Smith v. Sessions, No. 15-0206, 2017 WL 1166306 (D.D.C. Mar. 28, 2017) (Howell, J.)

Smith v. Sessions, No. 15-0206, 2017 WL 1166306 (D.D.C. Mar. 28, 2017) (Howell, J.)

Re: Request for records concerning plaintiff

Disposition: Granting defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search: The court holds that "the FBI's declaration adequately demonstrates that the agency's searches were reasonably calculated to locate records responsive to the plaintiff's FOIA request." The court finds that "[t]he FBI's declarant explains at length the FBI's recordkeeping systems, . . . and the means by which its staff conducted searches for records responsive to the plaintiff's FOIA request[.]"
   
• Exemption 5, Attorney Work-Product & Attorney-Client Privileges: "The Court concludes that the FBI properly withheld this information, which would be protected under attorney work product and the attorney-client privileges, under Exemption 5." The court relates that "the FBI 'protect[s] specific information in an FBI letterhead memorandum containing legal analysis and advice provided by the Chief Division Counsel's Office . . . in the Buffalo Field Office . . . about legal/litigation strategy' in the plaintiff's prior civil action" and "an electronic communication containing the same type of information in order to protect the Chief Division Counsel's conclusions and 'the FBI's request to the [Department of Justice] in regard to litigation strategy.'" The court also notes that "[t]he declarant explains that these 'communications were made in confidence, were not shared with or circulated to individuals outside the attorney-client relationship, and were made for the purpose of securing legal assistance.'"
   
• Exemption 7: "The FBI easily meets its burden, and the Court concludes that all of the responsive FBI records were compiled for law enforcement purposes and fall within the scope of Exemption 7." The court relates that defendant stated that "'[s]ome of the responsive records processed and released in part by the FBI were compiled during or as a result of [its] criminal investigation of [the] plaintiff's bank and mortgage fraud in violation of 18 U.S.C. § 1344.'" "'The remaining responsive records processed and released in part by the FBI were located in the file regarding [the] plaintiff's civil lawsuit against the FBI, which included records compiled by two Special Agents assigned to investigate several alleged frauds perpetrated by [the] plaintiff[.]'"
   
• Exemption 7(C): "[T]he Court concludes that the FBI properly has withheld third party information under Exemption 7(C)." The court relates that "[t]he FBI withholds the names of and identifying information about FBI Special Agents, . . . other FBI employees, . . . the Assistant United States Attorney assigned to a case, . . . third parties of investigative interest to the FBI, . . . third parties merely mentioned in the criminal investigative records, . . . and the victims of the plaintiff's bank and mortgage fraud schemes[.]"
   
• Exemption 7(E): "The Court concludes that the FBI properly withholds the Sentinel web address under Exemption 7(E)." The court finds that "[t]he FBI thus clears its relatively low bar by demonstrating that release of the internal Sentinel web address increases the risk 'that a law will be violated or that past violators will escape legal consequences.'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements: "On review of all of the FBI's supporting declarations, the Court concludes that the defendant adequately has specified 'which portions of the document[s] are disclosable and which are . . . exempt.'"
   
• Exemption 7(A): The court finds that "[t]he FBI demonstrates that there are pending or anticipated law enforcement proceedings." "First, the plaintiff has filed an appeal of his criminal conviction, . . . and it qualifies as a pending or prospective law enforcement proceeding for purposes of Exemption 7(A)[.]" "Second, the declarant explains that the investigation referenced in the withheld records remains open and ongoing." "Even though the plaintiff has been sentenced, there are 'additional conspirators who have been charged and are awaiting trial.'" "The Court concludes that release of information pertaining to the ongoing investigation of the fraud scheme in which the plaintiff participated could reasonably be expected to interfere with enforcement proceedings, not only the plaintiff’s appeal but also the investigation and prosecution of his co-conspirators."
   
• Litigation Considerations, Pleadings: The court relates that, "[i]n addition to the FBI, the plaintiff has identified seven additional defendants: Executive Office for United States Attorneys, the United States Attorney's Office for the Western District of New York, the United States Attorney's Office for the Eastern District of Missouri, the U.S. Department of Homeland Security, and the United States Marshals Service." The court finds that "[t]he plaintiff’s factual allegations regarding FOIA requests to these federal government entities . . . are vague at best." "Neither the Court nor the defendants can determine from the pleadings what information the plaintiff seeks or the responses, if any, he has received to his FOIA requests." "In these circumstances, and in light of the plaintiff's complete failure to respond to the FBI's dispositive motion, the Court will dismiss this civil action without prejudice."