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

1

JEHU HAND, Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant.

Civil Action No. 20-3690 (TJK)

United States District Court, District of Columbia

March 29, 2023

MEMORANDUM OPINION

TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE

Jehu Hand submitted a Freedom of Information Act request to the Department of Justice for records related to a retired agent's contacts with its employees. Rather than provide the records, DOJ issued a Glomar response-declining to confirm or deny their existence. Hand sued. DOJ and Hand now each move for summary judgment. Because DOJ has justified its Glomar response, the Court will grant DOJ's motion and deny Hand's.

I. Background

In 2020, Hand sent a letter to DOJ's Justice Management Division (“JMD”) to request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552:

1. All email, mail, telephone or other evidences of contact between Mark Viau and any employee of the Department of Justice or any agency thereunder, from January 1, 2011 to the present, but excluding any contact strictly related to his personnel matters (pension, or financial matters), including without limitation Bryan McKay, Eric Forni, Andrew Palid or Vasilli Thomadakis.

2. The identity and business address of any individual employee with whom the contact referenced in item 1 is provided.

3. Any document, including emails or other documents in electronic format, comprising any information or including any information regarding the undersigned from Mark Viau or any person known to be representing him, generated at any time from January 1, 2011 to the present, including Form 302s.

ECF No. 18-2 at 29.^[1] In his request, Hand represented that Viau was a former FBI agent who “threatened the use of Federal government resources . . . in the collection of a debt” owed by Hand's former client. Hand Decl. at 72 (Ex. 9); Seidel Decl. at 29 (Ex. C). The basis for this allegation, Hand says, is a letter he received from Viau in September 2013. Hand Decl. ¶ 2. In it, Viau said that if Hand's client did not pay the debt, Viau would “muster by reporting and recruiting the full force effect and exhaustible resources of the Federal Government against . . . [Hand]” and that Viau's “tenure in Federal Law Enforcement has provided [him] with the contacts in the Federal and State Systems to put this matter on the fast track.” Id. at 9 (Ex. 2). Hand was later prosecuted and convicted for securities fraud, but the discovery in that case did not reference Viau. Id. ¶¶ 5-6.

JMD forwarded Hand's FOIA request to the FBI. SUMF ¶ 1. On March 13, 2020, the FBI issued a so-called Glomar response, informing Hand that it “will neither confirm nor deny the existence of such records pursuant to FOIA Exemptions (b)(6) and (b)(7)(C)” under 5 U.S.C. § 552. SUMF ¶ 3; Seidel Decl. at 19 (Ex. B).^[2]

Hand appealed to DOJ's Office of Information Policy (“OIP”). SUMF ¶¶ 5-9; Seidel Decl. at 25 (Ex. C). In doing so, he clarified that he sought only communication records “between Mr. Viau and any persons at the Department of Justice regarding [himself],” not “any personnel or medical files relating to the FBI agent Mark Viau.” SUMF ¶ 6; Hand Decl. at 79 (Ex. 13).

So understood, OIP affirmed FBI's Glomar response. SUMF ¶ 10. OIP told Hand that “[c]onfirming or denying the existence of such records, including law enforcement records, concerning a third-party individual would constitute a clearly unwarranted invasion of personal privacy, and could reasonably be expected to constitute an unwarranted invasion of personal privacy.” Id.; Seidel Decl. at 35 (Ex. E) (citing 5 U.S.C. § 552(b)(6), 7(C)). OIP also expressed that it was “reasonably foreseeable that confirming or denying the existence of such records would harm the interests protected by these exemptions.” SUMF ¶ 10; Hand Decl. at 81 (Ex. 14).

Hand then sued, seeking material “to exonerate himself in the criminal case against him” for securities fraud. ECF No. 1 (“Compl.”) at 7. Later, DOJ moved, and Hand cross-moved, for summary judgment. ECF Nos. 18, 22. The Court denied those motions without prejudice, finding that the affidavit that DOJ “submitted [did] not contain sufficient specificity of detail to carry Defendant's burden to make the requisite threshold showing” for a Glomar response based on Exemption 7(C). Min. Order of Feb. 16, 2022. “In particular, the affidavit never even clearly assert[ed], let alone specifically detail[ed], that all responsive records in Defendant's possession, assuming they exist at all, ‘would have been compiled for a law enforcement purpose,'” as required for DOJ's Glomar response to be appropriate. Id. (citation omitted). Thus, the Court provided DOJ the “opportunity either to supplement its affidavit in support of its Glomar response or to proceed otherwise in a manner consistent with its obligations under FOIA.” Id.

