Kuzma v. DOJ, No. 16-1992, 2017 WL 2347556 (2d Cir. May 31, 2017) (per curiam)

Kuzma v. DOJ, No. 16-1992, 2017 WL 2347556 (2d Cir. May 31, 2017) (per curiam)

Re:  Request for records concerning third party

Disposition:  Affirming district court's grant of government's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "[The Court of Appeals for the Second Circuit] agree[s] with the district court's determination that [the requester] failed to raise a genuine issue of material fact about the adequacy of the FBI's search."  In response to the requester's arguments, the court holds that "the FBI's declarations explain that although its initial search indicated there existed a [document] potentially responsive to [the requester's] request, the [document] was 'missing from the location likely to maintain the document.'"  "Despite searching all appropriate locations, and searching on two occasions, FBI personnel failed to locate the document."  "These facts establish the FBI's search was 'reasonably calculated to discover' the missing [document]."  "At any rate, insofar as [the requester] proposes search methods he believes are superior to those used by the FBI, we note that FOIA demands a reasonable search, not a perfect or ideal one."
   
• Exemption 3:  The Court of Appeals for the Second Circuit holds that "the government established the applicability of Exemption 3, and the district court properly granted summary judgment in its favor on this point."  The court notes that "[the requester] does not dispute that the statute the government relies upon – Federal Rule of Criminal Procedure 6(e), concerning the secrecy of grand jury matters – is a withholding statute under FOIA."  "[The requester] also does not dispute that the material the government withholds on this basis is grand jury material."  In response to the requester's argument that "the district court should have ordered the FBI to disclose the withheld material because, in his view, there are exceptional circumstances warranting this disclosure[,]" the court finds that this argument "is beside the point" because "[the requester] did not seek release of grand jury information from 'the district court that initially supervised the grand jury,' . . . but pursuant to FOIA."
   
• Exemptions 6 & 7(C):  The Court of Appeals for the Second Circuit holds that the government's use of Exemptions 6 and 7(C) was proper.  The court finds that "[the requester] does not explain how knowing the names of the individuals involved in the investigation will further illuminate the FBI's activities."  "His assertion, without evidence, that this particular information will reveal fault in the government's handling of [one] case is not enough."  Finally, the court finds that, "[t]o the extent [the requester] means that learning the identities will provide further avenues for research, we have observed that 'courts have been skeptical of recognizing a public interest in this "derivative" use of information[.]'"
   
• Exemption 7(A):  The Court of Appeals for the Second Circuit holds that "[t]he government established the applicability of Exemption 7(A), and the district court properly granted summary judgment in its favor on this point."  The court finds that "[the requester's] unsupported personal opinion that this investigation is unlikely [pending] is not the contradictory evidence or evidence of bad faith required to overcome the presumption of good faith we afford the government's declarations."
   
• Exemption 7(D):  "[The Court of Appeals for the Second Circuit] affirm[s] the district court's award of summary judgment to the government on this point as well."  Responding to "[the requester's] argu[ment] that because two individuals allegedly involved in this case have been, in his view, officially confirmed as confidential informants through their testimony in open court," the court finds that "[the requester's] suspicion does not overcome the FBI's claim that the responsive material withheld here would reveal the identities of, or information gathered from, confidential sources."  "Even assuming, arguendo, that public disclosure of specific information that the government would otherwise be entitled to withhold under Exemption 7(D) removes that protection, [the requester] has surely not established that the information in the public domain is the same as the information withheld."