Farahi v. Fed. Bureau of Investigation

643 F.Supp.3d 158

Foad FARAHI, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, Defendant.

Civil Action No. 15-2122 (RBW)

United States District Court, District of Columbia

Signed November 30, 2022

Charles Davidson Swift, Constitutional Law Center for Muslims in America, Richardson, TX, for Plaintiff.

Kenneth A. Adebonojo, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

The plaintiff, Foad Farahi, brings this civil action against the defendant, the Federal Bureau of Investigation ("FBI"), pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking the release of records related to a memorandum written by the defendant that was introduced during the plaintiff's immigration removal proceedings. See Complaint for Injunctive Relief ¶¶ 1, 5, 8-13, ECF No. 1. Currently pending before the Court is the defendant's motion for summary judgment. See Defendant's Motion for [ ] Summary Judgment ("Def.'s Mot."), ECF No. 37. Upon careful consideration of the parties' submissions,¹ the Court concludes for the following reasons that it must deny the defendant's motion for summary judgment without prejudice.

I. BACKGROUND

A. Factual Background

This case concerns ten FOIA requests submitted by the plaintiff to the defendant on June 28, 2014, see Def.'s Facts ¶ 2,² seeking records related to his "immigration removal proceedings[,]" id. at 1. Specifically, the plaintiff seeks:

The name, title, current deployment jurisdiction, and current contact information of the author or authors of a 2007 [ ] [m]emo[random ("the 2007 Memo") from the defendant] purportedly about him and the agent/polygrapher who examined [him] on November 8, 2004, and November 1, 2004.

Any and all [ ] FD-302 interview reports[ from the defendant], and FD-209 reports regarding [him], any person discussed in any document that has been or will be presented to the immigration court, or any person that will be discussed in the proposed testimony by Supervisory Special Agent Andrew Lenzen ("Special Agent Lenzen"), and/or any other special agents during the course of his removal proceedings.

The full and complete names and contact information, including, current address and phone numbers of all the confidential informants referred to by the [defendant] on its 2007 Memo, and identified as C-1, C-2, C-3, C-4, C-5, and the Trinidad and Tobago National interviewed by the [defendant] in Port of Spain Trinidad, on November 13, 2003.

Any and all evidence and/or information gathered in connection with him as a result of the [defendant's] electronic surveillance, including but not limited to audio, video, computer, wireless, polygraph examination and/or data network surveillance.

Any and all evidence and/or information gathered in connection with [him] and his alleged associations with the filing organizations in the United States: KindHearts for Charitable Humanitarian Development, Kind Hearts International, the Holy Land Foundation for Relief and Development, and the Global Relief Foundation.

Any and all records from other agencies in the possession of [the defendant] whether included in [his] file, such as the U.S. Department of Treasury; the U.S. Citizenship and Immigration Services, the U.S. Immigration and Customs Enforcement, the Internal Revenue Service ("IRS"), and the Florida Department of Highway Safety and Motor Vehicles.

All documents maintained by [the defendant] or any other government agency, including the Joint Terrorism Task Force ("JTTF"), that names, mentions, discusses, or addresses in any manner whatsoever [the p]laintiff or persons allegedly associated with him.

All documents, pursuant to the Jenks Act, in the [defendant's] possession regarding [the p]laintiff or any person alleged to have a relationship with him whom the government regards as a terrorist.

Any and all exculpatory evidence regarding [the p]laintiff or persons allegedly associated with him.

A list of any and all documents released from the [defendant] to the OCC in Miami, [regarding the p]laintiff or persons allegedly associated with him.

Id. ¶ 3 (internal citations, quotation marks, and alterations omitted).

"By letter dated August 6, 2014, [the d]efendant notified [the p]laintiff that it had located approximately 10,750 pages of records and 80 CDs consisting of audio and video potentially responsive to the subject of [the p]laintiff's request." Id. ¶ 5 (internal quotation marks and alterations omitted). After the plaintiff filed his Complaint in this case on December 8, 2015, see Compl. at 1, the parties disputed the rate at which the defendant should process the responsive records, see Defendant's Proposed Schedule at 1, ECF No. 19; Plaintiff's Proposed Schedule at 1, ECF No. 20, and, on March 23, 2017, the Court directed the defendant to "process 500 pages of records per month and produce any non-exempt records to the plaintiff on a rolling basis." Minute ("Min.") Order (Mar. 23, 2017). "By letter dated April 6, 2017, [the d]efendant notified [the p]laintiff that it 'had examined 504 responsive pages and determined [that] the information was entirely exempt from disclosure pursuant to FOIA Exemption 7(A)[,]' " as well as " 'Exemptions 1, 3, 5, 6, 7(C), 7(D), and 7(E).' " Def.'s Facts ¶ 7 (quoting Hardy Decl. ¶ 15). By letter dated May 2, 2017, the defendant informed the plaintiff that it had " 'reviewed 63 pages of records and released 61 pages of records in full or part, with certain information withheld pursuant to [ ] Exemptions 6, 7(C), 7(D), and 7(E).' " Id. ¶ 8 (quoting Hardy Decl. ¶ 14). Between May 2017 and June 2019, during which the defendant made its last round of productions, see id. ¶ 9 n.2 ("[The d]efendant's last records examination consisted of 381 responsive records." (citing Hardy Decl. ¶ 40)), the defendant "examined a minimum of 500 pages each month," which "were withheld in their entirety pursuant to [ ] Exemption 7(A)[,] as well as . . . Exemptions 1, 3, 6, 7(C), 7(D), [and] 7(E)[,]" id. ¶ 9 (quoting Hardy Decl. ¶¶ 19-40).³

