Dillon v. U.S. Dep't of Justice

444 F.Supp.3d 67

Kenneth J. DILLON, Plaintiff,

v.U.S. DEPARTMENT OF JUSTICE, Defendant.

Civil Action No. 17-1716 (RC)

United States District Court, District of Columbia.

Signed March 16, 2020

Kenneth J. Dillon, Washington, DC, pro se.

Jeffrey Louis Light, Law Offices of Jeffrey Light, Scott Allan Hodes, Scott A. Hodes, Attorney at Law, Washington, DC, for Plaintiff.

Christopher Charles Hair, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

GRANTING DEFENDANT'S RENEWED MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

This FOIA suit arises from a series of events that began nearly twenty years ago. Over a three-week period in fall of 2001, five individuals were killed and seventeen others were infected by the anthrax spores contained in letters mailed to U.S. senators in Washington, D.C., and news media organizations in New York City and Florida. After a multi-year criminal investigation, the Federal Bureau of Investigation ("FBI") determined that Dr. Bruce Ivins, a United States Army Medical Research Institute of Infectious Diseases ("USAMRIID") scientist, was responsible for the attacks. But in July 2008, before any criminal charge was filed, Dr. Ivins committed suicide. Within two years, the FBI formally closed its investigation, concluding that Dr. Ivins had acted alone, declining to charge any other parties, and issuing a ninety-six-page Investigative Summary outlining the FBI's findings.

Plaintiff, an historian and author, has doubts about the conclusions the FBI draws in its Investigative Summary. Kenneth J. Dillon questions Dr. Ivins's involvement in the attacks at all and, seeking evidence to support his stance, has submitted two separate requests for records under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. In his first request, Mr. Dillon sought certain evidence that he believes to be in the FBI's possession, namely particular email correspondence including Dr. Ivins and some of the lab notebooks that Dr. Ivins possessed. In his second request, Mr. Dillon sought thirty-eight pages of the FBI's Interim Major Case Summary ("IMCS"), which is a 2,000-page report that was produced in 2006, four years before the FBI issued its ultimate findings with respect to the attacks. The requested pages consist of a twenty-two-page table of contents and sixteen pages that discuss Dr. Ivins.

After nearly two years of administrative appeals and correspondence concerning both requests, Mr. Dillon grew dissatisfied with the FBI's response and filed this lawsuit in 2017. This Court previously addressed Defendant's motion for summary judgment and Plaintiff's cross-motion for summary judgment with respect to both requests. See Dillon v. U.S. Dept. of Justice (Dillon I ), No. 17-cv-1716, 2019 WL 249580 (D.D.C. Jan. 17, 2019). This Court denied both parties' motions. For the first FOIA request, the Court found that Plaintiff's factual allegations of seemingly responsive, yet unproduced, emails created a genuine dispute as to the adequacy of the FBI's search. Id. at *1. Thus, the Court directed the government to file a notice "providing possible explanations for why the identified emails were not produced." Id. For the records located in response to Mr. Dillon's second request, which the FBI had withheld in its entirety under claims of deliberative process privilege, the Court directed DOJ to produce the thirty-eight pages for in camera review to confirm that the privilege did in fact apply and that the material did not contain any "reasonably segregable," non-exempt material. Id. (citing, then quoting, 5 U.S.C. § 552(b)(5) ).

Thereafter, DOJ submitted a notice explaining its additional search efforts and also provided the requested material, all of which remains classified, to this Court for in camera review. See Def.'s Notice of Submission of Documents for In Camera Review and Explanation of Additional Search Efforts ("Def.'s Notice") 1–2, ECF No. 32. As part of the FBI's response to the Court's order in Dillon I , Defendant released redacted versions of three emails that it had located in a "supplemental search of the anthrax mailing investigative file." Id. at 2. This supplemental search "us[ed] the information provided by Plaintiff regarding the three emails" to "focus[ ] its search on the file attachments" to the Amerithrax investigative file, which permitted FBI to "locate additional responsive emails in a binder contained in the investigative file." Id. Plaintiff responded with a cross-motion for summary judgment again contesting the adequacy of the FBI's search in response to the first FOIA request and contesting the application of FOIA exemptions to the newly-produced material. See Pl.'s Cross-Mot. for Summ. J. ("Pl.'s Cross-Mot."), ECF No. 42. These motions are fully briefed, and the Court has reviewed the classified material located in response to the second FOIA request. For the forthcoming reasons, the Court grants Defendant's renewed motion for summary judgment and denies Plaintiff's cross-motion.

