Pinson v. DOJ, No. 12-1872, 2016 WL 1254204 (D.D.C. Mar. 29, 2016) (Contreras, J.)

Pinson v. DOJ, No. 12-1872, 2016 WL 1254204 (D.D.C. Mar. 29, 2016) (Contreras, J.)

Re: Plaintiff's thirty-five FOIA requests

Disposition: Granting in part and denying in part defendant's motion for partial summary judgment

• Procedural Requirements, Proper FOIA Requests:  "The Court . . . grants the FBI's motion for summary judgment as to . . . seven unnumbered requests."  The court finds that, "not only has [plaintiff] failed to provide any evidence that these requests were received by the FBI, but [plaintiff's] opposition fails to mention these requests at all."  However, the court relates that "[t]he FBI also contends that it referred one unnumbered request . . . to the BOP because the FBI determined that the BOP is the agency most likely in possession of the requested records."  The court finds that "[defendant] has not attested to what happened to the referral, and the 'referral of records could constitute an improper withholding if the net effect of the referral procedure is significantly to impair the requester's ability to obtain the records or significantly to increase the amount of time he must wait to obtain them.'"
   
• Litigation Considerations, Exhaustion of Administrative Remedies:  The court holds that "[b]ecause [plaintiff] does not address the fact that [six] responses were requested [by plaintiff to be sent to] and actually sent to an alternative address and not to his prison, the Court finds that [plaintiff] has failed to raise a material issue of fact and the DOJ is entitled to summary judgment as to [the six] request[s]" which plaintiff did not appeal.  However, the court denies summary judgment as to one request because "the FBI sent the responsive materials to [the wrong address and] . . . [t]his erroneous mailing of the document cannot be attributed to [plaintiff's] action or inaction."  Also, regarding another request, "[b]ecause the OIP failed to make a timely determination and [plaintiff] included this request number in his verified Second Amended Complaint . . . , after OIP's close of the appeal, [plaintiff] is deemed to have constructively exhausted his administrative remedies."  However, because "[plaintiff] fails to provide any evidence to [contradict defendant's substantive claims] and his opposition to the DOJ's motion makes no mention of this request at all, the Court deems [plaintiff] to have conceded this claim."  The court also finds that "[b]ecause [plaintiff's] verified Second Amended Complaint directly contradicts the assertions he makes in his more recent declaration, the Court finds that [plaintiff] has failed to raise a material issue of fact [as to five requests] and the DOJ is entitled to summary judgment as to these requests."  However, regarding a different five requests, the court finds that "[d]espite the imprecision of the dates [concerning these five requests], there remains a question as to whether [plaintiff] did indeed receive [these] response[s]," and, therefore, "the Court denies the DOJ's motion for summary judgment as to [these five requests]."  Similarly, regarding a different set of unnumbered requests as well as a request for "'Addresses of All FBI Offices,'" "the Court must accept as true [plaintiff's] declaration and second amended complaint that he did not receive responses to these requests, and cannot be penalized for having failed to exhaust his administrative remedies because he was denied the opportunity to reformulate his request or appeal the determination that the request was improper."
   
• Litigation Considerations, Adequacy of Search:  The court "deems conceded the DOJ's motion for summary judgment with respect to the adequacy of the FBI's search" because "[n]either [plaintiff's] responses nor declarations address the DOJ's 'adequacy of the search' argument.  However, the court also finds that "[f]or all [five] requests [at issue regarding search], the declaration's descriptions suffice to provide a 'reasonably detailed' account of the scope of the FBI's search for each request."  "[Defendant's] declaration describes how the Central Records System stores information and how that information is searchable and identifies the search terms used to locate documents with respect to each of [plaintiff's] requests."
   
