Tracy v. U.S. Department of JusticeTracy v. U.S. Department of Justice
IV. CONCLUSION
None of Plaintiffs’ constitutional claims can survive Defendants’ motion under Rule 12 and Rule 56. Plaintiffs have failed to establish liability under prong one of the qualified immunity analysis with respect to Plaintiffs’ state endangerment, false arrest, and abuse of process claims (Counts I, II, and IV), because no reasonable jury could find that the officers who arrested Kevin Witherspoon lacked probable cause or that their actions during the buy/bust operation violated his Fourth or Fifth Amendment rights. In addition, Plaintiffs’ claims for unlawful taking, inhumane conditions of confinement, failure to protect, and failure to train (Counts III, V, VI, VII, IX) must be dismissed, because, with respect to each, Plaintiffs’ complaint fails to state a claim upon which relief could be granted. Accordingly, as explained above and as set forth in the accompanying order, Defendants’ motion for summary judgment is granted with respect to Counts I, II, and IV, and judgment will be entered in Defendants’ favor on those counts; Defendants’ motion to dismiss is granted with respect to Counts III, V, VI, VII, IX, and those claims will be dis-missed; and Plaintiffs’ state law claims (Counts VIII and X) will be dismissed without prejudice.
Andrew Donald Fiorillo, Christina Doran Troiani, U.S. Department of Justice, Washington, DC, for Defendant.
MEMORANDUM OPINION
RANDOLPH D. MOSS, United States District Judge
Robert Tracy believes that he and his wife have been the subject of threats and extortion. He approached the Federal Bureau of Investigation (“FBI“) on several occasions to obtain its assistance and to ask if the FBI was involved. Dissatisfied with the FBI‘s response, Tracy then filed a request under the
I. BACKGROUND
Robert Tracy is an author who lives in Las Vegas, Nevada. Compl. ¶ 3. Beginning in mid-2014, Tracy and his wife Kimberly became concerned that they were the victims of some kind of conspiracy arising out of Kimberly‘s political activity. See Dkt. 26 at 9-16.1 Although the details are not entirely clear from the record, it appears that Kimberly came to believe that some entity had altered or interfered with a bulk mailing she sent out to support her candidacy for a leadership position with a local union. Id. at 9. The Tracys asked thе U.S. Postal Inspection Service to initiate an investigation into what they alleged was mail fraud, see id. at 90 (Pl.‘s Suppl. Mot. Summ. J. (“SMSJ“), Ex. J), and shortly thereafter, they claim, they began to receive “thinly veiled threats from ‘third parties,‘” id. at 9, regarding their efforts to seek recourse regarding the alleged fraudulent scheme.
On June 13, 2014, Tracy went to the FBI‘s Las Vegas field office to complain
Tracy and Kimberly returned to the FBI‘s Las Vegas field office in the fall to renew their complaints. Dkt. 26 at 13-14. It appears from the record that Kimberly visited the field office on October 2, 2014, and Kimberly and Tracy visited together on October 8, 2014. See id. at 73 (Pl.‘s SMSJ, Ex. G). During the second of these visits, Tracy alleges, he told the FBI agent who met with him that “he was of the belief now that the surveillance, monitoring and computer intrusion was so severe and orchestrated that it was potentially occurring from the FBI itself.” Id. at 13. The agent, who “indicated that he had no previous knowledge” of Tracy or his wife, allegedly stated “that the surveillance, monitoring and cоmputer intrusion may possibly be from another Federal Law Enforcement Agency or even a criminal gang of some type.” Id. The agent, according to Tracy, appeared to know details about Tracy and his wife that Tracy had not conveyed to him. Id. at 13-14. Tracy states that he visited the FBI field office once again in November, but he does not indicate what he said during that visit. Id. at 14.
Convinced that the FBI knew more about the fraud, extortion, and surveillance than it was willing to reveal, Tracy and his wife each filed FOIA requests with the U.S. Department of Justice in January 2015. Dkt. 24 at 24 (Def.‘s Mot. Summ. J. (“MSJ“), Ex. A); Tracy v. U.S. Dep‘t of Justice, 117 F.Supp.3d 1, 2 (D.D.C. 2015). Tracy‘s request sought his “full FBI file,” and indicated that he had visited the FBI‘s Las Vegas field office on at least two occasions and had called the FBI at least once. Dkt. 24 at 24 (Def.‘s MSJ, Ex. A). The FBI responded to Tracy‘s request on January 27, 2015. Id. at 29 (Def.‘s MSJ, Ex. C). It indicated that it had searched its Central Records System (“CRS“) and was “unable to identify main file records responsive to” Tracy‘s request. Id. It did not respond to Kimberly‘s request at all, and, on March 19, 2015, she filed suit to compel a response. Tracy, 117 F.Supp.3d at 2.