B. Procedural History

On October 31, 2019, the defendant filed its motion for summary judgment, see Def.'s Mot. at 1, as well as a motion for leave to file a classified declaration in support of its motion under seal ex parte for the Court's in camera review, see Defendant's Motion for Leave to Submit Declaration Under Seal and Ex Parte, In Camera in Support [of] Defendant's Motion for Summary Judgment at 1. On January 17, 2020, the plaintiff filed his opposition to the defendant's motion, see Pl.'s Opp'n at 1; on March 17, 2020, the defendant filed its reply in support of its motion, see Def.'s Reply at 1; and, on April 30, 2020, the plaintiff filed his surreply, see Pl.'s Surreply at 1.

On October 21, 2020, the Court issued an Order, granting the defendant's motion for leave to file the classified declaration under seal for the Court's in camera review. See Order at 1 (Oct. 21, 2020), ECF No. 45. Because (1) " 'the validity of the [defendant's] assertion of [E]xemption [7(A)] c[ould] not be evaluated without information beyond that contained in the public affidavits and in the records themselves[,]' " id. at 2 (quoting Arieff v. U.S. Dep't of the Navy, 712 F.2d 1462, 1471 (D.C. Cir. 1983)) (all but last two alterations in original); and (2) " 'public disclosure of that information would compromise the secrecy asserted[,]' " id. (quoting Arieff, 712 F.2d at 1471), the Court concluded that "it [wa]s appropriate to file the [classified] declaration ex parte and under seal[,]" id.

II. STANDARD OF REVIEW

"FOIA cases typically are resolved on a motion for summary judgment." Ortiz v. U.S. Dep't of Justice, 67 F. Supp. 3d 109, 116 (D.D.C. 2014). The "FOIA requires federal agencies to disclose, upon request, broad classes of agency records unless the records are covered by the statute's exemptions." Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (citing 5 U.S.C. § 552(a)(3)(A), (b)); see also Wash. Post Co. v. U.S. Dep't of Justice, 863 F.2d 96, 101 (D.C. Cir. 1988) ("[The] FOIA is to be interpreted with a presumption favoring disclosure and exemptions are to be construed narrowly."). In a FOIA action, the defendant agency has "[the] burden of demonstrating that the withheld documents are exempt from disclosure[,]" Boyd v. U.S. Dep't of Justice, 475 F.3d 381, 385 (D.C. Cir. 2007), and this burden "cannot be met by mere conclusory statements[,]" Wash. Post Co., 863 F.2d at 101. "The agency may meet this burden by filing affidavits describing the material withheld and the manner in which it falls within the exemption claimed[,]" King v. U.S. Dep't of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987), and by "show[ing] how release of the particular material would have the adverse consequence that the [FOIA] seeks to guard against[,]" Wash. Post Co., 863 F.2d at 101.

Moreover, courts will grant summary judgment to the government in a FOIA case only if the agency can prove "that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester." Friends of Blackwater v. U.S. Dep't of Interior, 391 F. Supp. 2d 115, 119 (D.D.C. 2005) (quoting Greenberg v. U.S. Dep't of Treasury, 10 F. Supp. 2d 3, 11 (D.D.C. 1998)). Thus, in a lawsuit brought to compel the production of documents under the FOIA, "an agency is entitled to summary judgment if no material facts are in dispute and if it demonstrates 'that each document that falls within the class requested either has been produced . . . or is wholly[, or partially,] exempt [from disclosure].' " Students Against Genocide, 257 F.3d at 833 (omission in original) (quoting Goland v. Cent. Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978)). However, "[t]he burden upon the requester is merely 'to establish the absence of material factual issues before a summary...