explained that he had received acknowledgement letters rather than final response letters.” Pinson v. U.S. Dep‘t of Justice, 61 F. Supp. 3d 164, 176 (D.D.C. 2015). Despite Mr. Pinson‘s failure to articulate that he did not receive the final response in either his declaration or verified complaint, the Court faces similar circumstances here.
For example, with respect to Request No. 1178465, Mr. Pinson‘s complaint states that he received a response from the FBI on December 2, 2011, Corr. 2d Am. Compl. at 6, around the time the FBI sent its initial acknowledgment letter on December 6, 2011, Hardy Decl. ¶ 11 & Ex. E. It was not until April 20, 2012, that the FBI sent Mr. Pinson a response with the documents he requested. Hardy Decl. ¶ 12 & Ex. F. Despite the imprecision of the dates, there remains a question as to whether Mr. Pinson did indeed receive the April 20, 2012 FBI response.16
In the case of Request Nos. 1199194 and 1199202, Mr. Pinson‘s complaint states
Because at summary judgment the Court must view facts in the light most favorable to the non-movant, see Scott v. Harris, 550 U.S. 372, 380 (2007) (citing
Therefore, because Mr. Pinson‘s declaration made under penalty of perjury raises a genuine dispute of material fact regarding his initial receipt of the documents, the Court denies the DOJ‘s motion for summary judgment as to Request Nos. 1178465, 1199194, 1199202, 1217901, and 1229060. In addition, assuming Mr. Pinson‘s description of events is accurate and he did not receive the responses or records purportedly sent to him, the Court orders the DOJ to resend those documents to Mr. Pinson so that he can review them and determine the DOJ‘s compliance with FOIA.
5. Requests Concerning Investigations of the CA AB and Mexican Mafia Since 2005, All FD-302s of USP Victorville Homicide Investigations, and Letters to Wardens of USP‘s Victorville, Florence, Coleman17
The DOJ seeks summary judgment as to unnumbered requests for “Investigations of the CA AB and Mexican Mafia Since 2005” and for all “FD-302s of USP Victorville Homicide Investigations” because Mr. Pinson failed to exhaust his administrative remedies. Defs.’ Mot. Supp. at 32. The DOJ also seeks summary judgment as to unnumbered request for “Letters to Wardens of USP‘s Victorville, Florence, Coleman” because there is no genuine issue of material fact. See Defs.’ Reply at 1-2; Defs.’ Mem. Supp. Ex. 1 ¶¶ 126-27. For these requests, the DOJ has provided the Court with copies of the FBI‘s final re
Both Mr. Pinson‘s declaration and verified amended complaint deny receiving responses to these requests. See Pinson Decl. ¶ 1; Corr. 2d Am. Compl. at 7-8. Because at summary judgment the Court must view facts in the light most favorable to the non-movant, see Scott, 550 U.S. at 380, and cannot make credibility determinations, see Olawuni, 539 F. Supp. 2d at 66, the Court must accept as true Mr. Pinson‘s declaration and second amended complaint that he did not receive responses to these requests, and cannot be penalized for having failed to exhaust his administrative remedies because he was denied the opportunity to reformulate his request or appeal the determination that the request was improper.
Therefore, because Mr. Pinson‘s declaration made under penalty of perjury raises a genuine dispute of material fact regarding his initial receipt of the documents, the Court denies the DOJ‘s motion for summary judgment as to the unnumbered requests for “Investigations of the CA AB and Mexican Mafia Since 2005,” “All FD-302s of USP Victorville Homicide Investigations,” and “Letters to Wardens of USP‘s Victorville, Florence, Coleman.” Assuming Mr. Pinson‘s description of events is accurate and he did not receive responses or records purportedly sent to him, the Court orders the DOJ to resend those documents to Mr. Pinson so that he can review the documents and determine the DOJ‘s compliance with FOIA.
6. Request for Addresses of All FBI Offices
The DOJ seeks summary judgment as to a request for the Addresses of All FBI Offices arguing that Mr. Pinson did not file an administrative appeal of the responses. Defs.’ Mot. Supp. at 32. Yet, Mr. Hardy‘s Declaration and the exhibits the DOJ attaches both plainly demonstrate that Mr. Pinson filed an appeal of this response, and the OIP provided materials that may have been responsive to plaintiff‘s request. See Hardy Decl. ¶¶ 155-57 & Exs. OO-OOO, PPPPP, QQQQQ. This request was clearly exhausted.
