Abdul-Alim v. Wray, CIVIL ACTION NO. 14–30059–TSH

277 F.Supp.3d 199

Ayyub ABDUL–ALIM, Plaintiff,

v.Christopher A. WRAY, Director, Federal Bureau of Investigation, and Jefferson B. Sessions III, Attorney General, Defendants.

CIVIL ACTION NO. 14–30059–TSH

United States District Court, D. Massachusetts.

Filed September 29, 2017

James B. Krasnoo, Krasnoo, Klehm & Falkner LLP, Andover, MA, for Plaintiff.

Michael P. Sady, United States Attorney's Office, Boston, MA, Karen L. Goodwin, United States Attorney's Office, Springfield, MA, for Defendants.

MEMORANDUM OF DECISION AND ORDER

HILLMAN, D.J.

Introduction

Ayyub Abdul–Alim ("Abdul–Alim" or "Plaintiff") has filed a Complaint for Injunctive Relief (Docket No. 1) against Christopher A. Wray, Director Federal Bureau of Investigations and Jefferson B. Sessions III, Attorney General (collectively, Defendants)¹ under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA") seeking disclosure and release of agency records he alleges were improperly withheld from him by the Department of Justice ("DOJ") and the Federal Bureau of Investigation ("FBI"). In support of his request for the information, Abul–Alim asserted that he was facing criminal charges in Massachusetts state court and during a pretrial hearing, it came to light that: (1) a member of the Joint Counterterrorism Task Force was aware of him; (2) A confidential informant in his case had been paid by the FBI; (3) immediately following his (Abdul–Alim's) arrest, the agent contacted his supervisor at the Joint Counterterrorism Task Force; and (4) after his arrest, the agent and an FBI agent conducted an unrecorded interview with him at the police station. Thereafter, Abdul–Alim and his counsel attempted to obtain records of any investigation by the FBI involving him. As of the date he filed this action, Abdul–Alim had not received any records from the FBI.

After the filing of this suit, the FBI notified Abul–Alim that it had located approximately 5,600 pages of records and 2 CDs (containing audio and visual recordings) responsive to his requests. While the FBI has since turned over substantial amount of materials to Abdul–Alim, it has withheld some information pursuant to various exemptions set forth in the FOIA. Abdul–Alim informed the Defendants that he would only be challenging the redaction of information in 30 specific pages, which he believes are relevant to his ongoing appeal of his Massachusetts state court conviction for the unlawful possession of a firearm. Defendants' have filed a motion for summary judgment requesting a ruling from this Court that Plaintiff is not entitled to disclosure of any of the redacted information contained in those 30 pages. See Defs' Mot. For Sum. J. (Docket No. 63) and Mem. Of L. in Supp. Of Def's Mot. For Sum. J. (Docket No. 64)("Def's Mem. "). For the reasons set forth below, that motion is granted.

Standard of Review

Summary Judgment is appropriate where, "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Carroll v. Xerox Corp. , 294 F.3d 231, 236 (1st Cir. 2002) (citing Fed. R. Civ. P. 56(c) ). " ‘A "genuine" issue is one that could be resolved in favor of either party, and a "material fact" is one that has the potential of affecting the outcome of the case.’ "

Sensing v. Outback Steakhouse of Florida, LLC , 575 F.3d 145, 152 (1st Cir. 2009) (quoting Calero–Cerezo v. U.S. Dep't. of Justice , 355 F.3d 6, 19 (1st Cir. 2004) ).

When considering a motion for summary judgment, the Court construes the record in the light most favorable to the nonmoving party and makes all reasonable inferences in favor thereof. Sensing , 575 F.3d at 153. The moving party bears the burden to demonstrate the absence of a genuine issue of material fact within the record. Id. , at 152. " ‘Once the moving party has pointed to the absence of adequate evidence supporting the nonmoving party's case, the nonmoving party must come forward with facts that show a genuine issue for trial.’ " Id. (citation to quoted case omitted). " ‘[T]he nonmoving party "may not rest upon mere allegations or denials of the [movant's] pleading, but must set forth specific facts showing that there is a genuine issue of material fact as to each issue upon which [s/he] would bear the ultimate burden of proof at trial." Id. (citation to quoted case omitted). The nonmoving party cannot rely on "conclusory allegations" or "improbable inferences". Id. (citation to quoted case omitted). " ‘The test is whether, as to each essential element, there is "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." ’ " Id. (citation to quoted case omitted).

