Schubert v. FBI, No. 22-3658, 2024 WL 341173 (D.D.C. Jan. 29, 2024) (Kollar Kotelly, J.)

Schubert v. FBI, No. 22-3658, 2024 WL 341173 (D.D.C. Jan. 29, 2024) (Kollar Kotelly, J.)

Re:  Requests for records concerning individuals who accessed plaintiff’s criminal history

Disposition:  Granting defendants’ motion for summary judgment; denying plaintiff’s leave to amend

• Litigation Considerations; Procedural Requirements, Searching for Responsive Records:  The court holds that “Plaintiff's motion to amend is denied.”  “‘Plaintiff is not seeking to amend’ his FOIA claims, and, instead, wants to expand the scope of his FOIA requests.”  “According to plaintiff, his requests set a date range ‘from October or November 2021 to January or February 2022,’ and now he ‘seek[s] to enlarge the window from 2 or 3 months to the last ten . . . years.’”  The court finds that “plaintiff’s FOIA requests are limited to a nine-month period, from November 2021 through August 2022, and he may not expand the scope of his request in the course of this litigation.”  “It is the requester’s obligation to ask for what he wants.”  “If plaintiff wanted records spanning a ten-year period, he should have requested them, and he still may do so by submitting new FOIA requests.”

• Procedural Requirements:  Regarding the FBI’s interpretation of plaintiff’s requests, the court holds that “[b]y requesting identifying information about individuals who may have searched FBI and BOP databases for the purpose of accessing plaintiff’s criminal history, plaintiff necessarily is requesting information about individuals other than himself, even if the records the third parties may have accessed pertained to plaintiff.”  “This is not a situation where plaintiff made a ‘request . . . to gain access to his record or to any information pertaining to him which is contained in [an agency’s] system [of records].’”  “As defendants point out, plaintiff ‘is not asking for his own name, phone number, or electronic identification[.]’”  “Had plaintiff sought information about himself, or had plaintiff sought access to information about himself under the Privacy Act, the requests would have, and should have, yet did not, ma[k]e his intention clear.”  “Therefore, FBI did not err by construing the request as one for information about third parties and by processing plaintiff’s request under FOIA alone.”

• Exemption 7, Threshold:  The court holds that “[i]t is reasonable to conclude from FBI’s submission that any records it maintains regarding an individual’s criminal history would have been compiled for a law enforcement purpose within the scope of FBI’s authority and responsibility.”  “Thus, FBI meets its threshold showing that responsive records, if any exist, are law enforcement records for purposes of Exemption 7.”  “Plaintiff ‘challenges the characterization’ of his FOIA request as one ‘for records made for law enforcement purposes . . . .’”  “The basis for his objection is that the records do not relate to ‘investigations of any sort[.]’”  “Rather, he seeks ‘the identities, numbers – some form of identification for those ‘who searched HIS criminal histories,’ and questions ‘[h]ow . . . that can be misconstrued as a request for records related to a third party’s investigation by law enforcement[.]’”  “As discussed above, plaintiff’s FOIA request reasonably is construed as a request for information about third parties, namely those who may have accessed plaintiff’s criminal history via an FBI database.”  “Plaintiff is mistaken if he believes Exemption 7 applies only if there were an actual or active investigation by the FBI or that third parties who may have accessed his criminal history are the subjects of an FBI investigation.”  “‘Law enforcement entails more than just investigating and prosecuting individuals after a violation of the law.’”  “And ‘[t]he ordinary understanding of “law enforcement” includes . . . “proactive steps designed to prevent criminal activity and to maintain security.”’”

• Exemption 7(C):  The court relates that “[a]ccording to the declarant, FBI ‘determined that merely acknowledging the existence or non-existence of records responsive to [p]laintiff’s request would trigger harm’ that Exemption 7(C) is designed to protect ‘in that his request sought personal and identifying information [about] third party individuals.’”  “Further, he stated, ‘[i]t is well-recognized that individuals have substantial privacy interests in relation to being associated with law enforcement investigations because any such association can engender comment, speculation, or harassment; can be embarrassing and stigmatizing; and can, in some circumstances, result in physical harm or threats of harm or death.’”  “Only if a requester put forth a public interest in disclosure of third party information would the FBI proceed to the second step, ‘balanc[ing] that public interest against the third party’s privacy interests,’ . . . and would process the FOIA request ‘only if it determines that a significant public interest outweighs the individual’s privacy interest,’ . . . .”  “Because plaintiff failed to articulate a public interest in disclosure of the requested information, . . . specifically third parties’ ‘phone numbers and other electronic identifiers,’ . . . FBI asserts its Glomar response without having conducted a search for responsive records, . . . on the ground that ‘the nature of the requested records alone prohibits acknowledgment and disclosure,’ . . . .”  “Plaintiff maintains that the Glomar response ‘was totally inappropriate [and] an abuse of its usage[.]’”  “In general terms, plaintiff denies that Exemption 7(C) ‘has any relevance to this case,’ and asserts that ‘revealing the identities’ of third parties ‘would not produce any harm to any third parties.’”  The court finds that “Plaintiff offers no support for his arguments, however, and cannot defeat defendants’ showing on summary judgment.”

• Litigation Considerations, Adequacy of Search:  The court relates that “[t]he declarant describes the FBI’s records system at length . . . and explains the method by which agency staff searched the system . . . for information about plaintiff.”  The court finds that “FBI’s proffered facts are deemed admitted, and the agency adequately demonstrates that its search for records about plaintiff was reasonable, even if the search yielded no responsive records.”  Additionally, “[a]ccepting BOP’s factual proffer as true, BOP establishes that [its two systems that could possibly have responsive records] are not capable of and do not maintain the information plaintiff requested.”  “Thus, its ‘no records’ response is justified.”