Despite the exhaustion of this request, Mr. Pinson argues that he has not received the response to this request in both his declaration and verified amended complaint. See Pinson Decl. ¶ 1; Corr. 2d Am. Compl. at 6. Because at summary judgment the Court must view facts in the light most favorable to the non-movant, see Scott, 550 U.S. at 380, and cannot make credibility determinations, see Olawuni, 539 F. Supp. 2d at 66, the Court must accept as true Mr. Pinson‘s declaration and second amended complaint that he did not receive a response to this request, and cannot be penalized for having failed to exhaust his administrative remedies because he was denied the opportunity to reformulate his request or appeal the determination that the re
C. Adequacy of the FBI‘s Search
The DOJ seeks summary judgment on the ground that its search for responsive records was reasonable and adequate with respect to five requests that Mr. Pinson either fully appealed or (for reasons not stated in the record, and despite no evidence of an appeal by Mr. Pinson) which the DOJ does not claim remain unexhausted. These include Request Nos. 1171229, 1199153, 1199078, 1210450, and 1217897. See Defs.’ Mem. Supp. at 33-34; see also Hardy Decl. ¶¶ 170, 173-75, 177.18
Under FOIA, an adequate search is one that is “reasonably calculated to uncover all relevant documents.” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (internal quotation mark omitted) (quoting Weisberg v. U.S. Dep‘t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). The agency does not have to search “every record system” for the requested documents, but it “must conduct a good faith, reasonable search of those systems of records likely to possess the requested records.” Marino v. Dep‘t of Justice, 993 F. Supp. 2d 1, 9 (D.D.C. 2013) (citing Oglesby v. Dep‘t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). When an agency seeks summary judgment on the basis that it conducted an adequate search, it must provide a “reasonably detailed” affidavit describing the scope of that search. Iturralde v. Comptroller of Currency, 315 F.3d 311, 313-14 (D.C. Cir. 2003) (quoting Oglesby, 920 F.2d at 68). It is not enough, however, for the affidavit to state in conclusory fashion that the agency “conducted a review of [the files] which would contain information that [the plaintiff] has requested” and did not find anything responsive to the request. Weisberg v. U.S. Dep‘t of Justice, 627 F.2d 365, 370 (D.C. Cir. 1980). On the other hand, once the agency has provided a “reasonably detailed” affidavit describing its search, the burden shifts to the FOIA requester to produce “countervailing evidence” suggesting that a genuine dispute of material fact exists as to the adequacy of the search. Morley, 508 F.3d at 1116.
Here, the DOJ has provided a declaration from Mr. Hardy, which provides an overview of the Central Records System (“CRS“) and explains in varying detail the searches for the requests at issue. See Hardy Decl. ¶¶ 160-65, 168-81. In general, the FBI conducted a search of the automated indices to the CRS using various search terms to yield responsive results.
Neither Mr. Pinson‘s responses nor declarations address the DOJ‘s “adequacy of the search” argument. As this Court has explained, “when a party responds to some but not all arguments raised on a Motion for Summary Judgment, a court may fairly view the unacknowledged arguments as conceded.” Sykes v. U.S. Dep‘t of Justice, 573 F. Supp. 2d 202, 202 (D.D.C. 2008). Accordingly, the Court deems conceded the DOJ‘s motion for summary judgment with respect to the adequacy of the FBI‘s search for Request Nos. 1171229, 1199153, 1199078, 1210450, and 1217897. Regardless, the Court concludes that the information provided in the Hardy Declaration is sufficiently detailed to grant summary judgment in the FBI‘s favor on this issue.
D. FOIA Exemptions
The DOJ next argues that the FBI properly withheld records, in whole or in part, responsive to Request Nos. 1171229, 1199153, 1199078, 1210450, and 1217897 pursuant to FOIA Exemptions 3, 6, 7(A), 7(C), 7(D), and 7(E). See Defs.’ Mem. Supp. at 34-44. Although Mr. Pinson does not respond to the DOJ‘s argument as a whole, he does contend that the FBI improperly withheld “Employee Names/Titles” in certain requests and challenges the FBI‘s use of FOIA Exemptions 6 and 7(C).19 See Pl.‘s Resp. at 4-6.