DOJ has filed a renewed motion for summary judgment with a supplemental affidavit. See ECF No. 31; Suppl. Seidel Decl. Hand, once again, opposes that motion and cross-moves for summary judgment. ECF Nos. 33-34.

II. Legal Standard

To prevail on a motion for summary judgment, a movant must show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Summary judgment is appropriately granted when, viewing the evidence in the light most favorable to the non-movants and drawing all reasonable inferences accordingly, no reasonable jury could reach a verdict in their favor.” Lopez v. Council on Am.-Islamic Relations Action Network, Inc., 826 F.3d 492, 496 (D.C. Cir. 2016).^[3]

FOIA requires federal agencies to “disclose information to the public upon reasonable request unless the records at issue fall within specifically delineated exemptions.” Judicial Watch, Inc. v. FBI, 522 F.3d 364, 365-66 (D.C. Cir. 2008); see also 5 U.S.C. § 552(a)(3)(A). Thus, a FOIA defendant is entitled to summary judgment if it shows that there is no genuine dispute “that each document that falls within the class requested either has been produced, is unidentifiable or is wholly exempt from the Act's inspection requirements.” See Weisberg v. DOJ, 627 F.2d 365, 368 (D.C. Cir. 1980) (quoting Nat'l Cable Television Ass'n, Inc. v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973)). The “vast majority of FOIA cases” are decided on motions for summary judgment. See Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011).

An agency “may refuse to confirm or deny the existence of records where to answer the FOIA inquiry would cause harm cognizable under an FOIA exception.” Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982). In that circumstance, a Glomar response is “proper if the fact of the existence or nonexistence of agency records falls within a FOIA exemption.” Wolf, 473 F.3d at 374. To determine whether a Glomar response “fits a FOIA exemption, courts apply the general exemption review standards established in non-Glomar cases.” Id. An agency issuing a Glomar response must explain in as much detail as possible why it cannot confirm or deny the existence of certain records or categories of records, which it may seek to do by affidavit. James Madison Project v. DOJ, 208 F.Supp.3d 265, 283 (D.D.C. 2016). If a Glomar response is justified, “the agency need not conduct any search for responsive documents or perform any analysis to identify segregable portions of such documents.” People for the Ethical Treatment of Animals v. NIH, 745 F.3d 535, 540 (D.C. Cir. 2014).

III. Analysis

DOJ justifies its Glomar response by invoking Exemption 7(C), which shields from disclosure records “compiled for law enforcement purposes, but only to the extent that [such] production . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). The Court finds that DOJ has made the requisite threshold showing that any records requested by Hand, if they existed, would have been compiled for a law enforcement purpose. And it holds that there is no public interest that justifies the invasion of the privacy interests implicated by the request. Because Hand's other arguments miss the mark as well, DOJ's Glomar response was proper.^[4]

A. Hand Requests Records That Would Have Been Compiled for a Law Enforcement Purpose

To “withhold documents pursuant to Exemption 7(C), the agency must make a threshold showing that the ‘the records were compiled for a law enforcement purpose.'” Lindsey v. FBI, 490 F.Supp.3d 1, 16 (D.D.C. 2020) (citation omitted). “The term ‘law enforcement' in Exemp-tion 7 refers to the act of enforcing the law, both civil and criminal.” Pub Emps. for Env't Resp. v. U.S. Section, Int'l Boundary & Water Comm'n, U.S.-Mexico, 740 F.3d 195, 203 (D.C. Cir. 2014). It reaches not only “investigating and prosecuting individuals after a violation of the law” but also “proactive steps designed to prevent criminal activity and to maintain security.” Id. (cita-tion omitted). That said, “FBI records are not law enforcement records simply by virtue of the function that the FBI serves.” Vymetalik v. FBI, 785 F.2d 1090, 1095 (D.C. Cir. 1986). And the term “‘compiled' in Exemption 7 requires that a document be created, gathered, or used by an agency for law enforcement purposes at some time before the agency invokes the exemption.” Pub. Emps. for Env't Resp., 740 F.3d at 203 (citing John Doe Agency v. John Doe Corp., 493 U.S. 146, 155 (1989)). Finally, a court's review of a law enforcement agency's “assertion that docu-ments were compiled for a law enforcement purpose” is “necessarily deferential” though “not vac-uous.” Pinson v. DOJ, 245...