Murder Accountability Project v. U.S. Dep't of Justice

MURDER ACCOUNTABILITY PROJECT, Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, et al., Defendants.

Civil Action No. 19-2478 (ABJ)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

June 30, 2021

MEMORANDUM OPINION

On April 16, 2019, plaintiff Murder Accountability Project ("MAP") submitted Freedom of Information Act ("FOIA")¹ requests to six agencies: the United States Federal Bureau of Investigation ("FBI"); the National Park Service ("NPS"); the Bureau of Indian Affairs ("BIA"); the United States Army ("Army"); the United States Navy ("Navy"); and the United States Air Force ("Air Force"). Compl. [Dkt. # 1]; see also Ex. A. to Compl. [Dkt. # 1-2] ("Plaintiff's FOIA Requests"). It sought data related to crimes investigated by those agencies between January 1, 1989, and the present. Compl. ¶ 18. Citing the agencies' reporting requirements imposed by the Uniform Federal Crime Reporting Act of 1988, 34 U.S.C. § 41303, plaintiff requested all unreported Uniform Crime Report ("UCR") index crime data and Supplementary Homicide Report ("SHR") case summary data, specifically any information on "unreported homicides." Id.

On August 15, 2019, plaintiff filed this suit against the FBI, NPS, BIA, Army, Navy, and Air Force, as well as the United States Department of Justice ("DOJ"), United States Departmentof Defense ("DOD"), the Department of the Interior ("DOI"), and the Defense Manpower Data Center ("DMDC").² Compl. ¶ 1. The parties have filed cross motions for summary judgment, and the matter is now fully briefed.³

BACKGROUND

I. Factual background

The Uniform Federal Crime Reporting Act of 1988 ("UFCRA") went into effect on January 1, 1989. 34 U.S.C. § 41303(g). It requires that federal law enforcement agencies submit certain crime data to DOJ for reporting and release in the Uniform Crime Report ("UCR") and Supplementary Homicide Report ("SHR"). Id. § 41303(c). Pursuant to the UFCRA, DOJ then reports this data to all "institutions participating in the Uniform Crime Reports program." Id. § 41303(c)(3).

Plaintiff MAP is a Virginia non-profit organization that uses algorithms to "identify previously unrecognized serial homicides using . . . homicide data." Compl. ¶ 8. As part of its mission, it uses FOIA requests "to educate Americans on the importance of accurately accounting for unsolved homicides in the United States" and to obtain and publish information on the subjectto the general public. Id. ¶ 5. MAP seeks information about the agencies' compliance with the UFCRA in the three decades since its passage, and its particular focus is whether and how any failure to comply fully may have "thwarted attempts" to determine the existence of important patterns in the murders of Native American women and girls. Id. ¶ 6.

II. Procedural history

Plaintiff filed its complaint in August 2019, and beginning in November 2019, defendants began making monthly status reports pursuant to the Court's October 23, 2019 Order. See Min. Order (Oct. 23, 2019). By February 2020, the military defendants completed their responses, see Status Report (Feb. 20, 2020) [Dkt. # 22]; on May 2020, defendants NPS and FBI reported that plaintiff had failed to exhaust its administrative remedies, and defendant BIA indicated that it planned to complete its production immediately. See Status Report (May 4, 2020) [Dkt. # 25] at 1-2. In the final status report the following month, all defendants reported they had "completed their processing and produced their responsive information," but they "declined to engage in further discussion" with plaintiff. Status Report (June 19, 2020) [Dkt. # 27]. Shortly thereafter, the Court set a briefing schedule, and the parties filed their respective motions for summary judgment.

On February 5, 2021, after the dispositive motions briefing was completed, plaintiff moved to consolidate this case with another, later-filed case against a narrower set of defendants, Murder Accountability Project v. FBI ("MAP II"), Case No. 20-cv-3186. See Pl.'s Mot. to Consolidate [Dkt. # 42]; see also Defs.' Mem. in Opp. to Mot. to Consolidate [Dkt. # 47]. In light of the motion, the Court ordered plaintiff to address whether the claims against FBI, NPS, and BIA in this case were moot in light of the filing of the subsequent case, see Min. Order (Feb. 16, 2021), and plaintiff responded on February 23, 2021. Pl.'s Resp. to Order to Show Cause [Dkt. # 46].Upon review of the record and the parties' submissions on the issue, the Court denied plaintiff's motion to consolidate, because the FOIA requests at issue in the two cases were filed on different timetables and sought different documents. See Min. Order (Feb. 25, 2021). The parties' cross motions for summary judgment in the original case are now ripe for decision.