“[D]isclosure, not secrecy, is the dominant objective of [FOIA].” Dep‘t of the Air Force v. Rose, 425 U.S. 352, 361 (1976). “Consistent with this purpose, agencies may withhold only those documents or portions thereof that fall under one of nine delineated statutory exemptions.” Elliott v. USDA, 596 F.3d 842, 845 (D.C. Cir. 2010) (citing
1. Exemption 3
The FBI invoked Exemption 3 to withhold information responsive to Request No. 1199078. See Hardy Decl. Ex. GG. The withheld information concerned the identities of the individuals targeted for interception through wiretap, and information obtained through the wiretap pursuant to Title III of the Omnibus
The DOJ argues that the FBI properly invoked Exemption 3 because the withheld information “consists of the identities of the individuals targeted for interception through wiretap, and information obtained via the Title III wiretap.” Defs.’ Mem. Supp. at 35; see, e.g., Miller v. U.S. Dep‘t of Justice, 872 F. Supp. 2d 12, 23 (D.D.C. 2012) (withholding identities of individuals targeted for interception and contents of the intercepted conversations). Mr. Pinson has not contested this argument. Regardless, the FBI has met its burden under FOIA and is entitled to summary judgment.
2. Exemption 6
The DOJ argues that the FBI properly invoked Exemption 6 in response to records requested in Request Nos. 1199153, 1199078, and 1210450. Under Exemption 6, an agency may withhold “personnel and medical files and similar files” when the disclosure of such information “would constitute a clearly unwarranted invasion of personal privacy.”
Once this threshold determination is met, a court must next ask whether disclosure would compromise a “substantial” privacy interest, since FOIA requires the release of information “[i]f no significant privacy interest is implicated.” Multi Ag Media LLC v. Dep‘t of Agric., 515 F.3d 1224, 1229 (D.C. Cir. 2008) (quoting Nat‘l Ass‘n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989)). This standard, however, “means less than it might seem,” as a substantial privacy interest is “anything greater than a de minimis privacy interest.” Id. at 1229-30. If a substantial privacy interest exists, a court next tests whether release of such information would constitute a “clearly unwarranted invasion of personal
The DOJ argues that, with respect to these requests, “the FBI protected the strong privacy interest of government personnel in avoiding disclosure of their personal information.” Defs.’ Mem. Supp. at 36. Mr. Hardy‘s Declaration delves into further detail about the various categories of individuals whose privacy interests are implicated and balances those interests against the public‘s interest in disclosure.20
In response to the DOJ‘s position, Mr. Pinson raises two arguments.21 First, Mr. Pinson generically argues that the FBI improperly withheld employee names and titles because the DOJ conceded that agency employee names and titles were not exempt under FOIA in Pinson v. Lappin, 806 F. Supp. 2d 230, 233 (D.D.C. 2011). Pl.‘s Resp. at 4. As discussed in a previous opinion issued in this case regarding the BOP, the BOP‘s decision in Lappin was specific to the documents requested in that case. See Pinson v. U.S. Dep‘t of Justice, No. CV 12-1872 (RC), 2016 WL 29245, at *20-21 (D.D.C. Jan. 4, 2016), ECF No. 259. Furthermore, as discussed in the prior opinion, employee names may be properly withheld if there is no genuine public interest in such information or if the information‘s release will endanger a staff member‘s safety. See id.; see also Cuban v. Sec. Exch. Comm‘n, 744 F. Supp. 2d 60, 74 (D.D.C. 2010) (“[S]taff names and contact information may fall within [FOIA] exemptions . . . and thus are shielded from disclosure” when “the material relates to . . . matters of no genuine public interest.” (emphasis added) (quoting Schwaner v. Dep‘t of the Air Force, 898 F.2d 793, 794 (D.C. Cir. 1990))); Judicial Watch, 449 F.3d at 152 (holding that agency properly invoked Exemption 6 in refusing to release the names of certain agency personnel). While Lappin does not bar the FBI‘s use of Exemption 6 to withhold employee names or titles, the Court must balance the privacy interest of employees against the public interest in disclosure of the information.