II. BACKGROUND

A. The First FOIA Request (Request No. 1327397) – The Request for Evidence

Mr. Dillon submitted his first FOIA request, which was assigned number 1327397, on April 18, 2015. Initially, the request broadly sought, "in regard to the 2001 anthrax mailings, all email messages, laboratory notebooks, paper and computer files, and information about meetings and telephone conversations in September and October, 2001 of Dr. Bruce Ivins, USAMRIID." Def.'s Mot., Ex. S, First FOIA Request, ECF No. 38-3 at 55. After the FBI informed Mr. Dillon that "[r]ecords responsive to [his] request were previously processed for another requester," Def.'s Mot., Ex. T, April 27, 2015 FBI Response, ECF No. 38-3 at 57, Plaintiff filed an administrative appeal, Def.'s Mot., Ex. U, June 19, 2015 Administrative Appeal, ECF No. 38-3 at 59. In this appeal, Mr. Dillon specified "the records that FBI needs to release in order to be responsive." Id. This listing of records was simultaneously narrower and broader than the original request, insofar as it both more precisely pointed to particular records and also seemed to refer to new categories of information not contained in the original request. See Dillon I , 2019 WL 249580, at *2 (discussing updated list of records). Specifically, Mr. Dillon requested:

(1) "Ivins's emails to or from Patricia Fellows, Mara Linscott, Nancy Haigwood, or other individuals," which the FBI "selectively" cited in its publicly-released Investigative Summary, "includ[ing] those to and from Ivins's work email account and those to and from his personal accounts;"

(2) Ivins's laboratory notebooks "4010 regarding Ivins's Flask 1029 as well as relevant pages from Notebooks 3855, 3945, and 4251;"

(3) "[A]ll records for September and October, 2001 related to the computer installed in Ivins's B3 Suite in summer, 2001[,]", known as "MacIntosh MMCN E7380[,]" as well as "all paper and computer files, including on other work and personal computers used by Ivins;"

(4) "All relevant records related to meetings Ivins attended during September and October, 2001;"

(5) Ivins's telephone and credit card records;

(6) "[E]ntry and exit records" for Building 1412, the location at USAMRIID where "genetically matching anthrax was stored;" and

(7) "[R]ecords relating to Ivins's animal experiments" conducted in September and October, 2001, that "show his activities and whereabouts."

Ex. U at 59; see also Dillon I , 2019 WL 249580, at *2.

In response, the Department of Justice ("DOJ") Office of Information Policy advised Mr. Dillon that his administrative appeal had been received, Def.'s Mot., Ex. V, July 10, 2015 Letter Advising of Administrative Appeal, ECF No. 38-3 at 61, and subsequently remanded the request to the FBI to search for responsive records, Def.'s Mot., Ex. W, November 24, 2015 Letter, ECF No. 38-3 at 63. After this further search, the FBI notified Mr. Dillon in spring 2016 that it had "previously processed" records responsive to his request and provided him with six pages of these documents. Def.'s Mot., Ex. X, April 15, 2016 Letter, ECF No. 38-3 at 65.

Unsatisfied with this outcome, Mr. Dillon submitted a further administrative appeal in June 2016. Def.'s Mot., Ex. Y, June 17, 2016 Administrative Appeal, ECF No. 38-3 at 68. In it, he provided an "updated specification of the records that FBI needs to release to be responsive," once more broadly requesting:

(1) "Ivins's emails to or from Patricia Fellows, Mara Linscott, Nancy Haigwood, or other individuals," which were "selectively used" in the FBI's Investigative Summary, "includ[ing] those to and from Ivins's work email account and those to and from his personal accounts, including his laptop and home computer;"

(2) "[T]he remaining pages of Notebook 4010 regarding Ivins's Flask 1029," and, "above all," "critically important Notebook 4282;"

(3) Paper and computer files, including "all records for September and October, 2001 related to the computer installed in Ivins's B3 suite in summer, 2001[,] Macintosh MMCN E7380," and also including files located on "other work and personal computers used by Ivins;"

(4) "[R]ecords related to meetings Ivins attended during September and October, 2001;" and

(5) Telephone and credit card records as well as building entry and exit records and information regarding Ivins's animal experiments.

Ex. Y at 68–69.

The DOJ's administrative appeals staff responded by affirming the FBI's prior actions, including the additional search conducted in response to the administrative appeals office's prior remand. Def.'s Mot., Ex. AA, August 23, 2016 Letter, ECF No. 38-3 at 74 & n.1 ("[T]he FBI's response was correct and ... it conducted an adequate, reasonable search for responsive records subject to the FOIA.").

Though he did not wholly accept this result, Mr. Dillon adjusted his stance after receipt of this ...