Around the same time, Tracy appealed the FBI‘s conclusion that no responsive records existed. Dkt. 24 at 33 (Def.‘s MSJ, Ex. D). In his appeal, he provided additional details about his contacts with the FBI. Specifically, his appeal stated:
Any and all records concerning, regarding or related to myself (Robert B Tracy). Including records of communications, contacts and correspondence between Robert B Tracy and employees, officials, agents, contractors, and Informants of the DOJ, FBI & OHS. Victim interview FBI office Las Vegas, Nevada 6/23/14, 10/08/14, & 11/20/2014. Interview pertained to being a victim of extortion threats/political corruption/lawyer tampering/unlawful surveillance & monitoring, call intercept, computer intrusion as well as home “bugging“. Indicated during multiple interviews that much of this activity was possibly emanating from the FBI or another government agency at the behest of high ranking government officials due to a political cover-up. Indicated that my parents as well as members of my immediate family seemed to be under duress and possible victims of extortion threats as well. I also expressed concerns of potential violations of my Constitutional and/or Civil rights as well as the same concerns relative to the Las Vegas Metropolitan Police Department.
Id. Tracy provided the dates and times of six phone calls he had made to thе FBI, as well as the dates and times of what he described as “potential call intercepts“; provided the numbers of four police reports he had made to the Las Vegas Metropolitan Police; and provided several “search indices,” including the name of his wife, the surnames of various relatives, and several “related parties,” including the U.S. Postal Service, American Express, and Caesars Entertainment. Id.
The Department failed to respond within the 20-day period specified by FOIA,
The FBI has moved for summary judgment, arguing that it conducted a reasonable and adequate search and that its withholdings are appropriate under FOIA and the Privacy Act. Dkt. 9. Tracy has cross-moved for summary judgment, arguing that the FBI‘s search was inadequate and that its withholdings are unlawful. Dkts. 10, 17. Tracy has also moved for leave to file the phone carrier record of one of his calls to the FBI under seal. Dkt. 19.4
II. LEGAL STANDARD
The
The
FOIA cases are typically resolved on motions for summary judgment under
III. DISCUSSION
Tracy challenges (1) the adequacy of the FBI‘s search for records responsive to his FOIA request and (2) the FBI‘s decision to withhold portions of those records it did release pursuant to FOIA and the Privacy Act. The Court discusses each issue in turn.
A. Search
Tracy first argues that the FBI conducted an inadequate search in response to his FOIA request. An agency has an obligation under FOIA to conduct an adequate search for responsive records. “An agency fulfills its obligations ... if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.‘” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep‘t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). “In order to obtain summary judgmеnt the agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby v. U.S. Dep‘t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Although the agency “cannot limit its search to only one record system if there are others that are likely to turn up the information requested,” id. it need not “search every record system.” Id. The agency can show that it conducted an adequate search by relying on “[a] reasonably detailed affidavit [or declaration], setting forth the search terms and the type of search performed, and averring that all files likely to obtain responsive records (if such records exist) were searched.” Valencia-Lucena, 180 F.3d at 326.
The FBI supports its motion with the declaration of David Hardy, the section сhief of the FBI division that processes FOIA requests. Dkt. 24 at 3-22 (Hardy Decl.). Hardy explains that the FBI searched its Central Records System (“CRS“) for records that might be responsive to Tracy‘s request. Id. at 6, 10 (Hardy Decl. ¶¶ 13, 22). CRS is “an extensive system of records” that “spans the entire FBI organization,” including the FBI‘s field offices. Id. at 6 (Hardy Decl. ¶ 13) (emphasis added). CRS files are “indexed” in two ways. Id. at 7 (Hardy Decl. ¶ 15). Each file has a “main” entry, corresponding to “the main subject(s) of” the file. Id. A file may also contain a “cross-reference” entry, indicating that some other person, organization, or event is referenced in the file. Id. The FBI uses the Automated Case Support (“ACS“) system to organize CRS records. Id. at 7-8 (Hardy Decl. ¶ 17). ACS contains a Universal Index (“UNI“) tool that allows the FBI to search all CRS records indexed in ACS—“approximately 111 million searchable reсords.” Id. at 8 (Hardy Decl. ¶ 18). Since 2012, the FBI has also conducted FOIA searches in its advanced case management system, Sentinel. Id. at 9 (Hardy Decl. ¶ 19).