The FBI argues that its employees have significant privacy interests, the disclosure of which “may seriously prejudice their effectiveness in conducting other investigations,” “could trigger hostility toward him/her,” and could make them “targets of harassing inquiries for unau
Second, Mr. Pinson claims the FBI “simply categorically excluded 3rd party information,” which was prohibited in Prison Legal News v. Samuels, 787 F.3d 1142 (D.C. Cir. 2015). Pl.‘s Resp. at 4. In Prison Legal News, the BOP categorically redacted identifying information without regard to an individual‘s or groups of individuals’ varying degrees of privacy interests or public interests in disclosure. See 787 F.3d at 1149-52. The court did not foreclose the use of a categorical approach; instead, it suggested that an agency may formulate a different rationale for distinct groups such as one rationale for victims and another for perpetrators.
With respect to the records and classifications at issue in this case, Mr. Pinson has failed to identify any particular release or particular classification with which he takes issue. It is not this Court‘s role to search through the record to determine which releases and classifications Mr. Pinson contests. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978) (explaining that district courts are not expected to assume the role of advocate for pro se plaintiffs); Sun v. District of Columbia Gov‘t, 133 F. Supp. 3d 155, 168 n. 6, No. 12-cv-1919, 2015 WL 5726471, at *9 n. 6 (D.D.C. Sept. 30, 2015) (“[I]t is not the Court‘s job to canvass the record for documents supporting a pro se party‘s position.“); see also Davis v. Kelly, 160 F.3d 917, 922 (2d Cir. 1998) (“[A] court need not act as an advocate for pro se litigants . . . .“). Moreover, the FBI has provided justifications for nondisclosure for the various categories of individuals. See Schoenman v. FBI, 576 F. Supp. 2d 3, 7 (D.D.C. 2008) (“Summary judgment may be granted on the basis of accompanying agency affidavits or declarations if they describe ‘the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor evidence of agency bad
3. Exemption 7
a. Threshold Inquiry
The DOJ argues that it properly invoked Exemption 7 in response to documents requested in Request Nos. 1171229, 1199153, 1199078, and 1210450. Exemption 7 protects from disclosure “records or information compiled for law enforcement purposes,” but only to the extent that disclosure would cause an enumerated harm.
The FBI is the primary investigative agency of the federal government. The plain language of Mr. Pinson‘s FOIA requests, all of which pertain to investigations “into various potential violations of the federal law concerning activities ranging from gang activity to homicide in a Federal Bureau of Prison‘s facility,” Hardy Decl. ¶ 90, evidence a law enforcement purpose. See, e.g., Hardy Decl. ¶ 6 & Ex. A. Accordingly, the FBI adequately establishes—and Mr. Pinson has not disputed—that the responsive records at issue in this case were compiled for law enforcement purposes within the scope of Exemption 7.
b. Exemption 7(A)
The DOJ argues that it properly invoked Exemption 7(A) in response to Request No. 1217897.23 Under Exemption 7(A), an agency is exempt from producing “records or information compiled for law enforcement purposes . . . to the extent that the production of such law enforcement records or information . . . could reasonably be expected to interfere with enforcement proceedings.”
c. Exemption 7(C)
The DOJ argues that it properly invoked Exemption 7(C) in response to Request Nos. 1199153, 1199078, 1210450, and 1217897. Under Exemption 7(C), an agency is exempt from producing “records or information compiled for law enforcement purposes . . . to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy.”
The DOJ argues that the FBI properly invoked Exemption 7(C) to withhold identifying information of seven classes of individuals because such information could subject [employees] to embarrassment and harassment and other implicated individuals “have a strong interest in not being unfairly associated publicly with alleged criminal activity” while the release of such information “would not add to the public‘s understanding on how the FBI works or how well it performs its duties.” Defs.’ Mem. Supp. at 39.
Mr. Pinson responds that the withholding of such information was improper and the FBI‘s argument “is simply remarkable for its willful blindness to the obvious.” Pl.‘s Resp. at 5. To demonstrate, Mr. Pinson posits several public interests that may overcome the individuals’ privacy interests. He argues that the documents sought to “shed light on the BOP and the DOJ‘s statutory duty to ‘provide for the safekeeping’ of inmates,” the documents highlight “DOJ‘s actions (or lack thereof) to combat” crimes within prisons, or the documents may show “that a foreign government assisted in the capture inside the United States of [an] alleged killer.” Id. at 5-6.