"In the FOIA context, a district court reviewing a motion for summary judgment conducts a de novo review of the record, and the responding federal agency bears the burden of proving that it has complied with its obligations under the FOIA. Because the court must analyze all underlying facts and inferences in the light most favorable to the FOIA requester, summary judgment for an agency is only appropriate after the agency proves that it has ‘fully discharged its [FOIA] obligations.’ " Neuman v. United States , 70 F.Supp.3d 416, 421–22 (D.D.C. 2014) (internal citations and citation to quoted case omitted); see also Carpenter v. U.S. Dep't of Justice , 470 F.3d 434, 438 (1st Cir. 2006) ("The government bears the burden of proving that withheld materials fall within one of the statutory exemptions, and district courts are required to make de novo determinations as to the validity of the asserted exemptions."(internal citation omitted)).

Facts

By letter dated October 31, 2013, Abdul–Alim submitted a FOIA request to FBI Headquarters, Records Management Division, Winchester, Virginia. The request sought any and all records of investigation by the FBI involving Abdul–Alim, including Joint Task Force investigation records from his date of birth to present. By facsimile dated January 23, 2014, the FBI received a completed Form DOJ–361 from Thomas E. Robinson ("Robinson"), counsel for Plaintiff, which Abdul–Alim signed under penalty of perjury. The DOJ–361 also authorized the FBI to release information concerning Abdul–Alim to Robinson.

In his letter, Plaintiff indicated that he was seeking the information in order to adequately prepare a defense to criminal charges in the Hampden Superior Court of Massachusetts resulting from a Joint Task Force investigation which led to him being charged with unlawful possession of a firearm. Plaintiff claims that the firearm was "planted" on him by police because he rebuffed several FBI attempts to recruit him as a confidential informer about Muslim activities in his area. He made his FOIA records request after the Massachusetts District Attorney's office opposed his obtaining information relating to the FBI's alleged lengthy interest in him as an informant. Robinson had contacted the FBI about the necessity of obtaining the requested information to assist in Abdul–Alim's trial defense and informed the FBI that due to testimony at trial and in pre-trial hearings, some information, including the name of a confidential source and name of law enforcement agents was a matter of public record. He was unable to obtain the FOIA records before trial. Without the records requested from the FBI, Abdul–Alim had nothing to corroborate his defense that the firearm had been planted. He alleges that these records could have: established times and dates of his meeting a FBI agent at a mosque; revealed the name of the FBI agent (which he now knows) who met with him and another law enforcement agent after his arrest and who could have been subpoenaed to give testimony at the trial. Abdul–Alim believes the FOIA records could have been material to his defense given that the jury twice reported being deadlocked before convicting him. Currently, he claims that the records could provide substance to a motion for new trial. Plaintiff advised the Massachusetts Appeals Court ("MAC") of his FOIA request and that he hopes to obtain information which would corroborate his defense. The MAC in affirming Plaintiff's conviction, see Commonwealth v. Abdul–Alim , 91 Mass.App.Ct. 165, 72 N.E.3d 1059 (2017), noted that he could file a post-conviction motion regarding the FBI records.²

By letter dated January 31, 2014, the FBI acknowledged receipt of Robinson's request seeking information on behalf of Abdul–Alim. Additionally, the FBI advised Robinson that it was currently searching its Central Records System for responsive records and that he could check the status of his request at www.fbi.gov/foia. After numerous requests for status checks on the search, on March 13, 2014, the Public Information Officer ("PIO") received a call from Robinson (or someone at his office) requesting an estimated date of completion. The PIO advised that the request was received on January 24, 2014, and assigned to the Initial Processing Unit. The PIO provided the current median processing time for requests at the initial processing stage. The PIO explained what occurs after the initial processing stage, and explained that processing times vary according to the size of the request.

On April 1, 2014, Plaintiff filed his Complaint in this Court. By letter dated April 24, 2014, the FBI advised Robinson that it located approximately 5,600 pages of paper records and 2 CDs consisting of audio recordings potentially responsive to the request.³ By letter dated October 30, 2014, the FBI made its first interim release of records to Plaintiff. The FBI advised that 507 pages of records were reviewed and 274 pages of records were being released in full or in part. The records were denied in full pursuant to Exemption (j)(2) of the Privacy Act of 1974, 5 U.S.C.§ 552q(j)(2), but were processed pursuant to the FOIA to allow Plaintiff the greatest degree of access...