WEEK OF APRIL 30 – MAY 4

1. Bloomer v. DHS, No. 11-35, 2012 U.S. Dist. LEXIS 62543 (D. Vt. May 3, 2012) (Reiss, J.)

Re:  Request for records pertaining to a deceased Peruvian national who was convicted of federal drug crimes in 1986

Holding:  Granting DHS's motion for summary judgment on the basis that it properly withheld information pursuant to Exemptions 3, 6, 7(C), 7(D) and 7(E)

• Exemption 3:  The court holds that DHS properly asserted the Bank Secrecy Act, 31 U.S.C. § 5319, which protects "information that has been reported by financial institutions to the Treasury Department[ ] and is subsequently shared with other government agencies," to withhold current transaction reports.  At the outset, the court finds that "[t]he Bank Secrecy Act is properly within the bounds of Exemption 3 because it 'mandates the withholding in such a manner as to leave no discretion on the issue to the agency.'"  The court then concludes that "[r]eports from financial institutions to the Treasury Department[, such as those at issue in this case,] are clearly covered by the Bank Secrecy Act."  The court finds unavailing plaintiff's argument that "DHS's redactions 'are not properly described or explained,'" observing that "'Exemption 3 differs from other FOIA exemptions in that its applicability depends less on the detailed factual contents of specific documents; the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within the statute's coverage.'"  Here, the court notes that plaintiff "does not challenge DHS's assertion that the redacted material is protected under the Bank Secrecy Act" or "seek the disclosure of information provided to the Treasury Department by financial institutions." 

• Exemptions 6 & 7(C):  The court concludes that DHS properly invoked Exemptions 6 and 7(C) to protect the identities of a special agent and an Assistant U.S. Attorney (AUSA).  In terms of the privacy interest, the court finds that plaintiff's "allegations [that these individuals helped to orchestrate the return of a convicted drug offender to the United States] could be reasonably expected to lead to 'harassment or embarrassment' if the names of the FBI agent and the AUSA are revealed as having been involved with [the subject of the request]."  As to the public interest, the court determines that "the rank of the government employees at issue (an FBI agent and an AUSA) was relatively low" and that "[w]ith respect to the degree of wrongdoing, the issuance of a re-entry visa may have been wrongful, but the evidence of such alleged wrongdoing is weak."  Moreover, the court finds that plaintiff's "suspicion of impropriety, though not patently frivolous, is simply that – a suspicion."  The court concludes that disclosure of this information "would not shed significant light on government activity, as the nature of that activity is already known."  Rather, "the only things revealed would be the names of the persons involved, and the release of those names would do little to further the cause of 'let[ting] citizens know what their government is up to.'" 

• Exemption 7(D):  The court concludes that DHS properly asserted Exemption 7(D) to withhold information pertaining to a deceased confidential informant.  As an initial matter, because "DHS has not submitted the sort of 'probative evidence . . . such as . . . an official's personal knowledge about that source' that is generally required for express confidentiality," the court notes that it will review the Exemption 7(D) withholdings to ascertain whether an assurance of confidentiality can be implied.  The court then finds that the convicted drug traffickers' "contacts with the drug trade, and possibly to organized crime would likely have led an informant to require an assurance of confidentiality."  Furthermore, the court determines that "[t]he fact that both [the subject of the request] and the informant are now deceased does not alter this analysis." 

• Exemption 7(E):  "Allowing the government the usual presumption of good faith, and given the liberal standards for application of Exemption 7(E), the court finds that DHS has met its burden" to withhold "various codes and case numbers."  The court also notes that plaintiff "has not argued that the codes sought to be protected by Exemption 7(E) are free of [the] risk" of circumvention.

2.  Castro v. ATF, No. 11-2197, 2012 WL 1556248 (D.D.C. May 2, 2012) (Bates, J.)

Re:  Request for records pertaining to plaintiff and the "DNA analysis of weapon"

Holding:  Granting defendant's motion for summary judgment where plaintiff failed to respond to defendant's motion for summary judgment 

• Litigation considerations/failure to prosecute:  The court grants defendant's motion for summary judgment where plaintiff was directed to respond to defendant's motion for summary judgment "or risk entry of judgment for defendant" and he failed to do so.  The court finds "[p]laintiff has not responded to the motion and, thus, has not disputed defendant's fact establishing its compliance with the FOIA by disclosing all responsive records." 

3.  Judicial Watch, Inc. v. DHS, No. 04-907, 2012 WL 1495127 (D.D.C. Apr. 30, 2012) (Walton, J.)

Re:  Request for records relating to a survey of illegal immigrants; at issue is DHS's search for responsive records

Holding:  Declining to deny DHS's motion for summary judgment on the basis that it failed to file a statement of material facts as required by the court's local rules where its memorandum in support cites to the facts in the agency's declarations and the deficiency was remedied by a subsequent filing; declining to disregard DHS's "corrected" brief which contained more than "typographical and formatting" revisions where plaintiff had an opportunity to respond to any substantive changes it contained; disregarding one of DHS's declarations which plaintiff contested on the basis that it was not under oath or submitted under penalty of perjury and defendant did not rebut that claim; denying, in part and without prejudice, DHS's renewed motion for summary judgment to the extent that it failed to adequately describe its searches for responsive records and ordering DHS to submit supplemental declarations on this point; rejecting plaintiff's challenges to DHS's searches that were premised on alleged inconsistent and erroneous statements by the agency; and ordering DHS to conduct a new search for certain statistical records, to provide a supplemental declaration with regard to the search, and to produce any responsive documents to plaintiff    

• Adequacy of search:  The court concludes that DHS's submissions demonstrate that it conducted a reasonable search of some of its offices, "but that other descriptions are insufficient for the agency to meet its burden at the summary judgment stage."  The court determines that for certain offices, DHS "fail[ed] to explain who conducted the search, how it was conducted, or what search terms the office used."  In contrast, the court finds that, for other offices, DHS's descriptions were "sufficiently detailed" because they discussed "who conducted the searches, the form and location of the files searched, how the searches were conducted, the specific search terms utilized, and whether responsive records were discovered."  The court orders DHS to provide supplemental declarations to clarify this point. 