According to Hardy, when Tracy submitted his initial FOIA request, the FBI conducted searches in UNI and Sentinel for both “main” and “cross-reference” records using two variants on Tracy‘s name (“Tracy, Robert B.” and “Tracy, Robert“). Id. at 10 (Hardy Decl. ¶ 22). Hardy states that the FBI “did not identify any main file indexed to [Tracy‘s] name,” but did identify a cross-reference file indexed to Tracy‘s name—that is, a file indexed primarily under someone else‘s name that contained a reference to Tracy. Id. (emphasis added). The FBI did not provide this file to Tracy because it did not “pertain to any visit or telephone call” that
As Hardy explains, however, the FBI eventually decided to produce the record indexed to Tracy‘s name. Hardy says that when Tracy filed this suit, the FBI “conducted another search of the CRS index via [UNI] and Sentinel.” Id. at 11 (Hardy Decl. ¶ 24). That search did not reveal any additional records. Id. In the course of the search that the FBI conducted in Kimberly‘s case, however, it located a second record that is not indexed to Tracy‘s name but that nonetheless refers to him. Id. Hardy states: “Although neither [file] pertains to either of the visits and/or the call sрecifically listed by [Tracy] in his request letter, the FBI processed and released” both files to Tracy. Id.
Tracy identifies three reasons why the FBI‘s search in this matter was inadequate.5 First, he argues, the FBI construed his search too narrowly. Because Tracy requested only his “FBI file” in his original request, see id. at 24 (Def.‘s MSJ, Ex. A), the FBI interpreted his request to seek only main files indexed to his name, not files that merely contained cross-references to his name. See id. at 58-59; id. at 9-10 (Hardy Decl. ¶¶ 20, 22) (describing the FBI‘s policy of “search[ing] for and identify[ing] only ‘main’ files responsive to most [FOIA] requests at the administrative stage“). Tracy argues that the FBI‘s interpretation of his request was overly narrow, because his references to his visits the FBI‘s Las Vegas field office (and the additional details he provided on appeal) made clear that he was seeking information that might not be available in his “main” file. See Dkt. 26 at 18. Indeed, Tracy argues, the FBI does not set out its reasons for interpreting his request for his “FBI file” to refer only to main references, to the exclusion of cross-references. Id.
The parties do not identify any caselaw that addresses whether it was reasonable for the FBI to have initially searched only for main files regarding Tracy, and the Court has found none. The FBI states that its standard policy is to “search for and identify only ‘main’ files responsive to most [FOIA] requests at the administrative stage.” Dkt. 24 at 9 (Hardy Decl. ¶ 20). But as a general matter, an agency is obligated “to construe a FOIA request liberally,” LaCedra v. Exec. Office for U.S. Attorneys, 317 F.3d 345, 348 (D.C. Cir. 2003) (quoting Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)), and it is far from clear to the Court that most FOIA requesters intend the FBI to search only for “main” filеs when they request their “full FBI file.” Nonetheless, there is no reason for the Court to consider the question in any greater depth here, because the FBI did ultimately produce other records that were cross-referenced to Tracy‘s name. See Dkt. 24 at 11 (Hardy Decl. ¶ 24). Whether or not its initial interpretation of Tracy‘s request was overly narrow, that is, the FBI ultimately produced records that rest on a reasonable interpretation of that request.6
Although this, too, is a closer question than the FBI suggests, the Court agrees that it was reasonable for the FBI not to have utilized these additional search terms. As Hardy explains, the FBI indexes its records by individuals’ names, organizations’ names, and events. Id. at 7 (Hardy Decl. ¶ 16). Because Hardy‘s request clearly sought “information pertaining to himself,” the FBI concentrated on those search terms most likely to produce information regarding Tracy himself—variants on his name. Id. at 11 (Hardy Decl. ¶ 25). Most of the search terms that Tracy suggested, by contrast, appear unlikely to lead the FBI to locate records about Tracy. It is hard to see how a search for “American Express” or “Caesars Entertainment,” for example, would have led the FBI to locate any responsive records—unless, of course, the FBI were to also limit those records by including Tracy‘s name as a search term. To the extent Tracy suggests that the FBI should have “used conjunctive searches rather than simply searching for documents containing [his name], such a search would have revealed fewer records than those the [FBI] actually produced.” Soto v. U.S. Dep‘t of State, 118 F.Supp.3d 355, 363 (D.D.C. 2015).