LEGAL STANDARD

In a FOIA case, the district court reviews the agency's decisions de novo and "the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B); Mil. Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). "[T]he vast majority of FOIA cases can be resolved on summary judgment." Brayton v. Off. of U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).

Summary judgment is appropriate "if the movant 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). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must "designate specific facts showing that there is a genuine issue for trial." Id. at 324 (internal quotation marks omitted). When the court is presented with cross-motions for summary judgment, it analyzes the underlying facts and inferences in each party's motion in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).

The mere existence of a factual dispute is insufficient to preclude summary judgment. Anderson, 477 U.S. at 247-48. A dispute is "genuine" only if a reasonable fact-finder could find for the non-moving party; a fact is "material" only if it is capable of affecting the outcome of the litigation. Id. at 248; see also Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In the FOIA context, "the sufficiency of the agency's identification or retrieval procedure" must be "genuinely in issue" in order for summary judgment to be inappropriate. Weisberg v. DOJ, 627 F.2d 365, 371 n.54 (D.C. Cir. 1980), citing Founding Church of Scientology v. NSA, 610 F.2d 824, 836 (D.C. Cir. 1979) (internal quotation marks omitted).

"Summary judgment may be granted on the basis of agency affidavits" in FOIA cases, when those affidavits "contain reasonable specificity of detail rather than merely conclusory statements," and when "they are not called into question by contradictory evidence in the record or by evidence of agency bad faith." Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013), quoting Consumer Fed'n of Am. v. Dep't of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006). A plaintiff cannot rebut the good faith presumption afforded to an agency's supporting affidavits through "purely speculative claims about the existence and discoverability of other documents." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981).

ANALYSIS

To prevail in a FOIA action, an agency must first demonstrate that it has made "a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Next, an agency must show that "materials that are withheld . . . fall within a FOIA statutory exemption." Leadership Conf. on C.R. v. Gonzales,404 F. Supp. 2d 246, 252 (D.D.C. 2005). In 2016, Congress amended FOIA to add an additional requirement: records that are otherwise protected from disclosure under an exemption must be released unless the agency "reasonably foresees that disclosure would harm an interest protected by an exemption." 5 U.S.C. § 552(a)(8)(A)(i).

I. The FBI FOIA request

a. Factual background

On April 16, 2019, plaintiff submitted a FOIA request to defendant FBI seeking "all UCR index crimes data and SHR case summary data for crimes investigated by the FBI committed from January 1, 1989 (when the reporting law went into effect) to the present." Ex. A to Seidel Decl. [Dkt. # 28-3] at 1-2 ("FBI FOIA Request"). Plaintiff specified that it sought records of crimes the agency did not report as required by the UFCRA. Id. at 1.

On the same day that plaintiff submitted its FOIA request, it also sent a letter to FBI Director Christopher Wray, notifying him that it believed the agency was in violation of the UFCRA requirement to collect crime statistics. See Ex. A to Seidel Decl. [Dkt. # 28-3] at 3-4 ("April 2019 Letter to FBI"), citing 34 U.S.C. § 41303.

In response to the April 2019 FOIA request, defendant FBI notified plaintiff on April 23, 2019, that its request qualified for the "unusual circumstances" exception to the twenty-day response requirement under FOIA. See Ex. B to Compl. [Dkt. # 1-3] at 1. In a May 22, 2019 letter responding to plaintiff's letter, FBI explained that it began submitting UCR summary arrest data in 2015. Ex. D to Compl. [Dkt. # 1-5] ("May 2019 FBI Letter to Plaintiff"). It added: "[c]oncurrently, the FBI is taking necessary steps to collect and report [National Incident-Based Reporting System ("NIBRS")] data to the UCR Program to ensure...