Passmore v. DOJ, No. 14-1742, 2017 WL 1166301 (D.D.C. Mar. 28, 2017) (Sullivan, J.)

Passmore v. DOJ, No. 14-1742, 2017 WL 1166301 (D.D.C. Mar. 28, 2017) (Sullivan, J.)

Re: Request for some of plaintiff's e-mail communications

Disposition: Granting defendant's second motion for summary judgment

• Procedural Requirements, Searching for Responsive Records: The court finds that defendant's search was adequate and, specifically, that "[b]ased on the reasonable interpretation of plaintiff's request – that plaintiff sought information about himself – it is reasonable for FBI staff to have used variations of his name and alias, along with identifying information as search terms." Responding to plaintiff's argument, the court finds that "[a]n agency is not required to search every system of records; rather, it need only search the system or systems of records where responsive records likely would be located." Also, the court finds that "'[t]he issue in a FOIA case is not whether the [agency's] searches uncovered responsive documents, but rather whether the searches were reasonable.'" "Furthermore, any entitlement plaintiff may have had as a criminal defendant to potentially exculpatory information does not alter or expand the FBI's obligations in a FOIA case." "Nor does 'the fact that responsive documents once existed . . . mean that they remain in the [FBI's] custody today or that [the FBI] had a duty under [the] FOIA to retain [them].'"
   
• Procedural Requirements, Proper FOIA Requests: The court holds that "[a]n agency incurs no obligation under the FOIA unless and until the requester files a proper FOIA request, that is, a request which 'reasonably describes' the records sought and is submitted in accordance with agency regulations." The court relates that "[d]efendant demonstrates that the FBI did acknowledge receipt of plaintiff's initial correspondence, only to point out the insufficiency of the request as drafted because his 'letter did not contain sufficient information to conduct an accurate search of the [CRS].'"
   
• Fees and Fee Waivers, Fee Waivers: The court finds that "[i]t . . . is apparent that plaintiff is not entitled to a fee waiver." "Generally, an agency may waive fees 'if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.'" "The Court accepts plaintiff's representation that his purpose is not primarily commercial." "However, disclosure of the emails he requested serves no public interest." "Rather, the emails serve plaintiff's personal interest – proving his innocence – and plaintiff fails to demonstrate that their disclosure would contribute to the public's understanding of government activities."
   
• Exemption 7: "The Court concludes that all the responsive records are law enforcement records for purposes of Exemption 7." The court relates that "[defendant] states that '[t]he records responsive to plaintiff's [FOIA] request were compiled during the course of the FBI's investigation into plaintiff's conspiracy to commit kidnapping and murder in violation of 18 U.S.C. § 1201(a)(1)[]'" and "the responsive records 'were compiled for a law enforcement purpose' and 'squarely fall within the law enforcement duties of the FBI.'"
   
• Exemption 7(C): The court holds that "[t]he withholding of the names of and identifying information about federal law enforcement officers, support personnel and other employees under similar circumstances routinely is upheld[]" and "[t]he Court concludes that the FBI properly withheld third party names from the responsive records under Exemption 7(C)."
   
• Exemption 7(E): "The Court concludes that the FBI properly has withheld [Computer Analysis and Response Team ("CART")] data under Exemption 7(E)." The court relates that "[defendant] describes CART as the entity which 'provides digital forensics, technical capabilities, and related services and support to the FBI [ ] and other law enforcement agencies,' particularly for 'investigations that are reliant . . . upon digital evidence . . . through acquisition, preservation, examination processing, and presentation of stored digital information in computers or in other electronic devices or media.'" Additionally, the court relates that defendant stated that "[i]f 'detailed information about CART software, equipment, techniques, procedures and/or types of reports generated by CART during . . . forensic testing processes' were disclosed, the declarant explains, 'the FBI's effectiveness in investigating crimes where evidence can be found on computers and other digital media' would be impeded." "Furthermore, . . . 'would also aid in circumvention of the law by providing criminals with the information necessary for them to adjust behavior in order to avoid detection, develop and/or [use] technology less susceptible to law enforcement detection or scrutiny, and/or use or develop technology to counteract techniques used by CART.'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements: The court relates that "[defendant] states that '[a]ll documents responsive to plaintiff's [FOIA] request were processed to achieve maximum disclosure[]'" and "avers that '[n]o reasonable segregable, nonexempt portions [of these records] have been withheld from plaintiff.'" "Based on this representation and the Court's review of the record of this case, the Court concludes that the FBI has released all reasonably segregable information."