• Exemption 3:  The court holds that "[plaintiff] has not contested this argument," but, "[r]egardless, the FBI has met its burden under FOIA and is entitled to summary judgment."  The court relates that "[t]he withheld information concerned the identities of the individuals targeted for interception through wiretap, and information obtained through the wiretap pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968."  The court finds that defendant correctly "withheld information 'consist[ing] of the identities of the individuals targeted for interception through wiretap, and information obtained via the Title III wiretap.'"
   
• Exemption 6:  The court finds that defendant's withholding of employee names was appropriate.  The court accepts defendant's argument that employees "have significant privacy interests, the disclosure of which 'may seriously prejudice their effectiveness in conducting other investigations,' 'could trigger hostility toward him/her,' and could make them 'targets of harassing inquiries for unauthorized access to investigations.'"  The court also finds that "although [plaintiff] has identified a public interest in the general topics at issue in the various documents, he has not identified any public interest in the release of the specific names."  "Thus, the Court finds that the privacy interest of the employees outweighs the public interest in disclosure."
   
• Exemption 7, Threshold:  The court holds that "the FBI adequately establishes—and [plaintiff] has not disputed—that the responsive records at issue in this case were compiled for law enforcement purposes within the scope of Exemption 7."  The court finds that "[t]he FBI is the primary investigative agency of the federal government" and "[t]he plain language of [plaintiff's] FOIA requests, all of which pertain to investigations 'into various potential violations of the federal law concerning activities ranging from gang activity to homicide in a Federal Bureau of Prison's facility,' . . . evidence a law enforcement purpose."
   
• Exemption 7(A):  "Because the FBI has met its burden under FOIA and [plaintiff] has not contested the withholding justification, the Court grants the FBI summary judgment as to [one request where the responsive documents were withheld under Exemption 7(A)]."
   
• Exemption 7(C):  "After balancing the privacy interests of the identifying information of [the] . . . categories of individuals against the public interest in disclosure, the Court determines that the FBI properly withheld identifying information under Exemption 7(C)."  The court addresses the withholding of the names of federal and non-federal employees, foreign government representatives, third parties of investigative interest and third parties merely mentioned, and third party victims and informants.  The court finds that these individuals all have some privacy interest and "[plaintiff] fails to indicate how the names and other identifying information of [these] individuals . . . would illuminate" a public interest.  Overall, the court holds that, "where there is no identifiable public interest, the privacy interest is paramount because 'something . . . outweighs nothing every time.'"
   
• Exemption 7(D):  "Because the DOJ has sufficiently supported its claim of informant confidentiality and [plaintiff] has not controverted this evidence, the Court enters summary judgment in the FBI's favor as to the information withheld pursuant to Exemption 7(D)."  The court relates that "the FBI properly withheld names, identifying information about, and information provided to the FBI by individuals and a foreign law enforcement authority under 'express' and 'implied' assurances of confidentiality, as well as source file numbers and source symbol numbers."
   
• Exemption 7(E):  "Because the FBI has met its burden under FOIA and [plaintiff] has not presented any contrary evidence, the Court grants summary judgment in the FBI's favor with regard to the withholding of information pursuant to Exemption 7(E)."  The court relates that "the FBI . . . withheld information to protect: the application of techniques and procedures used in conducting specific criminal investigations because revelation of this information would enable the targets of these techniques to avoid detection or develop countermeasures, . . . operational plans because the FBI will use similar techniques in future investigations, . . . and, FBI internal web addresses because revelation would provide criminals with potential targets for cyber-attacks."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "the declaration the DOJ has supplied here attests that 'each responsive page was individually examined to identify non–exempt information that could be reasonably segregated from exempt information for release.'"  "Because [plaintiff] has failed to provide any evidence either to overcome the presumption or to contest the DOJ's representations, summary judgment is appropriate in the FBI's favor regarding segregability."
   
• Litigation Considerations, In Camera Inspection:  "[T]he Court declines to order an in camera review" because "the FBI has . . . adequately described the segregability analysis undertaken and there are no allegations or evidence in the record to suggest bad faith."