The potentially substantial public interests Mr. Pinson articulates under Exemption 7(C), also affect the public inter
i. Special Agents and Support Personnel and City, Local, and State Government Employees
As noted above in Part IV.D.2, the FBI argues that its employees as well as city, local, and state government employees have significant privacy interests, the disclosure of which “may seriously prejudice their effectiveness in conducting other investigations,” “could trigger hostility toward him/her,” and could make them “targets of harassing inquiries for unauthorized access to investigations.” See Hardy Decl. ¶¶ 204, 206. According to the FBI, there is no discernible public interest in disclosure because this information “would not shed light on the operations and activities of the FBI.” Id. Indeed, there may be a general public interest in the BOP‘s failure to safeguard inmates and the FBI‘s failure to investigate. It is unlikely, however, that the disclosure of individual names and titles of government employees would provide any insight into either the BOP‘s or the FBI‘s actions or inactions on these issues. An employee‘s name, especially one with a tangential or passing relationship to the request, would merely subject the employee to scrutiny while failing to show how the employee contributed to either the BOP‘s or the FBI‘s failure of their duties. See, e.g., Lesar v. U.S. Dep‘t of Justice, 636 F.2d 472, 487-88 (D.C. Cir. 1980).
ii. Foreign Government Representatives
The FBI withheld “identifying information of foreign government representatives who assisted the FBI in its investigation into the murder of a Sheriff‘s Department Deputy.”25 Hardy Decl. ¶ 208. The FBI argues that there is no public interest served by disclosure because the identifying information would not demonstrate how the FBI performed its statutory mission. Id. In contrast, the foreign government representatives, the FBI argues, have a great privacy interest because disclosure would “seriously impair their effectiveness in assisting or participating in future FBI investigations” and “trigger hostility towards them.” Id.
Mr. Pinson argues that there is a great public interest in learning about the participation of foreign government representatives in an FBI investigation. Documents demonstrating that a foreign government‘s involvement helped resolve a domestic issue would shed light on how the FBI gathers and coordinates information. Indeed, the FBI has already disclosed this information to Mr. Pinson, effectuating the purpose of FOIA. However, the public interest is in the disclosure of the foreign government‘s participation, not of the iden
iii. Third Parties of Investigative Interest and Third Parties Merely Mentioned
The FBI withheld the addresses, dates of birth, social security numbers, and other identifying information of individuals of investigative interest as well as the names and identifying information of third parties merely mentioned in investigations. The agency argues that “[b]eing linked with any law enforcement investigation carries a strong negative connotation and a stigma,” and release of identifying information “could subject them to harassment or embarrassment, as well as undue public attention.” See Hardy Decl. ¶¶ 205, 207. The FBI argues that the public interest in this information is minimal because it does not enlighten the public on how the FBI conducts its internal operations and investigations. See id.
Indeed, the stigma of being associated with any law enforcement investigation is a well-established and substantial privacy interest. See, e.g., Reporters Comm., 489 U.S. at 773-75. The disclosure of the names and other identifying information of private individuals would only serve a sufficient public interest “where ‘there is compelling evidence that the agency denying the FOIA request is engaged in illegal activity,’ and that the information sought ‘is necessary in order to confirm or refute that evidence.‘” Concepcion v. FBI, 606 F. Supp. 2d 14, 40 (D.D.C. 2009) (quoting Davis, 968 F.2d at 1282). Mr. Pinson suggests in conclusory fashion that revelation of this material would assist in revealing the DOJ‘s failure to investigate. This rationale fails to rise to the level of uncovering illegal activity in either the DOJ or FBI. Mr. Pinson fails to indicate how the names and other identifying information of individuals of investigative interest, or others merely mentioned, would illuminate one way or the other the effort, or lack thereof, of the DOJ‘s investigation.
Because Mr. Pinson fails to demonstrate a sufficient public interest with respect to the third parties above, the Court finds that the FBI properly withheld the identifying information of individuals with an investigative interest and individuals merely mentioned.
iv. Third Party Crime Victims and Informants
The FBI did not disclose identifying information of individuals who were victims of violent crimes because disclosure “would cause unsolicited and unnecessary attention to be focused on these victims, further traumatizing [] these individuals and their family members.” Hardy Decl. ¶ 209. The FBI further argues that there is no legitimate public interest to be served because such information would not shed light on the operations and activities of the FBI. Id.
