Luthmann v. The Fed. Bureau of Investigation

1

RICHARD LUTHMANN, Plaintiff, v. THE FEDERAL BUREAU OF INVESTIGATION and UNITED STATES DEPARTMENT OF JUSTICE, Defendants.

No. 2:21-cv-716-JES-NPM

United States District Court, M.D. Florida, Fort Myers Division

May 15, 2024

OPINION AND ORDER

JOHN E. STEELE SENIOR UNITED STATES DISTRICT JUDGE

The First Amended Complaint (Doc. #34) seeks agency records from the Federal Bureau of Investigation (the FBI) and the United States Department of Justice (DOJ) pursuant to the Freedom of Information Act (FOIA). Defendants filed a Motion for Summary Judgment (Doc. #64) on February 1, 2024. The Court directed plaintiff to file a response, however the deadline to do so has expired and no response has been filed and no extension of time sought. (Doc. #65.)

I.

Plaintiff Richard Luthmann (plaintiff or Luthmann) sought the following records pursuant to the FOIA:

All materials in any way related to the abovereferenced RICHARD LUTHMANN, defendant in the matter of United States v Luthmann, 17-CR-664 (E.D.N.Y.).

This includes all materials related in any way into the investigation in the above-referenced matter as well as any evidence and/or notes collected at interviews with third-parties (including but not limited to Guy Cardinale and Robert Castro) related to the above-referenced matter.

(Doc. #34-2 at 2.) The administrative history of Luthmann's FOIA request is set forth in detail in the Second Declaration of Michael G. Seidel (Doc. #64-1 at ¶¶ 4-22) and adopted by the Court. The FBI consulted with the DOJ, Criminal Division (CRM), the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the Department of Commerce (Commerce), and the DOJ, Executive Office for United States Attorneys (EOUSA). The FBI then released some, but not all, of the requested records. (Doc #34-4, Exh. D.) Luthmann filed this lawsuit to compel disclosure of the remaining records.

Defendants identified 4,641 pages as responsive to the request. The FBI released 170 pages in full and 657 pages in part and withheld 3,814 pages in full. (Doc. #64-1 at ¶ 4.) Of the records withheld in full, 234 pages were duplicates of other documents produced and 244 are sealed by court order. Defendants assert that the remaining 3,336 pages withheld in full, along with the 657 pages withheld in part, were properly withheld. (Doc. #64 at ¶¶ 7-8.) Defendants seek summary judgment to that effect.

Defendants have submitted the following documentation in support of their motion for summary judgment: (1) a 72-page Second Declaration of Michael G. Seidel (Doc. #64-1), Section Chief of the Record/Information Dissemination Section (RIDS), Information Management Division (IMD), FBI; (2) a 5-page Declaration of Grace Agyekum (Doc. #64-2), the FOIA Officer for the Bureau of Industry and Security (BIA), a component of the Department of Commerce (Commerce); (3) a 3-page Declaration of Ginae Barnett (Doc. #64-3), Acting Chief, Information Privacy and Governance Division (IPG) at the ATF; (4) an 11-page Declaration of Nicole Moore (Doc. #64-4), an Attorney-Advisor in the Freedom of Information Act/Privacy Act Office (FOIA/PA), a part of the EOUSA; (5) an 18-page Declaration of Marjorie F. Cole (Doc. #64-5), a trial attorney in the FOIA/PA unit of the Office of Enforcement Operations (OEO) in the Criminal Division (CRM) of the DOJ; (6) a 133-page Exemption Application Index (Vaughn Index) (Doc. #64-6); and (7) a 279-page exhibit containing copies of various relevant documents (Doc. #64-7). The Court refers to these items collectively as the summary judgment record.

In FOIA cases, courts afford a presumption of good faith to the unchallenged facts asserted in sworn declarations of government officials. Am. Oversight v. United States Dep't of Justice, 45 F.4th 579, 583 (2d Cir. 2022). Thus, “[a]n agency can carry this burden at the summary judgment stage through sworn declarations that are factually uncontroverted and sufficiently detailed to have the exemption appear ‘logical and plausible.'” Id. at 587. All the Declarations filed by defendants are from well-qualified and knowledgeable persons and are sufficiently detailed to establish the exemptions at issue in this case.

For the reasons set forth below, the Court finds defendants have established they are entitled to summary judgment in their favor as to each of the exemptions which have been asserted.

II.