However, the court finds "unconvincing" plaintiff's challenge to the adequacy of DHS's searches based on "alleged inconsistent and erroneous statements" by DHS.  With respect to conflicting details contained in the agency's declaration, the court finds that "the internal inconsistency appears to be the result of an oversight rather than an attempt to mislead [plaintiff] or the Court, and thus does not evince bad faith nor constitute countervailing evidence raising substantial doubts as to the adequacy of the agency's search."  Similarly, the court finds that DHS's failure to identify six pages produced in the course of litigation as duplicates is an "inconsequential error [that] does not remotely suggest bad faith or an inadequate search on the agency's part."  As to plaintiff's claim concerning "missing documents," the court finds that this "speculative argument . . . is improperly directed not at search methods but at search results."  The court determines that "[b]ecause [DHS's] declaration [explaining that certain records never existed or could not be located through reasonable search] is 'accorded a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents,' . . . [plaintiff's] position on this point must be rejected."  Further, the court finds that plaintiff's "claims that additional documents relating to the survey must exist are 'hypothetical assertions' that are 'insufficient to raise a material question of fact with respect to the adequacy of the agency's search.'"  With respect to plaintiff's claim that DHS has failed to provide certain responsive statistics that it indicated it would produce in the course of litigation, the court orders DHS to conduct an additional search for those documents, to file a supplemental declaration on this issue, and to "produce forthwith to [plaintiff] any records within its possession that it has already identified as responsive to the foregoing FOIA request."  The court denies plaintiff's request that "DHS be ordered to search the four component offices of Customs that declined to conduct searches in response to" a search memorandum from a DHS official in connection with this lawsuit, "[b]ecause the FOIA does not obligate agencies to undertake fishing expeditions in offices that are not reasonably likely to possess responsive records."  

4. Schoenman v. FBI, No. 04-2202, 2012 WL 1475983 (D.D.C. Apr. 30, 2012) (Kollar-Kotelly, J.)

Re:  Request for records concerning Lord Bertrand Russell and six named organizations

Holding:  Denying plaintiff's motion for reconsideration brought under Federal Rule of Civil Procedure 59(e)

• Litigation considerations/reconsideration:  The court denies plaintiff's motion for reconsideration as to the court's decision to deny his two motions to late file, the FBI's invocation of Exemption 2, and the reasonableness of the FBI's search for records.  As to plaintiff's claim with respect to his request to late file, the court determines that plaintiff "failed to meet his burden of justifying relief under Rule 59(e)" where he did not "explain[ ] how his proffered factual allegations, if undisputed or not genuinely disputed, would have any meaningful bearing on the Court's decision on the merits," he did not "mention, let alone supply a basis for questioning" the "independent and adequate grounds" underlying the Court's decision, and he failed to establish that "the Court's conclusion that [he] failed to satisfy the 'good cause' and 'excusable neglect' standards" was an abuse of discretion. 

The court also rejects plaintiff's argument that the court should reconsider its "decision granting summary judgment to the FBI because, in his view, the FBI 's withholdings under FOIA Exemption 2 are no longer valid in light of the United States Supreme Court's March 7, 2011 decision in Milner v. Department of Navy."  Although the court agrees that "the Milner decision narrowed the scope of Exemption 2 in this Circuit and calls into question the FBI's reliance on the exemption as a basis for withholding confidential source symbol numbers and confidential source file numbers," the court notes that plaintiff "offer[ed] no explanation for why he waited an extraordinary eleven months and two weeks, and until after the Court entered a final judgment, before he sought reconsideration on this basis."  The court notes that "[a] party acting with reasonable diligence could and would have sought reconsideration of the Court's February 9, 2011 decision while it was still interlocutory under Federal Rule of Civil Procedure 54(b)" or "at the bare minimum, . . . would have alerted the Court to the potential issue sometime in the eleven months and two weeks between the issuance of the Milner decision and the entry of final judgment in this case."  As such, the court denies the Rule 59(e) motion on the basis that plaintiff "failed to 'exercise due diligence.'"  The court also rejects plaintiff's claim that "the mere 'fact that Exemption 2 was cited in tandem with Exemption 7(D) raises a question as to whether the FBI made a careful, independent evaluation of the Exemption 7(D) claim,'" concluding that "[a]n argument of this kind – speculative, unsupported, and contradicted by all the competent evidence in the record – is insufficient to warrant relief under Rule 59(e)." 

The court also declines to exercise its discretion to grant relief under Rule 59(e) with respect to plaintiff's claim regarding the adequacy of the FBI's search.  For one, the court notes that plaintiff's "has not sought reconsideration" of the court's decision which determined that the he "'conceded [this] issue' by failing to respond to the FBI's arguments [on this point] in any of his submissions."  Additionally, the court determines that plaintiff "failed to 'exercise due diligence' in pursuing this issue" by waiting "two years, ten months, and three weeks" before filing the instant motion.  Lastly, the court finds that the "'new information' cited by [plaintiff]"consisting of "a recent news article and a recent opinion" from another district court judge in this Circuit "in an unrelated case," do not justify relief because "[n]either bears upon the adequacy of the FBI's search under the specific facts of this case nor persuades the Court to question whether 'the FBI made a good faith, informed, and reasonable effort to locate the identified records.'"