Not all of the search terms Tracy suggested were this fаr afield. In particular, Tracy‘s suggestion that the FBI search for his Social Security number, his date of birth, or the dates on which he visited the FBI‘s Las Vegas office might seem more likely to have produced records responsive to his request. But agencies “have discretion in crafting a list of search terms that ‘they believe[] to be reasonably tailored to uncover documents responsive to the FOIA request.‘” Liberation Newspaper v. U.S. Dep‘t of State, 80 F.Supp.3d 137, 146 (D.D.C. 2015) (quoting Physicians for Human Rights v. U.S. Dep‘t of Def., 675 F.Supp.2d 149, 164 (D.D.C. 2009)). Tracy points to no basis to conclude that a search for these additional terms would have been likely to yield records that were not found by searching for his name. Especially in light of the fact that the FBI‘s original search did produce records documenting two visits to the FBI‘s Las Vegas field office, the Cоurt finds that the FBI‘s
Third, and most emphatically, Tracy argues that the FBI‘s search was inadequate because it did not result in the production of any records relating to either his first visit to the FBI, in June 2014, or any of his phone calls.7 See Dkt. 26 at 20-26. He argues, among other things, that the records the FBI did produce, as well as cell-phone records he attaches to his motion for summary judgment, demonstrate that he both visited the FBI in June 2014 and made numerous calls to FBI agents between June 2014 and February 2015. See id. at 73 (Pl.‘s MSJ, Ex. G) (reference to a “complaint filed initially on June 23, 2014“); id. at 50-68 (Pl.‘s MSJ, Exs. E, F) (cell-phone records). Tracy‘s argument, in essence, is that because he can demonstrate that he contacted the FBI on these dates, that he completed a “questionnaire” at the field office, and that he provided the FBI with certain materials, Dkt. 26 at 6, the fact that the FBI has not produced any records of those contacts means that the FBI has failed to conduct a reasonable and adequate search of its files. See Dkt. 18 at 4 (“This case is about how you can have (3) in person victim interviews and nearly (75) minutes of victim calls to the Defendant and not have a single instance of follow up contact from the Defendant....“).
In light of his repeated contacts with the FBI, Tracy‘s argument is not an unreasonable one. The problеm for Tracy is that, as the D.C. Circuit has held, “the adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search.” Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). To the extent that Tracy is simply dissatisfied with the results of the FBI‘s search, his challenge to the FBI‘s search must fail. See Steinberg v. U.S. Dep‘t of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994). (“[M]ere speculation that as yet uncovered documents may exist does not undermine the finding that the agency conducted a reasonable search.” (internal quotation marks omitted)). Nor do Tracy‘s broader complaints with the FBI have traction. For instance, Tracy argues at length that if the FBI‘s Las Vegas field office in fact failed to make a record of his visits and phone calls in 2014 and 2015, it may have violated an FBI policy—оr, failing that, that it may have acted contrary to common sense. E.g., Dkt. 26 at 26 (“It seems nothing short of preposterous ... that the FBI Las Vegas field office does not record incoming phone calls.“). But FOIA does not require agencies to create records that do not exist, and it is not a tool for requesters to improve agencies’ internal practices and procedures.
In sum, the Court concludes that the FBI conducted a reasonable and adequate search in response to Tracy‘s request for his FBI file.
B. Withholdings
Tracy submitted his request for records pursuant to both the
1. Privacy Act
The
Although the FBI has exempted its CRS system from the Privacy Act‘s requirements, it has nonetheless qualified that exemption by providing that it applies only to information “subject to exemption” under the Act.
It is plain that the records that the FBI released to Tracy are “law enforcement records” under the Privacy Act. Hardy states that the records “were specifically compiled in response to a complaint regarding potential violations of federal laws concerning public corruption,” a claim that Tracy does not dispute. See Dkt. 24 at 13 (Hardy Decl. ¶ 28); Dkt. 26 at 19 (asserting that Tracy is a “victim of extortion and Public corruption“). The records were thus compiled by the FBI in furtherance of its federal law enforcement mission. Accord Mobley, 806 F.3d at 586; Doe, 936 F.2d at 1354-55. Tracy does not appear to contest that the produced records qualify as “law enforcement records,” see Dkt. 26 at 30, nor, based on this record, could he reasonably do so. Accordingly, the FBI has established that the records that it released to Tracy (in a redacted form) were protected in full by the Privacy Act.
