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Marcusse v. DOJ, No. 12-1025, 2013 WL 4505292 (D.D.C. Aug. 26, 2013) (Kollar-Kotelly, J.)

Re: Request for records pertaining to plaintiff's convictions for mail fraud, conspiracy, and money laundering Disposition: Granting defendant's motion for summary judgment; directing further supplementation of the record
  • Litigation Considerations, Exhaustion of Administrative Remedies:  The court partially "grant[s] defendants' motion to dismiss," but "[s]ince the record contains sufficient information for the court to assess [one defendant's] partial release of FBI-referred records . . . the court declines defendants' invitation to dismiss this claim for failure to exhaust."  The court finds that, "[d]efendants have presented valid arguments for dismissal of certain claims under [two] types of exhaustion."  First, "[a]s a general rule applicable here, a FOIA requester must pay any reasonably assessed fees before obtaining judicial review."  The court finds that, "[p]laintiff has not refuted defendants' evidence showing that she owes [one defendant] $89.30 for [a] release."  Second, the court finds that, "plaintiff has not refuted defendants' evidence that she failed to appeal administratively."
  • Litigation Considerations, Adequacy of the Search:  "The court is satisfied from defendants' unrefuted declarations describing the files searched and the search methods employed that [two defendants] conducted searches reasonably calculated to locate all responsive records."
  • Litigation Considerations, "Reasonably Segregable" Requirements:  The court finds that, based on "its own examination of the voluminous redacted pages and the deleted page sheets that [a segregability review] occurred."  "Furthermore, defendants have shown that all reasonably segregable portions of records [defendant] referred to other agencies were produced."
  • Exemption 3:  The court finds that, "[defendant] properly applied this exemption to grand jury information and information protected by the Bank Secrecy Act ('BSA'), 31 U.S.C. § 5319."  First, the court finds that, "[defendant] withheld 'information obtained through the BSA during the course of its criminal investigative activities,' and the BSA specifically exempts from FOIA disclosure 'a report and records of reports' made available to an agency under that statute."  Second, the court finds that, "[s]ince disclosure of a grand jury subpoena containing the details [defendant] describes would reveal some secret aspect of the grand jury's investigation, [defendant] properly withheld such information under exemption 3."
  • Exemption 6:  The court finds that, "[defendant] invoked this exemption to withhold what it reasonably interpreted (and what plaintiff has not refuted) to be a request for 'monetary performance awards paid to [certain named IRS agents] for their work with respect to the Grand Jury Investigation and prosecution of [plaintiff] and her co-defendants.'"  The court holds that, "[i]nformation about 'performance based awards' is contained in personnel files . . . and therefore satisfies exemption 6's threshold requirement."  The court continues to state that, "for the reasons discussed [in the court's analysis of Exemption 7(C)], the record contains no basis to compel the release of this otherwise exempt information as being in the public's interest."
  • Exemption 7C:  The court grants defendant's motion for summary judgment.  The court does not focus on the personal privacy aspect of Exemption 7(C) and states that, "the only relevant question is 'whether [plaintiff] has shown government misconduct sufficient to overcome [e]xemption 7(C)'s protection for personal privacy."  The court notes that, "plaintiff makes widespread, unsubstantiated accusations of governmental misconduct during her criminal prosecution," but "has not come close to meeting the demanding Favish standard."  The court finds that, "as a general rule applicable here, plaintiff's personal stake in obtaining documents in order to attack her conviction 'does not count in the calculation of the public interest.'"
  • Exemption 7(D):  The court grants defendant's motion for summary judgment.  The court finds that, "[defendant] applied this exemption to the identifying information of an individual who was granted an express assurance of confidentiality, information supplied by an individual granted an express assurance of confidentiality, and a confidential source file number that could potentially lead to the identity of the individual."  The court notes that, "[t]he express assurances are documented by 'the term 'Protect Identity' or a similar phrase in the body of the FD–302' interview form."
  • Exemption 7(E):  The court grants defendant's motion for summary judgment.  The court notes that, "[defendant] applied this exemption to 'a procedure and technique utilized by [its Special Agents] during the Access Financial Group investigation' to collect data from public sources' collected by "'ChoicePoint and other database reports....'"  The court relates that, "[defendant] states that although the information contained in the sources is publicly available, 'the manner in which the data is searched, organized and reported to [defendant] as an internal technique [is] not known to the public,' and is 'developed by ChoicePoint to meet [defendant's] specific investigative needs.'  "[Defendant] further states that disclosure of the information could reasonably be expected to risk circumvention of the law because it 'would divulge a specific law enforcement technique that could allow an individual to alter their behavior in order to avoid detection by the particular system or the information that the system captures.'"
Court Decision Topic(s)
Litigation Considerations, Adequacy of Search
District Court opinions
Exemption 3
Exemption 6
Exemption 7(C)
Exemption 7(D)
Exemption 7(E)
Litigation Considerations, Exhaustion of Administrative Remedies
Litigation Considerations, Supplemental to Main Categories
Updated August 6, 2014