Mr. Pinson has not asserted a public interest in the disclosure of identifying information of either crime victims or informants; therefore, where there is no identifiable public interest, the privacy interest is paramount because “something . . . outweighs nothing every time.” Odland v. Fed. Energy Regulatory Comm‘n, 34 F. Supp. 3d 3, 21 (D.D.C. 2014) (quoting Nat‘l Ass‘n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989), cert. denied sub nom. Nat‘l Ass‘n of Retired Fed. Emps. v. Newman, 494 U.S. 1078, 110 S. Ct. 1805, 108 L. Ed. 2d 936 (1990)).
* * *
After balancing the privacy interests of the identifying information of these different categories of individuals against the public interest in disclosure, the Court determines that the FBI properly withheld identifying information under Exemption 7(C).
d. Exemption 7(D)
The DOJ contends that the FBI properly invoked Exemption 7(D) when it withheld information responsive to Request Nos. 1199153, 1199078, and 1210450. Exemption 7(D) protects law enforcement information that “could reasonably be expected to disclose the identity of a confidential source . . . which furnished information on a confidential basis.”
The DOJ argues that the FBI properly withheld names, identifying information about, and information provided to the FBI by individuals and a foreign law enforcement authority under “express” and “implied” assurances of confidentiality, as well as source file numbers and source symbol numbers. Hardy Decl. ¶¶ 214-25. Because the DOJ has sufficiently supported its claim of informant confidentiality and Mr. Pinson has not controverted this evidence, the Court enters summary judgment in the FBI‘s favor as to the information withheld pursuant to Exemption 7(D) in response to Request Nos. 1199153, 1199078, and 1210450.
e. Exemption 7(E)
The DOJ also contends that the FBI properly invoked Exemption 7(E) when it withheld information in response to Request Nos. 1171229, 1199153, 1199078, and 1210450. Exemption 7(E) protects law enforcement information that “would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.”
The DOJ argues that the FBI properly withheld information to protect: the application of techniques and procedures used in conducting specific criminal investigations because revelation of this information would enable the targets of these techniques to avoid detection or develop countermeasures, Hardy Decl. ¶ 228, operational plans because the FBI will use similar techniques in future investigations, id. ¶ 229, and, FBI internal web addresses because revelation would provide criminals with potential targets for cyber-attacks, id. ¶ 230; see, e.g., Labow v. U.S. Dep‘t of Justice, 66 F. Supp. 3d 104, 126-28 (D.D.C. 2014) (withholding investigative strategies and techniques); Abdeljabbar v. Bureau of Alcohol, Tobacco and Firearms, 74 F. Supp. 3d 158, 182-83 (D.D.C. 2014) (withholding operational plans); Shapiro v. U.S. Dep‘t of Justice, 78 F. Supp. 3d 508, 520 (D.D.C. 2015) (withholding internal web addresses). Because the FBI has met its burden under FOIA and Mr. Pinson has not presented any contrary evidence, the Court grants summary judgment in the FBI‘s favor with regard to the withholding of information pursuant to Exemption 7(E) in response to Request Nos. 1171229, 1199153, 1199078, and 1210450.
4. Segregability
FOIA requires that when a document contains some information that is exempt from disclosure, any reasonably segregable information not exempt from disclosure be released after deleting the exempt portions, unless the non-exempt portions are inextricably intertwined with exempt portions. See
Mr. Pinson requests that the court exercise its authority to conduct in camera review of the documents to determine the propriety of the withholdings, or order counsel to do so. Pl.‘s Resp. at 6. FOIA authorizes the court to examine the contents of withheld agency records “in camera to determine whether such records or any part thereof shall be withheld.
V. CONCLUSION
For the foregoing reasons, the DOJ‘s motion for summary judgment is GRANTED IN PART AND DENIED IN PART. An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Timothy MAYO, et al. Plaintiffs,
v.
Jonathan B. JARVIS, et al., Defendants,
State of Wyoming, Safari Club International, Intervenor-Defendants.
Sierra Club, et al., Plaintiffs,
v.
Sally Jewell, et al., Defendants,
State of Wyoming, Safari Club International, Intervenor-Defendants.
Civil Action No.: 14-1751 (RC), Civil Action No.: 15-0479 (RC)
United States District Court, District of Columbia.
Signed 03/29/2016