2. FOIA
Tracy does contest the propriety of the FBI‘s decision to redact portions of the
a. Exemptions 6 and 7(C)
FOIA Exemptions 6 and 7(C) are privacy exemptions. Exemption 6 shields “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”
Here, the Court has already concluded that the records the FBI produced to Tracy were “law enforcement records” for the purposes of the Privacy Act. See supra p. 15. The records are also therefore “records compiled for law enforcement purposes” under FOIA. See Doe, 936 F.2d at 1354 (explaining that the two standards are the same). Accordingly, the Court will evaluate the FBI‘s decision to withhold portions of these records only under Exemption 7(C), because “it provides broader privacy protection than Exemption 6.” See CREW v. U.S. Dep‘t of Justice, 746 F.3d 1082, 1091 n. 2 (D.C. Cir. 2014). The FBI withheld three categоries of information under Exemption 7(C): (i) the names of FBI employees, (ii) the names of several third parties “merely mentioned” in the record (that is, third parties not of investigative interest to the FBI), and (iii) the names of third parties of investigative interest to the FBI. See Dkt. 24 at 67-70; id. at 16-20 (Hardy Decl. ¶¶ 37-41). The Court concludes that the FBI‘s assertion of Exemption 7(C) was proper as to all three categories of information.
The D.C. Circuit and other judges of this Court have consistently allowed the FBI to withhold the names of FBI employees and third parties under Exemption 7(C). As the D.C. Circuit has explained, it has adopted “a categorical rule permitting an agency to withhold information identifying private citizens mentioned in law enforcement records, unless disclosure is ‘necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal activity.‘” See Schrecker v. U.S. Dep‘t of Justice, 349 F.3d 657, 661-62 (D.C. Cir. 2003) (quoting SafeCard Servs., 926 F.2d at 1206). This protection has generally been afforded to the names of agency employees, as well, for similar if not identical reasons. See Lesar v. U.S. Dep‘t of Justice, 636 F.2d 472, 487-88 (D.C. Cir. 1980) (concluding that Exemption 7(C) protects the names of FBI agents because the agents could face “public exposure or possible harassment“); see also Roth v. U.S. Dep‘t of Justice, 642 F.3d 1161, 1174 (D.C. Cir. 2011); Schrecker, 349 F.3d at 661. So it is clear that the FBI acted within the confines of FOIA in redacting the names of FBI employees and third parties in the records it released to Tracy.
Tracy levies several objections to this conclusion, but each misses the mark. Al-
Accordingly, the Court concludes that the FBI properly withheld information pursuant to Exemption 7(C).
b. Exemption 7(E)
The FBI also withheld the address of an internal FBI website on each of the records that it provided to Tracy pursuant to Exemption 7(E). See Dkt. 24 at 20-21 (Hardy Decl. ¶¶ 42-45). Exemption 7(E) shields “records or information compiled for law enforcement purposes” if the disclosure of that information “would disclose teсhniques 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 FBI argues that the disclosure of its internal website addresses would increase the risk of cyberattacks. See Dkt. 24 at 71-72; id. at 21 (Hardy Decl. ¶ 45). Specifically, the FBI explains that, armed with the FBI‘s internal website addresses, “criminals capable of cyber attacks” would “know where to go in the FBI‘s computer system to disrupt or undermine FBI counter-terrorism initiatives,” which in turn “could result in an increase in violence, crime, or the destruction of property by terrorists.” Id. at 21 (Hardy Decl. ¶ 45). The Court agrees with the other judges on this Court to have considered the question that this possibili-
Tracy‘s only arguments to the contrary are not on point. He argues again that the FBI has failed to pinpoint with sufficient specificity the investigation that the records it released were compiled in service of, Dkt. 26 at 31, but as the Court has explained, the FBI was not required to do so. Tracy‘s contention that “Exemption 7(E) should not be a shield from litigation” in light of the fact that he has “potentially been under unlawful surveillance and monitoring, including surveillance of his residence for almost two years by [the FBI],” id. at 31-32, has no bearing on this FOIA suit, even if he could substantiate it with record evidence.
Accordingly, the Court concludes that the FBI properly withheld information pursuant to Exemption 7(E).
c. Segregability
Tracy finally gestures at a challenge to the FBI‘s assertion that it released all reasonably segregable records in response to his request. FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions [that] are exempt.”
Whether or not Tracy raises a segregability challenge, however, the Court has a duty to “make specific findings of segregability regarding the documents to be withheld ... even if the requester did not raise the issue of segregability before the court.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007). The Court has no trouble concluding that the FBI complied with FOIA‘s segregability requirement. That requirement generally has teeth only where the agency has chosen to withhold pages or documents in full rather than trying to redact those parts of pages that contain exempt material. Here, the FBI redacted what was exempt and released the remainder of the records. FOIA requires no more.
CONCLUSION
For these reasons, the Court will grant the FBI‘s motion for summary judgment, deny Tracy‘s motion for summary judgment, and deny Tracy‘s motion for leave to file recоrds under seal. A separate Order will issue.
RANDOLPH D. MOSS
United States District Judge