“The purpose of FOIA is to encourage public disclosure of information so citizens may understand what their government is doing. Accordingly, the records ... are presumed to be subject to disclosure unless DOJ affirmatively establishes that the requested records fall into one of FOIA's exemptions.” Off. of Cap. Collateral Couns., N. Region of Fla. ex rel. Mordenti v. Dep't of Just., 331 F.3d 799, 802 (11th Cir. 2003) (citing Chilivis v. SEC, 673 F.2d 1205, 1210-11 (11th Cir. 1982)). “Once a person has shown that the government has records that should be produced under the FOIA, absent an exemption, the burden of proof is on the government to establish that a given document is exempt from disclosure.” Miscavige v. I.R.S., 2 F.3d 366, 367 (11th Cir. 1993) (citing United States Dep't of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 755 (1989)). “‘FOIA cases should be handled on motions for summary judgment, once the documents in issue are properly identified' and after the government has supplied affidavits or other information describing the documents.” Sikes v. United States Dep't of Navy, 896 F.3d 1227, 1239 (11th Cir. 2018) (quoting Miscavige, 2 F.3d at 369).

Summary judgment is proper where the evidence “shows 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). “A genuine issue of material fact exists ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Edmondson v. Velvet Lifestyles, LLC, 43 F.4th 1153, 1159 (11th Cir. 2022) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)) . “If there is not sufficient evidence for a jury to find for the non-moving party, or ‘if the evidence is merely colorable,' or if it ‘is not significantly probative,' then summary judgment is appropriate.” Id. (quoting Anderson, 477 U.S. at 249-50).

The movant bears the initial burden of demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “‘Once the movant adequately supports its motion, the burden shifts to the nonmoving party to show that specific facts exist that raise a genuine issue for trial.'” James River Ins. Co. v. Ultratec Special Effects Inc., 22 F.4th 1246, 1251 (11th Cir. 2022) (quoting Dietz v. Smithkline Beecham Corp., 598 F.3d 812, 815 (11th Cir. 2010)). In ruling on a motion for summary judgment, the Court views all evidence and draws all reasonable inferences in favor of the non-moving party to the extent supportable by the record. Scott v. Harris, 550 U.S. 372, 380 (2007); Baxter v. Roberts, 54 F.4th 1241, 1253 (11th Cir. 2022).

When a party fails to respond to a motion for summary judgment, a court may properly construe the motion as unopposed pursuant to its local rules. Simon v. Kroger Co., 743 F.2d 1544, 1547 (11th Cir. 1984); Dunlap v. Transamerica Occidental Life Ins. Co., 858 F.2d 629, 632 (11th Cir. 1988) . Nonetheless, courts “cannot base the entry of summary judgment on the mere fact that the motion was unopposed, but, rather, must consider the merits of the motion.” United States v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004); Dunlap 858 F.2d at 632. “Even in an unopposed motion, the moving party still bears the burden of identifying ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrates the absence of a genuine issue of material fact.” Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009) (quoting Celotex Corp. , 477 U.S. at 323). Thus, while movant's facts can be “deemed admitted,” courts “must still review the movant's citations to the record to determine if there is, indeed, no genuine issue of material fact.” Id. (citing Reese v. Herbert, 527 F.3d 1253, 1269 (11th Cir. 2008)).

III.

Defendants first discuss their partial privacy Glomar^[1]response, then the adequacy of the search, the applicable exceptions under the Privacy Act, the several FOIA exemptions which they assert justify their non-disclosures, foreseeable harm, and the segregability of records. (Doc. #64.) The Court discusses each in turn.

A. Glomar Response

Defendants assert a partial privacy Glomar response to the FOIA request regarding the two identified third-party individuals, Guy Cardinale and Robert Castro. This response was explained in detail in the Second Declaration of Michael G. Seidel (Doc. #64-1 at ¶¶ 23-30.) Defendants argue that to acknowledge the existence of such records would reveal personal information about these third-parties that Exemption 6 (5 U.S.C. § 552(b)(6)) and Exemption 7(C) (5 U.S.C. § 552(b)(7)(C)) are intended to protect. Defendants further note that no third-party waivers or proof of death have been provided by plaintiff.^[2](Docs. #64, pp. 4-6; #64-1 at ¶ 2729.)

“To claim a FOIA exemption, an agency ordinarily must ‘acknowledge the existence of information responsive to a FOIA request and provide specific, non-conclusory justifications for withholding that information.'” Knight First Amend. Inst. at Columbia Univ. v. Cent Intel. Agency, 11 F.4th 810, 813 (D.C. Cir. 2021) (quoting Roth v. DOJ, 642 F.3d 1161, 1178 (D.C. Cir. 2011)). Because Glomar responses are an exception to this general rule, a Glomar response is...